Com. v. Dejesus, P. (memorandum)

Annotate this Case

Download PDF

J-S22014-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. PEDRO DEJESUS Appellant No. 1457 MDA 2013 Appeal from the PCRA Order August 1, 2013 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002754-2010 BEFORE: PANELLA, J., DONOHUE, J., and MUNDY, J. MEMORANDUM BY PANELLA, J.: FILED MAY 29, 2014 Appellant, Pedro Dejesus, appeals from the order entered August 1, 2013, by the Honorable Howard F. Knisely, Court of Common Pleas of Conviction Relief Act (PCRA). We affirm. The trial court previously explained the background of this case on direct appeal as follows: [Dejesus] was convicted of a sex offense in February 2005. e registration as a sex offender. Prior to being released from prison, [Dejesus] provided the Pennsylvania State Police the address of 303 West King Street, Lancaster, Pennsylvania. Upon Mscisz, of the Pennsylvania Board of Probation and Parole (PBPP), learned that [Dejesus] was not residing at 303 West not live at her address. She further informed the agent that [Dejesus] was living with his sister at 222 East Philadelphia Street, York Pennsylvania. Following further investigation, J-S22014-14 [Dejesus] was arrested for failing to register in violation of Trial Court Opinion, 6/23/11 at 1-2 (footnotes omitted). Following a jury trial on January 7, 2011, Dejesus was convicted of Failure to Comply with Registration of Sexually Offenders Requirements, 18 Pa.C.S. § 4915(3). On March 28, 2011, the trial court sentenced Dejesus to petition for allowance of appeal. See Commonwealth v. Dejesus, 48 A.3d 473 (Pa. Super., filed April 10, 2012), appeal denied, 616 Pa. 657, 50 A.3d 124 (2012). Dejesus filed a pro se PCRA petition on November 8, 2012. The PCRA court thereafter appointed counsel and an amended PCRA petition was filed on March 14, 2013. Following a hearing held on June 17, 2013, the PCRA See PCRA Order, 8/1/13. This timely appeal followed. Dejesus raises the following issue for our review: Did trial counsel provide ineffective assistance of counsel to a degree that so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place by failing to subpoena state parole sign[-]in sheets, failing to subpoena a critical witness, and failing to extend a plea offer from the Commonwealth? On appeal from the denial of PCRA relief, our standard and scope of review is -2- J-S22014-14 the record and without legal error. Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation omitted). In order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated nor waived. 42 Pa.C.S.A. § 9543(a)(3). de novo standard of review to the Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted). claims of ineffectiveness of counsel, we turn to the following principles of law: In order for Appellant to prevail on a claim of ineffective assistance of counsel, he must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or demonstrate: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of -3- J-S22014-14 counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005). counsel is effective and place upon Appellant Commonwealth v. Springer, 961 A.2d 1262, 1267Appellant satisfies each of the three prongs necessary to prove counsel Commonwealth v. Natividad, 595 Pa. 188, 208, 938 A.2d Id., 595 Pa. at 207208, 938 A.2d at 321. Preliminaril ineffective for failing to subpoena a witness is not included in his PCRA -appointed counsel alleges that this issue was not included in the amended PCRA defendant from raising that ground in any proceeding for post-conviction Pa.R.Crim.P. 902(B); see also Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa. 2013). Accordingly, we are constrained to find this issue is waived. -4- J-S22014-14 Even if we were to address this issue, however, we would not afford relief. Trial counsel will not be deemed ineffective for failing to call a witness to testify unless it is demonstrated that: (1) the witness existed; (2) the witness was available; (3) counsel knew of, or should have known of the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony was so prejudicial to petitioner to have denied him or her a fair trial. Commonwealth v. Brown, 18 A.3d 1147, 1160-1161 (Pa. Super. 2011) (citation omitted), appeal denied, 611 Pa. 677, 29 A.3d 370 (2011). Instantly, Dejesus claims that his son was willing to testify on his behalf at trial. However, Dejesus altogether fails to assert that his son was available to testify at trial as required in order to find counsel ineffective for failing to call his son as a witness. Therefore, this claim would fail. assistance of counsel. Dejesus argues that counsel was ineffective for failing to subpoena parole sign-in sheets. Dejesus claims that after his release from prison, his mother would not allow him to stay at her residence, so he was forced to stay with his sister. See s alleges that he unsuccessfully made numerous attempts to contact his state parole agent during the week of Monday, March 22, 2010 through Friday, March 26, 2010, the date of his eventual arrest. See id. He claims that the parole office sign-in sheets, if subpoenaed, would have proven to the jury his attempts to timely re-register with the parole office. See id. at 6. He -5- J-S22014-14 further maintains that although he went to the parole office every day, he See id. At the PCRA hearing, trial counsel testified that although he was aware that Dejesus felt that the sign-in sheets were important, he did not feel that they were material to the defense. See N.T., PCRA Hearing, 6/17/13 at 8, 10. Counsel testified he was specifically concerned that although Dejesus claimed to have been at the parole office daily, the fact that the records did Id testimony clearly establishes a reasonable strategic basis for withholding the signWe therefore discern no ineffective assistance of counsel. Lastly, Dejesus claims that trial counsel was ineffective for failing to lea offer. See PCRA hearing, trial counsel testified that he met with Dejesus in prison prior imprisonment. See N.T., PCRA Hearing, 6/17/13 at 6. Counsel testified that Dejesus steadfastly rejected this offer. See id. at 6-7. The PCRA court determi Commonwealth v. Keaton, -6- J-S22014-14 to indicate that counsel was counsel, we affirm the order of the PCRA court. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/29/2014 -7-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.