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HomeMy WebLinkAboutCP-21-CR-0192-2004 (2) COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. YERKO MOLINA NO. CP-21-CRIMINAL 0192 - 2004 IN RE: OPINION PURSUANT TO Pa. RA.P. 1925 Guido, J., September , 2005 Petitioner has filed this timely appeal from our order of June 2, 2005, denying his request for relief under the Post Conviction Relief Act. 1 He alleges that we erred in refusing to grant him relief based upon the alleged ineffectiveness of his trial counsel. In order to be entitled to post conviction relief as a result of counsel's ineffectiveness, petitioner must prove by a preponderance of the evidence that his conviction resulted from ineffective assistance of counsel "which, in the circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa. C. S.A. S 9543 (a)(2)(ii). Our appellate courts have held that a petitioner can succeed under this particular section of the Act only if he proves all of the following: (1) that his claim of counsel's ineffectiveness has merit; (2) that counsel had no reasonable strategic basis for his action or inaction; and (3) that the error of counsel prejudiced the petitioner-i. e., that there is a reasonable probability that, but for the error of counsel, the outcome of the proceeding would have been different. Commonwealth v. Monaco, 869 A.2d 1026, at 1030-1031 (Pa. Super.2005). The only issue raised on appeal deals with the admission of evidence regarding defendant's immigration status. Specifically petitioner contends: 1 42 Pa. C.S.A. ~ 9541 et seq. NO. CP-21-CRIMINAL 0192 - 2004 Trial Counsel was ineffective for allowing at least seventeen (17) separate and distinct references to the defendant's immigration status and detention into evidence. Such evidence was not probative to the case at hand and is highly prejudicial. Our Superior Court has found that reference to an individual as an "illegal alien" is not relevant, allows a jury to improperly conclude that he has engaged in prior criminal activity, and should be excluded. Commonwealth v. Sanchez, 595 A.2d 617, 620. As in Sanchez, based on the Commonwealth's references to Molina's status, the jury could reasonably infer that Molina had engaged in illegal conduct in the past. In the instant case, the Commonwealth was allowed without objection, to delve even further into past criminal activity by specifically referring to an immigration detention hearing held approximately one and one-half (1 1Iz) years prior to the alleged incident at hand. These references, among others relating to the defendant's immigration status, serve no legitimate evidentiary purpose and should have been objected to during trial. 2 It was clear from the testimony of trial counsel that he had a reasonable strategic basis for allowing evidence ofpetitioner's immigration status to be heard by the jury. The cornerstone of the defense was that the victim, not the defendant, was the aggressor. They contended that she attacked the defendant because she loved him and did not want to lose him.3 Trial counsel felt that the victim's assistance with the defendant's immigration status, even going so far as to marry him, supported his theory of the case.4 Furthermore, unlike Sanchez, supra, the defendant's immigration status was relevant in this case.S The Commonwealth's theory of the case was that the defendant was the aggressor. It originally raised the defendant's status as an illegal alien in its direct examination of the victim. The assistant district attorney explained the reasoning behind this line of questioning as follows: 2 See "Concise Statement of Matters Complained of on Appeal." 3 Transcript of Proceedings, June 2,2005, p. 15. 4 Transcript of Proceedings, June 2,2005, p. 15,38. 5 Relevant evidence is "evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible." Commonwealth v. Clark, 280 Pa. Super 1, 421 A.2d 374, 376, (Pa.Super. 1980) quoting from Com. V Shoatz, 469 Pa. 545,564366 A.2d 1216, 1225 (1976). 2 NO. CP-21-CRIMINAL 0192 - 2004 The reason that was brought up was to show from the Commonwealth's perspective that the victim Brenda did not have any bias against this Defendant but in fact everything she was doing was trying to help him. She stayed up there at the border with him. She arranged his bail. When he was bailed, his legal status was uncertain. She married him. That and the bail she had posted him allowed him to stay in the country. 6 Since petitioner's immigration status was relevant to the issues presented at trial, his trial counsel cannot be deemed to have been ineffective for failing to object to its admission. Even if petitioner had proven the first two prongs, he would still not be entitled to relief. A review of the trial transcript shows that the evidence against him was overwhelming. Any reference to his status as an illegal alien, even if objectionable, was inconsequential. In other words, we were not persuaded that excluding the evidence of his immigration status would have created a reasonable probability of a different outcome. In order to have been entitled to relief under the PCRA, petitioner had the burden of proving all three of the requirements set forth in Monaco, supra. He did not meet his burden in connection with anyone of them. Therefore, we denied his request for relief. DATE Edward E. Guido, J. Jaime M. Keating, Esquire For the Commonwealth Robert J. Daniels, Jr., Esquire F or the Defendant :sld 6 Transcript of Proceedings, June 2,2005, p. 38. 3