Com. v. Montanez, J.
CourtSuperior Court of Pennsylvania
Date FiledOctober 27, 2026
Docket328 MDA 2026
JudgeDubow
StatusUnpublished
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Full Opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAYSON S. MONTANEZ :
:
Appellant : No. 328 MDA 2026
Appeal from the PCRA Order Entered February 5, 2026
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001520-2021
BEFORE: PANELLA, P.J.E., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY DUBOW, J.: FILED: OCTOBER 27, 2026
Appellant Jayson S. Montanez appeals from the Order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 He asserts
trial counsel provided ineffective assistance by failing to present his mother
as a witness at his trial. After careful review, affirm.
On September 28, 2022, a jury found Appellant guilty of committing
numerous sexual offenses against his minor daughter (“Victim”) between
2012 and 2014.2 On January 2, 2023, the court imposed an aggregate
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1 42 Pa.C.S. §§ 9141-46.
2 Notably, prior to Appellant’s trial, the court held a hearing on the
Commonwealth’s motion to admit Pa.R.E. 404(b) evidence relevant to
Appellant’s convictions in a prior case of possession of child pornography. At
that hearing, a police officer testified that it was Appellant’s mother who
alerted the police officer on June 15, 2017, that she had found child
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sentence of 50 to 100 years’ incarceration. Following the denial of his post-
sentence motion and the reinstatement of his direct appeal rights nunc pro
tunc, Appellant filed a direct appeal. Appellant subsequently withdrew his
direct appeal and filed a timely pro se PCRA petition.
Following the appointment of counsel and the PCRA court’s grant of
several extensions requested by counsel, Appellant filed a counseled
supplemental PCRA petition on March 19, 2025, contending, inter alia, that
trial counsel provided ineffective assistance by failing to call Appellant’s
mother, Lisa Toledo, to testify at trial. He averred that she would have
testified that she lived with Appellant during the relevant time period, that she
never observed or suspected any type of abuse, and that she never observed
her grandson sleeping outside of Victim’s bedroom door as the boy had
asserted at trial. Supplemental PCRA Pet., 3/19/25, at ¶ 31.
The PCRA court held a hearing on January 23, 2026. At the
commencement of the hearing, the Commonwealth moved to dismiss the
petition because Appellant’s trial attorneys were unavailable to testify—one
attorney had died and the other had suffered a stroke. The court denied the
Commonwealth’s motion.
Ms. Toledo testified that Appellant had lived with his children in her
house for two or three years, beginning in 2012. She testified that she never
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pornography images on Appellant’s phone. N.T. 9/27/2022, at 4-5. The court
granted the Commonwealth’s motion.
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saw Appellant sexually abuse Victim and that Victim never reported any abuse
to her.3 She stated that she generally went to sleep an hour after the children
went to bed and that she was always asleep before Appellant went to bed.4
Ms. Toledo also testified that she did not have a criminal record and was
available and willing to testify at trial.5 On cross-examination, Ms. Toledo
acknowledged that she was not with Victim all day, every day.6
Appellant testified that he told trial counsel that Ms. Toledo had spent
the most time with Victim and that Ms. Toledo should be called as a witness
at trial.7
The PCRA court denied relief. Appellant timely appealed.
Appellant raises the following issue for our review: “Whether the trial
counsel was ineffective in representing the Appellant.” Appellant’s Br. at 1.
He argues that because Ms. Toledo had “noted that Appellant was rarely, if
ever, alone with the victim[],” her testimony “would certainly have affected
the decision of the jury.” Id. at 9. He further contends that “[t]here is no
question that defense counsel’s presentation of Lisa Toledo would have
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3 N.T. PCRA Hr’g, 1/23/26, at 10.
4 Id. at 8.
5 Id. at 11.
6 Id. at 14.
7 Id. at 19-20.
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bolstered Appellant’s defense and strengthened Appellant’s chances of
instilling reasonable doubt in the minds of the jury.” Id.
We review the denial of a PCRA petition to determine whether the record
supports the PCRA court's determination and whether its order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).
“This Court grants great deference to the findings of the PCRA court if the
record contains any support for those findings.” Commonwealth v.
Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).
To prevail on a petition for PCRA relief, a petitioner must plead and
prove, by a preponderance of the evidence, that his conviction or sentence
resulted from one or more of the circumstances enumerated in 42 Pa.C.S. §
9543(a)(2). These circumstances include ineffective assistance of counsel,
which “so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” Id. at
9543(a)(2)(ii).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he
burden of demonstrating ineffectiveness rests on [the] appellant.” Id. To
satisfy this burden, the appellant must plead and prove by a preponderance
of the evidence that: (1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel's actions or failure to act; and (3) there
is a reasonable probability that the outcome of the challenged proceeding
would have been different absent counsel's error. Commonwealth v.
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Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the
test will result in rejection of the appellant's claim. Id.
To establish the prejudice prong, the petitioner must prove a reasonable
probability that the outcome of the relevant proceedings would have been
different but for counsel’s action or inaction. Commonwealth v. Busanet,
54 A.3d 35, 46 (Pa. 2012).
When a petitioner asserts that trial counsel failed to call a witness as
requested, he must meet the following requirements: “(1) the witness existed;
(2) the witness was available to testify for the defense; (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 of the
witness was so prejudicial as to have denied the defendant a fair trial.”
Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007). “Failure to
call a witness is not per se ineffective assistance of counsel, for such a decision
implicates matters of trial strategy.” Id. It is the petitioner’s burden to prove
that the witness's testimony would have been helpful to the defense.
Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012).
The PCRA court here concluded that Appellant failed to satisfy the
second and third prongs of the ineffective assistance of counsel test.
[Appellant] did not establish that the failure to call Lisa Toledo as
a witness at trial did not have some reasonable basis designed to
effectuate his interest. The most glaring deficiency in [Appellant’s]
presentation is his failure to demonstrate that there is a
reasonable probability that the outcome of the proceedings would
have been different had Lisa Toledo testified. No evidence
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whatsoever was presented to satisfy the third prong of the
ineffectiveness test. The credible testimony and evidence
presented by the Commonwealth at trial unquestionably proved
[Appellant’s] guilt beyond a reasonable doubt. There is no
reasonable probability that the outcome of [Appellant’s] trial
would have been different had Lisa Toledo testified.
PCRA Ct. Op., 2/5/26, at 6.
The PCRA court also found that Appellant had “failed to provide credible
testimony that trial counsel knew of, or should have known of the existence
of, Lisa Toledo.” Id.
Following our review of the record, we conclude that the PCRA court did
not abuse its discretion in denying Appellant’s petition. Appellant’s
argument—that his mother’s testimony would have “bolstered his defense”
and “increased his chances of instilling reasonable doubt in the minds of the
jury”—fails to convince this Court that he proved that the outcome of the
proceeding would have been different if counsel had called his mother to
testify. Likewise, in light of Ms. Toledo’s testimony that she was not always
with Victim and that she was asleep before Appellant most nights, Appellant
has failed to prove that the absence of his mother’s testimony was so
prejudicial as to have denied Appellant a fair trial or that no reasonable basis
existed for counsel’s failing to present her testimony at trial.
Having concluded that Appellant failed to prove ineffective assistance of
counsel, we conclude the PCRA court properly exercised its discretion in
denying Appellant’s petition.
Order affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/27/2026
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