J-S01028-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NICOLI ANTONIO SANTANA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 556 MDA 2023

Appeal from the PCRA Order Entered March 14, 2023

In the Court of Common Pleas of Berks County Criminal Division at 

No(s): CP-06-CR-0004819-2017

BEFORE: PANELLA, P.J.E., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED: MARCH 25, 2024

Nicoli Antonio Santana appeals from the order denying without a hearing 

his first timely petition filed under the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541–9546. We affirm.

This Court previously summarized the pertinent facts as follows:

On February 28, 2017, [Santana] entered DeCarlo’s Bar and 

Grill (“DeCarlo’s”) at around 8:50 p.m. [A few] hours later, on 

March 1, 2017 at around 1:00 a.m., Ian Moore (“Moore”), Miguel 

Colon (“Colon”), and Johnny Corchado (“Corchado”) met up at 

DeCarlo’s. As soon as Moore, Colon, and Corchado entered 

DeCarlo’s, [Santana] immediately stood up and walked to the 

back corner portion of DeCarlo’s. At approximately 1:10 a.m.

when Moore went to the bathroom and came back to order a drink 

at the front of the bar, [Santana] moved to the other side of the 

bar close to the front door and waited leaning against the wall. In 

the almost five-hour term that [Santana] was at DeCarlo’s, [he] 

consumed three drinks total[.] Moore, Colon, and Corchado had 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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drinks and talked briefly at the bar and left DeCarlo’s through the 

front door at around 1:30 a.m.

A few seconds after Moore, Colon, and Corchado left the bar, 

[Santana] followed them and lingered in the vestibule of the bar, 

leaning in and out of the doorway observing [the three men] 

walking through the parking lot. [Santana] then went down the 

steps and walked through the stone lot and approached Moore, 

Colon, and Corchado stalking the trio while hugging the side of 

the building. When [Santana] was about 15 feet from Moore, 

Colon, and Corchado, [Santana] pulled a handgun out and fired 

multiple shots at Moore. 

Corchado fled in the direction of DeCarlo’s while Moore and 

Colon fled in the direction of Cherry Street. One of the shots hit 

Colon on his left thigh and one of the shots hit Moore on his arm. 

Colon at that point fled toward his car while Moore fled toward S. 

3

rd Street. [Santana] did not chase Colon but chased Moore onto 

zero hundred block of S. 3

rd Street.

[Santana] eventually caught up with Moore. At close range, 

[Santana] fired multiple shots at Moore[, who] tumbled down to 

the ground. [Santana] shot a total of ten rounds at Moore in the 

parking lot and in the vicinity of zero hundred block of S. 3

rd

Street, and as a result, Moore suffered three gunshot wounds. 

Two of them were in the chest and abdomen area.

[Santana] started walking away from Moore, but then went 

back and pistol-whipped Moore, who was already on the ground. 

[Santana] left the scene, went back to his parked [car] on the 200 

block of Cherry Street and drove off. Officers responded to radio 

dispatch of shots fired and arrived at the zero hundred block of S.

3

rd Street. Officer Babbit and Officer White arrived at the scene 

and found Moore lying on the ground. Officers asked Moore some 

questions, but Moore was not able to give any answer as he was 

having a hard time breathing. Moore died as a result of the 

gunshot wounds to his chest and abdomen area. 

Commonwealth v. Santana, 226 A.3d 645 (Pa. Super. 2020)(citations 

omitted) (non-precedential decision at 1-2).

Following his arrest, Santana was charged with multiple crimes, 

including the first-degree murder of Moore. Santana’s trial began on January 
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28, 2019. As part of his defense, Santana testified on his own behalf. He 

informed the jury that, in 2003, Moore had shot him eight times and left him 

“scarred and with a permanent limp.” Santana’s Brief at 9 (unnumbered). 

Santana further testified that he had not seen Moore since that time. When 

he approached Moore and tried to talk to him, Moore’s response caused him 

to “snap,” and he just started shooting. Based on this testimony, Santana’s 

trial counsel unsuccessfully sought a voluntary manslaughter instruction.

The jury convicted Santana of first-degree murder and related charges. 

On January 30, 2019, the trial court sentenced Santana to life imprisonment 

and a consecutive term of three to twelve years of imprisonment. Santana 

appealed. On January 21, 2020, this Court affirmed his judgment of sentence,

Santana, supra, and, on August 12, 2020, our Supreme Court denied his 

petition for allowance of appeal. Commonwealth v. Santana, 237 A.3d 968

(Pa. 2020).

On January 4, 2021, Santana filed a pro se PCRA petition, and the PCRA 

court appointed counsel (“first PCRA counsel”). After that attorney was 

permitted to withdraw, the court appointed new counsel and granted him an 

extension of time to file either amended petition or a “no-merit letter” 

pursuant Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

On January 25, 2022, second PCRA counsel filed a Turner/Finley letter 

and motion to withdraw. Meanwhile, on August 22, 2022, privately-retained, 

third PCRA counsel entered his appearance. On September 22, 2022, the 
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PCRA court granted second PCRA counsel’s request to withdraw. On 

September 27, 2022, the PCRA court issued a Pa.R.Crim.P. 907 notice of its 

intent to dismiss Santana’s petition without a hearing. On November 7, 2022, 

third PCRA counsel filed a response to the court’s Rule 907 notice. By order 

entered March 14, 2023, the PCRA court denied Santana’s petition. This pro 

se appeal followed.1 Both Santana and the PCRA court have complied with 

Pa.R.A.P. 1925.

Santana raises one issue on appeal, which we reproduce verbatim:

1. Was trial counsel, direct appeal counsel, and P.C.R.A. counsel 

all ineffective assistance of counsel’s?

Santana’s Brief at 2 (unnumbered).

This Court’s standard of review for an order dismissing a PCRA petition 

calls for us to “determine whether the ruling of the PCRA court is supported 

by the evidence and free of legal error. The PCRA court’s factual findings will 

not be disturbed unless there is no support for the findings in the certified 

record.” Commonwealth v. Webb, 236 A.3d 1170, 1176 (Pa. Super. 2020) 

(citing Commonwealth v. Barndt, 74 A.3d 185, 191–92 (Pa. Super. 2013)).

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1 The PCRA court denied Santana’s PCRA petition on March 14, 2023, after 

permitting second PCRA counsel to withdraw pursuant to Turner/Finley, 

supra. Santana filed his pro se notice of appeal on April 14, 2023, one day 

late. Nonetheless, our review of the lower court docket does not contain any 

indication that the order was served upon Santana. In this circumstance, we 

will consider the appeal timely. See generally, Commonwealth v. Midgley, 

289 A.3d 1111 (Pa. 2023).
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The PCRA court has discretion to dismiss a petition without 

a hearing when the court is satisfied that there are no genuine 

issues concerning any material fact, the defendant is not entitled 

to post-conviction collateral relief, and no legitimate purpose 

would be served by further proceedings. [See Pa.R.Crim.P. 

909(B)(2).] To obtain reversal of a PCRA court’s decision to 

dismiss a petition without a hearing, an appellant must show that 

he raised a genuine issue of fact which, if resolved in his favor, 

would have entitled him to relief, or that the court otherwise 

abused its discretion in denying a hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations 

omitted).

Santana raises a layered claim of ineffectiveness of counsel. See 

Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2022) (holding “that a 

PCRA petitioner may, after a PCRA court denies relief, and after obtaining new 

counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the 

first opportunity to do so, even if on appeal”).2 To obtain relief under the 

PCRA premised on a claim that counsel was ineffective, a petitioner must 

establish, by 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. Johnson, 966 

A.2d 523, 532 (Pa. 2009). “Generally, counsel’s performance is presumed to 

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2

In his brief, Santana alleges “newly claimed evidence” of third PCRA 

counsel’s alleged ineffectiveness. Although we conclude that Santana has 

preserved this claim, Bradley, supra, it fails given our determination that all 

of his claims of trial counsel’s ineffectiveness do not entitle him to postconviction relief. See infra.
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be constitutionally adequate, and counsel will only be deemed ineffective upon 

a sufficient showing by the petitioner.” Id. 

In making a layered claim of ineffectiveness, a PCRA petitioner “must 

properly argue each prong of the three-prong ineffectiveness test for each 

separate attorney.” Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. 

Super. 2012). “In determining a layered claim of ineffectiveness, the critical 

inquiry is whether the first attorney that the defendant asserts was ineffective 

did, in fact, render ineffective assistance of counsel.” Commonwealth v. 

Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010). “If that attorney was 

effective, then subsequent counsel cannot be deemed ineffective for failing to 

raise the underlying issue.” Id.

We first address Santana’s claims of trial counsel’s ineffectiveness. The 

tripartite test we apply is well-settled, and each prong of the test has been 

explained as follows:

The burden is on the [petitioner] to prove all three of the

following prongs: (1) the underlying claim is of arguable merit; 

(2) that counsel has no reasonable strategic basis for his or her 

action or inaction; and (3) but for the errors and omissions of 

counsel, there is a reasonable probability that the outcome of the 

proceedings would have been different. 

We have explained that a claim has arguable merit where 

the factual averments, if accurate, could establish cause for relief. 

Whether the facts rise to the level of arguable merit is a legal 

determination. 

The test for deciding whether counsel had a reasonable 

basis for his action or inaction is whether no competent counsel 

would have chosen that action or inaction, or, the alternative, not 

chosen, offered a significantly greater potential chance of success. 

Counsel’s decisions will be considered reasonable if they 
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effectuated his client’s interests. We do not employ a hindsight 

analysis in comparing trial counsel’s actions with other efforts he 

may have taken. 

Prejudice is established if there is a reasonable probability 

that, but for counsel’s errors, the result of the proceeding would 

have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019) 

(citations omitted; formatting altered).

Although Santana phrases his ineffectiveness claims on appeal in 

general terms, he raised specific claims of ineffectiveness in his pro se PCRA 

petition, and, while we could not locate Santana’s Rule 1925(b)statement in 

the certified record, the PCRA court, in lieu of a Rule 1925(a) opinion, states 

that the issues raised by Santana in his statement were adequately addressed 

by the PCRA court in its Rule 907 notice. As the three issues Santana argues 

in his brief are discussed in the Rule 907 notice, we will address them

accordingly.

In his first claim, Santana asserts that trial counsel was ineffective for 

failing to “present an expert witness to support his two alternative defenses 

at trial, specifically the defense of diminished capacity due to his mental 

defect, of pas[t] traumas, and the defense of heat of passion.” Santana’s Brief 

at 8 (unnumbered). According to Santana, although trial counsel 

“appropriately counseled” him that he would need to testify in order to pursue 

a diminished capacity defense, “trial counsel should have investigated and 

presented expert testimony to support his diminished capacity defense by 
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having an expert witness assist the jury in understanding [his] mental defect 

suffered from [past traumas] of [a] 2003 incident.” Id. at 12. Regarding his 

heat of passion claim, Santana asserts that “reasonable counsel would have 

retained an expert to offer an opinion to address the elements of a heat of 

passion defense.” Id. at 18.

The PCRA court found no merit to Santana’s claim. In its Rule 907 

notice, the PCRA court explained:

Though his petition references [a] 2003 attack, attached to 

his pro se petition, Santana includes juvenile records [from 1997-

98] referencing a serious school yard fight that resulted in him 

being hospitalized with head injuries. While one of the attached 

reports indicated that, when he was seventeen, Santana was 

“functioning at the lower end of the low average range,” the report 

continued that “[i]n terms of drawing any conclusions about the 

impact of the head injury on current functioning, one must be 

cautious,” as the evaluator “ha[d] no available premorbid data to 

prove that [Santana], in fact, was functioning well prior to the 

head injury.” Ex. 5. Santana provides no further support for his 

claim, and no recent indication that he was mentally unfit to stand 

trial. The burden of proving a claim of ineffective assistance rests 

on the defendant. Santana falls far short in demonstrating that 

Trial Counsel was deficient in failing to request a psychiatric 

evaluation in this matter.

***

[W]hile Santana has included records relating to head 

trauma received when he was a juvenile, there is no indication in 

the records that would demonstrate Santana was unable to 

formulate the specific intent to kill, as was required to establish a 

diminished capacity offense. Moreover, Santana’s own testimony

contravenes such a defense.

Santana testified that after observing [Moore] enter the bar, 

he initially hesitated, but then approached [Moore] to try to talk

to him. When [Moore] responded in a way that Santana described 

as “cocky,” Santana stated that it “made me snap,” and that is 

when he followed [Moore], pulled out his firearm, and proceeded 
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to shoot [Moore] multiple times. Santana then caught up to 

[Moore] and admitted striking [Moore] several times with the 

firearm before getting into his car and driving away. While 

Santana admitted that he shot [Moore], which is necessary to a 

claim of diminished capacity, his testimony clearly indicates that 

his cognitive abilities of deliberation and premeditation were not 

so compromised as to vitiate his specific intent to kill. Likewise, 

while Santana admitted that he was intoxicated, the mere fact of

intoxication does not give rise to a diminished capacity defense. 

We find that Santana’s claim of ineffectiveness of Trial Counsel for 

failure to call expert witnesses or to request a psychiatric 

evaluation lacks merit. 

Rule 907 Notice, 9/27/22, at 11-13.3

In addressing third PCRA counsel’s Rule 907 response, the PCRA court 

reaffirmed that, “[Santana] failed to demonstrate that he was prejudiced by 

any alleged ineffectiveness as his own testimony contravened a diminished 

capacity defense.” Order, 3/13/23, at 1 (unnumbered). The PCRA court 

further explained that an expert was not needed to testify regarding his heat 

of passion defense given that “[Santana’s] own testimony demonstrated his 

deliberate actions.” Id. at 2 (unnumbered). Finally, the PCRA court noted 

that trial counsel “attempted to elicit a [heat of passion] defense and 

requested the trial court to include a voluntary manslaughter instruction, 

which the trial court denied, in contradiction to [Santana’s] ineffectiveness 

claim.” Id.

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3 The Honorable Paul M. Yatron authored Santana’s Rule 907 notice. Following 

Judge Yatron’s death, the case was reassigned to the Honorable Patrick T. 

Barrett. Judge Barrett provided additional explanation regarding third PCRA 

counsel’s Rule 907 response and entered the order dismissing Santana’s 

appeal.
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Our review of the record supports the PCRA court’s conclusions 

regarding Santana’s first ineffectiveness claim. Claims of trial counsel’s 

ineffectiveness are not self-proving and therefore cannot be raised in a 

vacuum. See generally, Commonwealth v. Pettus, 424 A.2d 1332 (Pa. 

1981). In order to establish that trial counsel was ineffective for failing to 

investigate and/or call a witness or expert witness at trial, a PCRA petitioner 

must demonstrate 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 witnesses; (4) the witness was willing to 

testify for the defense; and (5) absence of the testimony of the

witness was so prejudicial that it deprived a defendant of a fair 

trial.

Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013) (citation 

omitted). “Prejudice” as used in this test, requires the petitioner to “show 

how the uncalled witnesses’ testimony would have been beneficial under the 

circumstances of the case.” Commonwealth v. Selenski, 228 A.3d 8, 16 

(Pa. Super. 2020) (citation omitted). Thus, “the petitioner’s burden is to show 

that testimony provided by the uncalled witnesses would have been helpful to 

the defense.” Id.

Here, Santana failed to meet any of these factors, as he failed to identify 

any expert that would have supported either of his defenses at trial. Our 

Supreme Court has long recognized that “[w]hen a defendant claims that 

some sort of expert testimony should have been introduced at trial, the 

defendant must articulate what evidence was available and identify the 
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witness who was willing to offer such evidence.” Commonwealth v. Keaton, 

45 A.3d 1050, 1071 (Pa. 2012) (citation omitted). Thus, as Santana failed to 

establish his burden, his first ineffectiveness claim fails. See 

Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008) (explaining that, in 

the absence of a sufficient proffer, a petitioner’s bare assertions would 

inappropriately convert an evidentiary hearing into a “fishing expedition” for 

possible exculpatory evidence).

In his second issue, Santana asserts that trial counsel was ineffective 

for coercing him to testify, thereby denying him his right not to do so. Santana 

asserts trial counsel’s “misleading [caused him] to self-incriminate and [led] 

to an unknowing confession that was used to convict [him] of premeditated 

murder and all other charges with coercion of false hope of receiving the 

voluntary manslaughter charge.” Santana’s Brief at 20 (unnumbered). 

Santana asserts that trial counsel had no reasonable basis for having him 

testify, and that, but for his testimony, there is a reasonable probability that 

the outcome would have been different. See id. at 20-21.

In its Rule 907 notice, the PCRA court found no merit to Santana’s claim:

Santana alleges that Trial Counsel informed him that the 

only way [he] would get a voluntary manslaughter instruction was 

to testify on his own behalf. Santana continues that when Trial 

Counsel requested the voluntary manslaughter charge be 

delivered to the jury, that the court denied the charge.

***

There is no indication from the record that Trial Counsel 

interfered with Santana’s right to testify on his own behalf. 

Therefore, we view Santana’s claim as implicating Trial Counsel’s 

advice as being so unreasonable as to render his choice to testify 

involuntary and unknowing.
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At trial, [the] court engaged in a colloquy to determine 

whether Santana wished to testify on his own behalf, and whether 

he understood the ramifications of testifying and his right not to 

testify. During the colloquy, Santana acknowledged that he 

understood his absolute right not to testify and that if he did 

testify, he would be subject to cross-examination by the 

Commonwealth. 

It is clear from the record that Trial Counsel sought to 

establish a “heat of passion” defense, as Santana indicates that 

he wanted to present, through [his] own testimony as to his state 

of mind and arousal to sudden and intense passion prior to his 

shooting [Moore]. Santana has failed to demonstrate that Trial 

Counsel did not have a reasonable strategic basis for advising him 

to testify as it would be necessary for Santana to establish his own 

mental state at the time of the murder in order to assert the 

possible defense. Therefore, Santana, is not entitled to relief on 

this claim.

Rule 907 Notice, 9/27/22, at 9-11 (citations omitted).

Our review of the record supports the PCRA court’s conclusions that 

Santana knowingly agreed to testify, and that trial counsel had a reasonable 

strategic basis for advising Santana to do so. As this Court has explained:

The decision of whether or not to testify on one’s own behalf 

is ultimately to be made by the defendant after full consultation

with counsel. In order to sustain a claim that counsel was 

ineffective for failing to advise the appellant of his rights in this 

regard, the appellant must demonstrate either that counsel 

interfered with his right to testify, or that counsel gave specific 

advice so unreasonable as to vitiate a knowing and intelligent 

decision to testify on his own behalf. 

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa. Super. 2013) (citation 

omitted).

The assertion that a killing was voluntary manslaughter is unavailable 

without evidence that the defendant acted under sudden and intense passion 
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at the time of the killing due to serious provocation from the victim. See 18 

Pa.C.S.A. § 2503(a)(1). Here, no Commonwealth witness provided such 

evidence, and there was no eyewitness testimony presented by the defense. 

Thus, to substantiate this defense, Santana was required to testify on his own 

behalf, and he did so, after consultation with trial counsel. “[T]he mere fact 

that this trial strategy was unsuccessful does not render it unreasonable.” 

Commonwealth v. Spotz, 896 A.2d 1191, 1235 (Pa. 2006) (citation 

omitted). Thus, Santana’s second ineffectiveness claim fails.

In his third and final ineffectiveness claim, Santana asserts that trial 

counsel was ineffective for failing to request a private investigator “to 

investigate the case and the shooting incident involving [him] and [Moore] at 

the Whipping Post Bar back in 2003, when [he] was brutally shot eight times 

by [Moore] and to locate potential witnesses to the shooting case in 2017 and 

the shooting case in 2003.” Santana’s Brief at 21 (unnumbered). He then 

refers to four exhibits he attached to his pro se PCRA petition from witnesses 

interviewed involving the 2003 incident. According to Santana, “[t]he jury 

would [have] heard from these witnesses that [Moore] was the man who shot 

[him] eight times in 2003 and [would have given] credibility to this 

testimony.” Id. at 22.

Counsel has a duty to undertake reasonable investigations or make 

reasonable decisions that render particular investigations unnecessary. 

Commonwealth v. Basemore, 744 A.2d 717, 713 (Pa. 2000) (citation 

omitted). As this Court has summarized:
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The failure to investigate presents an issue of arguable merit 

where the record demonstrates that counsel did not perform an 

investigation. It can be unreasonable per se to conduct no 

investigation into known witnesses. Importantly, a [PCRA] 

petitioner still must demonstrate prejudice. To demonstrate 

prejudice where the allegation is the failure to interview a witness, 

the petitioner must show that there is a reasonable probability 

that the testimony the witness would have provided would have 

led to a different outcome at trial.

Commonwealth v. Pander, 100 A.3d 626, 638-39 (Pa. Super. 2014) 

(citation omitted).

As with his second issue, Santana failed to meet his burden of 

establishing trial counsel’s ineffectiveness. Matias, supra. As noted above, 

ineffectiveness claims are not self-proving. Pettus, supra. A PCRA petitioner 

claiming they received ineffective assistance of counsel must allege sufficient 

facts from which a court can determine counsel’s effectiveness. Pa.R.Crim.P. 

902(A)(12). Where the facts do not appear of record, the defendant must 

identify “any affidavits, documents, and other evidence showing such facts[.]” 

Pa.R.Crim.P. 902(A)(12)(b); Pettus, supra (explaining that when a 

defendant claims ineffectiveness they must set forth an offer to prove facts 

upon which a reviewing court can conclude that trial counsel may have been 

ineffective).

Although Santana attached statements taken from witnesses to the 

2003 incident, he has not asserted that trial counsel knew of them or that any 

of them was available and willing to testify fourteen years later. Additionally, 

Santana has not identified or proffered any eyewitness willing to testify to his 
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2017 shooting of Moore which gave rise to his criminal convictions here. 

Thus, Santana’s third claim of ineffectiveness fails.

Finally, in his brief, Santana states he “incorporates by reference” his 

fourth claim he raised in his pro se PCRA petition, asserting appellate counsel’s 

ineffective for not adequately developing his sufficiency claim, and his fifth 

claim raised in his petition, alleging prosecutorial misconduct. Such 

incorporation does not properly preserve the issues for appellate review. See 

Pa.R.A.P. 2119(b); Commonwealth v. Alsop, 799 A.2d 135-36 (Pa. Super. 

2002) (explaining that this court will not act as the appellant’s counsel; an 

appellant must develop his argument so that meaningful review is possible).

In sum, because all three of Santana’s claims of trial counsel fail, and 

his claim regarding appellate counsel is not preserved,4 Santana’s layered 

claim of PCRA counsel’s ineffectiveness likewise fails. Thus, the PCRA court 

correctly denied his PCRA petition, and we therefore affirm the order denying 

Santana post-conviction relief.

Order affirmed.

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4 Even if preserved, Santana’s claim of appellate counsel’s ineffectiveness 

would merit no relief. In his direct appeal, we discussed and rejected 

Santana’s sufficiency claim, despite appellate counsel’s failure to address any 

specific element of first-degree murder. See Santana, supra.
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 03/25/2024