Com. v. Smith, S.

J-S45029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SHAWN SMITH : No. 1942 EDA 2022
Appeal from the PCRA Order Entered June 28, 2022
In the Court of Common Pleas of Bucks County
Criminal Division at No: CP-09-CR-0004431-2018
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED JUNE 07, 2023
The Commonwealth of Pennsylvania appeals from the order granting a
new trial pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 95412-46. We affirm.
On December 12, 2018, a jury found Appellee, Shawn Smith, guilty of
strangulation, assault, and harassment.1 The PCRA court summarized the
pertinent facts:
Appellee was represented by two members of the Bucks
County Public Defender’s Office—Mr. Riley Downs, Esquire during
his preliminary hearing and Mr. Brian McBeth, Esquire during his
trial and sentencing.
Appellee’s conviction stemmed from an incident that
occurred on May 6, 2018. Appellee assaulted his on-and-off
girlfriend, Holly Stiffel (hereinafter “Victim”), at the apartment
they shared in Quakertown, Bucks County. Victim had swelling
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1 18 Pa.C.S.A. §§ 2718, 2701, and 2709.
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and bruising over parts of her body, but no observable marks
consistent with strangulation. The Commonwealth offered
testimony from Victim and the responding police officer to prove
its case in chief.
On the morning of trial, Mr. McBeth requested a continuance
to investigate a potential alibi witness. This Court denied the
request for a continuance as the trial had already been continued
previously and Mr. McBeth relayed that Appellee only notified him
shortly before trial of the alibi witness.
[…]
On March 15, 2022, this Court held a hearing on Appellee’s
PCRA wherein it learned that Appellee was originally represented
by Riley Downs, Esquire at the preliminary hearing and that he
offered Holly Smith, Appellee’s wife (hereinafter “Ms. Smith”), as
an alibi witness. She testified that, on the night of the incident,
she and Appellee were at her home in Jim Thorpe, Pennsylvania.
At some point, the case was reassigned to Mr. McBeth. While Mr.
Downs states he noted Ms. Smith’s contact information in the file,
he did not directly speak with McBeth about her testimony nor did
either attorney request the transcript from the preliminary
hearing. Mr. McBeth testified that the office investigator
attempted to reach Ms. Smith via the contact information Mr.
Downs had provided, but was unsuccessful. However, Ms. Smith
testified that she never received a call from anyone in trial
counsel’s office until just before Appellee’s sentencing.
PCRA Court Opinion, 9/21/22, at 1-3 (record citations omitted).
On February 8, 2019, the trial court sentenced Appellee to 3½ to 10
years of incarceration for strangulation with no further penalty on the
remaining convictions. This Court affirmed the judgment of sentence on
March 4, 2020. Appellant did not file a petition for allowance of appeal in our
Supreme Court.
Appellee, proceeding pro se, filed this timely first PCRA petition on June
10, 2020. An amended, counseled petition followed on October 25, 2021,
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alleging, among other things, that trial counsel was ineffective for failing to
present an alibi witness. The PCRA court conducted a hearing on March 15,
2022, receiving testimony from trial counsel and Ms. Smith. On June 28,
2022, the PCRA court entered an order awarding Appellee a new trial. This
timely appeal followed. The only issue before us is whether the PCRA court
erred in finding trial counsel ineffective for failing to present Ms. Smith as an
alibi witness and to request an alibi jury instruction based on Appellee’s own
testimony at trial.
Our standard of review is well-settled.
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record of the
PCRA court’s hearing, viewed in the light most favorable to the
prevailing party. Because most PCRA appeals involve questions
of fact and law, we employ a mixed standard of review. We defer
to the PCRA court’s factual findings and credibility determinations
supported by the record. In contrast, we review the PCRA court’s
legal conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. 2015) (en
banc), appeal denied, 123 A.3d 331 (Pa. 2015).
To prevail on a claim of ineffective assistance of counsel, a petitioner
must plead and prove that (1) the underlying claim is of arguable merit; (2)
counsel had no reasonable strategic basis for the disputed action or inaction;
and (3) counsel’s failures prejudiced the petitioner such that the outcome
would have been different but for counsel’s error. Id. at 780. Counsel is
presumed effective, and the petitioner therefore bears the burden of proving
otherwise by a preponderance of the evidence. Id. at 779-80. A failure to
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prove any one of the three prongs is fatal to the claim. Id. at 780. The extent
of counsel’s ineffectiveness must be such that “no reliable adjudication of guilt
or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
[R]egarding the failure to procure a witness’s testimony, a
petitioner must demonstrate: (1) the witness existed; (2) counsel
was either aware of or should have been aware of the witness’
existence; (3) the witness was willing and able to cooperate with
the defense; and (4) the defendant was prejudiced by the absence
of the witness’ testimony.
Commonwealth v. Simpson, 66 A.3d 253, 271 (Pa. 2013). “A PCRA court
passes on witness credibility at PCRA hearings, and its credibility
determinations should be provided great deference by reviewing courts.”
Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009).
The Commonwealth concedes that Appellee’s claims are of arguable
merit, and that the record lacks any evidence in support of a reasonable
strategic basis for trial counsel’s alleged errors. Commonwealth’s Brief at 11.
Furthermore, there is no dispute in this case that the alibi witness—Holly
Smith—existed, was known to counsel, and was willing to testify on behalf of
Appellee. Thus, we need only analyze whether the absence of Smith’s
testimony was prejudicial to Appellee.
The Commonwealth argues that the PCRA court did not adequately
assess Ms. Smith’s credibility or, in the alternative, that the PCRA court’s
finding of Ms. Smith’s credibility was not supported by the record. The
Commonwealth relies on Johnson, wherein the PCRA court granted a new
trial based on counsel’s failure to call an alibi witness. Our Supreme Court
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remanded, concluding that the PCRA court’s assessment of the alibi witness’
credibility was not sufficient. In Johnson, the PCRA court wrote that its
decision was not based on the credibility of the missing alibi witnesses, “but
on counsel’s failure to even interview the witnesses, present them, and make
an adequate defense.” Id. at 535. Our Supreme Court explained that where
an assessment of witness testimony was essential to a petitioner’s
ineffectiveness claims, the PCRA court must make specific credibility
determinations. Id. at 540.
To properly grant Strickland[2] relief here, the PCRA court
would have to find that the uncalled fact witnesses and the
deficiently prepared alibi witness had relevant evidence that could
have aided appellee’s defense, and that there is a reasonable
probability that the introduction of such evidence would have
altered the outcome of the trial. That assessment must
necessarily include some measure of a finding that the witnesses
were credible, something the PCRA court here expressly declined
to do.
Id. at 540. The PCRA court need not, however, go so far as to find that the
evidence presented at a PCRA hearing would have been deemed credible at
trial. Id. at 541. Thus, in remanding to the PCRA court, the Supreme Court
gave the following instruction:
In assessing credibility on remand in the case sub judice,
the question for the PCRA court is not whether the jury in fact
would have credited appellee’s new evidence and his recast alibi
evidence. Instead, the question is whether the nature and
quality of the evidence is such that there is a reasonable
probability that the jury would have credited it and
rendered a more favorable verdict.
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2 Strickland v. Washington, 466 U.S. 668 (1984).
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Id. at 542 (emphasis added).
The Commonwealth argues that the PCRA court’s assessment of Ms.
Smith’s credibility was insufficient under the Supreme Court’s analysis in
Johnson. The PCRA court found as follows:
It is clear from the preliminary hearing and PCRA hearing
that Ms. Smith’s testimony was invaluable in that it offered an alibi
defense for Appellee and, if believed, would have made it
impossible for him to have committed the crime. Further, her
presence at trial would have negated the need for trial counsel to
argue for a compromise verdict to the jury. This case depended
on whether the jury believed Victim’s testimony or whether the
jury believed Appellee’s testimony that he had an alibi. The
Commonwealth’s evidence was not overwhelming—an alibi
witness could have certainly cast doubt on Victim’s testimony.
Appellee is not required to demonstrate that Ms. Smith’s
testimony would have actually been deemed credible by a jury to
establish prejudice, only that there is a reasonable probability that
the testimony could have altered the outcome of the proceeding.
PCRA Court Opinion, 9/21/22 at 7. Thus, the PCRA court’s findings precisely
track the test set forth in Johnson.
The Commonwealth argues otherwise, relying in part on this misleading
misquote of Johnson: “Appellee must demonstrate, and the PCRA court must
find, that ‘the nature and quality [of the evidence] is such that the jury would
have credited it and rendered a more favorable verdict.’” Commonwealth’s
Brief at 15 (quoting Johnson, 966 A.2d at 540). The passage of Johnson
reads: “[T]he question is whether the nature and quality of the evidence is
such that there is a reasonable probability that the jury would have
credited it and rendered a more favorable verdict.” Johnson, 966 A.2d at
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542) (emphasis added).3 By omitting the emphasized language, the
Commonwealth mischaracterizes the holding in Johnson. The PCRA court's
findings are precisely in accord with the requirements of Johnson, and the
Commonwealth’s argument to the contrary lacks merit.
With the remainder of its brief, the Commonwealth engages in a detailed
analysis of the trial court record and of Ms. Smith’s testimony at the PCRA
hearing, arguing that Ms. Smith is obviously not credible considering the
evidence produced at trial. The Commonwealth concludes, “Although the
Commonwealth’s evidence was circumstantial and rested largely on witness
credibility, the totality of the evidence thoroughly refutes Appellee’s alibi
defense and sufficiently corroborates the victim’s version of events.”
Commonwealth’s Brief at 31. Our Supreme Court explained in Johnson that
a PCRA court’s credibility findings are entitled to “great deference.” Johnson,
966 A.2d at 539. The Commonwealth invites us to ignore that instruction,
engage in detailed fact finding, and weigh Ms. Smith’s credibility against that
of the victim. We must decline, as we are not a fact finding court.
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3 The Commonwealth incorrectly cites to page 540 rather than 542 of the
Second Atlantic Reporter.
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For the foregoing reasons, we conclude the Commonwealth has not
articulated any valid basis for reversing the PCRA court’s order.4 We therefore
affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2023
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4 The PCRA court also concluded that Appellee was entitled to a new trial for
counsel’s failure to request an alibi instruction, inasmuch as Appellee,
testifying on his own behalf, claimed an alibi. The Commonwealth addresses
this conclusion in a separate argument in its brief. Given our disposition of
this appeal, we need not address whether the absence of an alibi instruction
was prejudicial.
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