Com. v. Vincent, D.

J-S56022-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL VINCENT :
:
Appellant : No. 1135 EDA 2018
Appeal from the PCRA Order March 13, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006201-2010
BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J. FILED DECEMBER 04, 2019
Appellant, Daniel Vincent, appeals pro se from an order entered on
March 13, 2018, which dismissed his petition for collateral relief filed pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
The PCRA court thoroughly summarized the relevant facts and procedural
history as follows:
After a jury trial [Appellant] was found guilty of attempted
murder, aggravated assault, robbery, burglary, and criminal
conspiracy. The incident that gave rise to [Appellant’s] conviction
took place in Darby Borough, Delaware County, Pennsylvania on
November 30, 2009. The victim, Alex Adebisi lived in an
apartment in Darby Borough. At about 7:00 p.m. [] Adebisi was
entertaining guests in his apartment. Earlier in the day [] Adebisi
saw [Appellant] and his co[-]defendant Anthony Shaw, outside of
his apartment building rolling "weed." [] Adebisi had also seen
these two men previously that day in his friend "Max's" apartment.
He asked the men to leave. He described the two as black males,
one taller and dark-skinned and the other, shorter with lighter
J-S56022-19
skin. During the course of the conversation [Appellant] asked []
Adebisi where he was from. [Appellant] and [] Adebisi discussed
the fact that both had lived in Flatbush in New York City. The
conversation ended and [] Adebisi joined several friends in his
apartment.
Next, a short time later, [Appellant] and Shaw knocked on []
Adebisi's door and asked him for change for a $100.00 bill. []
Adebisi gave the men five [$20.00] bills in exchange for the
$100.00 bill. He suggested in the course of the conversation that
he hoped the $100.00 bill was not counterfeit. [] Adebisi closed
the door and the men left.
Shortly thereafter there was another knock at the door. [] Adebisi
opened the door expecting to find a person delivering Chinese food
that he had ordered for his guests. [Appellant] and Shaw were at
the door. A hall security light illuminated the area when
[Appellant] forced his way in. [Appellant] punched [] Adebisi in
the face and asked "where the money was?" [Appellant] told
Shaw to shoot [] Adebisi and Shaw shot him in the left thigh. []
Adebisi struggled with Shaw over the gun. [Appellant] ordered
Shaw to "kill the [n***er]" and Shaw shot [] Adebisi in the chest.
[] Adebisi fell to the ground and [Appellant] got on top of him, and
put his hands on the victim's throat, "strangling" him.
[] Adebisi yelled for the police and [Appellant] and Shaw ran. []
Adebisi's guests had taken refuge in the bathroom during the
incident and one of them called 911. [] Adebisi crawled [into] the
living room where he waited, in fear of his life until police officers
and paramedics arrived. [] Adebisi testified that he was "blacking
out.” He was in pain and had a fear of dying that he could not
describe.
[] Adebisi was transported to the University of Pennsylvania
Hospital. Officer Charles Schuler of the Darby Borough Police
Department traveled with him in the ambulance. During transport
Officer Schuler attempted to interview [] Adebisi because there
was a concern that [] Adebisi would die as a result of the injuries
that he sustained. [] Adebisi appeared to be in a great deal of
pain and the [EMTs] were tending to his wounds and administering
oxygen. Officer Schuler reported that [] Adebisi said that he was
shot by two men that he had never seen before. One was a small,
dark-skinned black man wearing a gray hoodie and [] Adebisi
could not remember anything about the second man. During the
course of this interview Officer Schuler was repeatedly interrupted
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by medics and at other times [] Adebisi was unable to respond.
At the hospital [] Adebisi was immediately taken to a trauma bay
and he was not questioned any further. Officer Schuler was told
that [] Adebisi couldn't answer any more questions. [] Adebisi
was in a coma for two days following emergency surgery. At
trial[,] [] Adebisi testified that he did not recall speaking to Officer
Schuler during his transport and that he had no recollection of
ever saying that he had never seen the two men before.
On December 2, 2009 Lieutenant Richard Gibney of the Darby
Borough Police Department visited [] Adebisi while he was in the
Intensive Care Unit. [] Adebisi was shown a photo array and he
quickly picked a photo of Anthony Shaw from the array and
identified him as the shooter. The next day Lt. Gibney returned
to the hospital with a second photo array that included
[Appellant’s] photo. [] Adebisi picked out [Appellant’s] photo and
identified him as the man who had held him down and who
ordered Shaw to shoot him. [] Adebisi described the incident and
recalled that [Appellant], the taller man[,] ordered Shaw to shoot
him and that Shaw complied. Further, [Appellant] then held []
Adebisi on the floor waiting for him to die.
On September 15, 2011 the jury returned the guilty verdicts. On
December 15, 2011 an aggregate sentence of [15] to [30] years
of incarceration to be followed by five years of probation was
imposed. [This Court] affirmed [Appellant’s] judgment of
sentence on October 22, 2012.
On November 20, 2013 Norris E. Gelman, Esq[.] filed a [PCRA]
petition on [Appellant’s] behalf. The Commonwealth's response
was filed on March 10, 2014 and on April 9, 2014 the [PCRA court]
entered an order advising the parties of its intent to dismiss the
petition without an evidentiary hearing. On May 15, 2014 the
petition was dismissed.
[On May 11, 2014,] the [PCRA court] received a "motion to
remove counsel request for leave to file pro [] se amended [PCRA]
petition," via first class mail. In this motion [Appellant]
complained of [] Gelman's failure to respond to the April 9th notice
of intent to dismiss. The [PCRA court] forwarded this
correspondence to [] Gelman and [] Gelman filed a notice of
appeal on May 22, 2014[.] On May 30, 2014 [] Gelman was
ordered to file a concise statement of errors complained of on
appeal on [Appellant’s] behalf.
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On June 2, 2014 the [PCRA court] scheduled a hearing for June
12, 2014 to address [Appellant’s] request to remove [] Gelman
and to proceed pro se. The hearing was conducted via two-way
simultaneous audio-visual communication. [During the hearing,
the PCRA court determined that Appellant did not wish to waive
his right to counsel. He simply wanted a new lawyer.] On [June
12, 2014] the [PCRA court appointed] new counsel, Henry
DiBenedetto Forrest, Esq[.] to represent [Appellant] on appeal.
[On July 9, 2014] [] DiBenedetto Forrest petitioned the [PCRA
court] for an extension of time in which to file a concise statement
of errors on appeal. [That same day, the PCRA court granted
counsel’s request] and [ordered Appellant] to file a Rule 1925(b)
statement within [30] days. On July 30, 2014 [] DiBenedetto
Forrest filed a petition for remand in [this Court]. The petition
alleged that in the counselled PCRA petition[,] [] Gelman failed to
include all of [Appellant’s] post-conviction claims and that on May
11, 2014, before the petition was dismissed[,] [Appellant] made
a request to proceed pro se and for leave to file an amended PCRA
petition pursuant to the "prisoner mailbox rule.” On August 12,
2014[,] upon new counsel's request[,] the [PCRA court] stayed
the [July 9, 2014 order directing Appellant to file a Rule 1925(b)
concise statement] pending [this Court’s] consideration of
[Appellant’s] petition for remand.
[This Court denied Appellant’s petition for remand on] August 25,
2014. On August 27, 2014 the PCRA court ordered [Appellant] to
file a [Rule 1925(b) statement]. [Appellant’s Rule 1925(b)
statement] was filed on September 25, 2014.
***
The PCRA court's Rule 1925(a) opinion was filed on October 2,
2014. In that opinion[,] the issues raised by [] Gelman in the
original PCRA petition were addressed. Because issues relating to
[Appellant’s] claim that [] Gelman provided ineffective assistance
in PCRA proceedings were never litigated[,] the PCRA court
suggested that a remand to address the [alleged ineffectiveness
of PCRA counsel] would be appropriate in this case. Thereafter a
"joint petition to permit discontinuance pursuant to Pa.R.A.P.
1973 and to remand to the PCRA court," was filed by []
DiBenedetto [Forrest]. On March 31, 2015 an order remanding
the case to the PCRA court for further proceedings and
relinquishing jurisdiction was entered in [this Court].
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PCRA proceedings resumed with [] DiBenedetto [Forrest]
representing [Appellant]. On [April 13, 2015, Appellant] was
ordered to file a response to the notice of intent to dismiss that
was entered on April [9], 2014. After several [extensions] of time
were granted, on February 5, 2016[,] [] DiBenedetto Forrest filed
a response to the notice[.] In his response[,] [] DiBenedetto
[Forrest] renewed the [claims] that were raised by former counsel
[] Gelman and raised several additional issues that [] Gelman did
not raise, [including] a claim of [] Gelman's ineffectiveness. []
DiBenedetto Forrest asked for leave to file an amended PCRA
petition and that request was granted.
Although [] [DiBenedetto] Forrest represented [Appellant],
[Appellant] on March 14, 2016, filed a pro se petition for leave to
amend his PCRA petition. This motion was followed by a motion
to proceed pro se that was filed on March 30, 2016. In response
to the March 30th motion[,] a Grazier1 hearing was scheduled.
The Grazier hearing took place on May 25, 2016. At the hearing,
[Appellant] expressed his dissatisfaction with Attorney
[DiBenedetto] Forrest's failure to follow [Appellant’s] direction
regarding all of the issues that [Appellant] wanted to be included
in an amended PCRA petition. Attorney [DiBenedetto] Forrest
confirmed that a difference of opinion on matters of strategy
existed between he and [Appellant].
On June 8, 2016[,] an order accepting [Appellant’s] waiver of his
right to counsel was entered. [Appellant] was ordered to file an
amended petition on or before June 27, 2016.
On August 15, 2016[,] after a request for an extension of time
was granted, [Appellant] filed a pro se amended PCRA petition.
The Commonwealth was directed to file a reply. Without leave of
[the PCRA court,] [Appellant] filed supplemental amended
petitions on September 12, 2016 and on October 11, 2016. The
Commonwealth's response was filed on December 16, 2016.
[Appellant] filed a response on January 16, 2017.
An evidentiary hearing limited to two issues raised by [Appellant]
was scheduled[.] [The hearing addressed:] 1) whether PCRA
counsel (Gelman) provided ineffective assistance for failing to
raise trial counsel's ineffective assistance in advising [Appellant]
whether to testify at trial[,] and 2) whether PCRA counsel provided
ineffective assistance for failing to raise trial counsel's failure to
____________________________________________
1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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investigate and present named alibi witnesses. The hearing was
scheduled for February 28, 2017[, but] was continued several
times at [Appellant’s] request. Finally, on May 3, 2017 a hearing
took place.
At the May 3, 2017 [hearing,] Robert Datner, Esq[.] appeared on
behalf of the [Appellant]. [] Datner advised the [PCRA court] that
he was unable to proceed on the "alibi" issue because
[Appellant’s] witnesses [] failed to appear. On further inquiry,
[Appellant] confirmed that he independently told the witnesses
not to appear because the hearing was going to be continued. The
hearing proceeded with the witnesses that were available[,]
although [Appellant] stated the he "was uncomfortable with this
hearing right now." The [PCRA court] heard the testimony of trial
counsel, John List, Esq[.,] and the direct testimony of [Appellant].
The hearing was scheduled to resume the next day but [Appellant]
was not prepared to proceed and a new date was set.
Attorney Scott Kramer, Esq[.] entered his appearance [on behalf
of Appellant] on August 4, 2017. A hearing was scheduled for
September 11, 2017 and[,] after several requested
continuances[,] the evidentiary hearing resumed on November 9,
2017. [Appellant] was subject to cross[-]examination and []
given the opportunity to call the alibi witnesses that he alleged
had been identified and available at the time of trial. The
testimony was closed and [] Kramer was granted leave to submit
a memorandum of law in support of [Appellant’s] claim for relief.
After considering the claims alleged, all of the testimony and the
memoranda submitted by the parties, on March 13, 2018 the
PCRA petition was denied. [] Kramer filed a motion to withdraw
his appearance on March 23, 2018. The petition alleged in vague
terms that differences between [Appellant] and [] Kramer
compelled him to withdraw. On March 29, 2018 [Appellant] filed
a motion to "remove" [] Kramer. It was alleged[,] inter alia, that
[] Kramer was not representing [] [Appellant’s] interests. After a
hearing, [] the [PCRA court, on April 4, 2018,] granted [] Kramer's
request to withdraw. At the hearing, upon the [PCRA court’s]
questioning, [Appellant] stated that he did not wish to waive his
right to counsel but wanted new counsel. The [PCRA court
therefore] appointed Scott D. Galloway, Esq[.] [] Galloway filed
a timely notice of appeal on April 10, 2018 and a concise
statement of errors complained of on appeal on May 11, 2018.
However, on May 7, 2018 [Appellant] once again petitioned for
the removal of counsel.
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A hearing was convened on June 21, 2018. At the conclusion of
the hearing [Appellant] was granted leave to proceed pro se and
on June 25, 2018[, the trial court entered an order declaring that
Appellant knowingly, voluntarily, and intelligently waived his right
to counsel.] [This appeal followed].2
PCRA Court’s Opinion, 11/7/18, at 1-10 (internal citations, footnotes, and
superfluous capitalization omitted) (footnote added).
Appellant raises the following issues on appeal:
I. Did the PCRA court fail to allow [Appellant] “to develop
the record” by presenting evidence to support his claim of
ineffectiveness of trial counsel for failing to investigate,
interview and call alibi witnesses?
II. Did the PCRA court [err] in dismissing the claim that [trial]
counsel provided ineffective assistance for failing to
request a Kloiber3 charge and for failing to object to the
[trial] court’s failure to include a Kloiber charge?
III. [Withdrawn on appeal].
IV. Did the PCRA court err by denying the claim that trial
counsel was ineffective for inducing [Appellant] to waive
his right to testify through erroneous advice?
V. Did the PCRA court err by denying the claim that trial
counsel was ineffective for failing to investigate,
interview, and call willing alibi witnesses?
VI. Did the PCRA court err in denying [Appellant’s] claim of
ineffective assistance based on trial counsel’s failure to
object to the [trial] court’s jury instruction which
introduced a ‘new theory?’
____________________________________________
2The PCRA court entered an order on May 11, 2018 directing Appellant to file
a concise statement of errors complained of on appeal pursuant to Rule
1925(b). After several requests for extensions of time, Appellant timely
complied. The PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a)
on November 7, 2018.
3 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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VII. Did the PCRA court err in denying [Appellant’s] claim of
ineffective assistance based on trial counsel’s failure to
object to the [trial court’s] “improper amendment” of the
robbery charge?
VIII. Did the PCRA court err in denying [Appellant’s] claim of
ineffective assistance based on trial counsel’s failure to
challenge the false statement and robbery charge in the
affidavit of probable cause?
IX. Did the PCRA court err in denying [Appellant’s] claim of
ineffective assistance based on trial counsel’s failure to
interview delivery driver Kathy Totaro and failure to call
her as a witness at trial?
X. Did the PCRA court err in denying [Appellant’s] claim of
ineffective assistance based on trial counsel’s failure to
cross-examine witness Tanisha Garraway with her prior
statement?
XI. Did the PCRA court [err] in denying [Appellant’s] claim of
ineffective assistance based on trial counsel’s failure to
cross-examine Lieutenant Gibney regarding ‘other
suspect?’
XII. Whether the PCRA court erred in denying Appellant’s
claim of ineffectiveness of trial counsel, where trial
counsel failed to object to the court’s charge which
omitted any discussion of identification and for failure to
request [] cautionary Kloiber instructions as mandated
by [Pennsylvania Suggested Standard Jury Instruction
(Crim.) 4.07B “Identification Testimony—Accuracy in
Doubt”] as warranted whenever a line-up is denied?
XIII. Whether the PCRA court erred in denying Appellant’s
claim of ineffectiveness of PCRA counsel, where PCRA
counsel failed to raise direct appeal counsel’s
ineffectiveness for failing to raise claims which were
properly preserved [prior to trial]?
XIV. Whether the PCRA court erred in denying Appellant’s
claim of ineffectiveness of trial counsel, where trial
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counsel failed to alert the court to ‘antagonistic defenses’
in his motion for severance?
XV. Whether the PCRA court erred in denying Appellant’s
claim of PCRA counsel’s ineffectiveness for failing to raise
the cumulative effects of trial counsel’s ineffectiveness,
which severely prejudiced Appellant and denied him a fair
trial?
Appellant’s Brief at 4-5.
We have reviewed the briefs of the parties, the relevant law, the certified
record, the notes of testimony, and the opinion of the able trial court judge,
the Honorable James P. Bradley. We conclude that Appellant is not entitled
to relief in this case and that Judge Bradley’s November 7, 2018 opinion
accurately disposes of Appellant’s issues on appeal. Therefore, we affirm on
the basis of Judge Bradley’s opinion and adopt it as its own.4 In any future
filing with this or any other court addressing this ruling, the filing party shall
attached a copy of Judge Bradley’s November 7, 2018 opinion.
Order affirmed.
____________________________________________
4 While we adopt Judge Bradley’s opinion, we note the following. With respect
to Appellant’s tenth issue, we do not adopt the portion of the PCRA court’s
opinion concluding that Appellant’s claim lacked arguable merit. See PCRA
Court Opinion, 11/7/19, at 32-33. Rather, we conclude that Judge Bradley
accurately determined that trial counsel had a reasonable basis for his decision
not to cross-examine Garraway as to avoid the possibility that her responses
would corroborate Appellant’s identification as the perpetrator. Id. at 32-33.
Additionally, we separately address issues 12, 13, and 14, which were included
in Appellant’s October 11, 2016 submission. See Appellant’s Amended PCRA
Petition, 10/11/16, at 1-11. We agree with the PCRA court that Appellant
waived these claims because he failed to obtain “leave to amend” his petition.
PCRA Court Opinion, 11/7/19, at 34. We note, however, that the PCRA court
failed to expressly state that issue 13 was waived. Id. at 34-36. Upon review,
we conclude that issue 13 is waived.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/19
- 10 -
3_Ppinion
Circulated Dated
11/06/2019 11:5611-7
AM .;.18
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
. . CR.IMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-23-CR-6201-2010
vs. 1.135 EDA 2018
·•.
...
DANIEL VINCENT
William 'real, III, Esquire; on behalf of the Commonwealth
Daniel Vincent, prose
Ii ( Ii
OPINION
Bradley, J. FILED.: II
Petitioner, Daniel Vincent, appeals from the March 13, 2018 Order dismissing his
Post Conviction Relief Act (PCRA) petition after an evidentiary hearing.
The. facts that .gave rise to the Petitioner's conviction and the proceedings before
the trial court were set forth in the Opinion filed on October 2, 2014 in conjunction With
a prior appeal:
a. jury trial Petitioner was found guilty of attempted. murder,
After
aggravated assault, robbery, burglary� and criminal conspiracv; The incident
that. gave rise to Petitioner's conviction took place in Darby "Borough,
Delaware County, Pennsylvania on November 30, 2009. The victim, Alex
Adebisi lived in an apartment in Darby Borough. See N.T. 9/13/11 pp. 28-
. . . .
10� At about 7:00 p.m, Mr. Adebisi was entertaining guests in hts
apartment. Earlier in the day Mr. Adebisi saw Petitioner and his co-
defendantAnthony Shaw, outside of hls apartment building rolling "weed. "
1
... ········-····-··--.. -.········ -·-······-······-------·--·-------·----·---·----· ----·-·-·----·-·-···-..·-·····---
Id ..at 75, 80-81. Mr. Adebisi had also seen these two men previously that
day in his friend '\Max's" apartment. Id. at 74. He asked the men to teeve,
He described the two as black males; one taller and dark-skinned and the
other, shorter with lighterskin. Id. at 81-82:. During the course of the
conversation Petitioner asked Mr; Adebisi where he was from. Petitioner
and Mt. Adebisi discussed-the fact that both had rived in Flatbush in .New
York City. Id. at 82-82; The conversation ended and Mr; Adebisi joined
several friends in his apartment.
Next, a short time later; Petitioner and Shaw knocked on Mr.
Adebisi's door and asked him for change for a $100.00 bill. Id, at 84. Mr�
Adebisi gave the men five twenty-dollar bills in exchange for the $100.00
blll, Id. at 84; He suggested in the course of the conversation that he hoped
the $100.0.0 bill was not co.1,mterfeit, ld, Mr. Adebisi closed the door and the
menlett,
Shortly thereafter there was another knock at the door. Mr. Adebisi
opened the door expecting to finda person delivering Chinese fpod that he
had ordered for his guests. Id; at 87. Petitioner and Shaw were at the door.
A hall security light illuminated the area when Petitioner forced .his way in.
Id. at 89-90. Petitioner punched Mr. Adebisi in the face and asked "where
the money was?" Id. at 93. Petitioner told Shaw to shoot Mr. Adebisi and
Shaw shot him in the leftthifJh. Id. etas, 93; 100. Mr. Adebisi struggled
with Shaw over the gun .. Petitioner ordered Shaw to '\kill the nigger' and
Shaw shot Mr. Adebisi in the chest. Id. at 90�101, 109, 113. Mr. Adebisi fell
to the ground and Petitioner got on top of him, and put his hands on the.
vlctlrrrs throat, "strangling'; him; Id .. at 99.
Mr. Adebisi yelled for the police and Petitioner and Shaw ran. Id. at
99 .... Mr. Adebisi's guests had taken refuge in the bathroom during the
incident and one of them called 911. Id. at 115. Mr. Adebisi crawled in to
the living room where he waited, in fear of his life until police officers and
paramedics arrived; Id. at. 124, Mr. Adebisi testified that he was ''blacking
2
out."Id. at 125. He was in pain and had a fear.ofdYihg that he could not
describe; Id. at 127 '.
Mr. Adebisi was transported to the University of Pennsylvania
Hospital. Id. at 126-128. Officer Charles Schuler of the Darby Borough
Police Department traveled with him in the ambulance. N;T. 9/14/11 p.
121 .. During transport Officer Schuler attempted to i'nterview Mr. Adebisi
because there was a concern that Mr. Adebisi would die as a result of the
inj1.1riesthat he sustained. Mr. Adebisi appeared to be in a great deal of
pain and the EMT's were tending to his wounds and administering oxygen;
Id. at 122; 130, 137. Officer Schuler reported that Mr. Adebisi said that he
was shot by two men that he had never seen before, one was a small,
dark-skinned black man wearfhg a gray hoodie and Mr. Adebisi could not
remember anything about the second man. Id. at 125-26. During the
course of this interview Officer Schuler was repeatedly interrupted by
medics and at other times Mr. Adebisi was unable to respond. Id. at 142,
144.. Atthe hospital Mr. Adebisi was immediately taken to a trauma bay and
he was not questioned any further. Officer Schuler was told that Mr� Adebisi
couldn't answer any more questions. Id. at 136, 140. Mr. Adebisi was in a
coma for two days following emergency surgery. N.T: 9/13/11 p, 130; 227.
At trial Mr. Adebisi testified that he did not recali speakin!;J to Officer Schuler
during his transport and that he had no recollection of ever saying that he
had never seen the two men before. Id. at 227, 232.
On December 2, 2009 Lieutenant Richard Gibney of the Darby
Borough Police Department visited Mr. Adebisi while he was in the Intensive
Care Unit. N.T� 9/14/11 p, 18. Mr. Adebisi was shown a photo array and he
quickly picked a photo of Anthony Shaw from the array and identified him
as the shooter. ru. at 18,. 21-29�. The 'next day Lt. Gibney returned to the
hospital with a second photo.. array that included Petitioner's photo. Id. at
30�31. Mr. Adebisi picked out Petitioner's photo and identifiE?d him as the
man who had held him down and who ordered Shaw to shoot him. Id.at
3
·-·-·-····-··· ·---···-· ······-·-------··..··-·--·
31. Mr. Adebisi described the incident and recalled that Petitioner, the taller
man ordered Shaw to shoot him and that Shaw complied. Id. at 24.
Furt�er, Petltloner then held Mr. Adebisi on the floor waiting for himto die.
lg. at 24:-25.
On september 15, 2011 the jury returned the guilty verdicts. On
December 15, 2011 an aggregate sentence of fifteen to thirty years of
lncarceration to be followed by five years of probation was imposed. The
Superior Court affirmed judgment of sentence on October 22, 2012.
Commonwealth v. Vincent, (filed 10/2/14).
On November 20, 2013 Norris E. Gelman, Esquire filed a "Post Conviction Relief
Act" Petition on Petitioner's behalf. The Commonwealth's response was flled on March
10, 2014 and on April 9, 2014the Court entered an Order advising the parties of its
intent to dismiss the petition without an evidentiary h�aring. Ori May 15, 2014 the
petition was dismissed.
Sometime thereafter, the ,Court received a \\Motion to Remove Counsel Request
for Leave to File pro-se Amended Post Conviction Relief Act Petition;" via first class mail.
In this motion Petitioner complained of Mr. Gelrnan's failure.to respond to the April 9th
Notice of Intent to Dismiss. The Court forwarded this correspondence to Mr. Gelm,an
and Mr. Gelman filed a Notice of Appeal on May 22, 2014 from the Order dismissing the
PCRA petition. On May 30, 2014 Mr. Gelman was ordered to file a Concise Statement of
Errors Complained of on Appeal on Petitioner's behalf.
On June 2, 2014the Court scheduled a hearing for June 12,. 2014 to address
Petitioner's request to remove Mr. Gelman and to proceed prose; The hearing was
4
·----- ·-------------··-----·-···-·---
.conducted via Two-WaySimulta.neous Audio-Visual Communication. Mr. Gelman did not
appear at the time scheduled for the hearing and the Court determined that Petitioner
did not in fact wish to waive his right to counsel but instead wanted a new lawyer. On
the.same day theCourt went on to appotnt new counsel, Henry DiBened�tto .Forr�st,
Esquire. to represent .petitioner on appeal.
Mr;. DiBenedetto Forrest petitioned the Court for an extension of time in which to
flleaCondseStatement of errors on Appeal.This requestwas granted on July 9, 2014
and Petitioner was ordered to file a Rule ·192s{b) statement within thirty days. On July·
30, 2014 Mr. DiBenedetto Forrest filed a petition for remand in the Superior Court. The
petition alleged that in the counselled PCR.A petition Mr. Gelman failed to include all of
Petitioner's post-convictlon .dalms and thaton May 11, 2014, before the petition was
dismissed Petitioner made a request to proceed pro se and for leave to me an amended
PCRA petition pursuant to the "prisoner mailbox rule.1 On August 12; 2014 upon new
counsel's request the Court.staved the Order entered on July 9, 2014 pending the
Superior Court's consideration. of Petitioner's petition for remand.
The petition for remand was denied in the Superior Court by Order filed on
August25; 2014. Ori August 27, 2014 the PCRACourt ordered Petition�r to file a
Concise statement of Errors Complained of on Appeal. Petitioner's Concise Statement of
Errcrs Complained of on A.ppeal was filed on September 25, 2014.
In the "Concise Statement of Errors Complained of on Appeal Pursuant to Pa.
Rule of Appellate Procedure 1925(8)" filed on September 25, 2014 the Petitioner
1.� generally>Commonwealth v. Ousley. 21 A.3d 1238 (Pa. Super. 2011). In .a return receipt attached to
as Exhibit "D" it appears that this: petition was delivered to the Delaware County Courthouse
the petition
Complex on May 14,. 2014, ·
5
complained of errors committed by the PCRA Court in dismissing the petition and also
claimed that Mr. Gelman failed to provide effective assistance .of counsel throughout the
PCRA proceedings, Regarding the allegations otcourt error, Petitioner claimed that the
PCRA Court erred when it dismissed without a hearing his claims that trial counsel
provided ineffective assistance because. he. failed to request a Kloiber charge and failed
to object to the Cour.t's jnstrucnons to the jury at the close of trial. Regarding his claim
of ineffective assistance ofPCRA counsel Mr. Gelman, Petitioner claimed that Mr.
Gelman failed to include several meritorious dalrns in his PCRA petition including the
following: trial counsel failed to object to the. Court's attempted murder instruction, trial
counsel failed to object to the Commonwealth's motion to amend an Information at the
time of trial, trial counsel failed to investigate, interview or call at trial unidentified
medical personnel who treated the Victim, trial counsel failed.to seek expert testimony
relating to human perception and memory as it relates to eye witness identification, trial
counsel failed to effectjvely cross-examine the "key Commonwealth witness regarding
his. "clouded mtspercepnons and Inconsistencies within the identification of the
perpetrator," and that thePCRA C6Urt erred hi dismissing the PCRA petition without
considering Petitioner's timely pro se request to raise the foregoing issues.
The PCRA Court's Rule 192S(b) Opinion was filed on October 2, 2014 .. In that
Opinion tne.lssues raised by Mr .. Gelman in the origihal PCRA petition were addressed.
Because issues relating to. the claim that.Mr. Gelrn?tn provided ineffective assistance.in
PCRA proceedings were never litigated the PCRA Court suggested that a remand to
address the PCAA. ineffectiveness- claims would be appropriate in this case. Thereafter a
6
"Jolnt Petition To Permit Discontinuance PursuantTo PA.R.A.P. 1973 And To Remand
To The PCRA Court," was filed by Mr. DiBenedetto. On March 31, 2015 an Order
.remanding the case to the PCRA court for further proceedings and relinquishing
jurisdiction was entered .in the Superior Court.
PCRAproceedings. resumed with Mr. DiBeri�detto representing the Petitioner. On
August 20; 2015 Petitioner was Ordered to file a response to the Notice of Intent to
Dismiss that was entered on April 10, 2014. After several requests for an extension of
time were granteci,. on February 5, 2016 Mr. DiBenedetto Forrest filed a response to the
Notice on February 5, 2016. In his response Mr. DiBenedetto renewed the issues that
were raised by former counsel Mr. Gelman and raised several additional issues that Mr.
Gelman did not.raise, thus raising a claim of Mr. Gelrnan's ineffectiveness. Mr.
Di Benedetto Forrest asked for leave to file· an amended PCRA petition and that request
was granted. See Trial Court Order, February 11, 2016..
Although Mr. Forrest represented Petitioner, on March 14, 2016 Petitioner filed a
pro se petition for leave to amend his PCRA petition. This motion was followed by a
motion to proceed prose that was filed on.March 30, 2016. In response to the March.
30th motion a Grazier hearing was scheduled. The Grazier hearing took place on May 25,
2016; At the hearing Petitioner expressed his dissatisfaction with Attorney Forrest's
failure to follow Petitioner's direction regarding all of the issues that Petitioner wanted
to be inc.lu.ded. ih an amended PCRA petition. See generally N.T. 5/25/16. Attorney
7
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Forrest confirmed that a difference of opinion on matters of strategy existed between
he and Petitloner'.
On Jone 8, 2016. an Order accepting Petitioner's waiver of his right to counsel
was entered. Petitioner was ordered to. file an amended petition on or before June 27,
2016�
On August 15, 2016 after a request for an extension of time was granted,
Petitioner filed cl prose amended PCRA petition. The Commonwealth was directed to
file a reply. ·Without leave ofCourt Petitioner filed a supplemental amended petitions
on September 12, 2016 and on October 11, 2016; The Commonwealth's response was
filed on December 16; 2016. Petitioner filed.a response on January 16, 2017.
An evidentiary hearing limited to two issues ralsed by Petitioner was scheduled:
1) whether PCRA counsel (Mr. Gelman) provided ineffective assistance for failing to
raise trial counsel's ineffective assistance ih advising Petitioner whether to testify at trial
and 2) whether PCRA counsel provided ineffective assistance for failing to raise trial
counsel's failure to investigate and present named alibi witnesses. The hearing was
scheduled for February 28; 2017. The hearing was continued several. times attne
Petitioner's-request Finally, on May 3, 2017 a· hearing took place.
At the May 3, 2017 Robert Datner, Esquire appeared on behalf of the Petitioner.3
Mr .. Datner advised the. Court that he was unable to proceed .on the "alibi" issue because
2
Attorney For.rest stated:
''Yoiir Honor without camprornis1ng the attorney/client relationship from counsel's end, I would suggest
that .as a .metter of strategy counsel has an ·opinion as a
to the merit of that counsel has duty t,efore the
tribunal ta submit non -frivotous issues before the Court. And by submitting friVoloµs lssues before the
Court that it would be unethicai from this attorney's standpoint to pursue the same. I'll leave It at that:'{
N.T. 5/25/16 p, 12 .
....... ,.,....•..... ······-·········"-"' , ··-····--·--···--------------------·----------·----------"·"-
Petitloners Witnesses hed railed to appear, On further inquiry, Petitioner {Daniel
Vincent) confirmed that he independently told the witnesses not to appear because the
hec:1ring was going to be continued. N.T. 5/3/17 p. 6; The hearing proceeded with the
witnesses that were .available although Petitioner stated the he ''was uncomfortable with
this hearing right now;" Id. at 10. The Court heard the testimony of trial counsel, John
List, Esquire and the direct testimony of Petitioner. The hearing was scheduled to
resume the next day but the Petitioner was not prepared to proceed and: a new date
was set..
Attorney Scott Kramer, Esquire entered his appearance on August 4, 2017. A
hearing Was scheduled for September 11,. 2017 and after several requested
continuances theevldentlaryheerlnq resumed on November 9, 2017. The Petitioner
was subject to cross examination and the Petitioner was given the opportunity to call
the alibi. witnesses that he alleged had been identified and available at the time. of tria.1..
See N;T. 11/9/17. The testimony was closed and Mr. Kramer was granted leave to
submit a memorandum of law in support of Petltloners claim for relief.
After considering the claims alleged; c.JII of the testimony and the memoranda
submitted by the parties; on March 13, 2018 the PCRA petition was denied. Mr. Kramer
filed a motion to withdraw his. appearance on March 23, 2018. The petition alleged in
vague terms that differences between the Petitioner and Mr. Kramer compelled him to
withdraw. On March 29� Z018 Petitioner filed a motion to "remove" Mr. Kramer. It was
alleged inter alia, that Mr. Kramer was not representing the Petitioner's interests. After
.� Although Mr; Datner was privately retained he sought IFP status for Petitioner to enable .him to obtain
notes oftestimony. Petitioner was qllowed to obtain notes With costs. borne by the County of Delaware.
9
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a hearing, on April 4, 2018 the Court granted Mr. Kramer's request to withdraw. At the
hearing, upon the Court's questioning, Petitioner stated that he did not wish to waive
his rightto counsel but wanted new counsel. The Court appointed Scott D. Galloway,.
EsqL.Jire. Mr. Galloway filed a timely Notice of Appeal on April 10, 2018 and a Concise.
Statement of Errors Complained .of on Appeal on May 11, 2018. However,. on May 7,
2018 Petitioner once again petitioned for the removal of counsel.
A hearing was convened on June 2l,. 2018. At the conclusion of the hearing
Defendant was granted leave to proceed pro se and on June 25, 2018 an Order
documenting the waiver of the right to counsel as knowingly, voluntarily and
intelligently entered was filed.
On May 11, 2018 an Order directing Petitioner to file a Concise Statement of
l:rrors Complained of on Appeal was entered. Petitioner requested several extensions of
time
. in which to comply,
. On October 12,. 2018 Petitioner's Rule 1925(b) Statement
. was
filed. Claims· of error are identified in· fifteen paragraphs.. Theses claims will be
addressed setenm,
Post Conviction Relief Act
"To be eligible for PCRA relief, a petitioner must plead arid prove by
a preponderance of the evidence that his or her conviction or sentence
resulted from one or more of the circumstances enumerated in 42 Pa.C.S. §
9543(a)(2). These circumstances include a violation of the Pennsylvania. or
United States Constitution and ineffective assistance of counsel whic;h."so
undermined the truth-deterrrnnlnq process that no reliable a.djudication of
.guilt or innocence could have taken place." 42. Pa.C$. § 9543(a)(2)(i), (ii)�
Furthermore,. a petitioner must establish that the claims of errorraised in
10
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the PCRA petition have not been previously litigated or waived and that
"th¢ failure to litigate the issue prior to or during.trial, during unitary review
or on direct appeal could not have been the result of any rational, strategic
ortactlcal decision by counsel." 42 Pa.CS. § 9543(a)(3) and (4);
Washington, supra at 593. An issue has been waived "if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review,
on appeal or in a prior state postl-jconvlctlon prpceeding."42 Pa.C.S. §
9544(b ). Anissue has been previously litigated if "the highest appellate
court in which the petitioner could. have had review as a matter of right has
ruled on the merits of the issue." 42 Pa.CS. § 9544(a)(2)."
Commonwealth v. Paddy; 15A.3d 431,·442 (Pa. 2011). Where a petitioner raises
the ineffective assistance .of counsel as the basis for relief he "must overcome the
presurnptlon that counsel is effective by establishing that"l) the underlying legal
claim has arguable merit; (2) counsel had no reasonable basis, for his or her action
or inaction; and (3) the petitioner suffered prejudice because 'Of counsel's
ineffectiveness." Id; at 442 citingCotnmonwealth v. Dennis, 597 Pa. 159, 950 A.2d
945, 954 (2008); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975:-76
(1987). Petitioner must "initially demonstrate thatthe issue underlying claim of
ineffectiveness has arguable merit" to support his claim. See Commonwealth v.
Granberry, 644 A.2d.204 (Pa. Super. 1994). It is well-settled that failure to
establish any one. of the three prongs that are necessary to establish the
ineffective assistance of counsel will defeat the entire dalm. .See e.g.
Commonwealth v. Moore, 860 A.2d 88, 94 (Pa. 2004) citing Commonwealth v.
11
Basemore, 744 A.2d 717, 738 n. 23 (P.a� 2000). � ?,tlso Commonwealth v�
Robinson, 82 A.3d 998, 1005 (Pa. 2013).
In Commonwealth v. Rivers( 786 A.2d 923, 929 (Pa. 2001) the Court explained
"PCRA claims are not merely direct appeal claims that are made at.a later staqe of the
proceedinqs, cloaked in a boilerplate assertion of counsel's ineffectiveness. In essence,
they are extraordinary assertions thet.tne system broke down." As a \\general and
practical.matter, the fact that a claim is litigated through the lensof counsel
ineffectiveness, rather than as a preserved claim of trial court error, makes it more
gifficult for the defendant to prevail." Commonwealth v. Gribble, fil!R@', The harmless
error analysis that is applicable where trialerror is claimed on direct appeal is not
applted, "Harmless error" analysis places the burden of proving that an alleged error did
notcontribute.to theverdlct beyond a reasonable doubt on the Commonwealth. Id. at
472, ( "[w]heneverthere is a 'reasonable possibility' that an error 'might have
contributed to the conviction/the errorls not harmless."), In PCRA proceedings the
burden of proof is with petitioner. Commonwealth v . .Gribble, supra. Counsel· is
presumed effective and not every error by counsel will result in a constitutional violation
of a defendant's Sixth Amendment right to counsel. Id. The petitioner must prove
actual prejudice; that is that counsel's.conduct had an actual adverse effect on the
outcome of the proceedings. Id. Stated differently, that "there is a reasonable
probability that, but for counsel's. error, the outcome of the proceeding would have
been different/' Id.
12
"There is no absolute rightto an evicentlerv hearing on a PCRA petition, and 1f
the PCRA.court can determine fromthe record that no genuine issues of material fact
exist, then a hearing ls not necessary." Commonwealth v. Jones 942 A.2d 903,.906
(Pa.Super.2008) citing
. . . . . Commonwealth v. Barbosa, 819 A.2d 81 (Pa.Super.
. 2003).
Where the court tan determine, after examining the record, that the arguable merit of
the claim has not been proven the petition can be dismissed without a hearing. Id. See
Pa.R.Crirn;P. 907. See also Commonwealth v. Payne, 794 A.2d 902; 906.(Pa. Super.
2002) f'right to an evldentiary hearing on a post-conviction petition is not absolute. A
PCRA court may decline to hold a hearing if the petitioner's claim is patently frivolous
and iswithout a trace of support if) eitherthe record or from other evidence;"
"controlling factor in determining whether a petition may be dismissed without a
hearing is the status of the substantive assertions; in the petttion." Id. quoting
Commonwealth v. Weddington, 522 A:2d 1050, 1052 (Pa.1987). A hearing on all
issues raised in a PCRA is not required where all do not raise genuine issues of material
fact. Where only some claims raise Issues of fact, a hearing may be ordered on those
issues alone. Pa.R.Crim.P. 907(3).
Did the PCRA Court fail toallow·the Petitioner "to develop the record by presenting
evidence to sugport bis claim of ineffectivehess of trial counsel for failing to investigate, .
interview and call alibi witnesses?
This
. claim is refuted
. by the record. Petitioner
. was granted an evidentiary hearing
oh this issue. As noted, suprs, a hearing was scheduled for February 28, 2017. Itwas
continued.several times at.the Petitioner's request. Finally, on May.3, 2017 a hearing
13
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took place, Robert Datner, Esquire, appeared on behalf of the Petitioner. Mr. Datner
advised the Court that he was unable to proceed on the "alibi" issue because
Petitioner's witnesses had failed to appear. On further inquiry, Petitioner personally
confirmed that he independently told the witnesses not to appear because the hearing
was going to be continued. N.T. 5/3/17 p. 6. The hearing proceeded with the witnesses
that were. available �!though· Petitioner stated the· he 'was uncomfortable with this
hearing right now;" Id. at 10. The Court heard the testimony of trial counsel, John ust,
Esquire and the direct testimony of Petitioner. The hearing was scheduled to resume
the next day but the Petitioner was not prepared to proceed and a new date was set,
A second hearing was convened after Attorney Scott Kramer, l;sqµire entered his
appearance. The hearing was originally scheduled for September 11, 2017 and after
several requested continuances the eyidentiary hearing resumed on November 9.; 2017:
The Petitioner was subject to cross examination and the Petitioner was given the
opportunity to c:all the alibi witnesses that he alle.gedly identitledto trial counselbefore
trial and were available at the time of trial. See N.T. 11/9/17. While three witnesses
were identified in his PCRA petition only Shirley Pi.erre, Petitioner's girlfriend, was called
to testify. See id� at 34, 39. The testimony was closed and PCRA counselKramerwas
.granted leave to submit a memorandum of law in support of Petitioner;s claim for relief.
Petitioner and the plethora of attorneys that have represented hini over time
were granted the Court's indulgence in this matter time and. time again. This claini is
frivolous.
14
---------- ·---------·-----··-·---·-··· --
Did the Court err in dismissing the claim that trial counsel provided ineffective
assistance for failing to reguest a Kloiber charge and for failing to object to the Court's
failure to include a Kloibercharge. in jury instructions? · ·
The Opinion filed by this Court on October 2, 2014 .in Petitioner's prior
appeal (1556 EDA 2014), fully addressed this claim:
The claim that.trial counsel provided lneffecttve.assistance "l:)y virtue
of trial counsel's failure to object to the Court's charge which did not include
a cautionary Kloiber instruction and for counsel's failure to request a
cautionary lnstructlon?" was set forth in the PCRA petition and was
dismissed without a hearing after proper notice. Where a "witness is not ii:i
a position to clearly observe the assailant, .or he is not positive as to
identity, or his positive. statements as to identification have been weakened
by qualification or by failure to identify. defendant on one or more
occasions," the jury wm be instructed that the witness's testimony must be
received with caution. Commonwealth v. Kloiber, 106. A.2d 820 (Pa. 1954).
In Commonwealth v. Ali, 10 A.3d 282 (Pa. 201Q)the Court considered the
arguable merit of a claim ofineffective assistance of counsel that was
based on trial counsel's failure to request a Kloib.er instruction and
subsequent counsel's failure to raise this claim on appeal:
Under Kloiber, "a charge that a witness'[s] ldentlflcatlon
should be vtewedwlth cautionis required wherethe
· eyewitness: (I) dld not have art opportunity to clearly view
the defendant; (2) equivocated on the identification of the
defendant; or t3) had a problem making, an identification in
the past." Commonwealth v. Gibson, 547 Pa. 71, 6.88 A.2d
1152/ 1163 (1997) {citing Kloiber). Where an eyewitness has
hadvprotracted and unobstructed views;' of the defendant
and consistently identified the defendant "throuqbout the
investigation and at trial," there is no need for a Kloiber
instruction, Commonwealth v. Dennis, 55.2 Pa. 331, 715 A.2d
4
Sge "concise Statement of Errors compiained of on Appeal Pursuant to Pa .. Rule of Appellate.Procedure
1925(8)." . . .
15
" ,. , , , --
_,,,,_
·------- ·----------··-·---· ·---------··-··---·
404, 411 (1998). When the witness already knows the
defendant, this prior familiarity creates an independent basis
for the witness's. in-court identification o.f the defendant and
weakens ineffectiveness claims based on counsel failure to
seek a K/01berinstruction. See Commonwealth v. Fisher, 572
Pa. 105, 813 A.2d 761i 770-71 (2002) (Opinion Announcing
Judgment of the Court) (witness's in-court identification valid
based on witness having known defendant for eleven years);
Commonwealth v; [Freddie] Johnson, 433 Pa. 34, 248 A2d
840, 841-42 (1969) (witness had known defendant for three
years prlorto robbery and murder; no trial court error in not
issuing Kloiber mstrucnon): see.also·commonwealth v.
[Clarence] Johnson, 419 Pa.Super, 62S, 615 A.2d 1322, 1335--
36 (1992) (witness knew defendant and "had seen him on
several occasions" prior to murder; defendant not entitled to
Kloiber instruction be.cause witness's in-court identification
was supported by independent basis).
10 A.3d at 303. In A/4 the defendantwas found guilty ofmurder and
relatedoffenses, Thevictim's daughterwas four-year's old whenshe
witnessed the murder and was six year's old When she testified at trial. The
Pennsylvania Supreme Court concludedthat AWs claim that trial counsel
waslnetfectlve due to his fallure to request a K/oiberinstruction had no
arguable merit because none .of the circumstances that warrant a Kloiber
t:hargewere present. The child had an unobstructed view of the defendant
as he attacked her mother, she was also attacked by thedefendant, she
knew him from prior interactions and she did not equivocate in her
identifications at trial or in prior proceedings. The Court explained that any
perceived weaknesses ln the witness's testimony "attributable. to her tender
years; the circumstances of the horrific experience, the subject matter, and
her ability to recall details were.matters of credibility for the jury as
factfinder to decide; but those issues dld not undermine [her] actual
physical ability to identify appellant at the time and place of the murder; so
16
..,,.,··-·····-····-·········--········--,......, ,,,···--·-·------------·---
·
asto trigger the special. identification testimony concerns underlying the
K/0.iberlin� of decisions." Id. at 304.
Petitioner here did not allege, and in fact conceded that Mr. Adebisi's
'identification was not rendered suspect by a lack of opportunity or an
inability.to observe his assailants. Through his trial testimony the
Commonwealth established that Mr. Adebisi recognized both Petitioner and
Shaw from two interactions earlier in the day. His assailants forcedtheir
way into his apartment and he recognized them immediately. He qulckly
identified both Petitioner and Shaw when he came out of his coma days
after th� shooting. At trial his in-court .identification was unequivocal on
both direct and on cross-examination. See N.T. 9/13/11 pp. 135, 156�
Under these circumstances, the Statements Mr. Adebisi gave during his.
ambulance ride where he was unable to give a descrlptlon.of Petitioner
provided trial counsel an opportumty to .challenge his credibility but it was
not a '�mis-identification" warranting a Kloiber instruction.5 The Court
5
The Standard Jury Instructlons include the following Kloiber instruction:
The instruction reads:
4.0.7B (Crim) Identificc1tion Testimorty-A.ccuracy in Ooubt
1. In [his] [her.] testimony, [name of witness] has Identified the defendant as the person who. committed
the crime. There is a question of whether this identification Is accurate.
2. A victim or other witness can sometimes make a mistake when trying to identify the criminal. If certain
factors ar� present, the accuracy of identification testimony is $0 doub.tful that� Ju,:y must receive It with
caution. Identification testimony must be received with caution [if the witness because of bad posldon;
poor lighting, or other reasons did not have a good opportunity to observe the criminal] [If the witness in
[his] [her] testimony is not positive as to identity] [if the witness's positive testimony as to identity is
weakened [by qualifications, hedging, or inconsistencies in the rest of [hls][her] testimony] [by [his] [her}
notjdentifying the defendant, or identifying someone else, as the crimin:al [at a lineup] [when shown
photographs] [give specifics] before the trial] J [if, before the trial� the defendant's request for a [lineup]
[specify request] to. test the ability of the witness to 1na�e an identification was. denied arid the witness
subsequently made a less reliable Identification] (if/ [give speclficsj ],
[First Alternative: Court. rules as a matter of iaw that caution is required:]
3 •. In this cese [th�re was evidence that [ name of witness ] could not see tne criminal clearly] [give
specifics), Therefore, you must consider with cautlen [his] [her] testimony identifying the defendant as
the person who committed the crime •.
[Second Alternative: When there tsa jury issue as to.whether caution.is required: ]
17
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delivered an accurate jury instruction regarcling the. credibility of witnesses
and directed the jury to consider 'lt]he accuracy of [a witness's] memory
and recollection, his or her ability and opportunityto acquire knowledge .of
or to observethe matters concerning which he orshe testifies, the
consistency or inconsistency of his testimony, as well as the reasonableness
or unreasonableness of all of the evidence in the case." N.T•. 9/15/11 p. 8,
10. Thls instruction was both appropriate and adequate given the facts of
this case.
This claim has remained unchanged and the foregoing analysis continues to apply.
Did the Court err in dismissing the claim that trial counsel provided ineffective
assistance fQr failing to object to the Court's charge Qn \\demeanor evidence?"
Similarly, this clatrn was previously addressed in the Court's 2014 opinion:
likewise, the claim that trial counsel provided ineffective assistance
by failing to object when the Court instructedthe jurythat it making its
credibility determlnations it could consider the "demeanor" of the witnesses,
has no merit. The allegedly objectionable portion of the Court's instruction
follows:
4. �f you believe that [thls fap:or is] [one or more of these factors are] present, then you must consider
With caution [name of witness] •s testimony identifying:the defendant as the person who committed the,
crime. If, however, you .do not believe. that [this factor] [at least one of these factors] is present, then
you need not receive the testimony with caution; you rnay treat itUke any other testimonv.
5. You should consider all evidence relevant to the question of who committed the.crime, including the
testimony of [name of victim or witnes$],. [any evjdence of facts and circumstances from which identity,
or non-identity, of the criminal. may be Inferred] [give other circumstances]. You cannot find the
defendant guilty unless you are satisfied beyonc:I reasonable doubt by all the. evidence; direct and.
circumstantial, not.only that the crime was committed but. that it was the defendant who committed It.
Commonwealth v. Sanders; 42 A.3d 325, 332 n. 4 (Pa;Super; 2012).
18
The matter of the credibility ot a witness, that is; whether his
or her testimony is believable and accurate in whole or in part
is solely a matter for your determination. I'm going to mention
some of the factors which might bear on that determination,
whether the witness. has any interest in the outcome of the
case or hasany friendship or animosity toward any of the
persons involved in the case, the behavior of the witness on
the witness stand and his or her own demeanor, his or her
manner of testifying and whether he or she shows any bias or
prejudice which might color their testlmonv.
N.T. 9/15/11 p. 10.
There is no relevant basis in law to support this claim. The Suggested Standard
Jury Instruction, 4;17, Credibility Of Witnesses, General, includes the following. as
a factor to consider in determining whether to accept the testimony of a
particular witness: "Did the witness testify in a convincing manner? [How did
[he] [she] look, act, and speak while testifying? Was [his] [her] testimony
uncertain, confused, self-contraoictorv, or evasive?]" The "demeanor" of
Witnesses isthus recommended as a permissible consideration in assessing the
credibility of a witness. Further, an instruction on credibility, including the
witness's demeanor as a factor for the jury's consideration, has been cited with
approval by our Supreme Court. See g,_g, Commonwealth v. Harris, 852 A.2d
1168(Pa. 2004). Demeanor is . .a factor that may be considered in determining
credibility notwithstanding Petitioner's vagµe and. unsupported due process claim.
The instruction, read in it's entirely accurately conveyed the applicable law and
accurately explained the relevant factors jury should consider ln determining
credibility.
Did the PCRA court err by denying the claim that trial counsel was ineffective for
inducing Petitioner to waive his right to testify through erroneous advice?
19
At the PCRA hearings on May 3, :2017 and November 9, 2017 the Petition.er
testified on his own behalf and offered the testimony of Attorney John J. List, Esquire
who served as trial counsel.
To support a .dalm that trial counsel was ineffective for failing to present a
petitioner as a witness, a petitioner bears the burden of proving that: \\(1) counsel
interfered with his client's freedom to testify, or (2) counsel provided specific ctdvice so
unreasonable that it otherwise vitiates a knowing and intelligent decision by the client
notto testify. Commonwealth v. Preston, 613 A.2d 603, 605 (Pa. Super. 1992).
Counsel is not ineffective where counsel's advice to the defendant was reasonable. For
example, where a defendant could be impeached With a prior record of convictions for
crimen fa/sloffenses it may not be unreasonable for counsel to advise his client not to
testify. See M· Commonwealth v. Daniels; 999 A.2d 590, 596 (Pa; Super, 2010)
quotingCommonwealth v. Whitney; 708.A,2d 471, 476 (Pa. 1.998) (citations omitted).
Ultimately,. whether to testify or not is a decision that lies with the detendant in a
criminal trial. It is the defendant who has "the ultimate authortty" to determine
"wnetner to plead guilty, waive a jury, testify in his or her own behalf, or take an
appeal." Commonwealth v. Brown, 18 A.3d 1147, 1158 (Pa. Super. 2011) citing Jones
v. Barnesi463 U.S. 745, 751,.103 S.Ct 3308, 77 L. Ed. 2d 987 (1983); Wainwright v�
Sykes, 433 U.S. 72, 9..3., n, 1, 97 S.Ct 2497,. 53 L. Ed. 2d 594 (1977) (Burget, CJ.,
concurring). Concerning these decisions, an attorney must both consult with the
defendant and Obtain consent to the recommended course of action. Id.
20
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Defendants decision not to testifY was addressed in an extensive colloquy that
was conducted by both trial counsel and by the Courtat the close of the
Commonwealth's .case. See N.T. 9/14/11 pp. 96-101. In response to the Court's
inquiries. Defendant confirmed that he discussed possible defenses with counsel and he
was comfortable with his decision hot to testify. He affirmed that he was aware that he
could change his decision at any time and that he had no additional questions for either
trial counsel or for the Court. Id. See also N.T. 11/9/17 pp. 15-16. At thePCRA
hearing Petitioner testified that Mr'. List did not discuss the possibility thatwere he to
testify he.could be impeached only with prior convictions that were ciimenlalsi in
nature. H�testified that they discussed his extensive criminal history only once in
connection with.a negotiated plea offer. See 11/9/17 pp. 10-14. He claims that as a
result he believed that his entire criminal history would be put before the jury if he
c:hosetotestify and that his decision was based on this misunderstanding. See N.T.
11/9/lTpp. 13-14 13.
In PCRA proceedings the Court sitsasthe factfinder and makes the necessary
credibility determinations. See general!� Commonwealth v. Spotz, 84 A.3d 294, 319
(Pa. 2014).; Commonwealth v. Johnson, 966 A.2d 523, 539(Pa. 2009); Commonwealth
v. Basemore, 744 A.2d 717,, 737 (Pa. 2000). In light of the record and after considering
the testimony of trial counsel the Court determined that Petitioner's testimony was
wholly lacking in credibility. Petitioner affirmed at the time of trial that after consultation
with counsel he chose not to testimony and this decision was based on counsel's
:21
_ . ... ., ..,... , .•..-.,.-,. ..-,..----------····-···--·--------··-----
professionally competent advice; His current testimony to the contrary does not alter
this conclusion.
John J. List6, a criminal trial attorney with forty years ofexperlence representing
defendants. in criminal cases represented the Petitioner throughout the trial
proceedleqs, N.T. 5/3/17 p. 11-12� 43. Beforetrial Mr. List brought a negotiated plea
offer to the Petitioner. and explained that in light of his extensive criminal history
Petitioner would be exposed to a much stiffer sentence if he was found guilty after a
trial. Id. at 21-23. Counsel supplied Petitioner and his famjlywith his Prior Record Score
and his history of criminal convictions to explain the advantages of entering a
negotiated plea. and to demonstrate the risk associated with going. to trial. He did not,
as Petitioner contends, tell the Petitioner that his entlre criminal record could be used to
impeach hlm at trial, Idi at 21-23.
Rather, before trial Mr. List discussed the possibility that if Petitioner testified his
2003 conviction for unauthorized use of a motor vehicle, a atmen falsi, could be put
before the jury to impeach his credibility . Id. at 23, 51. Mr. Ust testified credibly that
addlttonel factors influenced his advlce, Petitioner's testimony would have been that he.
was not present when Mr. Adebisi was shpt and he was going to use an alibi as a
defense. Id. at 2a:..30, Mr. List's primary concern was that if Petitioner testified as
expected, the jury would also expect to hear from corroborating witnesses. Mr. List
concluded that he would be unable to call any of the alibi witnesses that Petltloner
identified because they couldn't provide reliable testimony: "When t spoke to those
(i Mr. List passed away 10 April of.2ois.
22
--· ·--·-------------···-··-----------------
witnesses they couldn't get the times straightr the days straight, they couldn't get
anything straight,. and I came to the conclusion very quickly that they were going to get
slaughtered ifthey took the stand, that they were making up stortesto cover Mr�
Vincent, so this was allpart of it." Id. at 27-31. Mr. List considered Mr� Adebisis
identifi�tion problematic for the Commonwealth because it was made days several
days afterthe shooting when Mr. Adebisi was in the hospital. Id. at 19, 34. The defense
strategy was 'lo make the Commonwealth live up to their burden." Id. at SO. The
suspect testimony Of unreliable witnesses and the possibility that the Petitioner would
inadvertently provide testimony that could help the Commonwealth's case were not
worth the risk in Mr. List's. view. See id. at 50, 52.
Mr. List testified credibly that he advised the Petitioner that he considered the
identification. testimony in this case weak, that he informed him that his prior aimen
fe1lsf conviction could be used to impeach· hiin and that his alibi witnesses. were
unreliable. Id. at 45., In light of the foregoing he advised Petitioner not to testify . .Mr.
List described Petitioner as a "bright;' individual with a "rmnd "of his own" and confirmed
that ultimately, erter consultation with him Petitioner made his own decision. see N.T.
5/3/17 pp. 18-19, 26.
In light of the foregoing the Court concluded that Petitioner's allegation lacked
credibility and that trial counsel's advice was reasonable given the circumstances.
Did the PCRA court err by denying the claim· that trial counsel. was ineffective for failing
to. investigate. interview or call willing alibi witnesses?
23
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·
·
This claim too is refuted by the record· and by the testimony .offered at the PCRA
hearing. In the same colloquy during which Petitioner's Fifth Amendment rights were
.addressed, Petitioner confirmed that after consultation with counsel he would not be
calling plibi Witnesses;
Mr. List: And one other thing I want to cover her(sic), we have some
peoplethat have come forward to testify as potential alibi witness(sic).
Have we talked about that?
Mr. Vincent: Absolutely;
Mr. List: Okay. And those three individuals that are willing to testify as
alibi witnesses, have. we talked about not only what their anticipated
testimony would be, but what I antldpate.wouldbe the cross examination
of those Witness.es by the district attorney?
Mr. Vincent: Yes. \i\t'e had spoken.
Mr. List: Based upon the discussions we've had, is it your feeling right
now, and as Judge Bradley may tell you, you might beable to change
this, notto tall those witnesses to the stand?
Mr. Vincent: Yes, at this present time.
Mr. List: And what is your decision?
Mr. Vincent: My decision is not to call these witnesses.
The Court; Sir, do you have any questions you want to ask either your
attorney or the Court at this time?
Mr. Vincent: No, Your honor.
N.T. 9/14/11 pp. 99-100,
In Petitioner's PCRA petition three alibi witnesses that were allegedly available.
and willing to testify qt trial were identified: Ruth Washington (Petitioner's sister),
24
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Shirley Pierre (Petltioner's girlfriend) and Sabrina St Ford (an employee at Vision's Bar
in Philadelphia).
An alibi defense"pJates the defendant at the. relevant time in a different plate
than the scene involved and so removed therefrom as to render it impossible for him to
be the guilty partv," Commonwealth v. Dennis, 17 A.3d 297, 302 (Pa. 2011) quoting
Commonwealth v. Roxberry, 602 A.2d 826, 827 (Pa. 1992). In connection with his
claim that Mr. List provided ineffective assistance for failing to investigate and callalibi
witnesses Petitioner bears the burden of proving the following by a preponderence of
the evidence: (1) the witness.existed; (2)the witness was available;. (3) counsel knew
of, or should have known of the existence of the witness; ( 4) the witness was willing to
testify for the defense; and (5) the absence of the. testimony was so prejudicial to
petitioner to have denied him or her a fair trial. Id. at 302. As in all .Claims of ineffective
assistance a petitioner bears the burden of satisfying all prongs of the Stflckland
standard and the PCRA court is charged with determining the credibility Of Witnesses
that testify in support of the claim. Id.
Petitioner had the opportunity to prove his claims at the evldenttary hearing. His
claim, as it regards named alibi witnesses Ruth Washington, and Sabrina Ford requires
no dlscusslon because Petitioner failed to produce theses witnesses and his allegations
remained unproven by any competent evidence. See Dennis; supra.
Shirley Pierce, Petitioner's girlfriend and the mother of a. child fathered by
Petitioner testified on Novernbers; 2017. Id. at 34, 40. She testified that she was with
the Defendant from morning until night on November 30, 2009. See N.T. 11/9/17 pp.
25
•''-"'···· -· ·· -····· ···-·····--···-···--·-·--�-·-··--··---···-·" --·--- ·---- ----·-··-·--..--·--- ·--
35-37. They began the d�y on South Street, metthe Petitioner's sister Ruth Washington
at the Petitioner's brother's bar in West Philadelphia, took Ms; Washington to return a
rental car and returned to the bar at about 6 :30 p. m. when the Petitioner worked for his
brother at the bar until they returned to Ms. Pierce's home in Northeast Philadelphia.
IQ. at 36. Ms. Pierce testified that she was available and willing to testify. at trial. Id. at
,37. She acknowledge,d a 2004 federal conviction for making false statements in
connection with the purchase of a firearm7. Jd. at 38-40. She testified that she was
never contacted by Mr. List or by an investigator; She testified that Defendant asked her
to testify but she never contacted or spoke to Mr. List. kl, at 40.
Ms. Pierce testified that although she attended the tripl she had no memory of
the Petitioner confirming his. decision to forego alibi· witnesses on the record. Id. at 41.
She also stated that she did not speak to the Petitioner about the crime at the time it
occurred. She didn't know anythihg about it until "the hearing.'; Id. at 4L Her testfrnonv
was vague and unconvincing.
Mr. List testified that the Petitioner gave him the names of positional alibi
witnesses including his sister Ruth. He spoke with potential witnesses and they were ''all
over the map." N.T. 5/3/17 p. 29. the alibi that Petitioner and the alibi witnesses
suppliec:i was thqt he was at a "party" With friends and family members. la� at 31. Mr ..
list had no recollection of the description of the day of November 3.0, 2009 that Ms,,
Pierre supplied in her testimony, Id. at 35. He specifically recalled speaking with. Ruth
Wa.shingtoh who told himthatthey were at a .f�m.ily party and with Petitioner's brother.
7. Ms. Pierre admitted that she was convicted of conspiracy to commit a "false statement.during the
purchase of a firearm in federal court, a cdmen fc;1/5i, Id. at 3�HO
26
--- -·-------- ----------···-··--------
Petitioner's brother was unwilling to testify. Id. at 35, 37. Ruth Washington did not
provide him with helpful times that matched up· with the time of the offense. Jg. at 37:
He spoke to Ruth, Sabrina and Shirley and no one provided helptul lntormetion. See id.
at 37-40. Mr. List testified: '�I don't have any recollection of anything being told to me
about an Enterprise rental car, about two trips back and forth to the bar. l don't have.
any recollection about Mr. Vincent tending bar and, quite frankly, after speaking with
those woment didn't believe a word they told me. Id. at 40�
The testimony of Mr. List was credible; the testimony of Ms. Pierre and Petitioner
was not. Even after six years passed and hearings were scheduled, continued and re-
scheduled, the Petitioner failed to offer any corroborating testimony from witnesses who
were allegedly with him and Ms. Pierce during the relevant time. Specifically, Ms. Peirce
testified that from 6�30 p.m. onward she was at Petitioner's brother's bar with his
brother and his sister in West Philadelphia. Neither family member testified at the PCRA
hearing. Mr�. List had no recollection of having ever being told; by any potential alibi
witness·that Petiti.oner took his. sister to return a rental car earlier in the day-and was in
his brother's bar when the shooting occurred, Finally, Ms. Pierce testified that she
attended the trial but never spoke With Mr. List or questioned why she was not being
call.ed as a witness. Her testimony was vague at times and nonsensical at other times.
At the time of trial Petitioner was colloquied and offered the opportunity to object to Mr;
List's failure to call Ms. Pierce to the stand, He did not. All of the credible evidence led
the .Court to conclude that this claim is meritless.
27
········-·······-···-·•·o.·"----·--···-···---- ·----------. ..·,·-···-· --·---·
Did the PCRA Court err in- denying Petitioners claim of ineffective assistance base.d on
trial. counsel's failure to object to the Court's jury instruction which introduced a "new
theory?
In the t.hird claim set forth in the PCRA petition, it is alleged · that trial counsel
should be found ineffective for failing to object to the PPCRA Court's jury instruction
wherein the Court stated: "First, were going to discuss Attempted Murder, The
Defendants in this case have been charged with Attempted Murder. To find either
Defendant guilty qf thlsoffense you must f.ind that the Defendant's (did) a certain act.
In this particular case, Mr� Shaw is charged with shooting the alleged victim. Mr. Vincent
is chatged with attempting to. strangle the alleged. victim." N.T. 9/15/11 p. 15. Toe
Court continues on to discuss the remaining elements of attempted murder; Namely
specific intent to kill and the \'s.ubstantial st�p" necessary to an finding of attempt. ItL at
This claim is patently frivolous. Mr� Adebisi testfled that Anthony Shaw shot hlm
at Petitioner's direction and that after he fell to the ground Petitioner had his hands on
Mr. Adebisi' s throat, attempting to strangle him. At the same time
. Petitioner
. said, ''die,
.
die; dle." N.T. 9/13/11 pp. 97-101. This portion of thejury instruction merely reflected
the testimony that was heard at tnal. It is proper for the trial court to explain to the
Jury the contentions of the parties, particularly when it is done in a· manner that clearly
shows he ls not expressing his own views. See Commonwealth v� Rough, 275- Pa.Super.
so, 418 A.2d 605 (Pa. Super, 1980)'; Commonwealth v. Leonhard, 485 A.2d 444 (1984).
2.8
,,,,,--·-···-····· ··-··········---------··
.. _,. __ . _
The contention that this instruction, "uninvitingly interfered with the defense
strategy," when in fact the defense str�tegy was to challenge Mr. Adebisi' s
identification is far-fetched at best. Petitioner knew from the outset that he .and Shaw
were charged with an attempted murder that was committed in the course of a robbery.
The Court's charge was in conformity with the evidence and the presumption of trial
counsel's competence is not overcome by trial counsel's failure to make the dubious
objection that Petitioner suggest$. Cf; Commonwealth v .. DeMarco,. 809 A�2d 256 (Pa .
. 2002) (Evidence supporting a jury instruction may be adduced by a defendant as part of
his case; · or may be found ln the Commonwealth's own case-in-chief, or be elicited
through cross-exemlnaton),
Did the PCRA Court err in .denying Petitioner's ciaim of ineffective .assistance based on
trial counsel's failu1•e. to object to the Court's "improper amendment" of the robbery
.charge?
This claim is, pa�ently frivolous. The Criminal Information, No. 62010 Qf 2010,
filed oh November 4, 2010 charges each subsection of robbery, 18 Pa.C.S.A.
§3701(a)(i-v), setting forth in detail each of the foregoing subsections. The verdict slip
mirrored th� Information! Defendant was sentenced to five. to ten yearsof incarceration
for one count of robbery, a first degree felony. Assuming arguendo. that the
.Information charging robbery was tn fact amended; an amendment may be allowed
even after the closing arguments but before the court's charge and relief is warranted
only where the amendment prejudices a defendant. See Commonwealth v. Page. 965
29
-·-·-··--·-····-------·------·--
A.2d 1212, 1224 (Pa. Super. 2009). � also Commonwealth v� Roser, 914 A.2d 447,
454: (Pa.Super, 2006), appeal denied 927 A.id 624 (Pa. 2007) (''Factors to be
considered when determining whether Appellant was prejudiced by the
Commonwealth's amendment include whether the amendment chanqes the factual
scenario; whether new facts, previously unknown to appellant, were added; whether
the description of the charges changed; whether the amendment n�cessitatep a change
in defense strategy; and whether the timing of the request for the amendment allowed
for ample nonce and preparation by appellant.")
Did the PCRA Court err in denying Petitioner's claim of ineffective assistance ba$ed on
trial counsel's failure to "challenge the false .statement and robbery charge in the · ·
affidavit of probable cause?"
This is another patently frivolous claim. Petitioner alleges that the affidavit of
probable cause contains false statements that led to a "false. accusation" of robbery.
Petitioner .seems to base this claim on the fact that there was a discrepancy in Mr.
Adebisi' s testimony concerning when he realized that $1,000 dollars had been removed
fromhis pocket, t.e, whether he realized that he had beeh robbed of this money before
or after the affidavit of probable cause was sworn. How this discrepancy can be
transformed into a claim of material misrepresentation or fraud is unfathomable given
the facts of ·this case. Lt. Gib.ney interviewed Mr. Adebisi while he was still in the
Intensive Care Unit, on December 2, 2009. Mr. Adebisi reported that he was accosted
and robbed by two intruders and one was armed.
f:his fanciful claim has no basts in law or fact.
3.0
-----·�···--··-·-.. -···-·----
Did the PCRA Court err in denying Petitioner's claim of ineffective. assistance based on
trial counsel's failure to interview delivery driver Kathy Totaro and failure to call her as a
witness at trial?
Petitioner alleges that delivery driver Kathy Totaro could have provided evidence
that was ''key" to his defense, that is, that Mr. Adebisi always paid her with $100 bills. It
is alleged that this evidence would have been relevant because it suggests that Mr.
Adibesi was a drug dealer and impugns his credibility. This allegation is completely
meritless. Whether Mr. Adibisi was a drug .dealer or not has no bearing on the facts of
this case Qr
. on Petitioner's
. defense,
.. i.e., misidentification.
Additionally, this ineffective assistance claim fails proc:edurally and substantively:
There are two requirements for relief on an ineffectiveness claim
for a failure to present witness tesurnonv, The first requirement is
procedural. The PCRA requires that, · to be entitled to an evidentiary
hearing; a petitioner must include in his PCRA petition "a signed
certification as to each intended witness stating the witness's name,
address, date of birth and substance of testimony." 42 Pa.c.s.A� §
9545(d)(1); Pa;R.Crim.P. 902(A)(15). The second requirement is
substantive. Specifically,· when raising a claim for the failure to call a
potential witness, to obtain relief, a petitioner must establish that: (1) the
witness existed; (2) the witness was available; (3) counsel was informed
or should have known of the exlstenceof the witness; (4) the witness was
prepared to cooperate and would have testified on defendant's behalf;.
and (5) the absence of such testimony prejudiced him and denied· him a
fair trial. Commonwealth v. Carson, 559 Pa. 460i 741 A.2d 686, 707
(1999).
31
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Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014). Petitioner failed to provide the
required witness certification and failed to prove any of the substantive elements that
are necessary to. this claim.
Did the PCRA Court err in. denying; Petitioner's claim of ineffective assistance ba�ed on
trial counsel's failure to cross�examine witness Tanisha Garraway with a prior
statement?
Ms. Garraway was from New York and was visiting Mr; Adebisi when he was
robbed and soot. See N.T.9/13/llpp. 326-27. Ms .. Garrawc1y .dld hot identifYPetitio11er
or Mr. Shaw at trial. She testified that she was in the. apartment when there was a
knock at the door and "somebody" barged in. She then saw Mr. Ad�bisi arid "a big
black man" fightin9.·� Id. at 336( 337, 340-41. Petitioner claims that trial counsel was
ineffective for failing to cross-examine Ms. Garroway with a prior statement in which
she described the man as a dark-skinned male, six feet tall and about 200 pounds who
was yelling in an "African language." He contends that Ms. Garr<.:1Way's earlier
description would have dis-credited Mr. Adebisi' s identification.
This claim has no merit. Ms. Garraway's alleged inconsistent statement could
serve to impeach. only her description of the assailant, not Mr. Aclebisi' s. See generally
Pa.R.E. 613, Witness's Prior Inconsistent. Statement to Impeach: Witness1s Prior
Consistent Statement to Rehabilitate.
At trial Ms. Garraway described the man who wrestled with Mr� Adebisi as a "big
black male." Mr. Adebisi described Petitioner as a "tall, dark-skinned;' male. See id. at
BL.He. also recounted a conversation that took place earlier in the day Where Petitioner
asked him where he was from and where Mr. Adebisi said he was African: from Nigeria;.
32
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Petitioner replied that he was from New York arid that he was Haitian. Id. at 81-90. As
previously stated, Ms. Garraway was unable to identify Petitioner and her description of
the assailant did differ somewhat from Mr ..Adeblsl's, Thus, any discrepancy was already
before·the jury. Further, from a practical standpoint, had trial counsel cross-examined
Ms. Garraway regarding whether the assailant was yelling in an African, or �my foreign
language; Mr. Adebisi' s testimony; thatPetitioneridentified himself to him as Haitian
when they spoke earlier could have. been corroborated and strengthened Mr.. Adebisi' s
identification testimony.
This claim is speculative. It has no arguable merit and trail counsel was not
ineffective for failing to act in the way Petitioner suggests.
Did the PCRA Court err in denying . Petitioner's
. claim of. ineffective assistance based on
trlal counsel's failure to cross-examine Lieutenant Gibney regarding "other suspects ..''
Petitioner claims that had trial counsel demonstrated, through cross-examination
of Lieutenant Gibney, that "other suspects" were investigated in connection with this
· robbery "Officer Schuler's testimony concerning Mr. Adebisi' s initial inability to identify a
shooter would have been "embellished," Thls, he contends would have "attacked" Mr.
Adebisi' s ldentitlcatlon,
While the extent to which li:!W enforcement investigated and developed other
.suspects can be fodder for cross-examtnatlon, the Court can find no merit in this claim.
The various police reports that Petitioner has attached to his petitlon, see Exhibit D,
provide no support for this convoluted and speculative claim. See. generally,
Commonwealth v. Sepulveda, SS A.3d. 1108, 1133 (Pa. 2012) (counsel cannot be
33
deemed ineffective for failing to raise speculative claim); Commonwealth v. Charleston�
94 A.3d 1012, 1026 (Pa. Super. 2014) (Unsupported speculation does not establish
"prejudice"that is essential to an ineffectiveness claim).
The claims included in Petitioner's ''Motion for Leave to Supplement Amended Post�
Conviction Relief Act Petition."filed on September 14. 2016 and "Motion for Leave to
Supplement Amended Post-Conviction Relief Act Petition,;, filed Qh October 11. 2016
have bee waived.
Pennsylvania · Rule of Criminal Procedure 905 allows the court to ''grant leave to
amend or withdraw a petition for post-conviction collateral relief at any time."
"Ame.ndment shall be freely allowed to achieve substantial justice" but amendments are
noC'self-authorizihg';.such that a petitioner may simply "amend" a pending petition with
a supplemental pleading. see Commonwealth v. Porter, 35 A.3d 4, 12 (Pa. 2012).
''Rather, the Rule explicitly statesthat amendment is permitted only by direction or
leave ofthe PCRA court." 35 A.3d at 12.
The filing of unauthorized supplemental petitions and amendments to PCRA
petitions have been condemned arid are subject to waiver. See commonwealth v.
Mason, 130 A.3d 60.1, 607 (Pa. 2015); Commonwealth v: Reidt 99 A.3d 470, 484 (Pa.
2014) citing Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa. 2013); Commonwealth v.
Roney, 79 A.1d 595, 615�16 (2.013}; Commonwealth v. Porter, supra.
As stated above, onJune 8� 2016 an Order.accepting Petitioner's waiver of his
. right to counsel was entered. Petitioner was ordered to file an amended petition on or
before, June 27, 2016. On August 15, 2016 after a request for an extension of time was
34
·······-····-······---·--··"'" _. ·------------------------ ·--·------··-··------··-
·
granted, Petitioner filed a pro se amended PCRA petition. The Commonwealth was
directed to file a reply; Without leave of court Petitioner filed supplemental amended.
petitions on September 12, 2016 and October U,2016. The Commonwealth's
response was filed on December 16, 2016.
Petitionerwas not granted leave to file additionalamendments and/Or
supplements to the amended PCRA petition thatwas filed on August 15, 2016. Although
these supplemeots were entitled "motions for leave," they were in fact attempts to add
new claims. 'lMisdesignation does not preclude a court from deducing the proper nature
of a pleading/' Commonwealth v. Porter, 35 A.3d at 12 citing Commonwealth v,
Abdul-Salaam, 996 A.2d 4.82 (Pa. 2010) .("involving deceptive labeling of PCRA
pleading';).
Because, as rn Porter, supra, Petitioner had no right to unilateraUy amend a
pending petition, the additional claims for relief that are set forth in the unauthorized
supplemental amendments are waived. lt follows therefore, that the claims raised in
paragraphs 12 and 14 of the Statement of Errors Complained of on Appeal are similarly
waived on appeal.
The claims that are raised in paragraphs 13 and 15 of the Statement of Errors
Complained of on Appeal have no arguable merit. Recognizing that a claim of ineffective
assistance is discrete and separate from an underlying clatm of trlal court error,
nevertheless an underlying issue of arguable merit must be raised. Petitioner has failed
to plead or prove even identify an Instance where direct appeal counsel provided
ineffective assistance ..
35
,, ., ,, ·--�--·---
__
Finally, in paragraph number 15 Petitioner claims that the PCRA Court erred
because it did not find PCRA counsel ineffective for failing to raise the \'Cumulative
Effects of trial counsel's ineffectiveness." Again, this boilerplate claim of error must be
dismissed. As, all of the forgoing demonstrates, Petitioner's claims of trial counsel's and
PCRA counsel's ineffective asslstance had no arguable merit, rt is also true that
''prejudicef' was not demonstrated but his darns were not rejected on grounds of
"prejudice." .It is well-settled that no number of failed. ineffectiveness claims may
collectively warrant relief if they fail to do so individually. Commonwealth v. Busanet,
54 A.3d 35, 75 (Pa. 2012) ("where ineffectiveness claims are rejected for lack of
. arguable merit, there is no basis for an accumulation. claim.") .citiog Commonwealth v;
Johnson,. 966 A.2d 523, 532 (Pa. 2009}; Commonwealth v. Sattazahn,. 952 A.2d 640,
671 (Pa. 2008)�
BY THE COURT:
J ..
36
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