J-A25043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSE ANTONIO CRUZ                          :
                                               :
                       Appellant               :   No. 2543 EDA 2016

                    Appeal from the PCRA Order July 25, 2016
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0003697-2011,
                             CP-39-CR-0003701-2011


BEFORE:      OTT, J., STABILE, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                     FILED MAY 15, 2018

        Jose Antonio Cruz appeals, pro se, from the order entered July 25, 2016,

in the Lehigh County Court of Common Pleas, dismissing Cruz’s first petition

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 Cruz seeks relief

from the judgment of sentence of life imprisonment, and a consecutive term

of 27 to 54 years’ incarceration, imposed following his jury conviction of first-

degree murder, aggravated assault, robbery (five counts), and firearms not

to be carried without a license (two counts).2         Cruz raises four issues on

appeal: (1) trial counsel was ineffective for failing to investigate and present
____________________________________________


   Former Justice specially assigned to the Superior Court.

1   42 Pa.C.S.§§ 9541-9546.

2 See 18 Pa.C.S. §§ 2502(a), 2702, 3701(a)(1)(i) and (ii), and 6106,
respectively.
J-A25043-17



evidence of Cruz’s mental illness to negate the element of specific intent; (2)

trial counsel was ineffective for failing to call Detective Pedro Cruz to testify

regarding statements Cruz made to him; (3) all prior counsel were ineffective

for failing to challenge the legality of his sentence; and (4) direct appeal

counsel was ineffective for failing to petition the Pennsylvania Supreme Court

for allowance of appeal. For the reasons below, we affirm in part, reverse in

part, and remand for further proceedings.

      The   facts    underlying   Cruz’s   arrest   and   convictions   were   aptly

summarized in the decision affirming his judgment of sentence on direct

appeal as follows:

         In June of 2011, [Cruz] and Elba Lopez, along with their minor
      children [Footnote 4] resided at 3 Maryland Circle, Apartment #
      3, Whitehall, Lehigh County, Pennsylvania. [Cruz] and Ms. Lopez
      had been in a relationship, off and on, since 2008. Throughout
      their relationship, [Cruz] had concerns that Ms. Lopez was
      unfaithful to him. On the morning of June 5, 2011, [Cruz] learned
      that Ms. Lopez had had a past relationship with one of her
      coworkers. [Cruz] became upset and meandered throughout
      Allentown during the day, visiting with family members and
      consuming alcohol. [Cruz] returned to his home at approximately
      midnight, but did not see either Ms. Lopez or his minor children in
      the home.[Footnote 5]

         [Footnote 4] The couple had two children at the time of the
         instant crimes; Ms. Lopez has since given birth to a third
         child.

         [Footnote 5] [Cruz] testified that he only noticed that his 12
         year old son from a prior relationship was in the apartment,
         playing video games in the living room area.

         In the late evening hours of June 5, 2011, Alexis Lopez was
      visiting his sister, Elba Lopez, at the apartment she shared with
      [Cruz]. When Mr. Lopez arrived at the home, Elba and the
      children were in the apartment, [Cruz] was either not at the home

                                       -2-
J-A25043-17


     yet or was unseen by Mr. Lopez.        Mr. Lopez stayed for
     approximately 45 minutes. As he left the apartment, he kissed
     his sister goodbye and proceeded down the steps outside of the
     individual apartment.

        At this point, [Cruz] had exited the bathroom of the apartment,
     naked, when he believed that [he] heard Ms. Lopez speaking to
     and kissing an unknown male. [Cruz] confronted Ms. Lopez and
     [Cruz] began to physically assault Ms. Lopez.

        At this moment, Mr. Lopez was walking down the stairs when
     he heard an argument and heard his sister scream. He proceeded
     back up the stairs and encountered his sister running down the
     steps, carrying the two small children. She told him to run, that
     [Cruz] had a gun.

         [Cruz] emerged from the apartment and fired a gun into the
     air. He then returned to his apartment to put on clothes.

        Meanwhile, Mr. Lopez had taken Ms. Lopez and her children to
     [Cruz’s] mother’s house, about 10 minutes away. Mr. Lopez left
     his sister and the children at that location, while taking [Cruz’s]
     mother and brother back to the apartment at 3 Maryland Circle so
     that they could speak to [Cruz]. When they arrived back at the
     apartment, [Cruz] was not there.

        On a mission to find Ms. Lopez and/or the unknown male,
     [Cruz] took Ms. Lopez’s silver car to 420 West Oak Street,
     Allentown, Lehigh County, Pennsylvania, the home of Ms. Lopez’s
     mother, Maria Sepulveda, and her husband, Edwin Jimenez–
     Gonzalez.

            In the early morning hours of June 6, 2011, A[dal]berto
     Lopez, another brother of Elba Lopez, was at 420 West Oak Street.
     Mr. Lopez was working in a first floor computer room of the home
     and Ms. Sepulveda and Mr. Jimenez–Gonzalez were asleep in their
     bedroom on the second floor. At approximately 1 a.m., [Cruz]
     arrived at the back door/kitchen door to 420 West Oak Street. Mr.
     Lopez responded to the door and [Cruz] began to tell Mr. Lopez to
     let him into the home and asked where Elba Lopez was. Mr. Lopez
     refused to open the door and told [Cruz] to leave, that Elba Lopez
     was not there. [Cruz] began to force his way into the home.

          Hearing the commotion at the door, Mr. Jimenez–Gonzalez
     came downstairs, along with Ms. Sepulveda. Mr. Lopez told Mr.
     Jimenez–Gonzalez not to open the door. Mr. Jimenez–Gonzalez

                                    -3-
J-A25043-17


     walked to the back door and told Mr. Lopez that he was just going
     to talk to [Cruz]. [Cruz] demanded to speak to Elba Lopez. Mr.
     Jimenez–Gonzalez and Mr. Lopez repeatedly told [Cruz] that Elba
     Lopez was not there and told him to go home. Again, [Cruz]
     attempted to enter the residence, forcing his way into the home.
     At that point, Mr. Jimenez–Gonzalez grabbed [Cruz] and was able
     to push him to the door.

            [Cruz] immediately pulled a silver Magnum handgun out of
     the pocket of the black hoodie he was wearing, and said, “What’s
     your problem?” to Mr. Jimenez–Gonzalez. Mr. Lopez told [Cruz]
     to put the gun down and to leave the home. [Cruz] continued to
     point the gun at Mr. Jimenez–Gonzalez. While inside the home,
     Mr. Jimenez–Gonzalez tried to grab the gun from [Cruz]. The two
     began to struggle and the tussle wound its way to the rear patio
     of the home. A shot rang out, there was a pause, and a second
     shot rang out. Mr. Jimenez–Gonzalez screamed for someone to
     call the police, fought to get back inside the house and collapsed
     on the kitchen floor by the steps leading to the second floor. Ms.
     Sepulveda went to her husband to comfort him. [Cruz] fled the
     residence.

            [Cruz’s] version of the events, as he testified at trial, differs
     slightly. [He] asserts that after he asked Mr. Jimenez–Gonzalez if
     Elba Lopez was at the home, a struggle between them ensued.
     [Cruz] asserts that Mr. Jimenez–Gonzalez struck him in the face
     and grabbed him by the neck. [Cruz] testified that he told Mr.
     Jimenez–Gonzalez “to back off” but that he did not.           He then
     testified that Mr. Jimenez–Gonzalez grabbed the gun and as they
     struggled, a shot went off. [Cruz] was unsure who was hit
     (although he felt no pain) and a second shot was fired. He
     admitted that he was the one who pulled the trigger twice during
     the struggle. He recalled seeing Mr. Jimenez–Gonzalez fall to the
     kitchen floor and immediately fled the scene because he “just
     wanted to get away.”

           An ambulance arrived shortly thereafter and took Mr.
     Jimenez–Gonzalez to the hospital. The shots Mr. Jimenez–
     Gonzalez received were fatal. An autopsy was performed and the
     cause of death was determined to be gunshot wounds of the torso
     with fractures and visceral injuries. The manner of death was
     ruled a homicide.

          Two .45 caliber shell casings were recovered from 420 West
     Oak Street and sent for further ballistic testing.


                                      -4-
J-A25043-17


            A short time after the alleged shooting, at approximately 1
     am on June 6, 2011, Oscar Hernandez was driving his Ford
     Mustang at the intersection of Union Boulevard and Airport Road,
     Allentown, Lehigh County, near the Wawa convenience store. As
     he approached the intersection travelling south on Airport Road,
     a car from his right side proceeded through a red light and the
     two vehicles crashed. A witness from a nearby home came to
     the intersection to make sure that Mr. Hernandez was alright. Mr.
     Hernandez’s vehicle was incapacitated at the scene and the
     striking vehicle came to a stop in the Wawa parking lot. While on
     scene, Mr. Hernandez heard gunshots from the direction of the
     Wawa.

            Leandro Perez was also at the Wawa that morning, driving
     a white Jeep. After pulling up to one of the gas pumps, Mr. Perez
     exited his vehicle and attempted to open the cap of his gas tank.
     Immediately, a male approached him with a pointed handgun,
     demanding the keys to the Jeep. The individual appeared to be in
     a hurry and Mr. Perez noticed that he was wearing dark clothing
     and had a stream of blood going down his face. Mr. Perez told the
     individual that he couldn’t give him the keys. The individual
     repeatedly asked Mr. Perez for the keys, but Mr. Perez refused to
     give them to him. The individual eventually walked or ran away.
     This interaction was observed by Jeannie McFarland, manager at
     the Wawa on that evening.

           Ms. McFarland observed the same individual proceed to
     another car positioned at a different gas pump, where Elionel
     Diaz–Rivera and his friend, Pedro Leon, were. Mr. Leon was
     driving a black Cadillac. Mr. Diaz–Rivera and Mr. Leon went inside
     the Wawa to prepay for gasoline and to use the ATM. They then
     began to walk back towards the car. Mr. Diaz–Rivera observed an
     unknown man wearing dark clothing exiting the Cadillac’s driver’s
     side door. The man approached Mr. Diaz–Rivera and Mr. Leon and
     asked them for the car keys. Mr. Diaz Rivera observed a gun at
     the man’s waist. The keys were not turned over to the individual
     and Mr. Diaz–Rivera and Mr. Leon went back [inside] the Wawa
     store. Mr. Leon proceeded to hide behind a refrigerator after he
     overheard another patron say someone had a gun.

           Carla Arce and her husband, Samir, were also at the Wawa,
     attempting [to] get gas for their Honda Accord. Samir, who was
     driving the vehicle, pulled up to the pump, with his window down
     and the door slightly ajar. Immediately a man pointed a gun to
     his head and told him to give him the car keys. Samir told the

                                   -5-
J-A25043-17


     man that he would give him anything he wanted, but not to hurt
     either of the Arces. Ms. Arce remained in the passenger seat. The
     individual with the gun got into the driver’s seat and pointed the
     gun at Ms. Arce’s head. He asked her, “Do you know how to drive
     this piece of shit?” Ms. Arce told him she did not, as the car has
     a standard transmission. The individual exited the car and Ms.
     Arce quickly got out of the car to look for help. Ms. Arce observed
     the individual go towards another vehicle in the Wawa parking lot
     and observed the individual leave the Wawa, heading westbound.

            Natasha Henn was also at the Wawa. She had parked her
     purple Dodge Neon in front of the convenience store while the
     friend she was with went into the store. Ms. Henn noticed that
     people inside of the Wawa were looking out of the window in her
     direction. Ms. Henn glanced behind her but didn’t see anything.
     As she started to get out of her car, someone stopped her by
     grabbing her door. The individual held a gun to her head and told
     her to get out. She had her keys in her hand, got out of the car
     and the individual got into the car. She ran into the store, with
     her keys still in her hand. She was able to notice that the
     individual was wearing black and had a cut on his face.

           Raymond Shook and George Fetter were also at the Wawa
     that morning. Mr. Fetter was driving his son’s black Audi and
     parked the vehicle in front of the Wawa store. Mr. Fetter exited
     the vehicle and went inside the Wawa, leaving Mr. Shook in the
     passenger seat, with the car’s engine still on. Mr. Fetter heard an
     argument outside of the convenience store and turned around to
     see what was happening. He observed an unknown man getting
     into his Audi. Mr. Fetter walked back to the car and ran around
     to the rear of the vehicle. The individual then turned around to
     face Mr. Fetter, pointed a gun at him, and Mr. Fetter became
     scared. Mr. Fetter hunched down behind the vehicle and observed
     the unknown individual struggling with Mr. Shook inside of the car.
     Mr. Fetter then heard gunshots and Mr. Fetter ran away from the
     vehicle.

            Meanwhile inside of the Audi, Mr. Shook saw Mr. Fetter
     approach the door of the Wawa, only to find the doors locked. At
     that moment, an unknown individual entered the Audi, pointed a
     gun at Mr. Shook’s side and said, “Get out.” Mr. Shook attempted
     to exit, but the door would not open. Mr. Shook told the unknown
     individual to open the doors and pushed the gun away from him.
     At that point, Mr. Fetter was approaching the vehicle. The
     individual got out of the car and confronted Mr. Fetter. When the

                                    -6-
J-A25043-17


     individual returned, Mr. Shook was attempting to place his feet
     out of the passenger side window to escape. The individual shot
     at Mr. Shook, hitting him once through the left side (ribcage),
     while Mr. Shook was half-way out of the vehicle. After getting
     shot, Mr. Shook went into the Wawa store and asked for
     help.[Footnote 6]

        [Footnote 6] All of the robbery victims, except for Ms. Arce,
        were able to positively identify [Cruz] as the individual
        wielding the weapon and wearing the black hoodie.

         It was later determined that the bullet entered the left side of
     Mr. Shook's rib cage, went underneath his heart, through his liver,
     bladder, colon, and intestines and became lodged in his leg, where
     it remains. Mr. Shook spent approximately two and a half months
     in the hospital and underwent a 10 hour surgery. He had four feet
     of his large bowel and five feet of his small bowel removed. He
     still has pain under his rib cage, has difficulty with his stomach
     and bowels, and suffered a blood clot in his lung. He continues to
     receive medical care.

        Immediately after Mr. Jimenez–Gonzalez was shot, A[dal]berto
     Lopez called 911. Officers arrived, along with EMS personnel to
     attend to Mr. Jimenez–Gonzalez. Information was related to the
     communications center indicating a description of [Cruz] and the
     vehicle he was driving. Further, the communications center
     received information regarding the vehicle accident involving Mr.
     Hernandez’s car and from other sources at the Wawa regarding
     the incidents that took place at the Wawa. Descriptions received
     and additional information was disseminated via police radio.

        At approximately 7:46 a.m. on June 6, 2011, Sergeant Eric
     Heicklen of the Allentown Police Department observed a vehicle
     matching the description and license plate information of the Audi
     stolen from the Wawa at 510 East Moser Street, Allentown, Lehigh
     County (the Washington Crossing Apartment complex). The
     Emergency Response Team (ERT) of the Allentown Police
     Department responded to the location and recovered the vehicle.
     After the building had been evacuated, [Cruz] was located in
     Apartment 17 and was taken into custody. At that time, [Cruz]
     had an abrasion and lumping on his head and he was complaining
     of back pain.

        At approximately 8:30 a.m. on June 6, 2011, Detective Pedro
     Cruz of the Allentown Police Department went to [Cruz’s] home at
     3 Maryland Circle, Apartment # 3, Whitehall, and searched the

                                    -7-
J-A25043-17


        apartment. As a result, Detective Cruz found a .45 caliber shell
        casing outside of [Cruz’s] apartment building, next to the main
        door.

           Inside of the apartment, Detectives Daniel Gross and William
        Lake of the Allentown Police Department recovered a key fob with
        the Audi symbol on it, hidden in the back of a speaker in the
        apartment’s living room. Inside of another speaker, a lanyard
        with what appeared to be house keys was located. The Audi key
        was later returned to Mr. Fetter and corresponded with his vehicle.
        The lanyard with house keys was identified by Mr. Fetter’s son as
        belonging to him.

           Detective Mark Boyer of the Allentown Police Department
        determined that [Cruz] did not have a license to carry a firearm.

            Sergeant Kurt Tempinski of the Pennsylvania State Police
        Forensic Services, and qualified as an expert in toolmark and
        firearm examination, examined and determined that the bullets
        recovered from the victim’s body were discharged from the same
        firearm. Further, he determined that bullet casings found at 420
        Oak Street and at 3 Maryland Circle were discharged from the
        same firearm. The firearm was never recovered.

Commonwealth v. Cruz, 107 A.3d 232 [92 EDA 2013] (Pa. Super. 2014)

(unpublished memorandum at 1-9) (citation omitted).

        Subsequently, Cruz was charged at Docket No. 3697-2011 with offenses

related to the incident at Lopez’s mother’s home, including the murder of

Jimenez-Gonzalez.         He was also charged at Docket No. 3701-2011, with

offenses related to the incident at the Wawa, including attempted murder 3 and

aggravated assault for the shooting of Shook. Although counsel filed a pretrial

notice that he intended to raise a mental infirmity defense, he did not pursue

that defense at trial. Cruz’s jury trial commenced on July 17, 2012. On July

____________________________________________


3   See 18 Pa.C.S. § 901.


                                           -8-
J-A25043-17



25, 2012, the jury returned the following verdict: (1) at Docket No. 3697-

2011, the jury found Cruz guilty of the charges of first-degree murder and

firearms not to be carried without a license; (2) at Docket No. 3701-2011, the

jury found Cruz guilty of one count of aggravated assault and firearms not to

be carried without a license, and five counts of robbery. Cruz was acquitted

of the attempted murder of Shook.              On August 29, 2012, the trial court

sentenced Cruz to a mandatory term of life imprisonment for the charge of

first-degree murder, and a consecutive aggregate term of 27 to 54 years’

incarceration for the remaining convictions.4 That same day, trial counsel was

permitted to withdraw, and the court appointed new counsel for appeal.

       Due to an administrative error, appellate counsel failed to file a timely

direct appeal.    Accordingly, in December of 2012, counsel sought leave to

appeal nunc pro tunc, which the trial court granted. Thereafter, a panel of

this Court affirmed Cruz’s judgment of sentence on direct appeal. See Cruz,



____________________________________________


4 At Docket No. 3697-2011, the court imposed a consecutive term of three to
six years’ imprisonment for the firearms offense. At Docket No. 3701-2011,
the court imposed consecutive terms of six to 12 years’ imprisonment for three
of the robbery charges, and a consecutive term of six to 12 years’
imprisonment for the aggravated assault charge; on each of remaining two
robbery charges, the court imposed a concurrent term of six to 12 years’
imprisonment, as well as a concurrent term of three to six years’ imprisonment
on the firearms offense. Accordingly, the aggregate sentence imposed
consecutively to the life sentence was 27 to 54 years’ incarceration.




                                           -9-
J-A25043-17



supra.    No petition for allowance of appeal was filed in the Pennsylvania

Supreme Court.

       On September 24, 2015, Cruz filed this timely PCRA petition. Counsel

was appointed, and on June 24, 2016, filed a motion to withdraw, and a

Turner/Finley5 “no merit” letter.              Cruz did not respond specifically to

counsel’s “no merit” letter, but rather filed several pro se motions seeking,

inter alia, discovery and the recusal of the PCRA judge. On June 30, 2016,

the PCRA court provided Cruz with notice of its intent to dismiss his petition

without first conducting an evidentiary hearing, for the reasons outlined in

counsel’s “no merit” letter. See Pa.R.Crim.P. 907. In the same notice, the

Court also granted counsel’s motion to withdraw. On July 19, 2016, Cruz filed

a pro se response to the court’s Rule 907 notice, in which he requested an

evidentiary hearing, and asserted PCRA counsel’s ineffectiveness.              See

Defendant’s Response to Trial Court’s 907 Notice of Intent to Dismiss PCRA,

7/19/2016. The PCRA court entered an order on July 25, 2016, dismissing

Cruz’s PCRA petition.         Nevertheless, on July 26, 2016, Cruz filed an

amended/supplemental PCRA petition, asserting the illegality of his sentence.

The court denied the supplemental petition on July 27, 2016, stating it had

already denied PCRA relief.        This timely appeal followed.6
____________________________________________


5 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

6 The PCRA court did not direct Cruz to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b).


                                          - 10 -
J-A25043-17



      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).       Further, a PCRA court may

dismiss a petition “without an evidentiary hearing if there are no genuine

issues of material fact and the petitioner is not entitled to relief.” Id. at 1284

(citations omitted). Where, as here, the defendant alleges counsel rendered

ineffective assistance, we note:

              “In order to obtain relief under the PCRA premised upon a
      claim that counsel was ineffective, a petitioner must establish
      beyond a preponderance of the evidence that counsel’s
      ineffectiveness ‘so undermined the truth-determining process that
      no reliable adjudication of guilt or innocence could have taken
      place.’” Commonwealth v. Payne, 794 A.2d 902, 905 (Pa.
      Super. 2002), quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). When
      considering such a claim, courts presume that counsel was
      effective, and place upon the appellant the burden of proving
      otherwise. Id. at 906. “Counsel cannot be found ineffective for
      failure to assert a baseless claim.” Id.

            To succeed on a claim that counsel was ineffective,
      Appellant must demonstrate that: (1) the claim is of arguable
      merit; (2) counsel had no reasonable strategic basis for his or her
      action or inaction; and (3) counsel’s ineffectiveness prejudiced
      him. Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super.
      2003).

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

demonstrate prejudice, a petitioner must show that there is a reasonable

probability that, but for counsel’s actions or inactions, the result of the

proceeding would have been different.” Commonwealth v. Mason, 130 A.3d

601, 618 (Pa. 2015).


                                     - 11 -
J-A25043-17



      In his first issue, Cruz contends trial counsel was ineffective for failing

to “investigate and introduce Cruz’s psychiatric records” to establish Cruz

suffered from mental illness, and negate the specific intent to kill required to

support his conviction of first-degree murder. Cruz’s Brief at 11. In particular,

Cruz insists counsel should have called Dr. Frank M. Dattilio to testify. See

id. at 15. Dr. Dattilio evaluated Cruz in 1994, after a then 14-year-old Cruz

accidentally shot and killed his 13-year old brother. See id. at 12. Although

Cruz was initially arrested and charged as an adult, the shooting was later

ruled accidental. See id. Cruz maintains the PCRA court erred in failing to

conduct an evidentiary hearing on this issue because Dr. Dattilio’s psychiatric

evaluation, which Cruz attached to his PCRA petition, establish that Cruz

suffered from post-traumatic stress disorder (“PTSD”), with “impulsivity”

issues, and would require ongoing and consistent treatment. See id. at 12-

13. He insists this evidence was relevant to his state of mind at the time of

present shooting, and may have supported a conviction of a lesser degree of

homicide. See id. at 14, 16-17.

      Preliminarily, we note:

      To prevail on a claim of trial counsel’s ineffectiveness for failure
      to call a witness,   an      appellant     must      show:       (1)
      the witness existed; (2) the witness was available; (3) counsel
      was informed of the existence of the witness or should have
      known of the witness’s existence; (4) the witness was prepared to
      cooperate and would have testified on appellant’s behalf; and (5)
      the absence of the testimony prejudiced appellant.

Commonwealth v. Cousar, 154 A.3d 287, 312 (Pa. 2017).                 Here, trial

counsel was, arguably, aware of Dr. Dattilio’s existence as a possible witness

                                     - 12 -
J-A25043-17



because counsel had filed a pretrial motion seeking to obtain Cruz’s

psychological records.    See Motion, 2/20/2012.        Assuming arguendo, Dr.

Dattilio was available and willing to testify on Cruz’s behalf, we still conclude

Cruz is entitled to no relief since he was not prejudiced by the absence of Dr.

Dattilio’s testimony. Indeed, disregarding the staleness of the diagnosis made

17 years before the crime at issue, we conclude the fact that Cruz may have

suffered from PTSD, with impulsivity concerns, would not have supported a

defense to the murder of Jimenez-Gonzalez.

      With regard to the defense of diminished capacity, the Pennsylvania

Supreme Court has explained:

            While the diminished capacity doctrine … is now well-
      recognized as a permissible defense to first-degree murder in an
      appropriate case, this Court has admonished that the defense is
      an    extremely      limited   one.      See Commonwealth            v.
      Travaglia, 541 Pa. 108, 661 A.2d 352, 359 n. 10 (1995).
      Diminished capacity is directed exclusively at the negation of
      specific intent, and therefore, to be admissible, evidence of the
      defense must necessarily put into question the criminal
      defendant’s very ability to form the intent to kill. See
      [Commonwealth v.] Walzack, [360 A.2d 914, 916 n.6 (Pa.
      1976),] (“the thrust of the doctrine relates to the accused’s ability
      to perform a specified cognitive process.”). Accordingly, we have
      repeatedly rejected the contention that evidence of a defendant’s
      supposed inability to control his actions-by virtue of an “irresistible
      impulse,” a “compulsion,” or otherwise-is relevant to negate
      specific intent, and we have consistently held that such evidence
      may not be admitted in support of a diminished capacity
      defense. See Travaglia, 661 A.2d at 360 (diminished capacity
      defense could not be supported by argument that defendant could
      not control his actions); [Commonwealth v.] Zettlemoyer, 454
      A.2d [937,] 949 [(Pa. 1982), cert. denied, 461 U.S. 970 (1983),]
      (where entire defense was “infested” with language of “irresistible
      impulse,” trial court was correct to inform jury that such language
      did not bear upon diminished capacity defense; and commenting

                                      - 13 -
J-A25043-17


        in dicta that trial court would not have been in error to deny
        charge on diminished capacity altogether); Commonwealth v.
        Weinstein, [] 451 A.2d 1344, 1350 (1982) (psychiatric
        testimony indicating that defendant had compulsion or irresistible
        impulse to kill is irrelevant to question of specific intent to kill and,
        therefore, inadmissible).

Commonwealth v. Taylor, 876 A.2d 916, 926–927 (Pa. 2005) (footnote

omitted). Rather, “psychiatric testimony is competent in Pennsylvania on the

issue of specific intent to kill if it speaks to mental disorders affecting the

cognitive functions necessary to formulate a specific intent.” Weinstein,

supra, 451 A.2d at 1347 (emphasis supplied). Cruz does not explain how his

diagnosis of PTSD or impulsivity issues affected the “cognitive functions” of

his brain, nor does our review of Dr. Dattilio’s evaluation provide any insight

on this issue. See Motion for Post Conviction Collateral Relief, 9/24/2015, at

Exhibit A, Psychological Evaluation of Cruz. Therefore, Dr. Datillio’s testimony

and Cruz’s psychiatric records would not have been admissible to negate the

element of specific intent to kill.

        Nevertheless, Cruz also argues the psychiatric evidence would have

been relevant to support a charge of voluntary manslaughter pursuant to 18

Pa.C.S. § 2503,7 in that he either acted under a heat of passion pursuant to


____________________________________________


7   Section 2503 provides, in relevant part:

        (a) General rule.--A person who kills an individual without lawful
        justification commits voluntary manslaughter if at the time of the
        killing he is acting under a sudden and intense passion resulting
        from serious provocation by:



                                          - 14 -
J-A25043-17



subsection (a), or he acted in self-defense, albeit unreasonably, pursuant to

subsection (b). See Cruz’s Brief at 17-23. See also 18 Pa.C.S. § 505(b).

We disagree.

       This Court has recognized that evidence a defendant suffered from PTSD

may be relevant in determining whether the defendant acted in self-defense.

See Commonwealth v. Pitts, 740 A.2d 726, 733-734 (Pa. Super. 1999)

(“Psychiatric testimony has long been held admissible to prove a defendant’s

subjective belief that he or she is in danger of imminent death or serious bodily

injury.”).   However, in the present case, Cruz challenged the trial court’s

refusal to provide a jury instruction on imperfect self-defense, as set forth in

Section 2503(b), in his direct appeal.             See Cruz, supra, 107 A.3d 232

(unpublished memorandum at 14-17). The panel rejected his argument based

on Cruz’s inability to establish two of the three elements of a justification


____________________________________________


          (1) the individual killed; or

          (2) another whom the actor endeavors to kill, but he
          negligently or accidentally causes the death of the individual
          killed.

       (b) Unreasonable belief killing justifiable.--A person who
       intentionally or knowingly kills an individual commits voluntary
       manslaughter if at the time of the killing he believes the
       circumstances to be such that, if they existed, would justify the
       killing under Chapter 5 of this title (relating to general principles
       of justification), but his belief is unreasonable.

18 Pa.C.S. § 2503(a), (b).




                                          - 15 -
J-A25043-17



defense, i.e., “that he was free from fault in provoking or continuing the

difficulty which culminated in the slaying, and that he did not violate any duty

to retreat.”8 Id. (unpublished memorandum at 16) (finding Cruz “barged”

into Jiminez-Gonzalez’s home uninvited, and drew a gun on the unarmed

victim). The psychiatric evidence supporting Cruz’s PTSD diagnosis would not

have established either of these two missing elements.

        Furthermore, with respect to a heat of passion charge, this Court noted

on direct appeal that Cruz “concede[d] that heat of passion would not apply

where it was not the victim, Jimenez-Gonzalez, who caused [Cruz’s] anger.”

Id. at 17 n.1. Again, nothing in Cruz’s psychiatric records would change that

fact.   Accordingly, because Cruz’s PTSD diagnosis was not relevant to any

defense he could have established at trial, we find trial counsel was not

ineffective for failing to introduce Cruz’s psychiatric records at trial.

        Next, Cruz argues trial counsel was ineffective for failing to call Detective

Pedro Cruz to testify regarding statements Cruz made to him during an


____________________________________________


8 See Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa. Super. 2009)
(holding that when a defendant raises a claim of self-defense, the
Commonwealth must disprove the defense by establishing “at least one of the
following: (1) the accused did not reasonably believe that he was in danger of
death or serious bodily injury; (2) the accused provoked or continued the use
of force; or (3) the accused had a duty to retreat and the retreat was possible
with complete safety.”), appeal denied, 987 A.2d 161 (Pa. 2009).




                                          - 16 -
J-A25043-17



interview at the hospital following his arrest. See Cruz’s Brief at 25. Cruz

claims he told the detective: (1) “he had been drinking and blacked out;” (2)

he could not remember the details of Jimenez-Gonzalez’s murder or the

subsequent robberies; (3) he loved Jimenez-Gonzalez “like a father;” and (4)

he expressed remorse for his actions. Id. Cruz insists these statements were

relevant to his state of mind. See id. He also claims trial counsel colluded

with the prosecutor and trial court “to deny his own clients (sic) fundamental

rights.” Id. at 26.

       We find Cruz is entitled to no relief because counsel, in fact, did seek to

call Detective Cruz to the stand, but the trial court sustained the

Commonwealth’s objection to his testimony as impermissible hearsay. See

N.T., 7/20/2012, at 53-58, 70-84. Indeed, the court rejected counsel’s claim

that Detective Cruz’s testimony concerning Cruz’s statements was admissible

under the state of mind exception. See id. at 75. Rather, the court found

Cruz’s statements to the detective were too remote from the actual incidents

(the murder and robberies) to demonstrate his state of mind at the time of

the crimes. See id. at 80. Accordingly, because counsel did vigorously seek

the   admissibility    of   Detective     Cruz’s   testimony,   although   ultimately

unsuccessful, we conclude Cruz cannot establish counsel’s ineffective

assistance with regard to this claim.9

____________________________________________


9 We note, too, that Cruz’s present argument concerning the relevancy and
significance of his statements to Detective Cruz is difficult to accept



                                          - 17 -
J-A25043-17



       In his third issue, Cruz maintains his sentence is illegal pursuant to

Alleyne v. United States, 570 U.S. 1 (2013). See Cruz’s Brief at 31.       He

contends both direct appeal and PCRA counsel were ineffective for failing to

raise this claim.

       In Alleyne, the United States Supreme Court held “[a]ny fact that, by

law, increases the penalty for a crime is an ‘element’ that must be submitted

to the jury and found beyond a reasonable doubt.” Alleyne, supra, 99 U.S.

at 102. In interpreting that decision, the courts of this Commonwealth have

determined that most of our mandatory minimum sentencing statutes,

including 42 Pa.C.S. § 9712,10 are unconstitutional because the language of

those statutes “permits the trial court, as opposed to the jury, to increase a

defendant’s minimum sentence based upon a preponderance of the evidence”

standard. Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. Super. (Pa.

Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015).          See

Commonwealth v. Valentine, 101 A3d 801, 812 (Pa. Super. 2014)

(invalidating 42 Pa.C.S. §§ 9712 and 9713), appeal denied, 124 A.3d 309 (Pa.

2015). Further, our courts have held that the unconstitutional provisions of

____________________________________________


considering he filed a pretrial motion seeking to suppress these same
statements, and asserted on direct appeal that the statements were obtained
in violation of Miranda v. Arizona, 384 U.S. 436 (1966). See Omnibus
Pretrial Motions, 11/9/2011, at ¶¶ 4-7; Trial Court Opinion, 1/20/2012, at 9-
11; Cruz, supra, 107 A.3d 232 (unpublished memorandum at 17-20).

10 Section 9712 required the court to impose a mandatory minimum sentence
if a defendant committed a crime of violence while visibly possessing a
firearm. See 42 Pa.C.S. § 9712(a).

                                          - 18 -
J-A25043-17



the mandatory minimum statutes are not severable from the statute as a

whole.   Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa. 2015);

Newman, supra, 99 A.3d at 101.

      The inherent problem with Cruz’s argument is the record does not

support his claim that he was sentenced pursuant to Section 9712, or any of

the now unconstitutional mandatory minimum statutes.            Our review of the

record, as well as the transcript from the sentencing hearing, reveals no

mention of the imposition of a mandatory minimum sentence, nor any prior

notice from the Commonwealth that it sought a mandatory minimum term.

Accordingly, this claim is meritless.

      In his final issue, Cruz contends direct appeal counsel was ineffective

for failing to file a petition for allowance of appeal (“PAA”) in the Pennsylvania

Supreme Court after this Court affirmed his judgment of sentence.              Cruz

insists direct appeal counsel did not inform him his sentence was affirmed,

and by the time Cruz learned of this Court’s decision three months later, he

was time-barred from seeking review in the Pennsylvania Supreme Court.

See Cruz’s Brief at 33.    For the reasons that follow, we reverse the order

denying relief on this basis and remand for an evidentiary hearing.

      It is well-established that “counsel is per se ineffective for failing to file

a requested petition for allowance of appeal.” Commonwealth v. Rigg, 84

A.3d 1080, 1087 (Pa. Super. 2014) (emphasis supplied). However, in order

to request the filing of a PAA, a defendant must be informed, in a timely

manner, that his sentence was affirmed in this Court. Here, Cruz maintains

                                        - 19 -
J-A25043-17



direct appeal counsel never informed him “his direct appeal was denied which

caused him to be time barred.” Cruz’s Brief at 33. Indeed, he contends he

learned of this Court’s decision in December of 2014, after he requested a

copy of the docket entries for his appeal. See id. at 34. By that time, the

one-month period for filing a petition for allowance of appeal from this Court’s

September 22, 2014, decision had expired.

      In denying relief, the PCRA court relied on the analysis PCRA counsel

provided in his “no merit” letter. See Order, 7/25/2016 at 1 n.1. Counsel

addressed this claim as follows:

      [A] review of [direct appeal] counsel’s file reveals that a letter
      dated September 29, 2014 was addressed and mailed to you.
      That letter references enclosing a copy of the Superior Court’s
      decision from September 22, 2014. It further sets forth the
      reasoning for the Superior Court’s decision and your rights
      concerning filing a Petition for Allowance of Appeal to the Supreme
      Court of Pennsylvania. Having received no response from you
      within the timeframe to file a Petition for [] Allowance of an
      Appeal, appellate counsel took no further action on your behalf.

“No Merit” Letter, 6/21/2016, at unnumbered p. 9. It merits emphasis that

PCRA counsel did not indicate that he had spoken to direct appeal counsel

about Cruz’s claim, nor did he attach a copy of counsel’s purported September

29, 2014, letter to his “no merit” letter. Conversely, Cruz insists counsel never

informed him that his direct appeal was denied. Faced with these conflicting

statements, we are constrained to reverse the PCRA court’s denial of this claim

and remand for an evidentiary hearing. We decline to deny Cruz’s claim based

solely on PCRA counsel’s interpretation of a letter which is not included in the

certified record.

                                     - 20 -
J-A25043-17



       Therefore, we reverse the PCRA court’s order denying relief as to Cruz’s

claim regarding direct appeal counsel’s ineffectiveness for failing to file a

petition for allowance of appeal in the Supreme Court. Moreover, we direct

the PCRA court to appoint new counsel for Cruz11 and conduct an evidentiary

hearing limited to that issue. In all other respects, we affirm the order denying

PCRA relief.

       Order reversed in part and affirmed in part.        Case remanded for

appointment of counsel and evidentiary hearing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/18




____________________________________________


11 See Pa.R.Crim.P. 908(C) (stating that when scheduling a PCRA hearing,
“[t]he judge shall permit the defendant to appear in person at the hearing and
shall provide the defendant an opportunity to have counsel.”).



                                          - 21 -
