NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

COMMONWEALTH OF PENNSYLVANIA 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

             

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J-S06040-23  

v. 

 

 

OSE E. CRUZ       

 

Appellant 

 No. 1288 MDA 2022 

Appeal from the PCRA Order Entered August 9, 2022 
In the Court of Common Pleas of Schuylkill County Criminal Division at 
No(s):  CP-54-CR-0000748-2019 

EFORE:   STABILE, J., NICHOLS, J., and STEVENS, P.J.E.* 

MEMORANDUM BY STEVENS, P.J.E.:      FILED: MARCH 21, 2023 

Appellant, Jose E. Cruz, appeals from the order entered in the Court of 

Common Pleas of Schuylkill County dismissing his first petition filed pursuant 

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

Herein, Appellant contends that trial counsel ineffectively failed to interview 

witnesses necessary to present a mental infirmity defense at his trial.  For the 

following reasons, we affirm. 

The  record  in  the  present  matter  establishes  that  on  March  8,  2019, 

shortly  after  midnight,  police  officers  from  the  City  of  Pottsville  Police 

Department responded to an emergency call reporting a male firing a gun at 

a  Pottsville  residence.    N.T.,  8/6/19,  at  4.    When  the  officers  arrived,  they 

encountered  Appellant  standing  on  the  front  porch  with  his  hands  in  his 

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* Former Justice specially assigned to the Superior Court. 

     

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at 6. 

pockets.  N.T. at 5.  Appellant ignored officers’ requests that he desist, and 

he “trotted” away in what the testifying officer described as a “half-jog” for 

about two blocks, with the officers trailing cautiously close behind him.  N.T. 

Appellant led the officers to a gated lot when he abruptly pulled a semi-

automatic handgun from his pocket, put it to his temple, and unsuccessfully 

attempted  to  fire  it.    N.T.  at  7.    The  officer  testified  that  he  heard  the  gun 

“click”  without  firing,  and  he  watched  Appellant  bring  the  gun  back  down, 

attempt to chamber a round by manipulating the gun, and bring it to his head 

a second time in disregard of officers’ pleas to drop the gun.  At that moment, 

however, one officer  stunned Appellant with a taser,  but Appellant  retained 

control of the firearm while lying down and pointed it at a trooper from the 

Pennsylvania  State  Police.    N.T.  at  8.    As  the  state  trooper  dropped  to  the 

ground  for  his  safety,  an  officer  fired  at  Appellant  and  followed  his  shot  by 

running to Appellant and placing him in custody.  N.T. at 9-10.  

On  March  11,  2019,  Appellant  was  charged  with  Criminal  Attempt  to 

Commit Murder of a Law Enforcement Officer, Assault of a Law Enforcement 

Officer  (five  counts),  Aggravated  Assault  (five  counts),  Aggravated  Assault 

(five counts), Possession of a Firearm, Firearms not to be Carried without a 

License,  Prohibited  Offensive  Weapons,  Resisting  Arrest,  Recklessly 

Endangering  Another  Person,  Criminal  Attempt  to  Commit  Simple  Assault, 

Possession with Intent to Deliver, Possession of a Controlled Substance, and 

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Possession  of  Drug  Paraphernalia.1    Appellant  qualified  for  court-appointed 

counsel  (“Trial  Counsel”),  who  represented  him  throughout  the  pre-trial 

proceedings,  including  the  August  6,  2019,  Omnibus  Pretrial  Hearing,  after 

which  the  trial  court  dismissed  the  charges  of  Criminal  Attempt  to  Commit 

Murder of a Law Enforcement Officer, Assault of a Law Enforcement Officer, 

Aggravated Assault of a Law Enforcement Officer, Aggravated Assault with a 

Deadly Weapon, and Criminal Attempt to Commit Simple Assault. 

n February 2, 2021, [Appellant] entered a general plea of guilty 
to the [remaining charges].  On March 18, 2021, [the trial court] 
sentenced  [Appellant]  to  an  aggregate  confinement  sentence  of 
not less than ten and one-quarter to not more than twenty and 
one-half years in a state correctional institution. 

n  January  18,  2022,  [Appellant]  filed  his  pro  se  motion  under 
[the PCRA] asserting he is eligible for relief due to: I) a violation 
of  the  Constitution  of  Pennsylvania  or  the  United  States 
undermined  the  truth-determining  process  that  no  reliable 
adjudication  of  guilt  or  innocence  could  have  taken  place;  II) 
ineffective  assistance  of  counsel;  and  III)  a  plea  of  guilty  was 
unlawfully induced.  PCRA Petition, 1/18/22, at 2. 

he [PCRA] Court appointed [PCRA counsel] on January 26, 2022, 
as  [Appellant’s]  PCRA  counsel.    [PCRA  counsel]  did  not  file  any 
amendments  to  the  PCRA  petition.    An  evidentiary  hearing 
concluded  on  May  23,  2022,  at  which  time  [Appellant], 
[Appellant’s mother], and trial counsel . . . each testified.  Counsel 
presented oral argument but declined to submit any briefs. 

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The PCRA Court aptly provides the ensuing procedural history: 

PCRA Court Opinion, 8/9/22, at 1-2. 

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1  18  Pa.C.A.  §§  901(a)/2507(a),  2702.1(a),  2702(a)(2),  2702(a)(4), 
6105(a)(1),  6106(a)(1),  907(b),  5104,  2705,  901/2701(a),  and  35  P.S.  §§ 
780-113(a)(30), (a)(16), and (a)(32). 

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On  August  9,  2022,  the  PCRA  court  entered  its  order  and  opinion 

denying PCRA relief.  Pertinent to the present appeal, the court opined that  

Appellant failed to prove trial counsel rendered ineffective assistance by failing 

to  investigate  or  call  witnesses  to  support  a  mental  health  defense  where 

evidence  was  lacking  to  support  such  a  defense.    Id.  at  3-10.    This  timely 

appeal followed. 

hether  trial  counsel  was  ineffective  for  failing  to  interview 
potential witnesses in order to present a mental infirmity defense 
at the time of trial? 

  W

Herein, Appellant raises one issue for this Court’s review: 

rief for Appellant at 3. 

  B

 

“On  appeal  from  the  denial  of  PCRA relief,  our  standard  of  review  is 

whether the findings of the PCRA court are supported by the record and free 

of legal error.”  Commonwealth v. Sneed, 45 A.3d 1096, 1105 (Pa. 2012) 

(citation omitted).  A PCRA court's credibility findings are to be accorded great 

deference,  and,  where  supported  by  the  record,  such  determinations  are 

binding on a reviewing court.  Commonwealth v. Dennis, 17 A.3d 297, 305 

(Pa. 2011) at 305 (citations omitted). 

Trial  counsel  is  presumed  to  be  effective,  and  the  appellant  has  the 

burden  of  proving  ineffectiveness.   Commonwealth  v.  Howard,  749  A.2d 

941, 946 (Pa. Super. 2000).  To carry this burden, the appellant must plead 

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and prove:  
 

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(1)  the  underlying  claim  has  arguable  merit;  (2)  no  reasonable 
basis existed for counsel's action or failure to act; and (3) [s]he 
suffered prejudice as  a  result  of  counsel’s  error,  with  prejudice 
measured by whether there is a reasonable probability the result 
of the proceeding would have been different.  Commonwealth v. 
Chmiel,  30  A.3d  1111,  1127  (Pa.  2011)  (employing  ineffective 
assistance of counsel test from Commonwealth v. Pierce, 527 
A.2d 973, 975-76 (Pa. 1987))....  Additionally, counsel cannot be 
deemed ineffective for  failing  to  raise  a  meritless  claim.  Finally, 
because a PCRA petitioner must establish all Pierce prongs to be 
entitled to relief, we are not required to analyze the elements of 
an ineffectiveness claim in any specific order; thus, if a claim fails 
under  any  required  element,  we  may  dismiss  the  claim  on  that 
basis. 

Commonwealth  v.  Treiber,  121  A.3d  435,  445  (Pa.  2015)  (citations 

modified); see also Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011) 

(“When  evaluating ineffectiveness claims,  judicial  scrutiny  of  counsel's 

performance  must  be  highly  deferential.”  (citation  and  quotes  omitted)).  

“Boilerplate  allegations  and  bald  assertions  of  no  reasonable  basis  and/or 

ensuing prejudice cannot satisfy a petitioner’s burden to prove that counsel 

was ineffective.”  Commonwealth v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012) 

(citing, inter  alia,  Strickland  v.  Washington,  466  U.S.  668  (1984); 

Commonwealth v.Pierce, 786 A.2d 203, 213 (Pa. 2001). 

To  establish  the  reasonable  basis  prong,  we  look  to  see  whether  trial 

counsel's strategy was “so unreasonable that no competent lawyer would have 

chosen  that  course  of  conduct.”   Commonwealth  v.  Williams,  640  A.2d 

1251, 1265 (Pa. 1994).  An attorney's trial strategy “will not be found to have 

lacked a reasonable basis unless it is proven that an alternative not chosen 

offered a potential for success substantially greater than the course actually 

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pursued.”   Commonwealth  v.  Howard,  719  A.2d  233,  237  (Pa.  1998). 

Further, if an appellant has clearly not met the prejudice prong, a court may 

dismiss  the  claim  on  that  basis  alone  and  need  not  determine  whether  the 

other two prongs have been met.  Commonwealth v. Travaglia, 661 A.2d 

352, 357 (Pa. 1995). 

At  issue  in  the  present  matter  is  whether  trial  counsel  rendered 

ineffective assistance by failing to interview and call for trial potential medical 

fact  and  expert  witnesses  whose  testimonies  purportedly  would  have 

supported a mental infirmity defense.  See Appellant’s Brief at 3.   

To establish that trial counsel was ineffective for failing to call a witness, 

Appellant must show: “(1) the witness existed; (2) the witness was available; 

(3)  counsel  knew  [  ]  of  the  existence  of  the  witness;  (4)  the  witness  was 

willing to testify for the defense; and (5) the absence of the testimony was so 

prejudicial to [appellant] to have denied [him] a fair trial.” Commonwealth 

v. Dennis, 17 A.3d 297, 302 (Pa. 2011).   

However, “the question of failing to interview a witness is distinct from 

failure  to  call  a  witness  to  testify.”   Commonwealth  v.  Dennis,  950  A.2d 

945, 960 (Pa. 2008).  A claim that trial counsel did not interview or investigate 

a  known  witness  “presents  an  issue  of  arguable  merit  where  the  record 

demonstrates 

that 

counsel  did  not  perform  an 

investigation.”   

Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013).  Further, 

failing to investigate a known witness can be unreasonable per se; however, 

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an appellant must still show prejudice from the failure.   Id., citing Dennis, 

In  Appellant’s  counseled  brief,  he  maintains  that  he  informed  trial 

counsel on numerous occasions that he was under the care of mental health 

care  professionals  at  the  time  of  the  incident  underlying  his  charges  and 

provided  counsel  with  their  contact  information.    He  claims  that  “[d]espite 

being provided this information, trial counsel failed to request medical records 

or interview the potential witnesses to question the Appellant’s competency 

to stand trial or any mental infirmity defenses that may be available if he had 

chosen to go to trial.”  Appellant’s Brief at 8-9. 

The PCRA court, however, discerned no arguable merit to the forgone 

mental health defense theory underpinning Appellant’s ineffectiveness claim 

against  trial  counsel.    To  this  end,  the  PCRA  court  authored  a  Pa.R.A.P. 

1925(a) opinion in which it recounts the evidence offered at the PCRA hearing, 

observes Appellant’s failure to produce medical evidence in the form of records 

or  testimony  to  support  his  ineffectiveness  claim  against  trial  counsel,  and 

explains, as finder of fact, that it found trial counsel credibly testified that she 

did, in fact, investigate Appellant’s medical history and sought in vain to obtain 

relevant evidence sufficiently probative of Appellant’s mental infirmity at the 

n page seven of his PCRA petition, [Appellant] indicates that Dr. 
Kotwal will offer testimony that [Appellant] was seen for severe 
mental  illnesses  over  the  years,  prescribed  antipsychotics 
medications,  had  schizophrenia,  that  the  condition  causes 
individuals to not understand reality and that he was “able, willing 

time of the alleged crime: 

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950 A.2d at 960. 

to  testify  at  trial.”    Despite  this  declaration,  [Appellant]  did  not 
call Dr. Kotwal to testify at the PCRA hearing [or] offer any of Dr. 
Kotwal’s purported medical records into evidence. 

imilarly,  [Appellant]  also  listed  Marco  Morales  as  a  witness.  
([PCRA  Petition]  at  p.  7).    [Appellant]  wrote  that  Mr.  Morales 
would testify he is a therapist who counseled [Appellant] over a 
number of years for mental illness and that [Appellant] stopped 
attending  counseling  and  taking  prescriptions  a  few  weeks  prior 
to  the  crimes.    [Appellant]  further  indicated  Mr.  Morales  would 
testify that he too was able, willing, and available to testify at trial.  
Neither [Appellant] nor his PCRA counsel called Mr. Morales as [a] 
witness  at  the  PCRA  hearing  [or]  offered  any  evidence  of 
treatment records. 

t the PCRA hearing, [Appellant] testified he suffers from PTSD, 
bipolar  disorder,  schizophrenia,  depression  and  anxiety.    He 
claim[ed] he suffered from these conditions when he committed 
the  crimes.  [N.T.,  5/23/22,  at  7-8].    [Appellant]  stated  that  he 
attempted to shoot himself during the incident that resulted in his 
arrest.      [Appellant]  informed  [trial  counsel]  about  his  mental 
health and asked her to get his past medical treatment records.  
[N.T. at 8].  [He] testified that [trial counsel] never obtained any 
records and never explored the mental infirmity defense.  [N.T. at 
8-9].  Appellant insists that he told [trial counsel] he wanted her 
to file a motion to determine competency to stand trial as well as 
to pursue an insanity defense. [N.T. at 9, 12].  

Appellant]  testified  he  currently  takes  prescriptions  for  his 
diagnoses but failed to tell the [PCRA] court  the medication name 
or when he started them.   [N.T. at 10].  

Trial  Counsel]  testified  that  she  has  been  a  criminal  defense 
attorney for over [] 20 years and has handled over [] 200 criminal 
jury trials.  [N.T. at 17].   

n regard to [Appellant’s] contention that she should have raised 
a  mental  illness  defense,  [trial  counsel]  specified  she  did  not 
believe his mental health conditions would rise to the level of an 

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affirmative  defense.    She  did  not  feel  [Appellant]  was  “legally” 
incompetent. [N.T. at 20, 43, 45].  

he elaborated it was also problematic that there were no recent 
mental health treatment records contemporaneous to the criminal 
incident.  In her experience as a criminal trial defense attorney, 
she felt it would be impossible to get a doctor to speculate as to 
[Appellant’s] state of mind at the time of the criminal acts absent 
record of contemporaneous mental health treatment.  [N.T. at 27-
28].  

n addition, [trial counsel] did not feel [Appellant’s] being suicidal 
at the time of this criminal acts overrode his knowledge that he 
was illegally in possession of firearms and drugs, again especially 
considering  the  strong  Commonwealth  body  worn  and  porch 
camera video evidence.  [N.T. at 25, 27, 32, 43, 43-44]. 

Trial  counsel]  indicated  that  [Appellant’s  mother  and  brother 
reached out to her and offered that [Appellant] had past mental 
health treatment.  She testified that his family provided her with 
just  one  old  treatment  report  that  was  not  helpful  in  any  way.  
[N.T at 28, 41]. 

Trial  counsel]  obtained  [Appellant’s]  medical  authorization  to 
obtain his records.  She reiterated she could not locate any records 
with the exception of receiving three pages of irrelevant, unhelpful 
records  from  three  years  before  the  criminal  episode.    [Trial 
counsel] added that even if she had been able to obtain mental 
health treatment records, she did not feel they would have been 
helpful  unless  they  were  contemporaneous  with  the  criminal 
episode.  [N.T. at 46]. 

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J-S06040-23 

Trial Court Opinion, 8/9/22, at 3-4, 4, 5, 6-7 (bracketed citations to May 23, 

2022, PCRA hearing notes of testimony added). 

Viewing  this  evidence  in  its  role  as  finder  of  fact,  the  PCRA  court 

determined that trial counsel did not ignore available and admissible evidence 

tending  to  establish  a  viable  defense,  but,  to  the  contrary,  exercised  due 

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diligence  in  making  what  proved  a  futile  attempt  to  obtain  medical  records 

indicating mental infirmity during the time in question.  Accordingly, the PCRA 

court discerned no arguable merit to Appellant’s ineffectiveness claim.  PCRA 

Court  Opinion  at  10.    Our  review  of  the  record  supports  the  PCRA  Court’s 

determination in this regard.  See N.T. 5/23/22 (PCRA Hearing).     

Furthermore, even if we assumed arguendo that Appellant’s claim has 

arguable  merit,  Appellant  has  failed  to  demonstrate  prejudice.    As  noted 

supra,  prejudice  is  established  by  evidence  demonstrating  a  reasonable 

probability  that  but  for  counsel’s  negligence  the  defendant  would  have 

obtained a better result.  At the PCRA hearing, however, Appellant failed to 

show  that  either  medical  records  or  treating  medical  professionals  were 

available to establish the existence and extent of his mental infirmity at the 

time in question.  It was Appellant’s burden to show prejudice resulted from 

counsel’s  ineffectiveness,  and  such  prejudice  could  not  be  demonstrated 

without such evidence. 

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As our review of the  record supports the PCRA Court’s  determination, 

we conclude Appellant is not entitled to relief on his ineffective assistance of 

trial counsel claim. 

Order affirmed.   

udgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 3/21/2023 

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