Com. v. Riley, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANIEL RILEY :
:
Appellant : No. 1818 EDA 2020
Appeal from the PCRA Order Entered August 28, 2020,
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006088-2012
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 2, 2022
Appellant, Daniel Riley, appeals from the August 28, 2020 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. This case returns to us after our
Supreme Court vacated this Court’s original order of October 20, 2021, and
remanded the matter for our reconsideration in light of Commonwealth v.
Bradley, 261 A.3d 381 (Pa. 2021).1 We vacate the August 28, 2020 order
and remand this case in accordance with this memorandum.
We previously summarized the procedural history as follows:
On September 16, 2015, following a jury trial, Appellant was
convicted of one count each of first-degree murder (18 Pa.C.S.A.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See Commonwealth v. Riley, 2021 WL 4889254 (Pa. Super. Oct. 20,
2021) (unpublished memorandum); see also Commonwealth v. Riley,
2022 WL 1153274 (Pa. Apr. 19, 2022) (per curiam order) (slip copy).
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§ 2502), conspiracy to commit robbery (18 Pa.C.S.A. § 903),
robbery (18 Pa.C.S.A. § 3701), carrying a firearm on a public
street in Philadelphia, Pennsylvania (18 Pa.C.S.A. § 6108), and
possessing an instrument of crime (18 Pa.C.S.A. § 907).
Appellant was jointly tried with his co-defendant. The trial court
immediately imposed the mandatory sentence of life in prison for
the murder charge pursuant to 18 Pa.C.S.A. § 1102(a)(1).
Appellant filed post-sentence motions, which the trial court denied
on December 22, 2014. Appellant was represented at trial by
Robert Dixon, Esquire.
On April 26, 2016, [this Court] affirmed Appellant's judgment of
sentence. On August 22, 2016, [our] Supreme Court denied
Appellant discretionary review. Appellant subsequently filed a pro
se PCRA petition on March 27, 2017. Benjamin Cooper, Esquire
was appointed to represent Appellant on August 21, 2017.
However, Todd M. Mosser, Esquire (“Attorney Mosser”), whom
Appellant retained as private counsel, entered his appearance on
behalf of Appellant on January 23, 2018. Attorney Mosser was
assisted in his representation of Appellant by Catherine
Hockensmith, Esquire (“Attorney Hockensmith”).
On July 12, 2018, Attorney Mosser filed a counseled amended
PCRA petition raising two claims: 1) that trial counsel was
ineffective for failing to investigate and call alibi witnesses; and 2)
that the admission of [Appellant’s] non-testifying co-defendant's
redacted statement violated the Confrontation Clause. On May
24, 2019, Attorney Mosser, with leave of court, [further] amended
the PCRA petition, raising the same two claims, but modifying the
attorney certification regarding alibi witnesses that accompanied
the petition.
On June 27, 2019, the PCRA court issued a notice pursuant to
Pa.R.Crim.P. 907 of its intent to dismiss Appellant's PCRA petition
without an evidentiary hearing (''Rule 907 Notice”) for the
following reasons: 1) as to Appellant's first issue, Appellant failed
to include certifications for his proffered alibi witnesses; and 2) as
to Appellant's second issue, the same Confrontation Clause claim
had been previously litigated in Appellant's direct appeal.
On July 17, 2019, Appellant filed an objection to the Rule 907
Notice, requesting to amend his petition once again to cure the
witness certification defect regarding his alibi witness claim.[FN1]
Appended to [Appellant’s proposed second amended PCRA]
petition was a signed “declaration” of a proffered alibi witness,
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Appellant's brother's paramour, who was one of four alibi
witnesses that Appellant claimed trial counsel neglected to
investigate and call as witnesses during his trial. No other
certifications from other alibi witnesses were provided.
[Footnote 1] Although a second amended PCRA petition was
attached to Appellant's [response to the PCRA court’s] Rule
907 Notice, the PCRA court never granted counsel's request
to file the second amended PCRA petition.
In response to Appellant's objection to the Rule 907 Notice, the
PCRA court granted an evidentiary hearing on the sole claim that
trial counsel was ineffective for failing to call Appellant's brother's
paramour as an alibi witness. The hearing was originally
scheduled for April 3, 2020, but due to the COVID-19 global
pandemic, it was rescheduled for September 17, 2020. However,
at a final pre-hearing conference on August 28, 2020, which was
held to ensure that all parties would be ready to proceed with the
evidentiary hearing, Attorney Hockensmith advised the PCRA
court that the potential alibi witness [(Appellant’s brother’s
paramour)] would not testify at the evidentiary hearing, and that
Appellant was withdrawing the witness certification for that
witness. Because no witness certifications for any other alibi
witnesses had been provided, the PCRA court dismissed the PCRA
petition and cancelled the September 17, 2020 evidentiary
hearing.
On September 23, 2020, Appellant filed a notice of appeal.[FN2]
The PCRA court ordered Appellant to file a concise statement of
errors complained of on appeal in accordance with Pa.R.A.P.
1925(b). Appellant filed his Rule 1925(b) statement on November
18, 2020, and the PCRA court subsequently filed its Rule 1925(a)
opinion.
[Footnote 2] A review of the PCRA court docket statement
demonstrates that on September 23, 2020, Attorney Mosser
electronically filed a motion to withdraw as counsel for
Appellant. That same day, Attorney Mosser also
electronically filed a second document that was incorrectly
identified as Appellant's notice of appeal. This second
document was, in fact, a duplicate copy of Attorney Mosser's
motion to withdraw as counsel for Appellant. In a March 26,
2021 per curiam order, this Court issued a rule to show
cause why Appellant's appeal should not be quashed for
failure to file a timely notice of appeal. In an April 4, 2021
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response to the rule to show cause order, Appellant's [new
PCRA] counsel, Teri B. Himebaugh, Esquire (“Attorney
Himebaugh”) averred that Attorney Mosser inadvertently
attached the wrong document when he electronically filed
the duplicate motion to withdraw that was inaccurately
identified as Appellant's notice of appeal. Attorney
Himebaugh stated that the Clerk of Courts for the Court of
Common Pleas of Philadelphia County notified Attorney
Mosser in January 2021, regarding the incorrect filing. Upon
submitting a copy of the notice of appeal, Attorney Mosser
understood that the filing error would be corrected by the
Clerk of Courts. In an April 16, 2021 per curiam order, this
Court discharged the rule of show cause and referred the
issue to the merits panel.
This Court has long-held that,
while the Prothonotary, or the Clerk of Courts, must
inspect documents that are sent for filing to ensure they
are in the proper form, the power to reject such
documents is limited to notifying the proper party that
the document is defective so that the defect may be
corrected through amendment or addendum.
Commonwealth v. Alaouie, 837 A.2d 1190, 1193
(Pa. Super. 2003) (citation omitted). Here, the Clerk of
Courts accepted Attorney Mosser's electronic filing, which
was inaccurately identified as a notice of appeal, on
September 23, 2020, but did not contact Attorney Mosser
until January 2021, to advise that the notice of appeal was
inadvertently omitted from counsel's filing. We find that the
Clerk of Courts’ failure to promptly notify Attorney Mosser
about his errant filing constituted a breakdown of the
judicial system. Upon contact, Attorney Mosser provided
the Clerk of Courts with a copy of the notice of appeal, which
the Clerk of Courts accepted and dated as having been filed
on September 23, 2020. Under these circumstances, we
discern no basis upon which to disturb the [PCRA] court's
determination that Attorney Mosser's attempt to file a notice
of appeal on September 23, 2020, perfected this appeal.
Riley, 2021 WL 4889254, at *1-*2 (record citation, original formatting, and
original brackets omitted).
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On October 20, 2021, this Court affirmed the August 28, 2020 order
dismissing Appellant’s PCRA petition.2 Id. at *1. In so affirming, this Court
held that: (1) Appellant waived his claim of ineffective assistance of trial
counsel for failure to call Appellant’s brother and uncle as potential alibi
witnesses at trial because Appellant failed to assert a viable claim before the
PCRA court and could not raise such a claim for the first time on appeal; and
(2) under the then-current state of the law Appellant could not raise a claim
challenging the performance of original PCRA counsel for the first time on
appeal. Id. at *5, citing Commonwealth v. Santiago, 855 A.2d 682, 691
(Pa. 2004), and *6, citing Commonwealth v. Shaw, 247 A.3d 1008, 1016
(Pa. 2021). Appellant subsequently filed a petition for allowance of appeal
with our Supreme Court. Our Supreme Court granted Appellant’s petition for
allowance of appeal and vacated our October 20, 2021 order affirming the
dismissal of Appellant’s PCRA petition. Riley, 2022 WL 1153274, at *1. Our
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2 On appeal, Appellant raised the following issues for our review:
1. Were Appellant's constitutional rights under the Sixth and
Fourteenth Amendments of the United States Constitution
and Article I, Section 9 of the Pennsylvania Constitution
violated by trial counsel's ineffective failure to investigate
and call alibi witnesses, namely Appellant’s brother and his
uncle, to testify at Appellant's trial?
2. Did PCRA counsel ineffectively fail to obtain statements from
these available witnesses thereby causing the PCRA court to
dismiss the petition asserting the underlying claim without
a hearing?
Riley, 2021 WL 4889254, at *3 (brackets omitted).
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Supreme Court remanded this case to this Court for reconsideration of our
disposition of Appellant’s claim of ineffective assistance of original PCRA
counsel in light of Commonwealth v. Bradley, 261 A.3d 381 (2021).3 Riley,
2022 WL 1153274, at *1.
On remand, Appellant raises the following issue for our review:
Was PCRA counsel ineffective pursuant to [Bradley, supra,] for
failing to properly present a claim during the PCRA proceedings
that trial counsel was ineffective in relation to investigating and
calling alibi witnesses?
Appellant’s Brief at 3 (original formatting and extraneous capitalization
omitted).
In addressing Appellant’s issue, we are mindful of our well-settled
standard and scope of review of a PCRA court’s dismissal of a PCRA petition.
Proper appellate review of a PCRA court’s dismissal of a petition is limited to
the examination of “whether the PCRA court’s determination is supported by
the record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988,
992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified record.”
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted). “This Court grants great deference to the findings of the PCRA court,
and we will not disturb those findings merely because the record could support
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3We note that our Supreme Court’s decision in Bradley, supra, was handed
down on October 20, 2021, the same date that this Court affirmed the order
denying Appellant’s PCRA petition in the case sub judice.
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a contrary holding.” Commonwealth v. Hickman, 799 A.2d 136, 140
(Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court’s
legal conclusions de novo. Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).
Appellant’s issue raises a claim for ineffectiveness of original PCRA
counsel, Attorney Mosser, for failure to attach to the amended PCRA petition
declarations from Appellant’s brother and uncle that satisfied the
requirements of 42 Pa.C.S.A. § 9545(d)(1)(i).4 Appellant’s Brief at 23-27.
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4 When a petitioner requests an evidentiary hearing, Section 9545(d)(1)
states,
(d) Evidentiary hearing.--
(1) The following apply:
(i) Where a petitioner requests an evidentiary hearing, the
petition shall include a certification signed by each intended
witness stating the witness's name, address, date of birth[,]
and substance of testimony and shall include any documents
material to that witness's testimony.
(ii) If a petitioner is unable to obtain the signature of a
witness under subparagraph (i), the petitioner shall include
a certification, signed by the petitioner or counsel, stating
the witness's name, address, date of birth[,] and substance
of testimony. In lieu of including the witness's name and
address in the certification under this subparagraph, counsel
may provide the witness's name and address directly to the
Commonwealth. The certification under this subparagraph
shall include any documents material to the witness's
testimony and specify the basis of the petitioner's
information regarding the witness and the petitioner's
efforts to obtain the witness's signature. Nothing in this
subparagraph shall be construed to contravene any
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Implicit in Appellant’s ineffectiveness claim is the allegation that Attorney
Mosser was also ineffective for failing to plead in the amended PCRA petition
the substantive elements needed to support a claim that trial counsel was
ineffective for failing to investigate and call Appellant’s brother and uncle as
potential alibi witnesses at trial.
Preliminarily, we must address whether Appellant is permitted to raise
a claim challenging the performance of original PCRA counsel for the first time
on appeal. Recently, our Supreme Court in Bradley, supra, held that “after
a PCRA court denies relief, and after obtaining new counsel or acting pro se,
[a petitioner may] raise claims of PCRA counsel’s ineffectiveness at the first
opportunity to do so, even if on appeal.”5 Bradley, 261 A.3d at 401 (footnote
omitted). The Bradley Court recognized that “a petitioner has a rule-based
right to the appointment of counsel for a first PCRA petition” and, with that
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applicable attorney-client privilege between the petitioner
and postconviction counsel.
(iii) Failure to substantially comply with the
requirements of this paragraph shall render the
proposed witness's testimony inadmissible.
42 Pa.C.S.A. § 9545(d)(1) (emphasis added).
5 Prior to our Supreme Court’s decision in Bradley, supra, “the sole method
by which a petitioner [could] challenge the ineffectiveness of his PCRA counsel
[was] through the filing of a response to the PCRA court's [Pa.R.Crim.P.] 907
dismissal notice.” Bradley, 261 A.3d at 386. Finding this Rule 907 procedure
to be “deeply flawed,” the Bradley Court explicitly “abandon[ed the] Rule 907
approach as the sole procedure for challenging PCRA counsel’s effectiveness.”
Id. at 401.
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right, he is “entitled to the effective assistance of counsel.” Id. at 391-392
(stating, “[t]he guidance and representation of an attorney during collateral
review ensures that meritorious legal issues are recognized and addressed,
and that meritless claims are abandoned”). In balancing a petitioner’s right
to effective assistance of counsel and society’s interest in the efficient and
final conclusion of criminal matters, our Supreme Court held that permitting
“a petitioner to raise claims of PCRA counsel’s ineffectiveness at the first
opportunity when represented by new counsel, even if on appeal, while not
an ideal solution, accommodates these vital interests.” Id. at 401. The
Bradley Court further stated that a claim of PCRA counsel ineffectiveness
raised for the first time on collateral appeal did not violate the PCRA one-year
jurisdictional time-bar because such a claim of PCRA counsel ineffectiveness
“sprang” from the original, timely PCRA petition and did not constitute a
second or subsequent petition. Id. at 402, 404 (rejecting “the notion that
considering ineffectiveness claims on collateral appeal constitutes a prohibited
serial petition, violating the PCRA's one-year [jurisdictional] time bar”
(footnote omitted)).
To reiterate, on September 16, 2015, the trial court sentenced Appellant
to a mandatory term of life in prison. This Court affirmed Appellant’s judgment
of sentence on April 16, 2016, and our Supreme Court denied Appellant’s
petition for allowance of appeal on August 22, 2016. Appellant did not file a
petition for writ of certiorari with the United States Supreme Court. Therefore,
Appellant’s judgment of sentence became final on November 21, 2016, upon
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expiration of the period of time for seeking discretionary review with the
United States Supreme Court. U.S. Sup. Ct. R. 13(1) (stating, “A petition for
a writ of certiorari seeking review of a judgment of a lower state court that is
subject to discretionary review by the state court of last resort is timely when
it is filed with the Clerk within 90 days after entry of the order denying
discretionary review.”); see also 42 Pa.C.S.A. § 9545(b)(3) (stating, “a
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review”).
Appellant’s court-appointed PCRA counsel filed a PCRA petition on March
27, 2017. Because Appellant filed his first PCRA petition within one year of
his judgment of sentence becoming final, his petition was timely filed. As
such, Appellant is permitted to raise a claim challenging original PCRA
counsel’s ineffectiveness for the first time on collateral appeal because he is
currently represented by new PCRA counsel, to-wit Attorney Himebaugh, and
his claim springs from a timely PCRA petition. Bradley, 261 A.3d at 401, 404.
In addressing Appellant’s claim of original PCRA counsel’s
ineffectiveness, we are mindful that “[i]t is well-established that counsel is
presumed effective, and to rebut that presumption, the PCRA petitioner must
demonstrate that counsel's performance was deficient and that such
deficiency prejudiced him.” Commonwealth v. Koehler, 36 A.3d 121, 132
(Pa. 2012), citing Strickland v. Washington, 466 U.S. 668, 687-691 (1984).
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In order to plead and prove a claim of ineffective assistance of counsel, a
petitioner
must establish that the issue underlying the claim of
ineffectiveness has arguable merit, that [] counsel's act or
omission was not reasonably designed to advance the interests of
the [petitioner], and that the [petitioner] was prejudiced - that is,
but for counsel's errors, the outcome of the proceeding would
have been different.
Bradley, 261 A.3d at 390 (citation omitted). “A claim of ineffectiveness will
be denied if the petitioner's evidence fails to meet any of these prongs.”
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). In a layered claim
of ineffectiveness in which a petitioner challenges PCRA counsel’s
ineffectiveness to assert a claim of trial counsel’s ineffectiveness, the
ineffectiveness of trial counsel is the “arguable merit” prong of the three-part
ineffective assistance of counsel test. Commonwealth v. Reyes, 870 A.2d
888, 896 (Pa. 2005) (stating that, proving the three-part ineffectiveness test
as to trial counsel established the arguable merit prong as to PCRA counsel’s
ineffectiveness); see also Commonwealth v. Parrish, 273 A.3d 989, 1003
n.11 (Pa. 2022) (stating, “[w]here a petitioner alleges multiple layers of
ineffectiveness, he[, or she,] is required to plead and prove, by a
preponderance of the evidence, each of the three prongs of ineffectiveness
relevant to each layer of representation”).
The first layer of Appellant’s claim is that trial counsel was ineffective
for failing to interview and to call, at trial, three alibi witnesses, namely
Appellant’s brother, his uncle, and his brother’s paramour. Appellant’s Brief
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at 16. Appellant contends that he informed trial counsel that he was not
present at the location of the shooting incident. Id. at 15. He further avers
that he provided trial counsel with the names and contact information of the
three aforementioned potential alibi witnesses, each of whom could
corroborate that Appellant was at home on the night of the incident. Id. at
15-16. Appellant argues that trial counsel was ineffective for failing to
interview the three potential alibi witnesses and to call these witnesses at trial.
Id. at 16.
The second layer of Appellant’s claim is that original PCRA counsel was
ineffective for failing “to properly plead in the amended PCRA petition a claim
that trial counsel was ineffective for failing to both investigate and call
Appellant’s brother and uncle [] as potential alibi witnesses at trial.” Id. at
25-26 (extraneous capitalization and emphasis omitted). In asserting this
contention, Appellant relies on this Court’s prior statement that,
Although Appellant stated in his amended PCRA petition that he
provided the names of his brother and his uncle to trial counsel as
potential alibi witnesses, Appellant did not specifically aver that
trial counsel's failure to call these two individuals as witnesses at
trial constituted ineffective assistance. In other words, Appellant's
amended PCRA petition did not plead the necessary substantive
elements giving rise to an ineffectiveness claim for failure to call
his brother or uncle as potential witnesses. Specifically, Appellant
did not assert that either his brother or his uncle was available at
the time of trial, that either individual was willing to testify on
Appellant's behalf, or that the absence of either individual's
testimony was prejudicial.
...
Because the amended PCRA petition failed to assert a viable claim
for ineffective assistance based upon trial counsel's failure to call
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Appellant's brother and uncle as potential alibi witnesses at
trial,[FN5] Appellant cannot assert this claim for the first time on
appeal. Consequently, Appellant waived this ineffectiveness
claim, and we may not review it on appeal.
[Footnote 5] Moreover, the amended PCRA petition did not
include a certification signed by Appellant's brother or his
uncle, or a certification signed by, inter alia, Attorney
Mosser, setting forth the witnesses’ names, addresses,
dates of birth, and the substance of their proposed
testimony. Therefore, any testimony by these individuals
would have been inadmissible at an evidentiary hearing on
Appellant's PCRA petition.
Riley, 2021 WL 4889254, at *4 (citations and footnote omitted). In light of
this Court’s prior statement, Appellant avers that original “PCRA counsel was
ineffective for failing to obtain the necessary information from [Appellant’s
brother and uncle] to enable [original PCRA counsel] to draft and file witness
certifications and to amend the PCRA petition to cure any defects.”6
Appellant’s Brief at 28-29 (footnote omitted). Appellant requests that this
Court remand the case to the PCRA court for an evidentiary hearing on
Appellant’s layered ineffectiveness claim. Id. at 35.
“Neglecting to call a witness differs from failing to investigate a witness
in a subtle but important way.” Commonwealth v. Stewart, 84 A.3d 701,
712 (Pa. Super. 2013), appeal denied, 93 A.3d 463 (Pa. 2014). “A claim that
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6 In his appellate brief to this Court, Appellant set forth a summary of the
substance of his brother’s and uncle’s potential exculpatory testimony.
Appellant’s Brief at 16-21. We further note that Appellant attached copies of
the investigative interviews of Appellant’s brother and uncle, which were
signed and affirmed by the brother and uncle, as exhibits to his appellate brief.
Id. at Exhibits RR2-RR12.
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trial counsel did not conduct an investigation or interview known witnesses
presents an issue of arguable merit where the record demonstrates that
counsel did not perform an investigation.” Stewart, 84 A.3d at 712.
Moreover, “it can be per se unreasonable for [a] defense attorney to conduct
no investigation into known witnesses[.]” Commonwealth v. Maldonodo,
173 A.3d 769, 783 n.10 (Pa. Super. 2017) (en banc) (stating, “effective
assistance of counsel requires a lawyer to undertake reasonable investigations
or make reasonable decisions that render particular investigations
unnecessary” (original quotation marks omitted)), appeal denied, 182 A.3d
991 (Pa. 2018); see also Stewart, 84 A.3d at 712 (stating, “failure to
prepare is not an example of forgoing one possible avenue to pursue another
approach; it is simply an abdication of the minimum performance required of
defense counsel” (citations, original quotation marks, and brackets omitted)).
[T]he value of [an] interview [of a potential alibi witness] is to
inform [trial] counsel of the facts of the case so that he[, or she,]
may formulate strategy. Perhaps, after questioning these
[potential] witnesses, [trial] counsel may have concluded that the
best strategy was not to call them[.] However, no such claim of
strategy can be attached to a decision not to interview or make
an attempt to interview [potential alibi witnesses] prior to trial.
Stewart, 84 A.3d at 713, quoting Commonwealth v. Mabie, 359 A.2d 369,
374-375 (Pa. 1976). In other words, if a petitioner pleads and proves that
trial counsel did not investigate and interview known witnesses, the petitioner
satisfied the “arguable merit” and “reasonable basis” prongs of the three-part
test for ineffectiveness. As for the final element of the three-part test for
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ineffectiveness, a petitioner is required to show prejudice; i.e.: but for trial
counsel’s error, the outcome of the proceeding would have been different.
Stewart, 84 A.3d at 712.
In contrast, "[a] failure to call a witness is not per se ineffective
assistance of counsel for such [a] decision usually involves matters of trial
strategy." Commonwealth v. Matias, 63 A.3d 807, 811 (Pa. Super. 2013)
(citation omitted), appeal denied, 74 A.3d 1030 (Pa. 2013). To establish
ineffectiveness for failing to call a potential witness to testify at trial, the
petitioner must prove that:
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
the existence of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant a fair
trial
Id. at 810-811 (citations omitted). To establish prejudice, the petitioner
"must show how the [potential witness's] testimony would have been
beneficial under the circumstances of the case" and "helpful to the defense"
such that the absence of the testimony denied the petitioner a fair trial. Id.
at 811 (citation omitted); see also Commonwealth v. Chmiel, 889 A.2d
501, 546 (Pa. 2005) (holding, "[t]rial counsel's failure to call a [potential
witness] does not constitute ineffective assistance without some showing that
the [potential] witness'[s] testimony would have been beneficial or helpful in
establishing the asserted defense"), cert. denied, 549 U.S. 848 (2006). In
other words, a petitioner pleads and proves an ineffectiveness claim for failure
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to call a witness at trial when the petitioner establishes, inter alia, that no
reasonable trial strategy could have supported the decision to withhold the
witness at trial and the absence of the witness testimony denied the petitioner
a fair trial.
In the instant case, the PCRA court did not conduct an evidentiary
hearing because “there were no proffered alibi witnesses who could have
lawfully testified at a hearing” in support of Appellant’s claim that trial counsel
was ineffective for failing to investigate and to call certain alibi witnesses.
PCRA Court Opinion, 12/15/20, at 8. The PCRA court explained that it
dismissed Appellant’s petition without a hearing because Appellant failed to
provide witness certifications pursuant to Section 9545(d)(1) as part of his
PCRA petition and, as such, the potential alibi witnesses were barred from
offering testimony in support of Appellant’s claim. Id. at 7, citing
Commonwealth v. Brown, 767 A.2d 576, 583 (Pa. Super. 2001). The PCRA
court noted that while Appellant submitted a witness certification for his
brother’s paramour and an evidentiary hearing was initially scheduled for the
purpose of taking this person’s testimony, the evidentiary hearing was
ultimately cancelled when original PCRA counsel withdrew the witness
certification at a pre-hearing conference. PCRA Court Opinion, 12/15/20, at
7-8. The PCRA court concluded that because Appellant was unable to provide
evidence in support of this ineffective assistance of trial counsel claim, and in
particular he was unable to provide the testimony of potential alibi witnesses,
Appellant was unable to satisfy the three-part ineffectiveness test. Id. at 5-8.
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As such, the PCRA court dismissed Appellant’s ineffectiveness of trial counsel
claim as being without merit. Id. at 8.
This case presents a unique circumstance in which this Court, in order
to review the dismissal of Appellant’s ineffectiveness of original PCRA counsel
claim, must examine whether the underlying claim – the ineffectiveness of
trial counsel for failure to investigate and call two potential alibi witnesses
(Appellant’s brother and his uncle) – satisfied the three-part ineffectiveness
test. Based upon the current record, and specifically in the absence of an
evidentiary hearing, we are unable to review Appellant’s claim. As our
Supreme Court in Bradley, supra, recognized, when allegations of PCRA
counsel’s ineffectiveness are raised for the first time on appeal, an appellate
court “may need to remand to the PCRA court for further development of the
record and for the PCRA court to consider such claims as an initial matter.”
We find that development of the record in the case sub judice is necessary to
provide Appellant, in the interest of fairness and justice, an opportunity to
plead and prove his ineffectiveness claim.
Therefore, we vacate the August 28, 2020 order denying Appellant’s
PCRA petition and remand this case to the PCRA court so that current PCRA
counsel may file an amended PCRA petition that, inter alia, complies with
Section 9545(d)(1) and sets forth a viable ineffectiveness claim.7 Thereafter
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7 In its appellate brief, the Commonwealth advocates for the remand of the
case sub judice to provide Appellant “an opportunity to carry his burden of
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the PCRA court shall conduct an evidentiary hearing for the purpose of
considering Appellant’s underlying claim of ineffectiveness of trial counsel.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/2/2022
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proving that [original] PCRA counsel was ineffective for not properly
presenting a claim that trial counsel was ineffective for not calling [Appellant’s]
brother and uncle as [potential] alibi witnesses [at trial]. Commonwealth’s
Brief at 4.
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