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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Brady1violation. 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 

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* Retired Senior Judge assigned to the Superior Court.

1 Brady v. Maryland, 373 U.S. 83 (1963)
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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 

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

sentenced to an aggregate term of 121⁄2 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 

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4 18 Pa.C.S.A. §§ 2702(a), 907(a), 6105, 6106, and 6108, respectively. 
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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,”5failing 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. 

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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. 
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“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
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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 
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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). 
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“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) 
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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 
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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 
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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 

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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”).
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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 
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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.
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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. 
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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