Com. v. Carrasquillo, E.

C
J-S41012-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDRAS CARRASQUILLO                         :
                                               :
                       Appellant               :   No. 81 MDA 2020


           Appeal from the PCRA Order Entered December 16, 2019,
               in the Court of Common Pleas of Lebanon County,
             Criminal Division at No(s): CP-38-CR-0001763-2016.


BEFORE:      KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.*

MEMORANDUM BY KUNSELMAN, J.:                        FILED NOVEMBER 25, 2020

        Edras Carrasquillo appeals from the order denying his petition for relief

filed pursuant to the Post Conviction Relief Act (“PCRA”).           42 Pa.C.S.A.

§§9541-46.      Additionally, Carrasquillo’s court-appointed PCRA counsel has

filed a motion for leave to withdraw from representation, as well as a “no-

merit” letter pursuant to Commonwealth v. Turner, 

544 A.2d 927

(Pa.

1988), and Commonwealth v. Finley, 

550 A.2d 213

(Pa. Super. 1988) (en

banc). We grant counsel’s motion to withdraw and affirm the PCRA court’s

order denying post-conviction relief.

        The PCRA court summarized the pertinent facts as follows:

               On May 10, 2016, Officer Kevin Snavely of the Lebanon
           City Police Department was dispatched to Apartment D-102
           of the Lebanon Court Apartments. Upon arrival, he saw the
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S41012-20


         bullet-ridden body of [the victim] located face down in the
         living room of the apartment. Police also found a large
         amount of drugs, drug paraphernalia and cash inside the
         apartment.

            Kelsey Santana was identified as a witness to the
         shooting. Ms. Santana stated that she was present when
         [Carrasquillo] discussed a drug transaction with [the
         victim]. She stated that at one point, [the victim] laid down
         on a blanket. [Carrasquillo] pulled a gun. It jammed.
         [Carrasquillo] then replaced the magazine and proceeded to
         shoot [the victim] in the head and the back multiple times.

            After [Carrasquillo] left the apartment, Ms. Santana
         called 911. Using a photographic line-up, she identified
         [Carrasquillo] as the shooter. Ms. Santana indicated that
         [Carrasquillo] left his phone inside the apartment. It was
         seized by police.      Detective William Walton accessed
         information on the phone and ascertained `[Carrasquillo’s]
         name[.]

            On May 12, 2016, [Carrasquillo] appeared at the
         Lebanon City Police Department. He was interviewed. In
         his interview, [Carrasquillo] acknowledged that he had shot
         [the victim]. However, he stated that [the victim] had
         threatened him with a knife.       Later in the interview,
         [Carrasquillo] changed his story. He stated that he had
         smoked dope that day and was intoxicated.

            When the scene of the homicide was processed, police
         did not find a knife anywhere in the vicinity of [the victim’s]
         body. Ms. Santana testified that she did not perceive
         [Carrasquillo] to be intoxicated. Moreover, Ms. Santana did
         not observe [Carrasquillo] using or ingesting drugs.

PCRA Court Opinion, 12/18/19, at 2-3.

      Police arrested and charged Carrasquillo. On December 7, 2017, a jury

convicted him of first-degree murder, third-degree murder and a firearm

violation.   On September 24, 2018, the trial court imposed an aggregate

sentence of life in prison and a consecutive term of four to ten years of



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J-S41012-20



imprisonment. Carrasquillo filed a post-sentence motion which the trial court

denied.

      Carrasquillo filed a timely appeal to this Court.     In an unpublished

memorandum filed on April 12, 2019, we rejected Carrasquillo’s appellate

issue and affirmed his judgment of sentence.         See Commonwealth v.

Carrasquillo, 

216 A.3d 379

(Pa. Super. 2019).        Carrasquillo did not seek

further review.

      On July 9, 2019, Carrasquillo filed a pro se PCRA petition. The PCRA

court appointed counsel, and, on October 10, 2019, PCRA counsel filed an

amended petition, in which Carrasquillo set forth two claims of trial counsel’s

ineffectiveness; counsel’s failure to file a motion to suppress both the alleged

warrantless seizure of his cell phone and the confession he gave to police. The

PCRA court held an evidentiary hearing on December 5, 2019. Prior to the

commencement of testimony, PCRA counsel informed the court that

Carrasquillo was withdrawing the claim involving his cell phone because a valid

search warrant had been issued. Thus, the PCRA court heard testimony only

with regard to the failure to seek suppression of his confession. Carrasquillo

presented his own testimony, as well as testimony from his mother.          The

Commonwealth presented trial counsel’s testimony, as well as testimony from

the police officer who recorded Carrasquillo’s confession. By order entered

December 16, 2019, the PCRA court denied Carrasquillo’s amended PCRA

petition. This timely appeal followed.




                                     -3-
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       On January 7, 2020, the PCRA court directed Carrasquillo to file,

pursuant to Pa.R.A.P. 1925(b), a concise statement of errors complained of

on appeal. PCRA counsel filed a timely statement of his intention to file a

Turner/Finley Brief.1 In its Rule 1925(a) opinion, the PCRA court referred

this Court to its prior December 16, 2019 memorandum in which it explained

its reasons for denying post-conviction relief.

       This Court then issued a briefing schedule.       On January 14, 2020,

counsel filed an application to withdraw pursuant to 

Turner/Finley, supra

,

as well as a brief in support of his determination that Carrasquillo had no non-

frivolous issues to raise. Carrasquillo has not filed a response.

       Among the other issues raised in the Turner/Finley brief,2           PCRA

counsel addresses the PCRA court’s rejection of Carrasquillo’s claim that trial

counsel was ineffective for failing to file a motion to suppress his confession

to police. Prior to considering this claim, however, we must address PCRA

counsel’s petition to withdraw.


____________________________________________


1  See Commonwealth v. Turner, 

544 A.2d 927

(Pa. 1988), and
Commonwealth v. Finley, 

550 A.2d 213

(Pa. Super. 1988) (en banc).
Rather than filing a no-merit letter, PCRA counsel has filed a brief that actually
satisfied the stricter requirements to withdraw on direct appeal, pursuant to
Anders v. California, 

386 U.S. 738

(1967). Nonetheless, we will review his
motion to withdraw in accordance with 

Turner/Finley, supra

.                   See
Commonwealth v. Fusselman, 

866 A.2d 1109

, 1111 n.3 (Pa. Super. 2004).

2 PCRA counsel also addresses other issues more akin to an Anders analysis.
The Commonwealth correctly notes that these issues are waived because they
were not presented to the PCRA court. See Commonwealth’s Brief at 23-28.


                                           -4-
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       Pursuant to 

Turner/Finley, supra

, before seeking leave to withdraw,

a criminal defendant’s counsel must independently review of the record to

determine if any meritorious issue exists. See Commonwealth v. Pitts, 

981 A.2d 875

, 876 n.1 (Pa. 2009). In Pitts, our Supreme Court explained that

such independent review by counsel requires proof of:

       1. A “no-merit” letter by PC[R]A counsel detailing the nature
          and extent of his review;

       2. The “no-merit” letter by PC[R]A counsel listing each issue
          the petitioner wished to have reviewed;

       3. The PC[R]A counsel’s “explanation,” in the “no-merit” letter,
          of why the petitioner’s issues were meritless;

       4. The PC[R]A court conducting its own independent review of
          the record; and

       5. The PC[R]A court agreeing with counsel that the petition
          was meritless.

Id. (citation and brackets

omitted).        Further, PCRA counsel seeking to

withdraw from representation in this Court must contemporaneously forward

to the petitioner a copy of the petition to withdraw that includes (1) a copy of

both the “no-merit” letter, and (2) a statement advising the PCRA petitioner

that, upon the filing of counsel’s petition to withdraw, the petitioner has the

immediate right to proceed pro se, or with the assistance of privately retained

counsel.     Commonwealth v. Muzzy, 

141 A.3d 509

, 511-12 (Pa. Super.

2016).

       Upon review, we conclude that PCRA counsel has substantially complied

with   the    Turner/Finley    requirements    as   set   forth   above.   See



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Commonwealth v. Karanicolas, 

836 A.2d 940

, 947 (Pa. Super. 2003)

(holding that substantial compliance with requirements to withdraw as counsel

will satisfy the Turner/Finley criteria).      We now independently review

Carrasquillo’s claim to ascertain whether it entitles him to relief.

      Our scope and standard of review is well settled:

         In PCRA appeals, our scope of review is limited to the
         findings of the PCRA court and the evidence on the record
         of the PCRA court's hearing, viewed in the light most
         favorable to the prevailing party. Because most PCRA
         appeals involve questions of fact and law, we employ a
         mixed standard of review. We defer to the PCRA court's
         factual findings and credibility determinations supported by
         the record. In contrast, we review the PCRA court's legal
         conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 

111 A.3d 775

, 779 (Pa. Super. 2015)

(citations omitted).

      Carrasquillo’s claim alleges the ineffective assistance of trial counsel. To

obtain relief under the PCRA premised on a claim that counsel was ineffective,

a petitioner must establish by a preponderance of the evidence that counsel’s

ineffectiveness so undermined the truth determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth

v. Johnson, 

966 A.2d 523

, 532 (Pa. 2009).                 “Generally, counsel’s

performance is presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by the petitioner.”

Id. This requires the

petitioner to demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her


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J-S41012-20


action or inaction; and (3) petitioner was prejudiced by counsel's act or

omission.

Id. at 533.

A finding of "prejudice" requires the petitioner to show

"that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different."

Id. A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim. Commonwealth v. Martin, 

5 A.3d 177

, 183 (Pa. 2010).

      “The failure to file a suppression motion under some circumstances may

be evidence of ineffectiveness assistance of counsel.”       Commonwealth v.

Watley, 

153 A.3d 1034

, 1044 (Pa. Super. 2016)(citation omitted). “However,

if the grounds underpinning that motion are without merit, counsel will not be

deemed ineffective for failing to so move.”

Id. “The defendant must

establish

that there was no reasonable basis for not pursuing the suppression claim and

if the evidence had been suppressed, there is a reasonable probability that

the verdict would have been more favorable.” Commonwealth v. Watley,

153 A.3d 1034

, 1044 (Pa. Super. 2016).

      Here, Carrasquillo claims his trial counsel should have filed a motion to

suppress his confession. As our Supreme Court has summarized:

             There is of course no single litmus-paper test for
         determining a constitutionally impermissible interrogation.
         Rather, the ultimate test of voluntariness is whether the
         confession is the product of an essentially free and
         unconstrained choice by its maker. If it is, if he has willed
         to confess, it may be used against him. If it is not, if his will
         had been overborne and his capacity for self-determination
         critically impaired, the use of his confession offends due
         process.     Thus, we must consider the totality of the


                                       -7-
J-S41012-20


         circumstances, including the accused’s mental and physical
         condition.

Commonwealth v. Johnson, 

107 A.3d 52

, 93 (Pa. 2014) (quotation marks

and citations omitted).

      The PCRA court found Carrasquillo’s self-serving testimony to be

unworthy of belief. The court explained:

             “It was constantly evolving.” These are the words used
         by [Carrasquillo’s trial counsel] to tactfully describe his
         client’s rapidly changing positions regarding the shooting
         death of [the victim]. After listening to a plethora of
         testimony via [Carrasquillo’s PCRA] claim, this [c]ourt will
         be somewhat more blunt: [Carrasquillo] consistently made
         things up based upon what he perceived would be in his best
         interest at the time. For reasons that we will articulate in
         more detail below, and because we conclude that
         [Carrasquillo] has absolutely zero credibility, we will be
         denying [his] PCRA claims.

PCRA Court Opinion, 12/16/19, at 1.        The PCRA court then detailed the

reasons underlying its conclusion as follows:

            Even after soliciting an Amended PCRA Petition, and even
         after asking for clarification at the outset of the PCRA
         Hearing, we are still somewhat confused about the nature
         of [Carrasquillo’s] claim.     As best as we can discern,
         [Carrasquillo] claims that his statement to police should be
         suppressed because he was high on cocaine, ecstasy and
         marijuana. In addition, [Carrasquillo] claims that he was
         “forced” to make a statement. At first, he blamed the police
         for the coercion. Later, he stated that he was forced to
         confess by someone named Eric Sanchez. Regardless of the
         details, all of [Carrasquillo’s] claims are built upon the
         foundation of his own credibility. Because we find that
         [Carrasquillo’s] credibility is more suspect than swampy
         quicksand, we cannot give any credence to the claims he
         now proffers.



                                    -8-
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            Almost from the moment after he killed [the victim],
        [Carrasquillo] proffered various claims to rebut his own
        responsibility. He initially told police that he was threatened
        by [the victim] with a knife. When confronted with the fact
        that [the victim] was found face down without any knife in
        the vicinity, [Carrasquillo] then changed his defense to one
        of intoxication. Even in conversations with his own lawyer,
        [Carrasquillo’s] version of what occurred “constantly
        evolved.” According to [trial counsel], [Carrasquillo] at
        times proclaimed “I was threatened,” he at times stated “I
        did it but I was high” and at other times he indignantly
        offered “I did not do it.” At his trial, [Carrasquillo] testified
        that he was high on [ecstasy] and other drugs. [He]
        acknowledged at trial that he gave police a false statement
        about his intent to rob [the victim]. He claimed that he went
        to the victim’s apartment to smoke dope, but he became
        “paranoid” because of a mental health disorder and his use
        of drugs. He then stated that he “blacked out.” However,
        he also remembered shooting [the victim] ten (10) times
        because he felt “threatened” due to his paranoia.

           At the PCRA Hearing, [Carrasquillo] for the first time
        blamed an individual by the name of Eric Sanchez. He
        testified that Mr. Sanchez instructed him to confess to
        shooting [the victim]. He also stated that Mr. Sanchez
        threatened to shoot [his] family if [Carrasquillo] did not take
        the blame for the homicide. At no time during his recorded
        statement to police did [Carrasquillo] mention Eric Sanchez.
        At no time during his discussions with [trial counsel] did
        [Carrasquillo] accuse Eric Sanchez of threatening his family.
        At no time during his testimony at trial did [Carrasquillo]
        even mention Eric Sanchez. Even post-trial letters sent by
        [Carrasquillo] to [trial counsel] did not implicate Eric
        Sanchez in the homicide or the false confession.

           In the event it is not already crystal clear, this [c]ourt
        wishes to definitively proclaim that it does not afford
        [Carrasquillo] with any credibility whatsoever. On the basis
        of the record before us, we conclude that [Carrasquillo] lies
        frequently about matters great and small. He has absolutely
        zero credibility with this [c]ourt. For this reason alone,
        [Carrasquillo’s] PCRA [petition] must be denied.

PCRA Court Opinion, 12/16/19, at 7-9 (footnote omitted).

                                      -9-
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      As the record supports the PCRA court’s credibility determination, the

determinations are binding on this Court. Commonwealth v. Spotz, 

18 A.3d 244

, 259 (Pa. 2011). See also Commonwealth v. Battle, 

883 A.2d 641

,

648 (Pa. Super. 2005) (explaining that credibility determinations are solely

within the province of the PCRA court).

      In addition, the PCRA court found Carrasquillo’s ineffectiveness claim to

be without merit because he could not establish prejudice given the other

evidence introduced by the Commonwealth and Carrasquillo’s defense at his

trial. The court summarized this evidence: 1) the eyewitness identification

testimony of Kelsey Santana; 2) Carrasquillo’s cell phone was found inside the

victim’s apartment; and 3) the circumstances surrounding Carrasquillo’s

interview with police. Moreover, the jury rejected Carrasquillo’s claim at trial

that his voluntary intoxication negated a specific intent to kill.   See PCRA

Court Opinion, 12/16/19, at 9-10. After reviewing the record, we agree that

Carrasquillo’s ineffectiveness claim fails because he could not establish

prejudice.

      In sum, because the record supports PCRA counsel’s determination that

Carrasquillo’s ineffectiveness claim lacks merit, we grant PCRA counsel’s

motion to withdraw, and affirm the PCRA court’s order denying him post-

conviction relief.

      Motion to withdraw granted. Order affirmed.




                                     - 10 -
J-S41012-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2020




                          - 11 -

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