February 28, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
RAMONE STEPHAN COTO Appellant
Appeal from the PCRA Order December 12, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005352-2005, CP-02-CR-0005494-2005
BEFORE: PANELLA, J., OLSON, J., and WECHT, J.
Appellant, Ramone Stephan Coto, appeals from the order entered December 12, 2012, by the Honorable Lester G. Nauhaus, Court of Common Pleas of Allegheny County, which denied Coto's petition filed pursuant to the Post Conviction Relief Act (PCRA). After review, we affirm in part and reverse in part.
We briefly summarize the pertinent facts of this case as follows. In February, 2005, Kevilin Middleton hosted a birthday party at his residence at which he arranged an exotic dancing performance. When the exoctic dancers arrived, a dispute arose over the dancers' appearance and Middleton ultimately refused to pay the dancers. After the distraught dancers made a frantic phone call, four armed men, including Coto, arrived at the residence, and commenced shooting. Middleton sustained multiple gunshot wounds and two others were killed. Middleton later identified Coto as the individual who shot him.
Coto was arrested and charged with two counts of murder in the second degree,  criminal attempt,  criminal conspiracy,  aggravated assault,  and burglary. Coto claimed in a statement made to police that he never entered the party, but was intoxicated and had passed out in the back of a van while waiting to go home when the shooting occurred. Following a non-jury trial, at which Coto was tried jointly with his co-defendants, Coto was convicted of two counts of second degree murder and one count of burglary. On April 18, 2008, the trial court sentenced Coto to two concurrent terms of life imprisonment for the murder charges, and a consecutive three to six year term of imprisonment for burglary. On appeal, this Court affirmed Coto's judgment of sentence and the Pennsylvania Supreme Court denied allocatur. Commonwealth v. Coto, 998 A.2d 1009 (Pa. Super. 2010) (table), appeal denied, 610 Pa. 591, 20 A.3d 483 (2011).
On February 14, 2012, Coto filed a pro se PCRA petition. Counsel was subsequently appointed and an amended petition was filed on June 26, 2012. The PCRA court denied Coto's petition following a hearing on December 12, 2012. This timely appeal followed.
On appeal, Coto raises the following issues for our review:
I. Did the PCRA court err or abuse its discretion when it dismissed Appellant's PCRA Petition wherein Appellant alleged ineffective assistance of trial counsel for failing to locate, interview and investigate witness William Brown, driver of the van used for transportation to Penn Hills on the night of the shooting at issue herein?
II. Is Appellant's sentence is [sic] illegal based on Appellant being sentenced to a period of life for Second Degree Murder and a consecutive period of incarceration at the Burglary count which should have merged for sentencing?
Appellant's Brief at 5.
Our standard of review of a PCRA court's denial of a petition for post-conviction relief is well-settled: We must examine whether the record supports the PCRA court's determination and whether the PCRA court's determination is free of legal error. See Commonwealth v. Hall, 867 A.2d 619, 628 (Pa. Super. 2005). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Our scope of review is limited by the parameters of the PCRA. See Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).
To determine whether the PCRA court erred in dismissing Coto's claim 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 truth-determining process that no reliable adjudication of guilt or innocence could have taken place … Appellant must 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 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).
Moreover, "[w]e presume counsel is effective and place upon Appellant the burden of proving otherwise." Commonwealth v. Springer, 961 A.2d 1262, 1267-1268 (Pa. Super. 2008). "This Court will grant relief only if Appellant satisfies each of the three prongs necessary to prove counsel ineffective." Commonwealth v. Natividad, 595 Pa. 188, 208, 938 A.2d 310, 322 (2007). Thus, we may deny any ineffectiveness claim if "the evidence fails to meet a single one of these prongs." Id., 595 Pa. at 207-208, 938 A.2d at 321.
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).
Coto argues that the van driver, William Brown, if located, could have testified that Coto was intoxicated and passed out in the back of the van at the time the shooting occurred. Appellant's Brief at 22. However, Coto fails to satisfy his burden of demonstrating that Brown was available and willing to testify for the defense in this matter. Therefore, Coto has failed to establish that trial counsel was ineffective for failing to locate and investigate Brown as a potential witness.
Lastly, Coto argues that the three to six year term of incarceration on the burglary conviction should have merged for sentencing purposes with the term of imprisonment for second-degree murder. Appellant's Brief at 24. Both the PCRA court and the Commonwealth agree with this claim.
A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence. Therefore, our standard of review is de novo and our scope of review is plenary. An illegal sentence must be vacated. In evaluating a trial court's application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.
Commonwealth v. Nero, 58 A.2d 802, 806 (Pa. Super. 2012) (internal quotes and citations omitted), appeal denied, 72 A.3d 602 (Pa. 2013). Section 9765 of the Judicial Code provides guidance on merger of sentences:
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.
42 Pa.Cons.Stat.Ann. § 9765.
Herein, burglary was the underlying felony on which Coto's conviction for second degree felony murder was predicated. The crimes therefore merge for sentencing purposes. See Commonwealth v. Adams, 39 A.3d 310, 325 (Pa. Super. 2012). Accordingly, we vacate only the judgment of sentence for burglary.
Order affirmed in part and reversed in part.