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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JUAN JAVIER RIVERA-RIVERA, : No. 1030 MDA 2015

:

 Appellant :

Appeal from the PCRA Order, May 27, 2015,

in the Court of Common Pleas of Lebanon County

Criminal Division at No. CP-38-CR-0000162-2013

BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 06, 2015

Juan Javier Rivera-Rivera appeals from the order of May 27, 2015, 

denying his first petition for post-conviction collateral relief filed pursuant to 

the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We 

affirm.

The PCRA court, the Honorable Robert J. Eby, S.J., has aptly 

summarized the history of this matter as follows:

On February 26, 2013, the Commonwealth 

filed a Criminal Information charging [appellant] with 

five violations of the [Drug Act], along with five 

conspiracy counts relating to those violations. 

Criminal Informations emanating from the same 

investigation were filed contemporaneously against 

[appellant]’s co-conspirators, Jose Rivera-Rivera and 

Adelaida Gaston-Vasquez. The charges stemmed 

from an investigation conducted by members of the 

Lebanon County Drug Task Force, who observed 

[appellant] selling heroin out of a vehicle parked at 
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the rear of 1406 Willow Street, Lebanon, a residence 

associated with Jose Rivera-Rivera, [appellant]’s 

brother, and Jose’s wife, Adelaida Gaston-Vasquez. 

Subsequent searches of the vehicle, the residence at 

1406 Willow Street, customers seen making 

purchases from [appellant], and [appellant] himself 

uncovered various amounts of identically packaged 

heroin.

Jose Rivera-Rivera pled guilty to all charges 

against him on August 29, 2013, while [appellant], 

along with Adelaida Gaston-Vasquez, proceeded to a 

joint jury trial on December 3, 2013, where 

[appellant] was represented by then First Assistant 

Public Defender, Kimberly Adams. At the conclusion 

of that trial, the jury found [appellant] guilty of all 

charges except for Count III, Possession with Intent 

to Distribute [(“PWID”)] the heroin found inside 

1406 Willow Street. On January 15, 2014, this Court 

sentenced [appellant] to an aggregate term of 

imprisonment of 4-10 years.

[Appellant] filed a pro se [PCRA petition] on 

August 8, 2014. On August 18, 2014, the Court 

issued an Order appointing [counsel] to represent 

[appellant] and directed that counsel file a 

Supplemental or Amended Petition on [appellant]’s 

behalf within thirty days.

PCRA court opinion & order, 5/27/15 at 2-3.

Before the Court is a counseled, Third 

Amended Petition for [PCRA relief]. [Appellant] 

argues he is entitled to post-conviction relief because 

his trial attorney was ineffective. Specifically, 

[appellant] argues that trial counsel should have 

withdrawn from representation when it became 

apparent there was a breakdown in communication 

over differences in opinion regarding the decision to 

have [appellant]’s co-defendant and brother, 

Jose Rivera-Rivera, testify on behalf of [appellant] at 

his trial. After a thorough review of the testimony 

presented at a PCRA hearing held on April 27, 2015, 
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the post-hearing Briefs submitted by the parties, and 

the compete record of the case, we disagree.

Id. at 1-2.

On May 27, 2015, the PCRA court denied appellant’s petition. A timely 

notice of appeal was filed on June 15, 2015. On June 16, 2015, the PCRA 

court filed a statement pursuant to Pa.R.A.P. 1925(a), indicating that it was 

relying on its May 27, 2015 opinion, and directing the clerk to immediately 

transmit the record to this court. (Docket #62.)

Appellant has raised the following issue for this court’s review:

1. Whether Trial Counsel was ineffective for 

failing to ask the Court to be removed where 

Trial Counsel knew that there was a material 

breakdown in communication between herself 

and Appellant?

Appellant’s brief at 4.

Initially, we recite our standard of review:

This Court’s standard of review regarding an order 

denying a petition under the PCRA is whether the 

determination of the PCRA court is supported by the 

evidence of record and is free of legal error. 

Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 

795, 799 n. 2 (2005). The PCRA court’s findings will 

not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. 

Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007), 

appeal denied, 940 A.2d 365 (Pa. 2007).

“To prevail on a claim alleging counsel’s 

ineffectiveness, Appellant must demonstrate (1) that 

the underlying claim is of arguable merit; (2) that 
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counsel’s course of conduct was without a 

reasonable basis designed to effectuate his client’s 

interest; and (3) that he was prejudiced by counsel’s 

ineffectiveness.” Commonwealth v. Wallace, 555 

Pa. 397, 407, 724 A.2d 916, 921 (1999), citing 

Commonwealth v. Howard, 538 Pa. 86, 93, 645 

A.2d 1300, 1304 (1994) (other citation omitted). In 

order to meet the prejudice prong of the 

ineffectiveness standard, a defendant must show 

that there is a “‘reasonable probability that but for 

counsel’s unprofessional errors, the result of the 

proceeding would have been different.’” 

Commonwealth v. Kimball, 555 Pa. 299, 308, 724 

A.2d 326, 331 (1999), quoting Strickland v. 

Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 

80 L.Ed.2d 674 (1984). A “‘[r]easonable probability’ 

is defined as ‘a probability sufficient to undermine 

confidence in the outcome.’” Id. at 309, 724 A.2d at 

331, quoting Strickland, 466 U.S. at 694, 104 S.Ct. 

2052.

Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal 

denied, 832 A.2d 435 (Pa. 2003). “We presume counsel is effective and 

place upon Appellant the burden of proving otherwise. Counsel cannot be 

found ineffective for failing to pursue a baseless or meritless claim.” 

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004) 

(citations omitted).

Instantly, Attorney Adams testified at the PCRA hearing before 

Judge Eby that she explained why she did not intend to call 

Jose Rivera-Rivera (“Jose”) as a witness, and appellant agreed with that 

decision. Attorney Adams testified that if appellant had been adamant about 

calling Jose as a witness at trial, Attorney Adams would have asked for a 

sidebar conference and put the matter on the record:
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Q. And was he in agreement with your decision to 

not call Jose as a witness?

A. My answer is going to be yes, because if he 

was completely 100 percent adamant that Jose 

still had to have been called I probably would 

have asked off -- outside of the jury to explain 

this situation to the judge. That despite what I 

was telling my client that he wanted this 

witness called and that I thought it was against 

his best interest just to preserve the record of 

that. He never wanted to talk to the judge 

about that or anything else.

Q. So if there was this issue between the two of 

you that you had this disagreement as to how 

to proceed, you would have called the court’s 

attention to it?

A. Yes, I have done that in other cases and I 

would have done that in this case.

Q. To protect yourself from this sort of 

proceeding?

A. Yes.

Q. And as far as your recollection goes, 

[appellant] was on board with the decision not 

to call Jose as a witness?

A. Yes.

Notes of testimony, 4/27/15 at 17-18.

But on more than one occasion through Ms. Lopez 

[(Sarah Lopez, the interpreter)] I explained to him 

my concerns of calling Jose to testify. And after 

every time we talked about it he appeared to be in 

agreement. He would acknowledge what we were 

saying, he would say yes, okay.

Id. at 20.
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Attorney Adams testified that appellant appeared to understand 

everything she was saying and that on multiple occasions they discussed the 

issue of Jose testifying, including the morning of trial. (Id. at 21.) 

Judge Eby, who also presided over trial, specifically found Attorney Adams to 

be credible in this regard. (PCRA court opinion, 5/27/15 at 9.) In addition, 

Attorney Adams’ testimony was corroborated by Lopez, who testified that 

they discussed the matter many times and appellant appeared to be in 

agreement with the decision not to call Jose as a witness:

Q. If you can recall, what were the discussions 

that you would have been present for where 

that was discussed?

A. From what I recall the -- [appellant] wanted to 

call Jose -- [appellant] wanted to call Jose to 

testify and Attorney Adams did not think that 

was a good idea because we didn’t think it was 

going to help the case.

Q. And did Attorney Adams explain through you 

her concerns regarding that issue?

A. Yes, many times.

Q. When you explained those things to 

[appellant], what was his response?

A. From what -- I can’t recall word-for-word 

everything that was said. But from his 

standpoint he wanted to call him and he -- I 

don’t even know how to say it. He said he 

wanted to call him, Attorney Adams would tell 

him why he should not be called to testify and 

then kind of just started talking about other 

stuff.
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Q. During the course of these discussions did 

[appellant] at some point agree not to call Jose 

as a witness?

A. Yes, the day of [t]rial.

Q. Was there any anger or hostility or anything 

like that between Attorney Adams and 

[appellant] during these discussions?

A. Not that I recall. Stuff like that kind of sticks 

out.

Notes of testimony, 4/27/15 at 25-26. Clearly, the underlying issue, that 

there was some sort of breakdown in meaningful communication between 

attorney and client, lacks arguable merit. A difference in opinion in trial 

strategy would not constitute a reason for Attorney Adams to request 

withdrawal.

In addition, appellant cannot show how he was prejudiced by 

Attorney Adams’ continued representation. In fact, appellant testified at the 

PCRA hearing that despite their alleged disagreement, he felt that 

Attorney Adams could continue to effectively represent him at trial. (Id. at 

10.) Appellant conceded that he never informed the trial court of any 

disagreement between himself and defense counsel and that he was found 

not guilty of one of the most serious offenses, involving the heroin found 

inside the house. (Id.) Attorney Adams testified that the only reason this 

case went to trial was because of the PWID charge involving the heroin 

found inside the house, which appellant denied possessing. (Id. at 22-23.) 

Appellant was acquitted of that charge, even without Jose’s testimony. (Id.)
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Throughout his brief on appeal, appellant argues that Jose would have 

offered material, exculpatory testimony on his behalf. According to 

appellant, Jose would have testified that appellant was not involved in selling 

drugs and was only at Jose’s residence to fix Jose’s and Adelaida’s vehicles. 

(Appellant’s brief at 22.)

In his amended petition, appellant alleged that trial counsel was 

ineffective for failing to call a material witness, presumably Jose. (PCRA 

court opinion, 5/27/15 at 3.) Subsequently, however, appellant indicated 

that he was “no longer pursuing the failure to call witnesses issue.” (Id. at 

4.) Jose was not called as a witness at the PCRA hearing, and there is no 

indication in the record what he would have testified to, as neither appellant 

nor his co-defendant, Adelaida Gaston-Vasquez, called Jose as a witness at 

trial. As the PCRA court observes, Jose pled guilty to all charges prior to 

appellant’s jury trial, including charges of conspiring to sell drugs with 

appellant. If, in fact, as appellant alleges, Jose would have testified that 

appellant was not involved in the sale of drugs, it would have contradicted 

his sworn statements at the guilty plea hearing. (Id. at 11.) There is no 

merit here.

Order affirmed. The Commonwealth’s motion for extension of time in 

which to file its brief is denied as moot.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2015