Com. v. Rosado, M.
Com. v. Rosado, M. No. 1776 EDA 2016
Pa. Super. Ct.Feb 22, 2017Background
- Moises Rosado was convicted by a jury in 2010 of attempted murder and firearm offenses arising from a 2007 shooting; he received an aggregate sentence including 20–40 years for attempted murder.
- This Court affirmed the conviction on direct appeal in 2012 and the Pennsylvania Supreme Court denied allowance of appeal.
- Rosado filed a timely first PCRA petition in November 2012; counsel filed an amended petition and the Commonwealth moved to dismiss.
- At a January 29, 2016 hearing, the PCRA court considered claims of trial counsel ineffectiveness for (1) failing to interview/call eyewitness Michael Amerman, (2) failing to object when the court gave the jury only the attempted murder written charge, and (3) failing to object to the trial court’s procedure concerning the 18 Pa.C.S. § 6105 (person not to possess a firearm) adjudication/jury waiver.
- The PCRA court issued a Rule 907 notice, received no response, and dismissed the petition on June 3, 2016; Rosado appealed and the Superior Court affirmed.
Issues
| Issue | Rosado's Argument | Commonwealth/Respondent's Argument | Held |
|---|---|---|---|
| Counsel ineffective for not interviewing/calling Michael Amerman | Amerman was an eyewitness who would provide mitigating testimony; counsel should have called him | Affidavit fails to show Amerman was available, willing, or known to counsel at trial; Rosado also waived calling witnesses on the record | Denied — Rosado failed to show witness availability/willingness; no arguable prejudice |
| Counsel ineffective for not objecting to giving jury only the attempted-murder written charge (Pa.R.Crim.P. 646) | Jury received only attempted-murder written instruction in deliberations in violation of Rule 646; prejudice likely altered outcome | Rosado’s claim asserts prejudice but offers only bald speculation; failure to show actual prejudice | Denied — no demonstrated prejudice; claim lacks merit |
| Counsel ineffective for not objecting to trial court’s handling of § 6105 (person not to possess) / jury waiver | Rosado says waiver of jury on § 6105 was not knowing/voluntary and counsel failed to preserve jury trial right | Record shows an on-the-record colloquy where Rosado knowingly waived jury on the § 6105 finding; even without waiver, jury already found possession and prior convictions made the legal issue clerical | Denied — waiver was knowing; no prejudice because jury had decided factual elements |
| Whether PCRA court erred by dismissing without an evidentiary hearing | Rosado contends genuine issues of fact (witness availability, prejudice) warranted a hearing | Court held no genuine disputed material facts; Rosado did not meet PCRA burden to show arguable merit and prejudice | Denied — dismissal without hearing proper; no abuse of discretion |
Key Cases Cited
- Anderson v. Commonwealth, 995 A.2d 1184 (Pa. Super. 2010) (standard of review for PCRA denials)
- Jones v. Commonwealth, 71 A.3d 1061 (Pa. Super. 2013) (three-part ineffective-assistance test including prejudice)
- Simpson v. Commonwealth, 112 A.3d 1194 (Pa. 2015) (presumption of counsel effectiveness)
- Neal v. Commonwealth, 713 A.2d 657 (Pa. Super. 1998) (requirements for establishing counsel ineffective for failing to call witnesses)
- Khalil v. Commonwealth, 806 A.2d 415 (Pa. Super. 2002) (affidavits insufficient when they do not show witness willingness or counsel’s knowledge)
- Lassen v. Commonwealth, 659 A.2d 999 (Pa. Super. 1995) (absence of affidavits on witness availability bars relief)
- Fears v. Commonwealth, 86 A.3d 795 (Pa. 2014) (court may dispose of ineffectiveness claim by addressing any deficient element)
- Hutchinson v. Commonwealth, 25 A.3d 277 (Pa. 2011) (standards for dismissing PCRA petitions without a hearing)
- Kimball v. Commonwealth, 724 A.2d 326 (Pa. 1999) (prejudice requirement for PCRA relief relating to counsel errors)