Com. v. Taylor, S. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHAVARYEA TAYLOR :
:
Appellant : No. 1125 EDA 2020
Appeal from the PCRA Order Entered March 5, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014476-2011
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: Filed: April 8, 2021
Appellant, Shavaryea Taylor, appeals from the post-conviction court’s
March 5, 2020 order, dismissing as meritless his timely petition filed pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We
affirm.
This Court has previously summarized the facts of this case as follows:
On September 6, 2011, [Appellant] and his three co-conspirators
robbed a pizza delivery[]man at gunpoint. The co-conspirators
had placed a phone order to Memo’s Pizza in West Philadelphia[,]
and requested food be delivered to a row home located at 105
Cecil Street. When the delivery man exited his car to bring the
order to the home, [Appellant] and his co-conspirators
approached him and demanded the food. [Appellant] took a gun
from one of the co-conspirators and pointed it at the delivery man
while another conspirator took approximately $36.00 worth of
food from the victim. At a jury trial, the Commonwealth presented
evidence that [Appellant] had committed two similar robberies in
August 2011, both involving phoning in food orders and then
robbing the delivery persons at gun point.
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[Appellant] was convicted by a jury of [robbery, 18 Pa.C.S. §
3701(a)(1)(iii), conspiracy to commit robbery, 18 Pa.C.S. §
903(c), firearms not to be carried without a license, 18 Pa.C.S. §
6106(a)(1), carrying a firearm in public in Philadelphia, 18 Pa.C.S.
§ 6108, and possession of an instrument of crime (PIC), 18
Pa.C.S. § 907(a)]. On November 26, 2013, the court sentenced
[Appellant] to the Commonwealth’s recommended sentence of
[eight]-[twenty] years’ imprisonment for the robbery conviction,
with concurrent terms of ten years’ probation on the conspiracy
conviction, a seven-year term of probation for carrying a firearm
without a license, and two terms each of five years’ probation for
PIC and the remaining firearm offense.
Commonwealth v. Taylor, 2018 WL 5317555, at *1 (Pa. Super. filed Oct.
29, 2018).
Following sentencing, Appellant did not file a direct appeal. However,
Appellant later filed a PCRA petition seeking reinstatement of his direct appeal
rights, and the lower court reinstated his direct appeal rights nunc pro tunc
on October 17, 2016. On direct appeal, this Court affirmed his judgment of
sentence, see Commonwealth v. Taylor, 200 A.3d 607 (Pa. Super. 2018),
and our Supreme Court subsequently denied his petition for allowance of
appeal on March 18, 2019. Commonwealth v. Taylor, 204 A.3d 920 (Pa.
2019).
On May 20, 2019, Appellant timely filed a pro se PCRA petition. Counsel
was appointed and filed an amended petition on September 26, 2019. On
January 8, 2020, the Commonwealth filed a motion to dismiss. On January
9, 2020, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to
dismiss Appellant’s petition, and Appellant did not file a response. On March
5, 2020, the PCRA court dismissed the petition as meritless. On April 2, 2020,
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Appellant filed a timely notice of appeal. The PCRA court did not order him to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,
but he filed one anyway. Thereafter, the PCRA court issued a Rule 1925(a)
opinion.
Appellant raises the following issues for our review:
1. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence established that trial counsel
was ineffective for failing to investigate and present an available
alibi defense, as well as failing to file and litigate appropriate pre-
trial motions.
2. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish a
violation of [A]ppellant’s constitutional right to due process
because the conviction was based upon evidence that did not
prove his guilt beyond a reasonable doubt.
3. Whether the PCRA court erred by dismissing [A]ppellant’s
petition for post-conviction relief when newly discovered[,] clear
and convincing evidence was presented that firmly established an
alibi defense that would have exonerated [A]ppellant had it been
introduced at trial.
4. Whether the PCRA court erred by failing to grant an evidentiary
hearing.
Appellant’s Brief at 8.
Before delving into Appellant’s issues, we note that our standard of
review regarding an order denying post-conviction relief is whether the
findings of the court are “supported by the record and free of legal error.”
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citations
omitted).
First Issue
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In Appellant’s first issue, he argues that the PCRA court “erred by
dismissing the PCRA petition when clear and convincing evidence was
presented that trial counsel was ineffective for failing to investigate and
present an available alibi defense, as well as failing to file and litigate
appropriate pre-trial motions.” Appellant’s Brief at 12 (unnecessary emphasis
omitted). Where a petitioner claims that he or she received ineffective
assistance of counsel, as Appellant does here, our Supreme Court has stated
that:
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the “[i]neffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.” Generally, counsel’s
performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing
by the petitioner. To obtain relief, a petitioner must demonstrate
that counsel’s performance was deficient and that the deficiency
prejudiced the petitioner. A petitioner establishes prejudice when
he demonstrates “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” … [A] properly pled claim of
ineffectiveness posits that: (1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice befell the petitioner
from counsel’s act or omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (internal
citations omitted). Further, “[i]n order to prevail upon a claim that counsel
was ineffective for failing to call witnesses on his [or her] behalf, [an] appellant
is required to establish that: (1) the witnesses existed; (2) such witnesses
were available to testify for the defense; (3) counsel knew of, or should have
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known of, the existence of the witnesses; (4) the witnesses were willing to
testify for the defense; and (5) the absence of the testimony of such witnesses
was so prejudicial as to have denied him [or her] a fair trial.”
Commonwealth v. Horton, 644 A.2d 181, 185 (Pa. Super. 1994) (citations
omitted).
Aside from setting forth boilerplate case law pertaining to
ineffectiveness, Appellant’s argument on this claim consists of the following:
Trial counsel’s failure to file and litigate pretrial motions to
suppress the physical evidence and the identification evidence
directly conflicts with [A]ppellant’s Fourth and Sixth Amendment
rights. Additionally, trial counsel’s failure to conduct a reasonable
pretrial investigation also violated [A]ppellant[’s] … constitutional
right to due process, thereby establishing arguable merit.
Counsel’s decision and failures had no reasonable basis to advance
the interest of [A]ppellant. The tactics utilized by counsel were
never explained to [A]ppellant…. Therefore, both prongs of the
ineffectiveness test are established for this claim.
Trial counsel also failed to investigate evidence that would provide
a valid alibi defense, thus satisfying the arguable merit
requirement. Counsel failed to identify or locate any witnesses,
and never offered an alibi defense. Trial counsel offered no
explanation to [A]ppellant … as to his decision to not present an
alibi defense, nor search for witnesses. No claim of strategy may
be made by counsel, and the reasonableness prong is satisfied.
***
Trial counsel’s failure to file and litigate pretrial motions to
suppress the physical evidence and the identification evidence
certainly had an adverse effect on the outcome of the trial.
Appellant … was detained by police without reasonable suspicion
and searched without probable cause. The circumstances
surrounding the out-of-court identification of [A]ppellant were
unduly suggestive and there was no reasonable independent basis
for the in-court identification. The identification and the physical
evidence, a gun, were obtained in violation of [A]ppellant’s
constitutional rights and would have been suppressed had counsel
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litigated these motions. Additionally, trial counsel’s decision to
not provide an alibi defense had a significantly adverse effect on
the outcome of the trial. An alibi witness would have testified that
[A]ppellant was in another location, far from the crime scene, at
the time[] of the alleged incident. The alibi evidence would have
established [A]ppellant’s innocence. Because [A]ppellant … was
denied the opportunity to present evidence that would establish
his innocence, a reliable determination of guilt was not made at
trial.
***
Appellant … established that a reliable determination of guilt was
not made at trial because counsel failed to move to suppress
evidence, investigate[,] and present evidence beneficial to the
defense, and neglected to present an alibi defense. Each of these
facts adversely affected the trial for [A]ppellant, and sufficiently
satisfied the prejudice prong. Since each of [A]ppellant’s claims
had arguable merit, none of counsel’s actions were reasonably
designed to advance [A]ppellant’s interest, and counsel’s
omissions adversely affected the outcome of the trial, counsel’s
ineffectiveness was firmly established. Appellant … was entitled
to have his judgment of sentence vacated and deserved a new
trial on counsel’s ineffectiveness, and the PCRA court erred by
dismissing the petition.
Appellant’s Brief at 13-14.
As the Commonwealth discerns, Appellant’s argument is incredibly
vague and undeveloped. See Commonwealth’s Brief at 4, 8-9. Regarding his
claim that trial counsel was ineffective in failing to file pretrial motions to
suppress physical and identification evidence, Appellant does not discuss the
circumstances surrounding this evidence or provide any background on it. He
also neglects to meaningfully explain why such evidence purportedly conflicted
with his constitutional rights and why it would have been suppressed had
counsel sought such relief. Similarly, with respect to his alibi claim, Appellant
does not articulate how trial counsel neglected to investigate evidence that
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would have provided a valid alibi defense. He fails to identify which alibi
witnesses trial counsel should have pursued, not detailing whether such
witnesses even existed at that time or were available. He also makes no
specific argument that trial counsel was aware, or should have been aware, of
them. Given the inadequate analysis advanced by Appellant, we cannot
review this issue and deem it waived. In re M.Z.T.M.W., 163 A.3d 462, 465
(Pa. Super. 2017) (“It is well-settled that this Court will not review a claim
unless it is developed in the argument section of an appellant’s brief, and
supported by citations to relevant authority.”) (citations omitted); Coulter v.
Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014) (“This Court will not act
as counsel and will not develop arguments on behalf of an appellant. … [M]ere
issue spotting without analysis or legal citation to support an assertion
precludes our appellate review of a matter.”) (internal quotation marks,
citations, and brackets omitted).
Second Issue
In Appellant’s second issue, he argues that the PCRA court “erred by
dismissing the PCRA petition when clear and convincing evidence was
presented to establish a violation of [A]ppellant’s constitutional right to due
process because the conviction was based upon evidence that did not prove
his guilt beyond a reasonable doubt.” Appellant’s Brief at 14 (unnecessary
emphasis omitted). His entire argument on this issue is comprised of the
following:
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Appellant was also entitled to relief under [42 Pa.C.S. §]
9543(a)(2)(i)[1] based on violations of his [c]onstitutional rights
that “so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken
place[.”] Appellant’s constitutional claims cannot be deemed
waived by counsel’s failure to raise the issues at trial.
Ineffectiveness of counsel will excuse waiver at trial because the
defendant has the constitutional right to counsel in such a
proceeding. Commonwealth v. Christy[,] 656 A.2d[] 877 (Pa.
1995). The afore-mentioned constitutional violations, beyond
establishing a basis to establish counsel’s ineffectiveness,
constitute a basis for relief under Section 9543(a)(2)(i). The
Fourth Amendment, Sixth Amendment, and [d]ue [p]rocess
violations each separately implicated and undermined the truth
determining process and warranted relief under this section.
Appellant’s due process rights were also violated at trial by the
Commonwealth’s failure to prove each element of the crimes
charged beyond a reasonable doubt. Commonwealth v.
Hanes[,] 579 A.2d[] 920 (Pa. Super[.] 1990). Specifically, the
testimony of the complaining witness was unsupported by any
factual evidence. The prosecution never offered any corroborating
evidence, and no physical evidence was presented to support the
claim.
Appellant’s Brief at 14.
Again, we deem this claim waived. For the reasons set forth supra,
Appellant’s arguments surrounding the purported Fourth Amendment, Sixth
Amendment, and due process violations are too unclear and undeveloped to
address. Further, his assertion that the Commonwealth failed to prove each
element of the crimes charged beyond a reasonable doubt is not adequately
____________________________________________
1 Section 9543(a)(2)(i) provides that “the petitioner must plead and prove by
a preponderance of the evidence … [t]hat the conviction or sentence resulted
from … [a] violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States which, in the circumstances of the
particular case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. §
9543(a)(2)(i).
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fleshed out for our review. In a conclusory fashion, he contends that “the
testimony of the complaining witness was unsupported by any factual
evidence. The prosecution never offered any corroborating evidence, and no
physical evidence was presented to support the claim.” Id. His argument
contains no references to the record or specific discussion of the evidence
adduced at trial. And, again, he cites only boilerplate case law in support of
his claims. Accordingly, we also deem this issue waived. In re M.Z.T.M.W.,
supra; Coulter, supra.Third Issue
In Appellant’s third issue, he insists that “[t]he PCRA court erred by
dismissing [his] PCRA petition when newly discovered[,] clear and convincing
evidence was presented that firmly established an alibi defense that would
have exonerated [A]ppellant had it been introduced at trial.” Appellant’s Brief
at 15 (unnecessary emphasis omitted). With respect to after-discovered
evidence, this Court has explained that, “[i]n order to obtain relief on a
substantive after-discovered evidence claim, a petitioner must demonstrate
that: (1) the evidence has been discovered after trial and it could not have
been obtained at or prior to trial through reasonable diligence; (2) the
evidence is not cumulative; (3) it is not being used solely to impeach
credibility; and (4) it would likely compel a different verdict.”
Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa. Super. 2019) (citation
omitted); see also 42 Pa.C.S. § 9543(a)(2)(vi) (stating that a petitioner is
eligible for relief under the PCRA, where he or she proves by a preponderance
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of the evidence, that the conviction or sentence resulted from “[t]he
unavailability at the time of trial of exculpatory evidence that has subsequently
become available and would have changed the outcome of the trial if it had
been introduced”).
Here, Appellant argues:
Despite [A]ppellant’s repeated requests for counsel to investigate
potential alibi witnesses, counsel failed to identify or locate
anyone. Because [A]ppellant was incarcerated during the entire
pre-trial period, he could not personally exercise the reasonable
diligence to identify and locate an alibi witness. After [A]ppellant
was convicted at trial, the alibi witness came forward and became
available. The witness stated unequivocally that she would testify
at an evidentiary hearing and she would have testified at trial to
establish [A]ppellant’s whereabouts during the alleged crime. Ms.
Shakira Stewart would have testified that [A]ppellant was present
at her home on North Robinson Street during the time of the
alleged incident. Ms. Stewart was also willing and available to
testify at an evidentiary hearing. A certified summary of her
witness statement was attached as an exhibit to [A]ppellant’s
amended PCRA petition.[2] The statement and her proposed
testimony satisfied each of the requirements and qualified as
“after discovered evidence” under the PCRA. The evidence was
obtained after trial and could not have been obtained at trial
through reasonable diligence. Counsel’s ineffectiveness cannot
____________________________________________
2 That exhibit states the following:
STATEMENT SUMMARY OF SHAKIRA STEWART
Ms. Shakira, of 353 N. Robinson Street, Philadelphia[,] PA,
19139, will testify at an evidentiary hearing that [Appellant]
was present with her at her home during the period of the
alleged robbery. Ms. Stewart’s date of birth is October 8,
1991. Ms. Stewart will also testify that she would have
testified to this same information during [Appellant’s] trial,
but was not subpoenaed, contacted[,] or called as a witness.
Amended Petition, 9/26/19, at Exhibit A. Ms. Stewart did not sign this
statement.
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disqualify the evidence since [A]ppellant’s constitutional right to
counsel was denied. The newly[-]discovered evidence was not
cumulative, as no other evidence of alibi was presented at trial.
The evidence was not being used to impeach the credibility of any
witness, and most importantly, it established [A]ppellant’s
innocence and would have compelled the jury to render a different
verdict. Appellant was entitled to a new trial based on the newly[-
]discovered alibi evidence, and the PCRA court erred by dismissing
the claim for relief pursuant to Section 9543(a)(2)(vi).
Appellant’s Brief at 15-16.
This argument is meritless. Appellant has not demonstrated that this
alibi evidence was discovered after trial and could not have been obtained at,
or prior to, trial through reasonable diligence. Appellant says that Ms. Stewart
“will testify at an evidentiary hearing that [Appellant] was present with her
at her home during the period of the alleged robbery.” Amended Petition,
9/26/19, at Exhibit A (emphasis added). However, as the Commonwealth
points out, Appellant does not sufficiently explain why Ms. Stewart had not
been available at the time of trial, and why she ‘came forward and became
available’ only after his conviction. Appellant also does not articulate why, if
he was with her at her house at the time of the robbery, he did not disclose
her identity to trial counsel or otherwise seek her alibi testimony sooner.3 As
the Commonwealth discerns, Appellant “would have had to have known that
he was with Ms. Stewart on the night of the robbery (if he really was with
her), and thus, her testimony cannot be new evidence.” Commonwealth’s
____________________________________________
3The Commonwealth correctly notes that, in Appellant’s earlier ineffectiveness
argument, he “only claims that he requested counsel to investigate potential
alibi witnesses, but he does not specify that he informed counsel about Ms.
Stewart in particular.” Commonwealth’s Brief at 10 (citation omitted).
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Brief at 12. Accordingly, we reject Appellant’s after-discovered-evidence
claim. No relief is due on this basis.
Fourth Issue
Last, in Appellant’s fourth issue, he advances that the PCRA court erred
by failing to grant an evidentiary hearing. He avers that he “raised significant
claims of trial counsel’s ineffectiveness. The claims were legitimate, based on
fact[,] and supported by legal precedent.” Appellant’s Brief at 16. He also
asserts, without any elaboration, that “[t]he PCRA court’s determination of a
total lack of merit was never specifically stated or supported in the court’s
opinion submitted to the Superior Court. The PCRA court offered no analysis
to indicate that every conceivable legitimate benefit was given to each claim
raised by [A]ppellant.” Id.
“It is well settled that there is no absolute right to an evidentiary hearing
on a PCRA petition, and if the PCRA court can determine from the record that
no genuine issues of material fact exist, then a hearing is not necessary.”
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citation,
internal quotation marks, and original brackets omitted). “[T]o 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.” Id. (citation omitted). Here, having
determined that all of Appellant’s preceding issues are waived or meritless, he
has not demonstrated that he raised a genuine issue of fact which, if resolved
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in his favor, would have entitled him to relief. He also does not convince us
that the PCRA court otherwise abused its discretion in denying him an
evidentiary hearing. Thus, Appellant’s fourth issue also fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/21
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