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Commonwealth of Pennsylvania v. andy Rivera-Rodriguez

February 23, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
ANDY RIVERA-RODRIGUEZ, APPELLANT



Appeal from the Order Entered April 21, 2011, in the Court of Common Pleas of Lancaster County, Criminal Division, at No.:CP-36-CR-0000928-2004

The opinion of the court was delivered by: Bowes, J.:

BEFORE: BOWES, COLVILLE,*fn1 and FITZGERALD,*fn2 JJ.

OPINION BY BOWES, J.:

Andy Rivera-Rodriguez appeals from the April 21, 2011 order denying him PCRA relief. We affirm the PCRA court's determination that trial counsel did not provide ineffective assistance by advising Appellant to proceed to a non-jury trial in order to obtain the Commonwealth's agreement not to seek the death penalty. Hence, we affirm.

The present case concerns Appellant's participation in the January 17, 2004 death of Ryan Gardina. After litigating an unsuccessful motion to suppress his confession, which involved five days of hearings, Appellant elected to proceed to a non-jury trial, where this criminal action was tried with two other cases. Appellant was convicted of first degree murder, robbery, and conspiracy based upon the following evidence. On the night of the murder, police stopped Appellant and Esteban Torres Sanchez after Sanchez committed numerous traffic violations while driving Mr. Gardina's car. Sanchez failed to provide a driver's license, registration, or proof of ownership. The following morning, Mr. Gardina's family reported that the victim was missing; his body was later found behind Sanchez's home.

On January 18, 2004, police asked Appellant to come to the police station, and he arrived there of his own accord. After he received his Miranda rights and waived them, Appellant was questioned about Mr. Gardina's death. He eventually signed a written statement admitting that he was involved in Mr. Gardina's robbery and murder. Specifically, Appellant told police the following. On the night of January 17, 2004,

Appellant was walking alone when Mr. Gardina stopped his car beside Appellant and asked Appellant if he knew where to purchase a small amount of marijuana. Appellant told the victim he could obtain marijuana for him and, after entering the victim's vehicle, directed him to Sanchez. After Sanchez entered the car, Appellant told Sanchez, in Spanish, that he wanted to take Mr. Gardina to the lot behind Sanchez's residence, rob him, and kill him. When they arrived at their destination, Appellant held down Mr. Gardina while Sanchez stabbed him to death. The two men then robbed the victim.

On January 10, 2005, Appellant was sentenced to life imprisonment plus twenty-three to forty-six years incarceration. On appeal, Appellant raised five challenges to the admissibility of his confession. On November 21, 2005, we rejected his allegations and affirmed.

Commonwealth v. Rivera-Rodriguez, 894 A.2d 823 (Pa.Super. 2005) (unpublished memorandum). On September 14, 2006, our Supreme Court denied review. Commonwealth v. Rivera-Rodriguez, 907 A.2d 1102 (Pa. 2006).

Appellant filed a timely PCRA petition on September 27, 2007.

Counsel was appointed and filed an amended petition. In that petition, Appellant maintained that trial counsel rendered ineffective assistance when they advised him to waive his right to a jury trial in exchange for the Commonwealth's agreement not to seek the death penalty. Appellant averred that this advice was infirm because trial counsel, who were aware that Appellant's intelligence quotient was 58, knew that the Commonwealth could not obtain the death penalty due to his low mental functioning. After two days of hearings, the PCRA court denied relief, and this appeal followed.

On appeal, Appellant presents this issue: "Whether trial counsel were ineffective when they counseled the defendant to waive his right to a jury trial in exchange for the Commonwealth's agreement not to seek the death penalty when the defendant was mentally-retarded and could not have received the death penalty?" Appellant's brief at 4.

"Under our standard of review for an appeal from the denial of PCRA relief, we must determine whether the ruling of the PCRA court is supported by the record and is free of legal error. The PCRA court's credibility determinations are binding on this Court when they are supported by the record. However, this Court applies a de novo standard of review to the PCRA court's legal conclusions." Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (citations omitted). In order to prevail on a claim of ineffective assistance of counsel, a petitioner must overcome the presumption that counsel is effective by establishing all of the following three elements. . .

(1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered ...


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