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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE TORRES :
:
Appellant : No. 2382 EDA 2018
Appeal from the PCRA Order Entered July 12, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011954-2010
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 15, 2020
Jose Torres appeals from the order that dismissed without a hearing his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
This Court on Appellant’s direct appeal deemed the following an accurate
summary of the facts underlying Appellant’s conviction.
On May 9, 2010, at around 6:30 p.m., Felix Santos Sr.
(“Felix Sr.”), along with his wife Cristina, seven-year-old
daughter, and 18-year-old son Felix Santos Jr. (“Felix Jr.”),
returned to West Butler Street in Philadelphia. Felix Sr. double-
parked his car in front of [Appellant’s residence], and his family
began to unload the shopping bags from the car. A few minutes
later, while Felix Sr. was still in the house, Felix Jr. noticed that a
parking spot had become available, and told his father that he
would move the car into the spot. Once he did so, some of
[Appellant’s] family came out of their house, including Blanca
Hernandez, Appellant’s mother. Hernandez proceeded to spit in
Felix Sr.’s face for taking her parking spot. At this point, Felix Sr.
decided to take his family inside in order to avoid a violent
confrontation.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Just minutes later, while Felix Sr. was telephoning the
police, Appellant came up to the Santos house and began to shake
the front gate. Appellant told Felix Sr. to come outside so that he
could kill him. Before the police arrived, Appellant went back to
his house, returned with a shovel, and began to smash the
Santos’[s] car with it. Because of Appellant’s actions, the car
alarm went off, and Felix Sr. saw that the hood and mirror of the
car were damaged. After hearing the alarm, while still waiting for
the police to arrive, Felix Sr. decided to go outside, and his wife,
Felix Jr., and young daughter followed. In order to protect himself
from any further violence, Felix Sr. took his son’s baseball bat on
his way outside. After a brief scuffle between a young woman
from [Appellant’s] family and Felix Sr.’s son and daughter, the
police finally arrived. The police told both parties to go back to
their respective houses, and to not come back out. After doing
so, the police departed.
The Santos family followed the police’s orders, and returned
to their house, along with their other son, D.S., who was 14 at the
time, as well as Felix Sr.’s brother. The latter two were not
present during the initial incident, but returned from work while
the police were on scene. Just minutes after the Santos family
had returned to their house, they received a call from Stephany,
Felix Sr.’s niece, saying that A., Felix Sr.’s 14-year-old nephew,
was getting beaten up on the street. Felix Sr. decided to go back
outside in order to help his nephew. Again, his family followed
him outside in order to assist him.
After trying to help his nephew, three males, one of them
being Appellant, came after Felix Sr. Felix Sr. tried running back
into his house out of fear of what they may do to him. However,
while he was still on his porch, two of the individuals grabbed his
arms, and Appellant proceeded to stab him three times in the
chest. After stabbing Felix Sr., the two males that had held him
down, and Appellant, left the crime scene. At this point, Felix Sr.’s
family saw him lying bloody and unconscious on the porch of his
house. Stephany called the police.
When the police arrived, they rushed Felix Sr. to the
emergency room at Temple University Hospital. According to Dr.
Amy Goldberg, the physician who treated Felix Sr., the stab
wounds were very serious. When Felix Sr. arrived at the hospital,
he had a very faint pulse, if any, and was barely breathing.
Because of the extreme loss of blood and corresponding lengthy
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lack of oxygen, his brain suffered severely. To this day, he
remains on life support and is unconscious.
Commonwealth v. Torres, 120 A.3d 1062 (Pa.Super. 2015) (unpublished
memorandum at 1-3) (cleaned up).
Following a seven-day trial, a jury convicted Appellant of attempted
murder, aggravated assault, and conspiracy. Appellant was sentenced to an
aggregate term of thirty to sixty years of imprisonment, and this Court
affirmed Appellant’s judgment of sentence. See id. Of note, the issue
Appellant raised on direct appeal concerned the trial court’s failure to instruct
the jury pursuant to Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954),
to view with caution the eyewitness testimony of three of the Santos family
members. This Court rejected his claim that a new trial was warranted,
holding, inter alia, that the trial court properly declined to give the instruction
because the witnesses knew Appellant as their neighbor and could clearly see
him attack Felix Sr. See Torres, supra (unpublished memorandum at 9).
Appellant did not seek discretionary review in our Supreme Court.
Appellant filed a timely pro se PCRA petition. Counsel was appointed
and filed an amended petition claiming that trial counsel was ineffective for
failing to call Margarita Davila as an alibi witness. The petition alleged that
Ms. Davila was the mother of Appellant’s child; that at the time Felix Sr. was
stabbed, Appellant was barricaded in an upstairs bedroom of the Torres
residence with her nursing a baseball-bat injury from the earlier altercation;
that she provided her contact information to trial counsel; and that she
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informed Appellant’s mother of her willingness to testify at trial. See
Amended PCRA Petition, 9/19/17, at ¶ 18. The petition further indicated that
if Appellant’s request for an evidentiary hearing was granted, Ms. Davila would
testify to the above, and Appellant’s mother would testify that she informed
trial counsel of Ms. Davila’s willingness to offer alibi testimony at trial. Id. at
¶ 26.
The Commonwealth filed a motion to dismiss the amended PCRA
petition, arguing that it was incredible that Appellant waited until two years
after his trial to mention that he had an alibi witness, and, in any event, calling
Ms. Davila would not have had any impact on the outcome of the trial. See
Supplemental Motion to Dismiss, 5/4/18, at 9. The PCRA court agreed, and
issued notice of its intent to dismiss the petition without a hearing pursuant
to Pa.R.Crim.P. 907. Appellant filed no response, and the court dismissed the
petition by order of July 12, 2018.
Appellant filed a timely notice of appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925. Appellant presents the following
issue for our consideration: “Did the PCRA Court err and/or abuse its discretion
when it denied and dismissed, without a hearing, [Appellant’s] petition under
the PCRA seeking a new trial based upon a claim that trial counsel was
ineffective for failing to present an alibi witness at trial?” Appellant’s brief at
4.
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We begin with a review of the applicable legal principles. “This Court’s
standard of review regarding an order denying a petition under the PCRA is
whether the determination of the PCRA court is supported by the evidence of
record and is free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344,
347 (Pa.Super. 2017). “[A] PCRA court has discretion to dismiss a PCRA
petition without a hearing if the court is satisfied that there are no genuine
issues concerning any material fact; that the defendant is not entitled to post-
conviction collateral relief; and that no legitimate purpose would be served by
further proceedings.” Commonwealth v. Cruz, 223 A.3d 274, 277
(Pa.Super. 2019) (internal quotation marks omitted). Further, “[i]t is an
appellant’s burden to persuade us that the PCRA court erred and that relief is
due.” Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019)
(internal quotation marks omitted).
Counsel is presumed to be effective, and a PCRA petitioner bears the
burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106, 112
(Pa.Super. 2018). To do so, the petitioner must plead and prove: “(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. Selenski, 228 A.3d 8, 15 (Pa.Super. 2020) (internal
quotation marks omitted). “A reasonable probability is a probability that is
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sufficient to undermine confidence in the outcome of the proceeding.” Id. at
16 (cleaned up). The failure to establish any prong is fatal to the claim. Id.
at 15.
Relevant to Appellant’s substantive claim, we note that “[c]ounsel has
a general duty to undertake reasonable investigations or make reasonable
decisions that render particular investigations unnecessary.”
Commonwealth v. Johnson, 966 A.2d 523, 535 (Pa. 2009). “The duty to
investigate, of course, may include a duty to interview certain potential
witnesses; and a prejudicial failure to fulfill this duty, unless pursuant to a
reasonable strategic decision, may lead to a finding of ineffective assistance.”
Id. at 535-36.
[W]hen raising a claim of ineffectiveness for the
failure to call a potential witness, a petitioner satisfies
the performance and prejudice requirements of the
[Strickland v. Washington, 466 U.S. 668 (1984)]
test by establishing that: (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[.]
To demonstrate Strickland prejudice, a petitioner must show how
the uncalled witnesses’ testimony would have been beneficial
under the circumstances of the case. Counsel will not be found
ineffective for failing to call a witness unless the petitioner can
show that the witness’s testimony would have been helpful to the
defense.
Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa.Super. 2013) (citations
and quotation marks omitted).
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It is undisputed that Appellant came forth with evidence to establish
that Ms. Davila existed, and that she was willing and available to testify. The
PCRA court did not base its decision on these factors. Rather, the PCRA court
found the third and fifth elements of the claim lacking.
Regarding the third element, the PCRA court indicated:
In the instant matter, [A]ppellant’s PCRA petition failed to
set forth any facts or relevant information necessary to meet his
burden of proving to this [c]ourt that his claim was of arguable
merit. Specifically, [A]ppellant's petition failed to provide this
[c]ourt with any information or indicia whatsoever that trial
counsel knew or should have known of the existence of Ms. Davila
as a potential alibi witness.
PCRA Court Opinion, 7/23/19 at 5.
We disagree. Appellant pled in his amended PCRA petition that trial
counsel knew or should have known of the existence of Ms. Davila as a witness
because both she and Appellant’s mother provided her information to counsel,
and he offered to prove it at an evidentiary hearing through his own testimony
and that of his mother and Ms. Davila as witnesses. See Appellant’s brief at
34-36. Accordingly, we cannot agree that Appellant’s proffer as to the third
element of the claim warranted its dismissal without a hearing.
The PCRA court also determined that Appellant could not satisfy the fifth
and final element: prejudice. The PCRA court explained as follows:
[G]iven the compelling evidence of [A]ppellant’s guilt, there is
little likelihood that Ms. Davila’s testimony would have changed
the outcome of the proceedings. Ms. Davila’s testimony would
have been easily contradicted by the evidence presented at trial.
Both Cristina and Carmen Santos positively identified appellant as
the assailant who stabbed the victim. Christina Santos, the wife
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of the victim, was only 15 feet away from her husband when he
was being stabbed, and testified that she “could see [Appellant]
perfectly.” Carmen Santos had “no doubt” that appellant stabbed
the victim. [D.S.] also identified [Appellant] as the one who took
the bat from the victim and hit him with it. Lastly, when
[A]ppellant was apprehended in Ms. Davila’s house, he had blood
on his hands.
Therefore, [A]ppellant’s petition also fails to set forth by a
preponderance of the evidence that he was prejudiced by the
absence of Ms. Davila’s testimony. Ms. Davila’s testimony would
have told a narrative to the jury that was not corroborated by any
testimony or evidence presented at trial and would conversely
have been contradicted by all of the evidence presented. As such,
[A]ppellant’s petition fails to establish that had Ms. Davila
testified, the outcome of the trial would have been different.
PCRA Court Opinion, 7/23/19 at 7 (citations omitted).
Appellant responds as follows:
It is beyond cavil that the proffered alibi testimony from Ms.
Davila would have been helpful to the defense in this matter.
There was no physical or forensic evidence at all linking
[Appellant] to the crime. The only evidence linking him to the
crime is the identification by the victim’s family members. The
PCRA court correctly notes that Ms. Davila’s proffered testimony
is directly at odds with the identification testimony from the
victim’s family members. What the PCRA court omits from its
analysis regarding prejudice is the fact that significant portions of
Ms. Davila’s testimony are corroborated by a responding police
officer. Accordingly, the PCRA court is incorrect when it finds that,
“Ms. Davila’s testimony would have told a narrative to the jury
that was not corroborated by any testimony or evidence presented
at trial and would conversely have been contradicted by all of the
evidence presented.”
Appellant’s brief at 42 (citation omitted).
In making his argument, Appellant details the alibi testimony Ms. Davila
would have offered, as disclosed in her affidavit. That includes contentions
that “the neighbor” (presumably Felix Sr.) nearly ran over Appellant’s sister
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Olga when he swooped in to take the open parking spot; during the ensuing
argument, the neighbor hit Appellant and Olga with a baseball bat, yet the
police did nothing when Appellant and Olga showed them their bruises; after
the police left, the neighbor attacked Appellant with the bat and a machete as
Ms. Davila prepared to take Appellant to the hospital, so she called the police
again and took Appellant back into the house and locked themselves into a
bedroom. See Appellant’s brief at 39-40. Ms. Davila further related as follows
in the affidavit:
When the police came into the room they saw [Appellant] laying
down on the bed with a dislocated arm and his other forearm
bruise[d]. That’s when the police told us that somebody had been
seriously hurt and called an ambulance for [Appellant]. When the
ambulance arrived and we were entering [it,] the wife of the
neighbor yelled at us in Spanish “I know you didn’t do this but
since the fight started with your family I’m going to make sure
you pay for it,” and another neighbor yelled at [Appellant] “You
better hope you end up in jail because if I catch you on the street
you are going to be found dead.” When we were at the hospital
the police officer took [Appellant] and my statement and stayed
by us until we left the hospital. That’s what I remember about
what happened on the day that [Appellant] was being accused for.
Id. at 40.
Appellant maintains that this version of events is corroborated by
Philadelphia police officer Roberto Luciano, who gave the following report:
[Officer] Luciano could hear a man screaming from upstairs
saying “Help” “My shoulder.” [Officer] Luciano goes upstairs and
sees [Appellant] lying on a bed with covers up to his neck. There
are 6 kids all under the age of four on top of him. There is a
teenaged girl to his side. [Officer] Luciano pulls his weapon [and]
says, “don’t do anything stupid[.]” The girl takes the kids off [of
Appellant] and takes the covers off of [him] so [Officer] Luciano
could see if there were any weapons. [Appellant] is patted down
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- no weapons. There were some blood stains on the hands of
[Appellant]. [Appellant] says he was jumped and he was hurt but
could not tell who hurt him, or explain why be was in the bed.
[Officer] Luciano gets his ID. At that point Luciano did not know
[Appellant] was a suspect so he lets him go to the hospital to be
treated for shoulder injury.
Appellant’s brief at 41-42 (quoting Trial Exhibit D-4). Put into the context of
all of the evidence, Appellant asserts that he has sufficiently undermined
confidence in the outcome of the proceedings to warrant the grant of PCRA
relief. Id. at 42-43.
The Commonwealth insists that Appellant has not satisfied the prejudice
prong of his claim. First, it notes that Officer Luciano testified that he found
Appellant holed up in his bedroom, with blood on his hands and no visible
injuries, shortly after Felix Sr. had been stabbed, and Appellant did not report
having been hit in the shoulder with the bat. See Commonwealth’s brief at
12. With the allegation of police corroboration of Ms. Davila’s story dispelled,
the Commonwealth maintains that the evidence identifying Appellant as the
culprit was so overwhelming that Ms. Davila’s testimony would not have
changed the outcome of the proceedings. The Commonwealth summarizes
that evidence as follows:
Cristina and Carmen Santos – who both knew [Appellant] from
the neighborhood – both positively identified [him] as the person
who stabbed the victim. Cristina Santos was fifteen feet away
from her husband when defendant stabbed him multiple times in
the chest, and she “could see [Appellant] perfectly.” Carmen
Santos was also present at the time of the attack and stated at
trial that she had “no doubt” that [Appellant] stabbed the victim.
Further, [D.S.] also identified [Appellant] in court, stating that he
saw [Appellant] grab the bat from the victim and beat him with it.
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Contrary to [Appellant]’s mistaken belief, there was ample
evidence demonstrating that he attacked and stabbed the victim.
Accordingly, defendant failed to demonstrate that he suffered
prejudice as a result of trial counsel not calling [Ms.] Davila as a
witness.
Id. (citations omitted).
Upon review of the evidence, we are not persuaded that the PCRA court
erred in finding insufficient indicia of prejudice. The portions of Ms. Davila’s
testimony corroborated by Officer Luciano’s account—that Appellant was
hiding nearby shortly after the stabbing with blood on his hands—in no way
suggests that Appellant did not stab the victim as the many eyewitness
neighbors reported. Further, as this Court observed in adjudicating
Appellant’s direct appeal, there was no basis to conclude that the identification
of Appellant by three witnesses who were familiar with him before the incident
and had a clear view of the stabbing was unreliable.
Given the extent of the evidence to support the conviction, we cannot
find that the PCRA court committed an error of law or an abuse of discretion
in concluding that Appellant could not establish that the absence of Ms.
Davila’s testimony denied Appellant a fair trial. Cf. Commonwealth v.
Stewart, 84 A.3d 701, 714 (Pa.Super. 2013) (holding the defendant was
prejudiced by counsel’s failure to call alibi witness where the evidence was not
overwhelming; “This case hinged on whether the jury believed [the defendant]
had an alibi or [believed the lone eyewitness’s] testimony.”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2020
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