J-S35007-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSE TORRES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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. doubleparked 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.

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* 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 postconviction 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