J-S74012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDWIN HILDALGO-LOPEZ,                      :
                                               :
                       Appellant               :   No. 20 EDA 2018

                Appeal from the PCRA Order November 21, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0001401-2010


BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JANUARY 08, 2019

       Edwin Hildalgo-Lopez appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, dismissing his petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon

careful review, we affirm.

       On June 28, 2012, a jury convicted Hildalgo-Lopez, in absentia,1 of

homicide by vehicle while driving under the influence and related charges,

stemming from a late-night drag race that occurred on the streets of

Philadelphia. On September 14, 2012, Hildalgo-Lopez was sentenced to an

aggregate term of imprisonment of 6 to 12 years.          Post-sentence motions

____________________________________________


1 On January 8, 2012, Hildalgo-Lopez cut off his ankle bracelet after being
permitted out of his house to attend religious services. After an evidentiary
hearing, at which time the Commonwealth presented evidence of its efforts to
locate Hildalgo-Lopez, the trial court permitted the Commonwealth to try
Hildalgo-Lopez in absentia. He was ultimately located for sentencing.
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were denied and his judgment of sentence was affirmed on direct appeal. See

Commonwealth v. Hildalgo-Lopez, 3067 EDA 2012 (Pa. Super. filed June

4, 2014) (unpublished memorandum). Our Supreme Court denied allowance

of appeal on January 5, 2015. See Commonwealth v. Hildalgo-Lopez, 106

A.3d 724 (Pa. 2015) (Table).

      On June 29, 2015, Hildalgo-Lopez filed a pro se PCRA petition. The court

appointed counsel, who filed an amended petition. On October 20, 2017, the

PCRA court issued notice of intent to dismiss pursuant to Pa.R.Crim.P. 907.

Hildalgo-Lopez did not respond and, on November 21, 2017, the court

dismissed his petition. This timely appeal follows, in which Hildalgo-Lopez

raises the following issue: “Did the PCRA [c]ourt err when it dismissed this

matter, without a hearing, even though [Hildalgo-Lopez] properly pled, and

would have been able to prove, that he was entitled to PCRA relief?” Brief of

Appellant, at 3.

      We begin by noting our standard of review in this matter.

      On appeal from the denial of PCRA relief, our standard of review
      calls for us to determine whether the ruling of the PCRA court is
      supported by the record and free of legal error. The PCRA court’s
      findings will not be disturbed unless there is no support for the
      findings in the certified record.     The PCRA court’s factual
      determinations are entitled to deference, but its legal
      determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (internal

citations omitted).

      In his sole issue on appeal, Hildalgo-Lopez claims that trial counsel was

ineffective for conceding an objection lodged by the Commonwealth to trial

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counsel’s attempt to cross-examine Philadelphia Police Officer Thomas O’Neill,

the Commonwealth’s accident reconstruction expert, regarding information

that Hildalgo-Lopez was the passenger, not the driver, of the car that caused

the fatal crash. Specifically, following the crash, other police officers asked

Hildalgo-Lopez who had been driving the car and Hildalgo-Lopez indicated that

his brother had been the driver.          Those officers told a third officer what

Hildalgo-Lopez had said, and the third officer recorded those statements in a

report, which Officer O’Neill referenced in his own report. At trial, counsel

attempted to question Officer O’Neill regarding that information.            After a

lengthy   sidebar,       during   which   the    court   repeatedly   sustained   the

Commonwealth’s hearsay objection, counsel conceded the argument and

agreed to move on to another line of questioning. On direct appeal, Hildalgo-

Lopez claimed that the trial court erred in sustaining the Commonwealth’s

hearsay objection to defense counsel’s questioning of Officer O’Neill.            This

Court concluded that the claim was waived because counsel had conceded the

objection, and Hildalgo-Lopez now argues ineffectiveness. Hildalgo-Lopez is

entitled to no relief.

      Counsel     is     presumed    to   have    rendered    effective   assistance.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012). In order to

obtain relief on a claim of ineffectiveness, a PCRA petitioner must satisfy the

performance and prejudice test set forth in Strickland v. Washington, 466

U.S. 668, 687 (1984), pursuant to which the petitioner must establish three

elements: (1) the underlying claim has arguable merit; (2) no reasonable

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basis existed for counsel’s actions or failure to act; and (3) the petitioner

suffered prejudice as a result of counsel’s error such that there is a reasonable

probability that the result of the proceeding would have been different absent

such error. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). A

petitioner’s claim fails if he fails to establish any prong of the Strickland test.

Commonwealth v. Fulton, 830 A.2d 567 (Pa. 2003).

      Generally, “[a] police report prepared by an officer who is not a witness

to the accident is inadmissible hearsay that should not be admitted into

evidence. Nor should a party be able to get such a report into evidence in an

indirect manner.” Rox Coal Company v. Workers' Compensation Appeal

Board (Snizaski), 807 A.2d 906, 914 (Pa. 2002). A police report containing

statements from persons who witnessed an incident is double hearsay and,

therefore, is only admissible if there is a separate hearsay exception for each

statement in the chain. Commonwealth v. May, 898 A.2d 559, 566 (Pa.

2006).

      Here, the evidence in question essentially constituted quadruple

hearsay, as the information was: (1) told by Hildalgo-Lopez to two officers;

(2) the two officers relayed the information to a third officer; (3) the third

officer included the information in a written report; (4) which report Officer

O’Neill referenced in his own report. Thus, Hildalgo-Lopez was required to

establish an exception to the hearsay rule for each link in the chain of hearsay.

He failed to do so.

      Hildalgo-Lopez’s sole argument to support his claim is the following:

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       [Trial counsel] should have sought the admission of the evidence,
       perhaps as a business record in retrospective, the ruling of the
       learned [t]rial [j]udge may have been correct; on the other hand,
       maybe it was not correct and what we do know is that the actions
       of trial counsel deprived [Hildalgo-Lopez] of having the Superior
       Court review this on appeal.

Brief of Appellant, at 10. Hildalgo-Lopez, however, provides no citation to

authority to support his claim that the evidence is, “perhaps,” admissible as a

business record,2 nor does he suggest exceptions to the hearsay rule for each

of the multiple levels of hearsay. Accordingly, Hildalgo-Lopez has failed to

meet his burden to establish that his claim possesses arguable merit, Pierce,

supra, and the PCRA court properly denied relief.3
____________________________________________


2 Even if the police report were admissible as a business record under 42
Pa.C.S.A. § 6108, the admission of the report does not automatically render
any statements included therein admissible. Whether or not the report is
admissible, the statements themselves are also hearsay, admissible only if
there is a separate hearsay exception for each statement in the chain. May,
898 A.2d at 565.

3 To the extent Hildalgo-Lopez attempts to assert an undeveloped claim that
trial counsel was ineffective for failing to call witnesses, he is likewise entitled
to no relief. Hildalgo-Lopez attached to his PCRA petition affidavits from two
witnesses—neither of whom witnessed the accident—who claimed that they
had information that Hildalgo-Lopez’s brother was driving the car at the time
of the accident. To prevail on a claim that counsel was ineffective for not
calling a witness, a petitioner must present sufficient information in his
petition to prove that: (1) the witness existed; (2) the witness was available
to testify for the defense; (3) counsel knew, 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 a fair trial. Commonwealth v. Sneed, 45 A.3d 1096, 1108-09
(Pa. 2012). Ineffectiveness for failing to call a witness will not be found where
a defendant fails to provide affidavits from the alleged witnesses indicating
availability and willingness to cooperate with the defense. Commonwealth
v. Khalil, 806 A.2d 415, 422 (Pa. Super. 2002). Here, the witness affidavits
submitted by Hildalgo-Lopez fail to state that affiants were willing and
available to testify at his trial. As such, his claim must fail.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/19




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