Com. v. Montero, K.



                                               :        PENNSYLVANIA
                v.                             :
    KELVIN MONTERO                             :
                       Appellant               :   No. 2383 EDA 2019

              Appeal from the PCRA Order Entered August 9, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0000977-2012


MEMORANDUM BY STEVENS, P.J.E.:                      FILED: JANUARY 11, 2021

        Appellant Kelvin Montero appeals the order of the Court of Common

Pleas of Philadelphia County denying his petition pursuant to the Post-

Conviction Relief Act (PCRA).1 Appellant claims he is entitled to a new trial

due to the ineffectiveness of his trial counsel. After careful review, we affirm.

        Appellant was charged with first-degree murder, conspiracy to commit

murder, and related crimes in connection with the September 26, 2011

shooting death of Jesus Rivera. The trial court previously summarized the

relevant facts as follows:

              In the early morning hours of September 26, 2011, 16–
        year–old Jesus Rivera [(the victim)] was still out celebrating the
        Puerto Rican Day Parade in his Philadelphia neighborhood when
        he was struck and killed by two stray gunshots fired by Kelvin
        Montero [(Appellant)]. After the parade, which had taken place on

*   Former Justice specially assigned to the Superior Court.
1   42 Pa.C.S.A. §§ 9541-9546.

     September 25, 2011, people were celebrating all along the area
     of 5th and Cambria Streets, congregating on street corners,
     playing music, and hanging out in and around their vehicles. This
     was the unofficial parade “after party.”

            It was at the Puerto Rican Day Parade after party that the
     [Appellant] fought with his girlfriend in front of a street of
     witnesses, and punched Saul Rodriguez (Rodriguez) in the face.
     [Footnote 5] At approximately 8:30 P.M., Rodriguez was standing
     near a black Lincoln Town Car full of girls, when [Appellant]
     walked up to the car, pulled his girlfriend, Cynthia Vasquez
     (Vasquez), out of it, and dragged her down the street. Angel
     Ducvo (Ducvo) [Footnote 6] and Rodriguez saw [Appellant] strike
     Vasquez. After bystanders tried to intervene, a fight ensued but
     was broken up by the police. Later, [Appellant] punched Rodriguez
     in the face when Rodriguez was trying to talk to the girls from the
     Lincoln Town Car again. After Rodriguez was punched, John Perez,
     [Footnote 7] who was described as a bald-headed, tattooed man,
     got out of a burgundy red pickup truck and approached Rodriguez,
     yelling: “you all don't know who you're messing with. That's my
     boy. We'll be back. You don't know who you're fucking with.”

        [Footnote 5] Rodriguez provided a statement about this
        encounter to Detective Joseph Bamberski. Exhibit C–19.
        When Rodriguez was called to testify, he recanted his prior
        statement. Rodriguez admitted that the signature on the
        statement appeared to be his, but stated that he did not
        remember signing it. Rodriguez's account of the events of
        September 25, 2011 was admitted for its truth pursuant to
        Brady/Lively. Commonwealth v. Brady, 

71 A.2d 34

, 36
        (Pa.Super.1987); Commonwealth v. Lively, 

703 A.2d 467


        [Footnote 6] Angel Ducvo's nickname is “Abo.” At trial,
        Ducvo denied telling the truth in the statement he made
        when he was brought into the Homicide Unit on September
        28, 2011. Exhibit C–20. Ducvo's prior statement was also
        admitted for its truth pursuant to Brady/Lively.

        [Footnote 7] Perez was initially charged as a co-defendant.
        On July 15, 2013, Perez entered a negotiated guilty plea to
        murder of the third degree (F–1), criminal conspiracy (F–1),
        and persons not to possess firearms (F–2). 18 Pa.C.S. §§
        2502(c), 903, and 6105(a)(1), respectively. Per the
        negotiations, this Court sentenced Perez to an aggregate


        term of not less than 22–and–a–half years nor more than
        45 years['] imprisonment.

           Later that night, after 12 A.M., Angel Figueroa (Figueroa),
     who had also witnessed the earlier fight, saw [Appellant] and
     Perez again at 5th and Cambria Streets. [Appellant] was wearing
     black boots and a black hooded sweatshirt, and asked Figueroa
     for the man who was fighting earlier. Figueroa testified that
     [Appellant] had his hands under his sweatshirt, as if to indicate
     that he had a gun on him. A short time later, [Appellant] [Footnote
     8] opened fire, firing 30 shots in all directions. [Footnote 9]

        [Footnote 8] Keyshla Rivera, Jesus's sister, identified the
        [Appellant] as the shooter. Ducvo also identified [Appellant]
        as the shooter pursuant to a photo array compiled by the
        police. During the shooting, Ducvo did not actually see the
        shooter's face, but he was able to recognize [Appellant] as
        the shooter based on their earlier encounter on
        Westmoreland Street 20 minutes before the shooting

        [Footnote 9] At the crime scene, 30 fired cartridge casings
        (FCCs) were found. At 12:40 A.M. Officer Brian Waters
        responded to a call at 5th and Cambria Streets to look for a
        burgundy Ford F–150 pickup truck. Officer Waters stopped
        the truck, which was being driven by Perez. The Ford pick-
        up was taken in to the police station as evidence. A later
        search of the truck revealed a Glock 9mm handgun in a
        hidden compartment on the right side of the front
        dashboard. Additionally, two handgun magazines were
        found: one empty 30–round magazine and another full 15–
        round magazine. Officer Lawrence Flagler, a ballistics
        expert, determined that all 30 FCC's were fired from the
        9mm handgun found in that truck.

            After midnight on September 26, 2011, Jesus and his sister
     Keyshla Rivera (Keyshla) were standing on the corner of 5th and
     Cambria Streets, waiting for Keyshla's friend to pick them up,
     when they heard people shouting, “they're shooting!” Upon
     hearing the gunshots, Keyshla glanced in the direction of the
     commotion, and witnessed [Appellant] in all black, “shooting like
     crazy” down the street. Keyshla and Jesus ran in the opposite
     direction of the shooter down Fairhill Street, attempting to seek
     safety inside two homes. After being turned away from the two
     homes on Fairhill Street, Keyshla told her brother to duck down


      behind two cars for cover. Finally, after the shooting ceased,
      Keyshla noticed her brother, Jesus, on the ground screaming for
      help. Jesus was struck by two bullets, one to the right side of his
      chest that went through his heart and lungs, and a second to the
      right upper arm. [Footnote 10]

           [Footnote 10] Associate Medical Examiner, Dr. Aaron Rosen,
           testified that one of the bullets penetrated the right side of
           Jesus's body below his armpit. This bullet passed through
           the thoracic cavity and Jesus's right lung, causing internal
           bleeding. Dr. Rosen stated that the other bullet was
           retrieved in the upper right arm and fractured Jesus's

      The search for [Appellant] commenced on September 28, 2011,
      after an arrest warrant had been issued. On November 1, 2011,
      Detective Burke found [Appellant] on the second floor of a home
      in the Hunting Park neighborhood of Philadelphia, and he was

Trial Court Opinion (T.C.O.), 10/29/14, at 2–4 (citations omitted).

      Thereafter, a jury convicted Appellant of conspiracy to commit first-

degree murder but could not reach a verdict on the charges of first-degree

murder, carrying a firearm without a license, and possessing an instrument of

crime (PIC). On September 10, 2013, the trial court sentenced Appellant to

eighteen to forty years’ imprisonment for conspiracy.

      After a retrial, on December 20, 2013, the jury convicted Appellant of

the remaining charges. On that date, the trial court sentenced Appellant to

life imprisonment for the murder conviction, two to seven years’ imprisonment

for carrying a firearm without a license, and one to five years’ imprisonment

for PIC.   Appellant filed post-sentence motions, which the trial court denied.

On July 8, 2015, this Court affirmed the judgments of sentence. Appellant did

not file a Petition for Allowance of Appeal with the Supreme Court.


       On August 5, 2016, Appellant filed a timely pro se PCRA petition. The

PCRA court appointed counsel, who filed an amended petition on March 8,

2018. Appellant claimed trial counsel was ineffective in failing to impeach

eyewitness Keyshla Rivera with Facebook messages that she allegedly sent to

Appellant’s friend, Steven Ortiz, in which she contradicted her testimony

identifying Appellant as the shooter.

       The PCRA court held hearings on March 8, 2019, April 15, 2019, and

June 14, 2019, at which Appellant presented the testimony of trial counsel,

Dennis Turner, Esq., and Steven Ortiz. The Commonwealth called Keyshla

Rivera to testify, but the PCRA court struck her testimony as it found the

prosecution violated its order concerning contact with Rivera. On July 10,

2019, the Commonwealth filed an interlocutory appeal regarding the PCRA

court’s decision to strike Keyshla Rivera’s testimony. On July 30, 2019, the

Commonwealth withdrew its appeal and on August 9, 2019, the PCRA court

dismissed Appellant’s petition. This timely appeal followed.2

       Appellant’s sole claim on appeal is whether his trial counsel was

ineffective in failing to properly impeach one of the prosecution’s witnesses.

Our standard of review is well-established:

       [o]ur review of the grant or denial of PCRA relief is limited to
       examining whether the PCRA court's findings of fact are supported
       by the record, and whether its conclusions of law are free from
       legal error. Commonwealth v. Cox, 

636 Pa. 603


146 A.3d 221


2 As the PCRA judge, the Honorable Teresa Sarmina, retired from the bench
in August 2019, she did not write an opinion regarding her decision to dismiss
Appellant’s petition.


      226 n.9 (2016). The PCRA court's credibility determinations, when
      supported by the record, are binding on this Court; however, we
      apply a de novo standard of review to the PCRA court's legal
      conclusions. Commonwealth v. Burton, 

638 Pa. 687


158 A.3d 618

, 627 n.13 (2017).

Commonwealth v. Small, 

647 Pa. 423

, 440–41, 

189 A.3d 961

, 971 (2018).

      We review claims of ineffectiveness in light of the following principles:

         [a]s originally established by the United States Supreme
         Court in Strickland v. Washington, 

466 U.S. 668

, [

104 S. Ct. 2052


80 L. Ed. 2d 674

] (1984), and adopted by
         Pennsylvania appellate courts, counsel is presumed to have
         provided effective representation unless a PCRA petitioner
         pleads and proves all of the following: (1) the underlying
         legal claim is of arguable merit; (2) counsel's action or
         inaction lacked any objectively reasonable basis designed to
         effectuate his client's interest; and (3) prejudice, to the
         effect that there was a reasonable probability of a different
         outcome at trial if not for counsel's error.

      Commonwealth v. Wantz, 

84 A.3d 324

, 331 (Pa.Super. 2014)
      (citations omitted). “A failure to satisfy any prong of the
      ineffectiveness test requires rejection of the claim of
      ineffectiveness.” Commonwealth v. Daniels, 

600 Pa. 1


963 A.2d 409

, 419 (2009).

Commonwealth v. Selenski, 

228 A.3d 8

, 15 (Pa.Super. 2020).

      Appellant claims his trial counsel was ineffective in failing to impeach

prosecution witness Keyshla Rivera with Facebook messages she allegedly

sent to Appellant’s friend, Steven Ortiz, that purportedly contradict her

identification of Appellant as the shooter.    Further, Appellant contends that

trial counsel should have called Ortiz at trial to testify to this communication

for the purposes of authentication.

      Appellant’s trial counsel indicated that, before Appellant’s first trial, one

of Appellant’s family members provided trial counsel with a computer printout


of a private message conversation that allegedly occurred between Ortiz and

a social media account in the name of “Keyshiaa Marie Riveraa.” N.T., Trial,

7/18/13, at 9-10; N.T., PCRA hearing, 3/8/19, at 13-18. After trial counsel

shared this information with the trial court at Appellant’s first trial, the trial

court questioned the authenticity of the messages. N.T. Trial, 7/17/13, at 10-

11, N.T., Trial, 7/18/13, at 11-16.

      At the PCRA hearing, in this case, trial counsel admitted that he did not

impeach Keyshla with the electronic messages at either of Appellant’s trials.

Trial counsel admitted that he was uncertain about whether he could

authenticate the printout as a conversation between Ortiz and Keyshla as

there was nothing on the document to indicate it was a Facebook message.

N.T., PCRA hearing, 3/8/19, at 19, 24-25. Trial counsel explained that at the

time of trial, he contacted Facebook’s security department to retrieve the

messages, but did not follow through with this task.        N.T., PCRA hearing,

3/8/19, at 9-10. PCRA counsel claimed that the parties recently attempted to

retrieve the private messages through a formal request to Facebook, but were

unsuccessful. N.T., PCRA hearing, 6/21/19, at 6-10.        Further, trial counsel

explained that he did not call Ortiz as a witness at trial as he did not have his

contact information and felt Ortiz would be uncooperative.           N.T., Trial,

7/18/13, at 9-10; N.T., PCRA hearing, 3/8/19, at 20.

      While it appears that Appellant admitted a photocopy of the messages

at the PCRA hearing as an exhibit, this document does not appear in the


certified record.3 The PCRA court permitted PCRA counsel to read a portion of

the messages allegedly sent by Rivera to Ortiz into the record when

questioning Appellant’s trial counsel:

       [PCRA counsel:] And you go down towards the bottom where
       there is a response from Keyshiaa Mariee Riveraa, it starts “Ryte,”
       but it’s spelled R Y T E, you see where I am?

       [Trial counsel:] “Ryte, but he knows.”

       [PCRA counsel:] What’s written there says, “Ryte, but he knows
       who did it, THWHD, he ain’t saying shyt,” spelled SHYT, “like I
       would love too help him,” I’m sorry, “like I would love too,” TOO,
       “help him, RS, but his not saying who did like. If he want get out,
       he gotta,” and there’s a bunch of typos here, “talk, Steven. And
       I promise yal with my two lil anquels up in the sky that I would
       help him ND, were is he at for I can talk to him.”

       I know I didn’t read that exactly correctly, because there are a
       bunch of typos, but you agree with me that in these messages
       between Ms. Rivera and Mr. Ortiz, at least it purports to show that
       Ms. Rivera was telling Mr. Ortiz that [Appellant] was not involved
       in the shooting, but knew who did it?

       [Prosecutor:] Objection.

       [Trial court:] Overruled.

       [Trial counsel:] I would agree that it appears to say that on this
       document. However, I’m uncertain as to whether this was actually
       a conversation between Keysh[l]a and Ortiz. I mean the whole
       problem with this document was that I couldn’t authenticate it.

N.T., PCRA hearing, 3/8/19, at 18-19.


3 We acknowledge that “[t]his Court cannot meaningfully review claims raised
on appeal unless we are provided with a full and complete certified record.”
Commonwealth v. Miller, 

212 A.3d 1114

, 1127 (Pa.Super. 2019). However,
as we conclude infra that Appellant has not shown he was prejudiced by trial
counsel’s failure to impeach Rivera with this document, we did not seek to
locate the document or inquire as to why the document was not included in
the certified record.


      When reviewing the record in this case, we find that, even assuming

arguendo that trial counsel could have authenticated and admitted the private

Facebook messages to impeach Rivera, Appellant has not shown prejudice, to

the effect that there was a reasonable probability of a different outcome at

trial if not for counsel's error. See 

Selenski, supra

. Rivera unequivocally

testified at trial that Appellant was the individual wearing a black hoodie that

shot her brother.   Rivera recalled that Appellant was with a bald-headed

individual in a red truck.   Rivera confirmed that she was “sure” about her

identification. N.T. Trial, 12/16/13, at 150-53; N.T. Trial, 12/17/13, at 100-

103, 115-16, 128-29.

      Further, Rivera’s testimony was corroborated by multiple eyewitnesses.

Angel Figueroa testified that on the night of the shooting, Appellant had

initiated a fight at the Puerto Rican Parade. Further, Figueroa indicated that

he conversed with Appellant near the corner of 5th and Cambria Streets after

this fight. Appellant was wearing all black, including a black hoodie, appeared

to be carrying a gun under his clothing, and was accompanied by a bald

individual. Appellant told Figueroa that he returned to the scene to find the

boy who he had fought with earlier. N.T. Trial, 12/17/13, at 157-173.

      Several minutes later after Figueroa had walked away from Appellant,

Figueroa heard gunshots, causing him to look to the corner and see Appellant

shooting. N.T. Trial, 12/17/13, at 172-73.     While Figueroa admitted he did

not see the shooter’s face, he knew the shooter was Appellant as he was the

only individual was wearing all black clothing and the shooter was standing in


the nearly the same spot that Appellant had conversed with Figueroa minutes

earlier. N.T. Trial, 12/17/13, at 173-82.

      Saul Rodriguez gave the police a statement admitting that he was the

individual that Appellant had punched at the Puerto Rican Parade. Shortly

after this altercation, Rodriguez told Appellant’s friend, a bald man in a red

truck, that he wanted to fight Appellant.    The bald man in the red truck

indicated that Rodriguez would have to fight him instead of Appellant. N.T.,

12/17/13, at 224-25.     While the men did not meet up again, Rodriguez

indicated that he was in a vehicle when the shooting began.        Rodriguez

observed Appellant, who was wearing a black hoodie, standing at the corner

of 5th and Cambria Streets. N.T. Trial, 12/17/13, at 227-28.

      Further, Angel Ducvo gave a written signed statement to the police in

which he confirmed that Appellant had fought with Rodriguez at the Puerto

Rican Parade. He also recalled that a bald man in a red Ford pickup truck

threatened to fight Rodriguez for Appellant. N.T. Trial, 12/17/13, at 88-90.

Ducvo admitted he did not see the shooter’s face but noted that the shooter

was the same size and height as Appellant and was wearing the same clothes,

including a black hoodie. N.T. Trial, 12/17/13, at 97, 266-72.

      As noted above, officers apprehended John Perez, a bald-headed

individual, driving a burgundy Ford F-150 pickup truck, shortly after the

shooting. Keyshla Rivera identified Perez as the man she saw with Appellant

before the shooting. N.T. Trial, 12/17/13, at 91, 103-110. Officers recovered

a Glock 9mm handgun in a hidden compartment on the right side of the front

                                    - 10 -

dashboard of Perez’s vehicle that was determined to be the murder weapon

by a ballistics expert. N.T. Trial, 12/18/13, at 208.

      Given the overwhelming evidence of Appellant’s guilt, we conclude that

Appellant failed to show that he was prejudiced by trial counsel’s failure to

impeach Keyshla Rivera with the electronic messages in question, such that

the result of his trial would have been different. As such, we affirm the PCRA

court’s decision dismissing Appellant’s petition.

      Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Date: 1/11/21

                                     - 11 -

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