J-S45021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

JOSE LOPEZ

                            Appellant                No. 3487 EDA 2015


                  Appeal from the PCRA Order October 14, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012713-2009


BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                              FILED JULY 31, 2017

        Appellant, Jose Lopez, appeals from the order dismissing his petition

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, without a hearing. Lopez alleges that he was entitled to an evidentiary

hearing, and ultimately a new trial, due to trial counsel’s ineffectiveness and

the Commonwealth’s alleged Brady1 violation. After careful review, we

conclude that none of Lopez’s claims have merit, and therefore affirm.

        For a recitation of the complete factual background and the procedural

history of this case, we refer the reader to this Court’s opinion in

Commonwealth v. Lopez, 57 A.3d 74 (Pa. Super. 2012). Briefly, at

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Brady v. Maryland, 373 U.S. 83 (1963)
J-S45021-17


approximately 4:00 a.m. on December 2, 2008, Maurice Robinson was shot

in the left thigh on the corner of Fifth and York Streets in Philadelphia.

Robinson recognized his shooter as a fellow heroin dealer, but did not know

him by name. After contacting the police and viewing a photographic array,

Robinson identified Lopez as his shooter.

       Robinson informed the police that Lopez had fled into a residence at

2311 North Fifth Street after the shooting. Police officers obtained a warrant

to search the residence and discovered mail addressed to one of Lopez’s

known aliases and a box of .25 caliber, PMC brand ammunition. This

ammunition matched two of the three cartridge casings found at the scene

of the shooting.2

       Lopez’s trial commenced in December 2010. Following a jury trial,3

Lopez was convicted of Aggravated Assault, Possessing an Instrument of

Crime, Persons Not to Possess, Use, Manufacture, Control, Sell, or Transfer

Firearms, Firearms Not to be Carried without a License and Carrying a
____________________________________________


2
  In his reply brief, Lopez criticizes the Commonwealth’s recitation of facts
and insinuates that a Commonwealth witness blatantly lied at trial about the
shell casings recovered matching the ammunition found at 2311 North Fifth
Street. See Appellant’s Reply Brief, at 3. However, this contention was not
raised on direct appeal, or in his PCRA petition, and further, is not supported
by the record. See N.T., Trial, 12/13/10, at 68-70; see also Lopez, 57 A.3d
at 77.
3
  Lopez waived his right to a jury trial on Persons Not to Possess, Use,
Manufacture, Control, Sell, or Transfer Firearms and was separately
convicted of this offense by the trial court.




                                           -2-
J-S45021-17


Firearm on Public Streets or Public Property in Philadelphia. 4 He was

sentenced to an aggregate term of 12½ to 25 years’ incarceration. After

requesting and receiving the appointment of a different appellate attorney,

Lopez filed a timely direct appeal to this Court. Therein, Lopez challenged

the sufficiency of the evidence underlying his convictions, the admission of

hearsay testimony, the admission of Jamie Eisenhuth’s testimony, and the

trial court’s denial of a mistrial request. We affirmed Lopez’s judgment of

sentence. On January 3, 2013, our Supreme Court denied Lopez’s petition

for allowance of appeal. Lopez did not file a petition for writ of certiorari to

the United States Supreme Court.

        Lopez filed a timely PCRA petition. Subsequently, Lopez filed a motion

requesting the Commonwealth turn over the surveillance videotape from

Happy Garden Restaurant, a restaurant located near the crime scene,

pursuant to the dictates of Brady. The PCRA court held a hearing on this

motion on March 16, 2015, following which the Commonwealth represented

that it was unable to find the alleged surveillance videotape.

        The PCRA court issued a Rule 907 notice of its intent to dismiss the

petition without a hearing, as it found Lopez’s petition meritless. Lopez filed

a response, but the trial court ultimately dismissed the petition. Lopez filed a

timely notice of appeal. On February 3, 2016, Lopez filed a motion to
____________________________________________


4
    18 Pa.C.S.A. §§ 2702(a), 907(a), 6105, 6106, and 6108, respectively.




                                           -3-
J-S45021-17


remand the PCRA matter to the PCRA court, or to alternatively, enlarge the

record on appeal. Through this motion, Lopez claimed that he discovered a

notation in an affidavit of probable cause, received in discovery, that

indicated a surveillance video had been recovered from Happy Garden

Restaurant in relation to the investigation. Lopez’s motion was denied,

without prejudice to his right to raise the issue in his appellate brief.

        On appeal, Lopez contends that the PCRA court erred by dismissing his

PCRA petition without an evidentiary hearing. See Appellant’s Brief, at 2 ¶

IV. To support this claim, Lopez alleges that trial counsel was ineffective for

failing to “conduct a reasonable pretrial investigation,” 5 failing to “request a

limiting instruction to eliminate the probability that the jury would misuse

evidence of prior bad acts,” and failing to “request an instruction on malice.”

Appellant’s Brief, at 1-2 ¶¶ I-II. Further, Lopez raises a Brady claim in

which he alleges that the Commonwealth suppressed an exculpatory

surveillance video. See Appellant’s Brief at 2 ¶ III. Lopez claims these issues

would have proved meritorious, resulting in the grant of a new trial, if he

was allowed to proceed to an evidentiary hearing. See Appellant’s Brief, at 2

¶ IV.


____________________________________________


5
  Through this claim, Lopez asserts that trial counsel was ineffective for
failing to interview and present Jamie Eisenhuth as an alibi witness and for
failing to subpoena the surveillance tape from Happy Garden Restaurant.
See Appellant’s Brief, at 30-42.



                                           -4-
J-S45021-17



      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “[Our] scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the

PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

2012) (citation omitted).

      The right to an evidentiary hearing on a post-conviction petition is not

absolute. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.

Super. 2001). It is within the PCRA court’s discretion to decline to hold a

hearing if the petitioner’s claim is patently frivolous and has no support

either in the record or other evidence. See id. It is the responsibility of the

reviewing court on appeal to examine each issue raised in the PCRA petition

in light of the record certified before it in order to determine if the PCRA

court erred in its determination that there were no genuine issues of

material fact in controversy and in denying relief without conducting a

hearing. See Commonwealth v. Hardcastle, 701 A.2d 541, 542-543 (Pa.

1997).

      Prior to reaching the merits of Lopez’s arguments, we must first

determine whether he has preserved his issues for our review. Through his

third issue on appeal, Lopez claims that the Commonwealth violated the

dictates of Brady by suppressing an exculpatory surveillance video. See

                                     -5-
J-S45021-17



Appellant’s Brief, at 2 ¶ III. He does not raise this claim in the context of an

allegation of the ineffective assistance of counsel. The Commonwealth

argues that this claim is meritless, as Lopez has failed to prove that such a

video even exists. See Commonwealth’s Brief, at 18-19. We conclude Lopez

has failed to preserve the issue for our review.

      In order to prevail on a PCRA petition, a PCRA petitioner is required to

show that his alleged claims of error have not been previously litigated or

waived. See 42 Pa.C.S.A. § 9543(a)(3). An issue is considered waived “if

the petitioner could have raised it but failed to do so before trial, at trial, on

appeal or in a prior state postconviction proceeding.” 42 Pa.C.S.A. §

9544(b).

      Here, Lopez’s own appellate brief proves fatal to his argument. Lopez’s

alleged proof that a surveillance video exists is the affidavit of probable

cause, which Lopez clearly admits to receiving as a part of pre-trial

discovery. See Appellant’s Brief, at 6. Even though Lopez was in receipt of

this allegedly definitive proof that the Commonwealth had committed a

Brady violation prior to trial, Lopez failed to raise this claim on direct

appeal. Therefore, he cannot raise it now on collateral review; it is waived.

See Commonwealth v. Cousar, 154 A.3d 287, 301-302 (Pa. 2017)

(finding appellant’s PCRA Brady claim waived as defendant could have

presented the claim in a post-sentence motion and on direct appeal).

      Through his preserved issues on appeal, Lopez asserts ineffectiveness

of trial counsel. See Appellant’s Brief, at 1-2 ¶¶ I-III, 19-42. Counsel is

                                      -6-
J-S45021-17



presumed effective; thus, an appellant has the burden of proving otherwise.

See Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super. 2004). “In

order for [an a]ppellant to prevail on a claim of ineffective assistance of

counsel, he must show, by a preponderance of the evidence, ineffective

assistance of counsel which … so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.”

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(citation omitted). Further:

      [An a]ppellant must plead and prove by a preponderance of the
      evidence that: (1) the underlying legal claim has arguable merit;
      (2) counsel had no reasonable basis for his action or inaction;
      and (3) Appellant suffered prejudice because of counsel’s action
      or inaction. With regard to the … reasonable basis prong, we will
      conclude that counsel’s chosen strategy lacked a reasonable
      basis only if Appellant proves that an alternative not chosen
      offered a potential for success substantially greater than the
      course actually pursued. To establish the … prejudice prong, [an
      a]ppellant must show that there is a reasonable probability that
      the outcome of the proceedings would have been different but
      for counsel’s action or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations and

quotation marks omitted). A failure to satisfy any prong of the test will

require rejection of the claim. See Commonwealth v. Spotz, 84 A.3d 294,

311 (Pa. 2014).

      Additionally, in “ineffectiveness claims in particular, if the record

reflects that the underlying issue is of no arguable merit or no prejudice

resulted,   no    evidentiary   hearing   is   required.”   Commonwealth   v.

Bauhammers, 92 A.3d 708, 726-727 (Pa. 2014) (citation omitted).

                                      -7-
J-S45021-17


“Arguable merit exists when the factual statements are accurate and could

establish cause for relief. Whether the facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,

540 (Pa. Super. 2015) (citation omitted). “Prejudice is established if there is

a reasonable probability that, but for counsel’s errors, the result of the

proceedings   would    have     been   different.   A   reasonable    probability   is

probability   sufficient   to   undermine      confidence    in      the   outcome.”

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en

banc) (citations and internal quotation marks omitted). We review a PCRA

court’s decision to deny a claim without a hearing for an abuse of discretion.

      We first address Lopez’s claim that trial counsel was ineffective for

failing to request a limiting instruction following the Commonwealth’s

introduction of evidence that Lopez was a heroin dealer. See Appellant’s

Brief, at 1-2 ¶ I, 19-30. Lopez asserts that trial counsel did not have a

reasonable basis for failing to request the limiting instruction and that trial

counsel’s failure to request the instruction prejudiced him because the

Commonwealth’s case was otherwise weak. See id., at 27-30. However, the

Commonwealth asserts that the PCRA court properly denied these claims

without holding an evidentiary hearing as Lopez failed to properly support

these claims with evidentiary support of trial counsel’s strategy. See

Commonwealth’s Brief, at 8-11. In response, Lopez contends that if his

PCRA petition was deficient, Pennsylvania Rule of Criminal Procedure 905(B)


                                       -8-
J-S45021-17


required the PCRA court to notify Lopez of the deficiency and grant him the

opportunity to amend the petition. See Appellant’s Reply Brief, at 11-12.

     In situations where evidence of a defendant’s prior bad acts is

admitted, a defendant is entitled to a jury instruction explaining that the

evidence   is   only        to   be   considered   for   a   limited   purpose.    See

Commonwealth           v.    Hutchinson,     811    A.2d     556,   561   (Pa.   2002).

     Recently, our Supreme Court examined the necessary allegations of

the unreasonableness of counsel’s actions that a petitioner must set forth in

their PCRA petition in order to merit an evidentiary hearing. In Cousar, the

Court noted that

     PCRA hearings are not discovery expeditions, but are conducted
     when necessary to offer the petitioner an opportunity to prove
     his explicit assertion of ineffectiveness raising a colorable claim
     about which there remains an issue of material fact. Particularly
     when PCRA claims require examination of trial strategy, it is not
     enough to take a cold record, state alternative choices counsel
     could have made, and then declare an entitlement to relief. Mere
     conclusory allegations, without some proffer as to what counsel
     would say in response to the allegations are insufficient to
     establish entitlement to relief. Thus a supporting document from
     counsel stating his reasons for the course chosen is generally
     necessary to establish potential entitlement for a hearing. See []
     Pa.R.Crim.P. 902(A)(12)(b) (PCRA petition shall contain facts
     supporting each ground for relief; if supporting facts do not
     appear of record “affidavits, documents and other evidence
     showing such facts” to be identified).

154 A.3d at 299-300 (some internal citations omitted).

     While the Court in Cousar recognized that the failure to include this

supporting document may be overlooked in situations where an appellant

adequately explains why he did not submit the information, it concluded that

                                           -9-
J-S45021-17


it is proper to decline to consider an appellant’s argument where they offer

neither the documentation or an explanation. See id., at 300 (citing

Commonwealth        v.   Marshall,   812      A.2d   539,   547-548   (Pa.   2002)

(significant factor in finding appellant did not establish prior counsel had no

reasonable basis for inaction was appellant’s failure to provide affidavit, or

explanation as to why he was unable to procure affidavit)). Ultimately, the

Cousar court determined that the appellant’s use of hindsight analysis and

conclusory argument to support the claim that trial counsel could not have

had a reasonable basis for failing to request a limiting instruction failed to

merit relief, or even an evidentiary hearing. See id., at 304.

      We recognize that Rule 905(B) requires a PCRA court to order

amendment of a defective PCRA petition. See Pa.R.Crim.P. 905(B). Further,

this Court has declined to dismiss claims of ineffective assistance of counsel

due to deficiencies in witness certifications where the PCRA court failed to

notify the appellant of the deficiencies and granted the opportunity to amend

the petition on remand. See, e.g., Commonwealth v. Lippert, 85 A.3d

1095, 1098 (Pa. Super. 2014). However, the PCRA court here did not

dismiss Lopez’s claims due solely to a deficiency in witness certifications, but

due to the deficiency in support for his claims that trial counsel was

unreasonable for failing to request this instruction and that he suffered




                                     - 10 -
J-S45021-17


prejudice as a result. See PCRA Court Opinion, 2/18/16, at 9.6 We find that

this difference is enough to explain the differing outcomes. Additionally, in

the event of any conflict between the interpretation of law as set forth by

our Court and the rules set forth by our Supreme Court, we must follow the

dictates of our Supreme Court. See Commonwealth v. Simmons, 565

A.2d 481, 484 (Pa. 1989) (the formal purpose of the Pennsylvania Superior

Court “is to maintain and effectuate the decisional law of the Supreme Court

of Pennsylvania as faithfully as possible”).

       Thus, because here, as in Cousar, Lopez relies upon only hindsight

analysis and conclusory argument to support his claim that trial counsel did

not have a reasonable basis for failing to request an instruction, we find that

his failure to even attempt to obtain supporting documentation from trial

counsel    proves     fatal   to   his    claim.   See   id.,   at   304   (observing

“[i]neffectiveness cannot be based on a hindsight analysis”).

       In his next claim, Lopez argues that trial counsel unreasonably failed

to request a jury instruction on malice, as it is a necessary element of

____________________________________________


6
  The PCRA court also posited that trial counsel chose a reasonable strategy
in not requesting the limiting instruction “so as not to bring the testimony
back to the jury’s attention.” PCRA Court Opinion, 2/18/16, at 9. This,
however, is pure speculation. Without an evidentiary hearing, the PCRA
court was not in a position to assess the reasonableness of trial counsel’s
strategy, if there even was such a strategy. See Cousar, 154 A.3d at 299
(noting the “preference for an evidentiary hearing on the reasonableness of
counsel’s actions or inactions respecting a claim of ineffectiveness prior to a
determination that counsel’s actions were, in fact, reasonable”).



                                          - 11 -
J-S45021-17


aggravated    assault.   See   Appellant’s    Brief,   at   3   ¶   II,   41-42.   The

Commonwealth responds that the charge as given was proper and asserts

that Lopez’s claim fails on that basis. See Commonwealth’s Brief, at 16. We

agree with the Commonwealth that his claim lacked arguable merit. Lopez

requests an utterly irrelevant instruction.

      A trial court may instruct the jury on an offense only where “the

offense has been made an issue in the case and where the trial evidence

reasonably would support such a verdict.” Commonwealth v. Browdie,

671 A.2d 668, 674 (Pa. 1996) (citations omitted). Thus, a claim alleging trial

counsel’s ineffectiveness for failing to request a particular jury instruction

lacks arguable merit where the appellant was not legally entitled to the

instruction in the first place. See Commonwealth v. Busanet, 54 A.3d 35,

52 (Pa. 2012).

      At trial, neither the Commonwealth nor Lopez offered evidence that

would support the conclusion that Robinson suffered serious bodily injury.

See Appellant’s Brief, at 41-42; Commonwealth’s Brief, at 16-17. Therefore,

the only portion of the offense that could properly be presented to the jury

concerned an attempt to cause serious bodily injury. See 18 Pa.C.S.A. §

2702(a)(1). Under this portion of the statute, an attempt requires a showing

of an act accompanied by a specific intent to inflict serious bodily injury. See

Commonwealth .v Matthew, 909 A.2d 1254, 1257 (Pa. 2006). There is no

requirement that malice be shown. Thus, it would not have been proper for


                                     - 12 -
J-S45021-17


the trial court to give this instruction. We cannot find trial counsel ineffective

for failing to request an irrelevant instruction.

      Through his last ineffectiveness argument, Lopez alleges that trial

counsel   was     ineffective     for    failing   to    conduct   a   reasonable     pretrial

investigation. See Appellant’s Brief, at 35-41. Lopez points to two pretrial

actions by trial counsel that he alleges amount to ineffectiveness: (1) trial

counsel’s failure to investigate and call Jamie Eisenhuth as an alibi witness;

and (2) trial counsel’s failure to subpoena the surveillance tape from Happy

Garden Restaurant. See id.

      Lopez contends that Eisenhuth’s testimony would have provided Lopez

with an alibi, that no reasonable attorney would have failed to investigate

Eisenhuth, and that if his attorney hadn’t failed to conduct this investigation,

there was a reasonable probability of a different outcome. See id., at 36.

      Lopez     has    failed   to      include    information     concerning   Eisenhuth’s

“availability to testify, as well as an adequate assertion that the substance of

the   purported       testimony      would        make    a   difference   in   the    case.”

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (citation

omitted). Additionally, Lopez does not indicate if trial counsel knew of

Eisenhuth, and if so, counsel’s reasoning for failing to investigate or call her

as an alibi witness. Thus, once again, Lopez’s lack of specify provides fatal to

his ineffectiveness claim.




                                             - 13 -
J-S45021-17


      Lastly, Lopez contends that trial counsel was ineffective for failing to

subpoena the surveillance videotape from Happy Garden Restaurant. See

Appellant’s Brief, at 37. Lopez has failed to show prejudice.

      Despite Lopez’s contentions and numerous filings to the opposite, he

has failed to establish a reasonable probability that, but for counsel’s failure

to subpoena the videotape, there is a reasonable probability the result of the

proceedings would have been different. First, there is no proof of record that

a surveillance videotape of the exterior of Happy Garden Restaurant ever

existed. Lopez’s only evidence to the contrary is a police photograph, which

“suggest[ed] that a surveillance camera was installed on the restaurant with

a view of the location of the shooting,” and an affidavit of probable cause

stating that police retrieved a surveillance videotape from the premises.

Appellant’s Motion for Discovery, 3/16/15.

      However, the police photograph, which is in the certified record, does

not clearly show a surveillance camera and Lopez alleged no other facts that

would permit an inference that an exterior surveillance camera existed.

Further, through his appellate brief, Appellant utterly fails to demonstrate

how the introduction of the surveillance videotape would change the result of

his proceedings. See Appellant’s Brief, at 41. Thus, Lopez’s final claim of

ineffectiveness is meritless. Further, as we do not find that Lopez presented

any issues of merit, we find that the PCRA court properly dismissed Lopez’s

petition without a hearing.


                                     - 14 -
J-S45021-17


     Order affirmed.

     President Judge Gantman joins the memorandum.

     Judge Strassburger concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/2017




                                  - 15 -
