Com. v. Attica, H. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
HENRY ATTICA :
:
Appellant : No. 341 EDA 2020
Appeal from the PCRA Order Entered December 16, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0009745-2012.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: Filed: April 30, 2021
Henry Attica appeals from the order denying his timely petition for post-
conviction relief filed under the Post Conviction Relief Act (“PCRA”). 42
Pa.C.S.A. §§ 9541-46. We affirm.
In deciding Attica’s direct appeal, we summarized the pertinent facts
and trial testimony as follows:
On April 27, 2012, Walter West (herein “Complainant”)
and his girlfriend, Lori Pugh, went to Old Philly Bar for a few
drinks. After roughly fifteen minutes, Lori’s son, James
Attica (herein “James”), came to the bar and got into an
argument with her over marijuana. James then got into an
argument with the Complainant over money that the
Complainant had owed him. The argument carried over to
the street where James put his hands on Lori to push her
and the Complainant later stepped between them. Lori
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* Retired Senior Judge assigned to the Superior Court.
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testified that following the altercation, James walked the
opposite way and that she and the Complainant went home.
After returning to his home, located at 137 West
Susquehanna Avenue, the Complainant testified that Lori
received a threatening voicemail from James who stated
that he was going to burn and break the windows of the
Complainant’s car. At approximately 10:00 p.m. that night,
the Complainant stated that he saw [Attica] and James,
[Attica’s] nephew, drive by his house two or three times in
a red Ford F150. The Complainant stated that he went to
the bathroom and upon returning saw a red truck pass his
house and observed his car ablaze. Once the fire
department came and put out the fire, the Complainant saw
[Attica] and James pass by again, laughing as if it was a
joke. The Complainant’s car was completely destroyed and
subsequently towed away to AC Auto.
[James] next recounted his version of the incident during
his [in-court] testimony. He testified that following the
argument, he went to another bar to borrow a pedal bike so
he [could] break the Complainant’s car windows. When
James arrived at the bar, he told [Attica] about the
argument between him and the Complainant. James
testified that [Attica] told him “… [he] isn’t going to get away
with this shit.” James and Attica then left in [Attica’s] red
Ford F150 truck and went to the gas station to fill up a
container with gasoline. James testified that [Attica]
dropped him off at his house because he did not want to go
to the Complainant’s house. Later that evening, [Attica]
drove James by the Complainant’s home and James saw the
Complainant’s burnt vehicle. He stated that he was not in
the truck with [Attica] when the car was burned. James
pleaded guilty to the crimes of conspiracy and criminal
mischief on March 26, 2015.
The Commonwealth called Lieutenant Robert Crowe, an
expert witness, to testify. Lieutenant Crowe is an assistant
fire marshal with 20 years of experience as a firefighter and
has conducted over thousands of investigations. He
determined that something was poured on the windshield
and came down onto the exterior panel of the Complainant’s
vehicle and then onto the ground. He testified that thermal
patterns on the vehicle were indicative of some sort of an
accelerant being applied to the front of the vehicle and
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ignited, and that this was something that could not have
happened accidently on a car by itself. [Lieutenant Crowe
explained that an accelerant is gasoline, kerosene, lighter
fluid, or some other type of igniting liquid.] Further, he
expressed that such a fire can extend to nearby trees,
vehicles, or buildings. Likewise, Lieutenant Andry Metallus
testified that he was concerned that the fire could extend to
nearby structures, trees and cars. He further testified that
the burn marks reflect that the fire was incendiary in nature
and not mechanical.
Commonwealth v. Attica, 179 A.3d. 559 (Pa. Super. 2017), unpublished
memorandum at 2-3 (paragraph break added; citation omitted).
On August 20, 2015, a jury convicted Attica of conspiracy, arson-danger
of death or bodily injury, and risking a catastrophe. On October 30, 2015, the
trial court sentenced Attica to an aggregate term of 23½ to 47 years of
imprisonment. Following the denial of his post-sentence motion, Attica filed
an appeal to this Court. On October 13, 2017, we affirmed Attica’s judgment
of sentence. Attica, supra. On March 7, 2018, our Supreme Court denied
Attica’s petition for allowance of appeal. Commonwealth v. Attica, 182 A.3d
440 (Pa. 2018).
On May 31, 2018, Attica filed a pro se PCRA petition. The PCRA court
appointed counsel. On July 23, 2018, PCRA counsel filed an amended petition
on Attica’s behalf in which he raised multiple claims, including an assertion
that trial counsel was ineffective for failing to “call an expert witness to testify
that the Commonwealth did not follow appropriate procedures during the
arson investigation.” Amended PCRA Petition, 7/23/18, Memorandum of Law,
at 2 (unnumbered).
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Thereafter, PCRA counsel filed a supplemental PCRA on January 22,
2019, to which he attached “an expert report authored by Jeffrey T. Morrill, a
“State of Georgia Certified Arson Investigator.’” Amended Petition, 1/22/19,
Exhibit A.
The Commonwealth filed a response to each amendment of the PCRA
petition. On November 7, 2019, the PCRA court issued Pa.R.Crim.P. 907
notice of its intent to dismiss Attica’s petition without a hearing. Attica filed a
timely response. By order entered December 16, 2019, the PCRA court
dismissed Attica’s PCRA petition. This timely appeal followed. Both Attica and
the PCRA court have complied with Pa.R.A.P. 1925.
Attica now raises the following six issues:
1. Whether the PCRA court erred by dismissing the PCRA
petition when clear and convincing evidence was
presented that trial counsel was ineffective for failing to
present expert witness testimony as requested by
[Attica].
2. Whether the PCRA court erred by dismissing the PCRA
petition when clear and convincing evidence was
presented that trial counsel was ineffective for failing to
seek suppression of physical evidence.
3. Whether the PCRA court erred by dismissing the PCRA
petition when clear and convincing evidence was
presented that trial counsel was ineffective for refusing
to present an available alibi defense.
4. Whether the PCRA court erred in dismissing the PCRA
petition when clear and convincing evidence was
presented that [Attica’s] constitutional rights were
violated by prosecutorial misconduct, based on the
prosecutor’s inflammatory remarks made to the jury
during opening and closing statements, as well as
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evidence that did not prove his guilt beyond a reasonable
doubt.
5. Whether the PCRA court erred by dismissing the PCRA
petition when newly discovered evidence was presented
that firmly established an alibi defense and would have
exonerated [Attica] had it been available for introduction
at trial.
6. Whether the PCRA court erred by failing to grant an
evidentiary hearing.
Attica’s Brief at 8.1
Our scope and standard of review is well-settled:
In PCRA appeals, our scope of review is limited to the findings
of the PCRA court and the evidence on the record of the PCRA
court's hearing, viewed in the light most favorable to the
prevailing party. Because most PCRA appeals involve
questions of fact and law, we employ a mixed standard of
review. We defer to the PCRA court's factual findings and
credibility determinations supported by the record. In
contrast, we review the PCRA court's legal conclusions de
novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(en banc) (internal citations and quotations omitted).
Moreover,
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. To obtain a 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 material fact which,
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1 We have reordered Attica’s issues to correspond with the order he discussed
them in the argument section of his brief.
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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).
Attica’s first three issues challenge the effectiveness of trial counsel. 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 be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.” Id.This requires the petitioner to demonstrate that: (1) the underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) the petitioner was prejudiced by counsel's act or
omission. Id. at 533. A finding of "prejudice" requires the petitioner to show
"that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different." Id. A failure
to satisfy any prong of the test for ineffectiveness will require rejection of the
claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
Attica first claims that trial counsel was ineffective for failing to call an
expert witness who would have testified that the Commonwealth failed “to
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follow established investigative and custodial procedures” when conducting its
fire investigation. Attica’s Brief at 13.2 Our Supreme Court has explained:
To satisfy the “arguable merit” prong for a claim of
ineffectiveness based upon trial counsel’s failure to call an
expert witness, the petitioner must prove that an expert
witness was willing and able to testify on the subject of the
testimony at trial, counsel knew or should have known about
the witness and the defendant was prejudiced by the
absence of the testimony. Prejudice in this respect requires
the petitioner to show how the uncalled witnesses’
testimony would have been beneficial under the
circumstances of the case. Therefore, the petitioner’s
burden is to show that the testimony provided by the
uncalled witness would have been helpful to the defense.
Commonwealth v. Williams, 141 A.3d 440, 460 (Pa. 2016) (citations and
footnote omitted). Moreover, the failure to call an expert witness is not per
se ineffective assistance of counsel, as such decisions usually involve matters
of trial strategy. Commonwealth v. Smith, 167 A.3d 782, 793 (Pa. Super.
2017).
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2 In its opinion, the trial court claims we should find all of Attica’s
ineffectiveness claims waived for lack of specificity. See PCRA Court Opinion,
6/15/20, at 6-7. Along with his notice of appeal, Attica contemporaneously
filed a Rule 1925(b) statement. Therefore, the PCRA court did not request a
new one, and prepared its Rule 1925(a) opinion. Although Attica later filed
an amended Rule 1925(b) statement, the PCRA court found it untimely.
Nonetheless, the PCRA court explained why each ineffectiveness claim raised
by Attica did not entitle him to relief. Given these circumstances, we decline
to find waiver. See generally, Commonwealth v. Parrish, 224 A.3d 682(Pa. 2020).
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Here, the PCRA court found Attica’s claim meritless for a number of
reasons. The court first explained:
Here, [Attica’s] petition included an expert report authored
by Jeffrey T. Morrill (“Mr. Morill”), a “State of Georgia
Certified Arson Investigator.” Presumably, trial counsel was
aware that an expert witness could have testified on the
subjects raised throughout [Attica’s] PCRA petition.
However, neither the petition nor Mr. Morrill’s report
indicates that Mr. Morrill would have been available and
willing to testify at trial, had his services been retained.
Thus, [Attica] failed to prove the first required element of
the “arguable merit” prong, and discussion of his claim could
end here.
PCRA Court Opinion, 6/15/20 at 11 (citation omitted).
Our review of the record supports the trial court’s conclusion. See
In his brief, Attica does not dispute this finding. Thus, Attica’s first
ineffectiveness claim fails on this basis alone.
However, the PCRA court further determined that, even if Mr. Morrill
was available to testify, Attica’s claim would still have been without merit
given its review of Mr. Morill’s report.
As noted above, Attica asserts that Mr. Morill’s testimony would have
established that the Commonwealth failed to follow established investigative
and custodial procedures regarding its arson investigation. See infra.
Noting this claim, the PCRA court explained in detail:
[F]or some indiscernible reason, the proposed expert
report simply does not address the “procedures,”
“methodology,” or “protocol” of arson investigation—let
alone any alleged deficiency of Lieutenant Crowe’s
methodology. Some of the opinions expressed in Mr.
Morrill’s report conflict with Lieutenant Crowe’s testimony,
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but the methodology of fire investigation is not discussed
anywhere in Mr. Morrill’s report. The only commentary
(relating to Lieutenant Crowe’s methodology) contained in
the report is the single conclusory statement, “[Lieutenant
Crowe] has not properly used the scientific method.”
Neither [Attica] (in his four petitions) nor Mr. Morrill (in his
seven-page report) identify, define, or explain which
“procedures,” “methodology,” or “protocol” Lieutenant
Crowe failed to follow. Neither [Attica] nor Mr. Morrill
identify or explain the “established protocol” or how that
“established” method compares to the one employed by
Lieutenant Crowe. [Attica] bases his entire theory of
ineffectiveness on the notion that Lieutenant Crowe failed to
follow established professional protocols, but inexplicably
fails to provide any evidence to support this accusation.
Without evidentiary support, [Attica’s] underlying claim has
no conceivable merit.
Even if the proposed expert report would have aided
[Attica’s] defense in some other way, [Attica] utterly failed
to frame the issue for this court’s review. This court
acknowledges that Lieutenant Crowe’s testimony and Mr.
Morrill’s report represent conflicting theories, but these
discrepancies in opinion are not compelling enough to entitle
[Attica] to relief. Lieutenant Crow determined that a liquid
accelerant (e.g., gasoline, kerosene, of lighter fluid) was
applied to the passenger’s side of the windshield and used
to ignite the fire. Conversely, Mr. Morrill, while not denying
that liquid accelerant was applied to any other portion of the
vehicle, repeatedly opines that no ignitable liquid was
applied to the windshield. Lieutenant Crowe testified that
the fire originated on the windshield, traveled down into the
window well and the engine compartment, and extended
outwards to the passenger-side wheel well, damaging the
windshield and the engine compartment. Conversely, Mr.
Morrill argues that the fire originated within the engine
compartment, before venting “upward and outward” and
damaging the engine compartment, windshield wiper boot,
and windshield.
If the members of the jury heard and believed Mr. Morill’s
interpretation of the fire, they may have concluded that [the
Complainant] did not recall the incident correctly or that
portions of his testimony were not credible. However, any
potential benefit from Mr. Morill’s proffered testimony would
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have been nominal. Despite [Attica’s] claim that Lieutenant
Crowe “did not properly identify the cause of the fire,”
neither [Attica] or Mr. Morrill deny that the fire was caused
by arson. Essentially, the proposed report would have
allowed the jury to consider whether the alleged arsonist
ignited a fire that traveled “upward and outward,” as opined
by Mr. Morrill, or downward and outward, as opined by
Lieutenant Crowe. It is highly unlikely that these dueling
theories would have affected the jury’s key consideration—
whether [Attica] was the alleged arsonist who set fire to [the
Complainant’s] vehicle. Thus, [Attica’s] underlying claim
has no merit, and this court properly dismissed his petition
on this basis.
PCRA Court Opinion, 6/15/20, at 13-15 (footnotes and citations omitted).
Given all of its comments, the PCRA court thoroughly examined the
merits of Attica’s first ineffectiveness claim and found none. The PCRA court’s
conclusion is supported by our review of the record.
Moreover, our review of the record also supports the PCRA court’s
conclusion that Attica failed to establish that counsel had no reasonable basis
for failing to call an expert witness. “Trial counsel need not introduce expert
testimony on his client’s behalf if he is able to effectively cross-examine
prosecution witnesses and elicit helpful testimony.” Williams, 141 A.3d at
464 (citation omitted). Here, the PCRA court concluded that the failure to
retain a defense expert “did not constitute ineffective assistance, as [trial]
counsel conducted skilled, useful cross-examination” of Lieutenant Crowe that
aided Attica’s defense. PCRA Court Opinion, 6/15/20, at 16. Our review of
the record support this conclusion.
Finally, the PCRA court found that Attica could not establish that the
failure to call an expert prejudiced him. The court explained:
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In the case at bar, the proposed expert testimony does
not overcome the extensive direct evidence of [Attica’s]
guilt. James testified that on April 27, 2015, [Attica]
repeatedly told James that he was going to burn [the
Complainant’s] car. The pair then drove to a gas station
and filled a jug with gasoline. Later that same evening, [the
Complainant] saw [Attica] drive his red truck past [the
Complainant’s] home two or three times, as James was
seated in [Attica’s] passenger seat. [The Complainant] saw
the same red truck drive by again immediately before his
car was ignited, although he admitted that he could not see
into the truck that particular time.
[Lori Pugh’s] testimony also corroborated [Attica’s]
presence at the scene. She testified that she was at her
house with [the Complainant] when she saw a red Ford 150
truck, which she knew was [Attica’s], drive by and that
“when we looked back out the door, the car was on fire.”
Once the fire was extinguished [the Complainant] saw
[Attica] and James drive by again, “laughing like it was a
joke.”
Officer Marion Cienkowski testified that on May 5,
201[5], [the Complainant] “came into the 25th District
window and stated that two males, who he only knew by the
names of Jimmy and [Attica] threw some sort of liquid on
his vehicle and set the vehicle on fire.” Lieutenant Crowe
determined that an arsonist used “some type of accelerant”
to deliberately ignite the fire.
The testimony of [the Complainant], Officer Cienkowski,
Lori [Pugh], and Lieutenant Crowe corroborate James’
testimony that [Attica] intentionally set fire to [the
Complainant’s] car. For the reasons discussed supra, even
if the jury was presented with and believed the information
contained in Mr. Morrill’s report, it is highly unlikely the
proposed testimony would have overcome the substantial
evidence of [Attica’s] guilt and changed the outcome of trial.
Thus, [Attica] cannot show that he suffered prejudice, and
his ineffectiveness claim fails.
PCRA Court Opinion, 6/15/20, at 18-10 (emphasis in original; paragraph
breaks added; citations omitted).
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We agree that Attica’s first issue does not warrant post-conviction relief.
Given the overwhelming evidence that Attica set the Complainant’s vehicle
ablaze, the fact that a defense expert could have challenged the
“methodology” of the arson investigation is without significance.
In his second issue, Attica claims that trial counsel was ineffective for
failing to file a motion to suppress the physical evidence. According to Attica,
he “had a legitimate factual and legal basis to seek suppression of [the
Complainant’s vehicle] based upon spoliation of the evidence caused by the
Commonwealth’s failure to maintain an uninterrupted chain of custody.”
Attica’s Brief at 14.
“The failure to file a suppression motion under some circumstances may
be evidence of ineffectiveness assistance of counsel.” Commonwealth v.
Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016). “However, if the grounds
underpinning that motion are without merit, counsel will not be deemed
ineffective for failing to so move.” Id. “The defendant must establish that
there was no reasonable basis for not pursuing the suppression claim and that
if the evidence had been suppressed, there is a reasonable probability that
the verdict would have been more favorable.” Id.The PCRA court found Attica’s second issue to lack arguable merit. After
citing Attica’s assertions in his PCRA petition, the PCRA court explained:
It is unclear from his poorly documented claim exactly which
evidence was “spoiled” or how the Commonwealth’s
handling of the vehicle caused “spoliation” of that evidence.
Further, even assuming there were custodial defects, gaps
in the chain of custody—the underlying basis for [Attica’s]
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argument—goes to the weight of the evidence and not its
admissibility. Commonwealth v. Feliciano, 67 A.3d 19,
29 (Pa. Super. 2013). Thus, the physical evidence of [the
Complainant’s] burned vehicle was not inadmissible on the
ground that “the Commonwealth [failed] to maintain an
uninterrupted chain of custody,” and trial counsel cannot be
found ineffective for failing to file a frivolous motion on this
basis. See Commonwealth v. Pearson, 685 A.2d 551,
556 (Pa. Super. 1996) (“[C]ounsel can never be found to
have been ineffective for failing to raise a meritless claim.”).
Even if trial counsel had filed the proposed motion, this court
would have undoubtedly denied it. Thus, [Attica] cannot
show that he was prejudiced by trial counsel’s failure to file
the proposed motion, and his ineffectiveness claim fails.
PCRA Court Opinion, 6/15/20, at 19-20.
Our review of the record and pertinent case law supports the PCRA
court’s conclusion. As noted by the PCRA court, Attica does not articulate any
specific spoliation that occurred. Attica’s claim that, because of gaps in the
chain of custody, “the vehicle was exposed to any and all kinds of tampering
and manipulation,” amounts to no more than speculation. Attica’s Brief at 14.
Concerns about chains of custody implicate the weight to be accorded the
evidence not its admissibility. See, e.g., Commonwealth v. Soto, 202 A.3d
80, 102 (Pa. Super. 2018) (explaining physical evidence may be admissible
despite gaps regarding it chain of custody) (citation omitted). Finally, we note
that trial counsel vigorously cross-examined the Commonwealth witness
regarding the handling of the vehicle. See N.T., 8/19/15, at 176-80. Thus,
Attica’s second issue warrant no relief.
In his third issue, Attica claims that trial counsel was ineffective for
failing to conduct a pretrial investigation as to potential alibi witnesses.
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According to Attica, he “provided trial counsel with the name and address of
every location he visited throughout the night of the incident,” and “[d]espite
[his] repeated request for counsel to investigate potential alibi witnesses,”
trial counsel failed “to perform even a cursory investigation[.]” Attica’s Brief
at 15. Attica’s third issue warrants no relief.
To establish that trial counsel was ineffective for failing to investigate
and/or call a witness at trial, a PCRA petitioner must demonstrate that:
(1) the witness existed; (2) the witness was available; (3)
trial counsel was informed of the existence of the witness or
should have known of the witness’s existence; (4) the
witness was prepared to cooperate and would have testified
on appellant’s behalf; and (5) the absence of the testimony
prejudiced appellant.
Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) (citation
omitted).
Here, Attica has not met any of the Hall factors. In addition, because
Attica has not attached a certification from trial counsel to his PCRA petition,
his allegation that counsel did not even conduct a cursory investigation is no
more than speculation. See Commonwealth v. Roney, 79 A.3d 595, 607
(Pa. 2013) (rejecting as speculative claim regarding reasonable basis when
the petitioner did not proffer affidavits from trial counsel concerning counsel’s
actual investigation or explain why such an affidavit could not be procured).
Finally, Attica fails to assert how he specifically was prejudiced regarding this
ineffectiveness claim. Rather, Attica argues ”[t]he cumulative effect of [trial]
counsel’s multiple errors created a situation where the jury was presented
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with evidence from a scientifically flawed arson investigation on a potentially
tainted vehicle that was corroborated without challenge by a biased
eyewitness [(James)] with an ulterior motive against [him].” Attica’s Brief at
15. Given that we have already determined that Attica’s claims regarding the
arson investigation and spoliation of evidence warrant no relief, Attica’s failure
to identify any alibi witness that trial counsel should have known of likewise
fails.
In his fourth issue, Attica asserts that the trial court erred in denying
his claim of after-discovered evidence in the form of two alibi witnesses that
came forward following his trial. To address this claim, we first note the test
applied to after-discovered evidence under the PCRA. When discussing the
test in the context of a PCRA appeal, our Supreme Court recently summarized:
[W]e have viewed this analysis in criminal cases as
comprising four distinct requirements, each of which, if
unproven by the petitioner, is fatal to the request for a new
trial. As stated, the four-part test requires the petitioner to
demonstrate the new evidence: (1) could not have been
obtained prior to the conclusion of trial by the exercise of
reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach the
credibility of a witness; and (4) would likely result in a
different verdict if a new trial were granted. The test applies
with full force to claims arising under Section 9543(a)(2)(vi)
of the PCRA. In addition, we have held the proposed new
evidence must be producible and admissible.
Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citations omitted).
Moreover, the test for after-discovered evidence “is conjunctive; the
appellant must show by a preponderance of the evidence that each of these
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factors has been met in order for a new trial to be warranted.”
Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (citation
omitted).
Finally, credibility determinations are an integral part of determining
whether a PCRA petitioner has presented after-discovered evidence that would
entitle him to a new trial. See, e.g., Small, 189 A.3d at 978-79 (remanding
for the PCRA court to make relevant credibility determinations). We have
stated, prior to granting a new trial based on after-discovered evidence, “a
court must assess whether the alleged after-discovered evidence is of such a
nature and character that it would likely compel a different verdict if a new
trial is granted.” Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super.
2010). “In making this determination, a court should consider the integrity of
the alleged after-discovered evidence, the motive of those offering the
evidence, and the overall strength of the evidence supporting the conviction.”
Id.In support of his fourth issue, Attica asserts that “two witnesses have
come forward and stated unequivocally that [he] was with them at a bar
during the entire time that he is alleged to have committed the crime for which
he was convicted.” Attica’s Brief at 16. Referring to the affidavits of two
women which he attached to his PCRA petition, Attica contends that the after-
discovered evidence “is not being used to impeach the credibility of any
witness, and it establishes his innocence and compels the jury to render a
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different verdict.” Id. Thus, Attica contends that this after-discovered
evidence entitles him to a new trial. We disagree.
The PCRA court found that even if Attica could meet the other Small
factors, he “simply cannot show that the proposed testimony would have likely
compelled a different verdict.” PCRA Court Opinion, 6/15/20, at 23. The court
explained:
Here, Walter testified that he saw [Attica] repeatedly
drive by his home around 10:00 p.m., before seeing his car
set ablaze. Lori testified that “between the hours of 8:00
and 10:00 p.m.,” she also saw [Attica’s] truck drive by the
home, shortly before seeing Walter’s car engulfed in flames.
[Attica’s] proposed alibi witnesses claimed to have seen
[Attica] “at the Old Philadelphia Bar on April 27, 2012,
between the hours of 10pm until approximately 2am.”
Even if [their] proposed testimony is true, it does not
constitute an alibi, as it in no way precludes the possibility
of [Attica’s] guilt. The location where the witnesses claim
to have seen [Attica], the Old Philly Bar, and Water’s home
. . . are located within five blocks of each other. [Attica]
could have easily set fire to Water’s car “around 10:00 p.m.”
or “between the hours of 8:00 and 10:00 p.m.,” before
spending the remainder of his evening at Old Philly Bar. The
proposed testimony only corroborates [Attica’s] presence
near the scene of the crime at the relevant point in time and
bolster’s the Commonwealth’s case.
Id. at 22 (citations omitted).
Our review of the witnesses’ affidavits, along with the trial testimony,
supports the PCRA court’s conclusion that Attica’s after-discovered evidence
claim does not entitle him to a new trial. Even if the witnesses would have
established an alibi, Attica does not explain how their testimony would do
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more than impeach the trial testimony from James, the Complainant, and Lori
Pugh. Thus, Attica’s fourth issue fails.
In his fifth issue, Attica asserts that the PCRA court erred in dismissing
his PCRA petition because his “due process rights were violated at trial based
on the [the trial court’s] allowance of evidence of a racially offensive statement
purportedly made by him.” Attica’s Brief at 17. According to Attica, ‘[t]he
prosecutor made improper remarks and references about the purported
statement in both his opening and closing remarks.” Id.
Our review of the record supports the PCRA court’s conclusion that this
claim of prosecutorial misconduct was vague, and, at any rate, previously
litigated by Attica in his direct appeal. See 42 Pa.C.S.A. § 9544(a); Attica,
supra, unpublished memorandum at 7-10, 13-15. Additionally, we note that
Attica’s argument in support of this claim consists of one paragraph that is
woefully undeveloped. Thus, we need not consider the claim further. See
Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007) (holding that
undeveloped claims will not be considered on appeal).3
In his sixth and final issue, Attica contends that the PCRA court erred in
dismissing his PCRA petition without first holding a hearing. Because we have
determined that Attica’s preceding five claims were devoid of merit, the PCRA
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3 As part of this claim, Attica challenges the sufficiency of the evidence
supporting his convictions. This claim was also raised and rejected in Attica’s
direct appeal.
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court did not err or abuse its discretion in dismissing Attica’s PCRA petition
without first holding a hearing. Blakeney, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/21
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