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[U] Commonwealth v. Latorre

Superior Court of Pennsylvania

March 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CHRISTOPHER A. LATORRE, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order Entered January 24, 2013, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0009532-2007.

BEFORE: GANTMAN, SHOGAN and MUSMANNO, JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Christopher A. Latorre, appeals from the order entered January 24, 2013, dismissing his petition filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We summarized the facts of the crime in a prior appeal, as follows:

On May 3, 2007, Ms. Carmen Delgado and the [victim], Mr. Melvin Candaleria, were residing together at 207 Linton Street, Philadelphia. Following an argument which escalated into a physical altercation, both individuals left the residence and went to homes of respective family members. Later in the afternoon, Ms. Delgado returned to the Linton Street residence along with Mr. Ezequiel Delgado, her brother[, ] and Appellant, her stepbrother[, ] to remove the [victim's] belongings. Appellant was in possession of an operable firearm. Once arriving at her residence, Ms. Delgado and her two siblings began packing up the [victim's] personal items. Shortly thereafter, Ms. Delgado left the house, leaving her two siblings to continue packing.
The [victim] arrived home in the evening unaware that anyone was present inside. Upon entering the house, the [victim] heard footsteps upstairs and called Ms. Delgado's name twice. [The victim] did not receive a response, and began walking up the stairs to investigate. Part-way up the steps, Appellant entered the stairway and struck the [victim] on the left temple with a silver hand gun. The [victim] immediately recognized Appellant and said, "let[']s talk, it's not that serious." Appellant responded by telling the [victim] to leave the premises, while pointing the gun at him. The [victim] lifted his hands, and turned his body around in the leftward direction and began to descend the remaining steps. After taking two steps, Appellant discharged the weapon a single time. The bullet struck the [victim], who was unarmed, several inches below the neck and one inch from the spinal cord.
After Appellant shot the [victim], he began issuing verbal threats; he told the [victim], "I will hurt you if you say anything, " and not to tell anybody or else there would be problems. Mr. Delgado, who heard voices and a gunshot, ran down the stairs and observed the [victim] lying on the ground, and Appellant standing nearby. Mr. Delgado asked Appellant where he got the gun, and why did he shoot him. Appellant and Mr. Delgado then left the residence, while the [victim] remained lying near the base of the steps.
The [victim] crawled to the door, and was able to successfully summon a neighbor to call the paramedics. The [victim] was subsequently transported to Einstein Medical Center. As a result of the gunshot, [victim] is paralyzed from the chest down. Mr. Delgado has never seen the [victim] in possession of a firearm, and pursuant to police search, no firearms were recovered from the Linton Street residence.

Commonwealth v. Latorre, 2032 EDA 2008, 991 A.2d 358 (Pa. Super. filed January 15, 2010) (unpublished memorandum at 1–3).

On April 24, 2008, following a bench trial, Appellant was convicted of aggravated assault, recklessly endangering another person ("REAP"), terroristic threats, possession of an instrument of crime ("PIC"), conspiracy, and two violations of the Uniform Firearms Act ("VUFA"). He was sentenced to an aggregate term of imprisonment of nineteen and one-half to thirty-nine years on June 11, 2008. This Court affirmed the judgment of sentence, and our Supreme Court denied Appellant's petition for allowance of appeal. Latorre, 991 A.2d 358 (unpublished memorandum), appeal denied, 69 EAL 2010, 4 A.3d 1052 (Pa. filed August 12, 2010).

On March 4, 2011, Appellant filed a pro se PCRA petition. Newly appointed counsel filed both an amended petition on September 13, 2012, and a supplemental amended petition on December 6, 2012. The PCRA court granted relief with respect to Appellant's claim that trial counsel was ineffective for failing to argue that Appellant's conviction for REAP should have merged with aggravated assault for sentencing purposes. With the Commonwealth's agreement, the court resentenced Appellant to an aggregate term of imprisonment of eighteen and one-half to thirty-seven years followed by ten years of probation. It denied Appellant's petition in all other respects.

Appellant raises the following issues in this appeal:
I. Whether the judge was in error in denying the Appellant's PCRA petition without an evidentiary hearing on the issues raised in the amended PCRA petition regarding trial counsel's ineffectiveness.
II. Whether the Judge was in error in not granting relief on the PCRA petition alleging counsel was ineffective for the following reasons:
Whether Trial counsel was ineffective for turning down a plea offer without consulting Appellant.
Whether Trial counsel was ineffective for advising Appellant not to testify.
Whether Trial counsel was ineffective for failing to properly represent Appellant.
Whether Appellate counsel was ineffective for failing to argue the evidence was against the weight of evidence and contrary to law.

Appellant's Brief at 8.

In reviewing the denial of PCRA relief, we examine whether the PCRA court's determinations are supported by the record and are free of legal error. Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011). The PCRA court's credibility determinations, when supported by the record, are binding on this Court. Id. In order to obtain collateral relief, a PCRA petitioner must establish by a preponderance of the evidence that his ...


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