J-S71024-12 No. 393 EDA 2012
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered December 9, 2011,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0410601-2006.
Retired Senior Judge assigned to the Superior Court.
This is the Commonwealth's appeal from the order granting Edward E. Stewart ("Stewart") a new trial following his timely petition for post-conviction relief pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-46 ("PCRA"). We reverse and reinstate Stewart's judgment of sentence.
Stewart was first brought to trial on murder and related charges on March 26, 2007. During the jury selection process, trial counsel informed the trial court that he would not be calling any defense witnesses. The following exchange between the trial court, trial counsel, and Stewart then occurred:
THE COURT: [Stewart] you understand that you're hear for jury selection?N.T., 3/26/07, at 7-9.
THE COURT: We're going to be going to trial. I'm about to start reading or stating some witnesses who might be called to testify. Some might just be names that are mentioned during the course of the trial. I'm going to state those to the jury panel that comes in here. Are there any witnesses that you have discussed with [trial counsel]?
[STEWART]: No, not at this time.
THE COURT: Well, at what time did you think that those would be relevant?
THE COURT: Well, what do you mean "not at this time"?
[TRIAL COUNSEL]: Are there any witnesses that you wanted me to call that I did not?
THE COURT: There is not going to be any other time. This is the time.
[STEWART]: I know that.
THE COURT: Okay. So is that just a slip-of-the-tongue, so-to-speak?
[ STEWART ]: Yes.
THE COURT: And so you have never given any witnesses to
[trial counsel] so that he could investigate, is that correct, or am I incorrect? Don't look at him. I'm talking to you.
[STEWART]: That's correct.
THE COURT: And do you have some witnesses that you've never given to [trial counsel] and that right now you're thinking, uh-oh, I should have given him such-and-such?
[ STEWART]: No.
THE COURT: Okay. So there are no witnesses that you have whatsoever?
[ STEWART]: No.
THE COURT: All right, I'd just like the record to be clear on that.
A certified copy of this transcript, as well as others, including Stewart's trial, was not forwarded to this Court, and appear only in the Commonwealth's reproduced record. Because Stewart has not objected to the authenticity of the Commonwealth's reproduced record, in the interest of judicial economy, we will rely on the reproduced record to review the PCRA court's determinations.
The trial court and the parties then proceeded to choose a jury. Prior to the start of Stewart's trial the next day, the court crier informed the trial court that Stewart was in an altercation that morning in the holding cell and was en route to the hospital. The court then rescheduled Appellant's trial for July 30, 2007. On that date, counsel for the parties appeared, but Appellant apparently had not been brought up from the holding cell. See N.T., 7/30/07, at 5-10. At that time, trial counsel once again informed the court that there would not be a defense witness list.
Stewart's trial began the next day. The testimony presented has been summarized as follows:
During the trial, Alvin Hooper, Jr., testified he and [Stewart] were friends, and they operated a speakeasy in the basement of a row home located on the 4100 block of Old York Road. On April 7, 2006, he, [Stewart], and the victim were at the speakeasy having drinks. The three men were laughing and "talking trash" with each other, and [Stewart] and the victim began discussing the military. At some point, Mr. Hooper, who testified that he was not intoxicated, had his head down and his eyes closed when he heard "a pop." He opened his eyes, saw the victim fall to the ground, and [Stewart] stated, "What did I do?" Mr. Hooper replied, "You know what you did.Commonwealth v. Stewart , 976 A.2d 1216 (Pa. Super. 2009), unpublished memorandum at 1-7 (citations omitted).
You just shot the guy," and [Stewart], who was now pointing the gun towards Mr. Hooper, replied, "Are you going to tell?" Mr. Hooper indicated that he would not tell and [Stewart] asked Mr. Hooper to assist in wrapping the body in a carpet. Mr. Hooper refused to help and left the basement, with [Stewart] following him to the car. [Stewart] instructed Mr. Hooper to go home and throw away his clothes. [Stewart] told Mr. Hooper he would buy him new clothes, and Mr. Hooper said to [Stewart], "Look, that's cool. You don't have to do that. I'm not messing with you no more. Don't call me. I won't call you." Mr. Hooper drove away, and upon the advice of his friend, who is a police officer, Mr. Hooper went immediately to the police station to report the shooting. Mr. Hooper testified that neither he nor the victim was in possession of a gun at the time of the shooting but there was a gun on a shelf behind the bar. Mr. Hooper indicated the gun had been behind the bar for days but Mr. Hooper "never paid it any mind."
[On cross-examination,] Mr. Hooper admitted that he had been arrested twice for [driving] while under the influence and once for possession with the intent to deliver a controlled substance. Mr. Hooper indicated he could not remember whether [Stewart] was drinking on the night in question but the victim was a customer at the speakeasy. Mr. Hooper admitted that, prior to the shooting, he did not observe [Stewart] with a gun in his hands and he doesn't know whether anyone came in or left the bar while he was sleeping. [Stewart] was the sole resident of the row home where the shooting occurred, and Mr. Hooper denied having keys to the premises. Mr. Hooper expressly denied shooting the victim.
Police Officer Raymond Heim confirmed that, on April 7, 2006 at approximately 3:25 p.m., Mr. Hooper, who had blood and human tissue on his pants, shirt, and shoes, ran into police headquarters and indicated he had just witnessed a man being shot in the head with a rifle at a speakeasy on Old York Road. Specifically, Mr. Hooper, who was visibly shaken indicated "Spawn" had shot the victim during an argument over the military. Mr. Hooper accompanied the police to the 4100 block of Old York Road and pointed to a row home where a speakeasy was being operated in the basement and the shooting had occurred.
The police discovered the deceased victim lying on the floor in front of the bar with a gunshot wound to the side of his head.
Detective Gregory Rodden testified that he investigated the shooting, observed the victim's body lying on the floor in front of the bar, and discovered mail, including a water bill, addressed to [Stewart]. He found in the bar area two shotgun shells, a fired cartridge casing, and bullet holes in a chair. Detective Henry Glenn testified he seized Mr. Hooper's bloody clothing, including blue jeans, a green-colored army style-jacket, and Timberland boots, and submitted them to the criminalistics lab. Gamal Emira, a forensic scientist, confirmed the blood was of human origin.
Kenneth James Lay, a firearms laboratory supervisor, received the ballistics evidence. He indicated the fifty-one uncoated lead fragments, as well as the shot wad, were unsuitable for microscopic comparison. The "plastic over the powder wad" was 12 gauge in caliber and flattened with blood-like and tissue-like substances attached. The plastic shot cup wad was torn and distorted with blood-like and tissue-like substances. The plastic cup shot wad had a weight of 17.3 grains [sic] and it was also a 12 gauge in caliber. Mr. Lay indicated that a plastic shot wad does not typically penetrate the skin if shot from more than five to six feet away, and he opined that the shotgun was fired from a distance of two to three feet away from the victim.
Patricia Stewart, who is [Stewart's] grandmother, testified that [Stewart] was not living on the 4100 block of Old York Road on the day in question, and instead, he was living at 4819 Franklin Street. Ms. Stewart admitted that, during the investigation, she told the police that [Stewart] lived at the subject home on Old York Road. Ms. Stewart confirmed that [Stewart's] friends called him "Spawn."
Bennett Preston, M.D., testified that he conducted a post-mortem examination of the victim on April 8, 2006, confirmed the victim died as a result of a gunshot wound to the head, and opined the manner of death was homicide. He indicated the victim would have dropped "right on the spot" after he was shot, and the victim was shot from a close-range.
Omar Saladeen Taylor, who used to be on the police department, testified that he knows Mr. Hooper and [Stewart], a/k/a "Spawn." Mr. Taylor indicated that, on April 7, 2006, Mr. Hooper telephoned him and told him he had just witnessed Spawn shooting someone. Mr. Hooper told Mr. Taylor that Spawn and the victim were arguing over whether the Army or the Marines were better. Mr. Hooper further told Mr. Taylor that, during the argument, Mr. Hooper saw [Stewart] reach under a bar, pull out a gun, and shoot the victim in the head. Mr. Taylor advised Mr. Hooper to travel directly to the nearest police vehicle or station.
[Stewart] testified that he was not at the speakeasy on the date and time in question, he denied shooting the victim, and he denied having any problems with the victim. He testified that, at the time of the shooting, he was at 4819 North Franklin Street, where he was living with his fiancée and children. He testified that he was watching the children during the time of the shooting, and he did not learn of the shooting until approximately 5:00 or 6:00 p.m. that day when he checked the messages on his cell phone. He testified that Mr. Hooper had left him a message indicating he was at the police station and [Stewart] better "handle his business." [Stewart] indicated that his father owned the home at 4100 Old York Road, and Mr. Hooper ran an after-hours bar out of the basement. [Stewart] admitted that both he and Mr. Hooper had invested money in order to operate the bar, and they both had keys to the premises. [Stewart] denied either owning a shotgun or being aware that a shotgun was kept at the speakeasy. He further denied being in the company of the victim at any time on April 6 or April 7, 2006.
Barbara Boulware testified that she was at the speakeasy during the evening of April 6, 2006 into April 7, 2006, and [Stewart] and the victim drove her home at approximately 1:00 p.m. on April 7, 2006. Ms. Boulware admitted that she had been drinking while she was at the speakeasy.
Based on this evidence, the jury convicted Stewart of first-degree murder and possessing an instrument of crime. The trial court sentenced Stewart to an aggregate term of life in prison. After Stewart's timely filed post-sentence motion was denied by operation of law, Stewart filed a timely appeal to this Court. On May 21, 2009, this Court affirmed Stewart's judgment of sentence. Stewart, supra . Stewart did not file a petition for allowance of appeal to our Supreme Court.
On November 30, 2009, Stewart filed a timely pro se PCRA petition. The PCRA court appointed counsel, and PCRA counsel filed an amended petition on October 26, 2010. Within this amended petition, Stewart asserted that trial counsel was ineffective for failing to interview alibi witness Rasheda Grazier and present her testimony at trial. [Stewart] further asserted that trial counsel was ineffective for failing to file and serve an alibi notice according to Pa.R.Crim.P. 567, and for failing to ensure that Ms. Grazier was sequestered prior to the presentation of testimony. On January 20, 2011, the Commonwealth filed a motion to dismiss Stewart's PCRA petition, and on March 16, 2011, Stewart filed a supplemental amended PCRA petition. The PCRA court held evidentiary hearings, at which trial counsel, Ms. Grazier, and Stewart testified, on June 14 and June 17, 2011. The PCRA court heard the argument of the parties on July 8, 2011. After reviewing all the pleadings and the entire record, the PCRA court found that trial counsel was ineffective, and granted Stewart a new trial. This timely appeal by the Commonwealth followed. Both the Commonwealth and the PCRA court have complied with Pa.R.A.P. 1925.
The Commonwealth raises the following issues on appeal:
1. Is counsel ineffective for not investigating a putative alibi witness - [Stewart's] fiancée - where [Stewart] did not tell counsel that he had an alibi witness until the eve of trial and [Ms. Grazier] never disclosed the putative alibi to counsel or anyone during the 16 months that [Stewart] remained in jail, and counsel therefore reasonably concluded that the last-minute witness would be easily discredited and would harm the defense?Commonwealth Brief at 3.
2. Is [Stewart] entitled to a new trial on a claim of ineffectiveness where he failed to establish prejudice?
In reviewing the propriety of an order granting or denying PCRA relief, an appellate court is limited to ascertaining whether the record supports the determination of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Johnson , 966 A.2d 523, 532 (Pa. 2009). We pay great deference to the findings of the PCRA court, "but its legal determinations are subject to our plenary review." Id. Furthermore, to be entitled to relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence that the conviction or sentence arose from one or more of the errors enumerated in section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness of counsel.
To obtain relief under the PCRA premised on a claim that counsel was ineffective, a petitioner must establish by a preponderance of the evidence that counsel's ineffectiveness so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Id. "Generally, counsel's performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner." Id. This requires the petitioner to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice" requires the petitioner to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. Counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner , 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).
Moreover, trial counsel's strategic decisions cannot be the subject of a finding of ineffectiveness if the decision to follow a particular course of action was reasonably based and was not the result of sloth or ignorance of available alternatives. Commonwealth v. Collins , 545 A.2d 882, 886 (Pa. 1988) (cited with approval by Commonwealth v. Hall , 701 A.2d 190, 204 (Pa. 1997)). Counsel's approach must be "so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Ervin , 766 A.2d 859, 862-63 (Pa. Super. 2000) (quoting Commonwealth v. Miller , 431 A.2d 233, 234 (Pa. 1981). Our Supreme Court has defined "reasonableness" as follows:
Our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.Commonwealth v. Pierce , 527 A.2d 973, 975 (Pa. 1987) (quoting Com. ex rel. Washington v. Maroney , 235 A.2d 349, 352-53 (Pa. 1967)). See also Commonwealth v. Clark , 626 A.2d 154, 157 (Pa. 1993) (explaining that a defendant asserting ineffectiveness based upon trial strategy must demonstrate that the "alternatives not chosen offered a potential for success substantially greater than the tactics utilized)." A defendant is not entitled to appellate relief simply because a chosen strategy is unsuccessful. Commonwealth v. Buksa , 655 A.2d 576, 582 (Pa. Super. 1995).
"An alibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party." Commonwealth v. Rainey , 928 A.2d 215, 234 (Pa. 2007) (citation omitted). This Court has recently stated:
A defense counsel's failure to call a particular witness to testify does not constitute ineffectiveness per se. Commonwealth v. Cox, 603 Pa. 223, 267, 983 A.2d 666, 693 (2009) (citation omitted). "In establishing whether defense counsel was ineffective for failing to call witnesses, a defendant must prove the witnesses existed, the witnesses were ready and willing to testify, and the absence of the witnesses' testimony prejudiced petitioner and denied him a fair trial." Id. at 268, 983 A.2d at 693.Commonwealth v. Johnson , 27 A.3d 244, 247 (Pa. Super. 2011). Stated differently, trial counsel will not be found ineffective unless the PCRA petitioner can demonstrate that the witness's testimony would have aided the defense. Commonwealth v. Brown , 767 A.2d 576, 582 (Pa. Super. 2001). Trial counsel's failure to call a witness will not be considered ineffective per se, because such a decision generally involves a matter of trial strategy. Commonwealth v. Days , 718 A.2d 797, 803 (Pa. Super. 1998).
The PCRA court summarized the content of Stewart's PCRA petition and the testimony from the evidentiary hearings as follows:
[Stewart], in an attachment to his Amended PCRA petition, included an affidavit from Rasheda Grazier dated October 9, 2010. In her affidavit, Ms. Grazier stated that she was available and willing to testify at petitioner's trial and, if called, would have testified that on April 7, 2006, the date of the murder, she was not feeling well because of her pregnancy and that [Stewart] had been with her throughout the day since she needed him to care for her children. She also stated that [Stewart] received telephone messages on April 7, 2006 from Hooper and [Stewart] asked her to listen to the messages. In the affidavit, Hooper was described by Ms. Grazier as crying and sounding scared, and he asked [Stewart] to meet him at the bar. Ms. Grazier also stated in her affidavit that shePCRA Court Opinion, 5/22/12, at 3-5 (footnotes and citations omitted).
had several telephone conversations with [trial counsel] wherein she told counsel that [Stewart] was with her at the time of the killing yet he never met with her and never had an investigator interview her. [Ms. Grazier testified similarly at the evidentiary hearing.] [Stewart] also attached to his Supplemental Amended PCRA Petition two letters which [Stewart] alleged he had sent to trial counsel. In one letter, dated March 4, 2007, [Stewart] indicates that a female witness had told [Stewart] she had spoken to trial counsel and [Stewart] stated that she is coming to court for him. In the second letter, dated July 18, 2007, [Stewart] asks trial counsel " . . . did you get with my witness Rasheda Grazier" and provides a phone number and address.
Trial counsel testified at the evidentiary hearing and denied that [Stewart] told him, prior to the first trial, that he was somewhere else other than at the scene of the shooting. When shown the March 4, 2007, letter purportedly sent to him, trial counsel testified that he did not have an independent recollection of that particular document; he also did not [have] any recollection of having received the July 18, 2007 letter. He also stated that, although he had spoken to Ms. Grazier over the telephone during the time in which he represented [Stewart], she never informed him that she was with [Stewart] somewhere else at the time the shooting occurred. [Trial counsel did not state when he had spoken with Ms. Grazier, and there were no notations in his file memorializing any contact with her whatsoever.] Trial counsel did not have any independent recollection of whether Ms. Grazier called him before the second trial. Whenever it was that he spoke with her, he never inquired as to where [Stewart] was at the time of the murder, but did recall asking [Stewart] that.
The PCRA court further noted trial counsel's response to the inquiry as to why he did not seek to file a belated notice of alibi on July 30, 2007, the date he told the Court he had first discovered there was an alibi witness. Trial counsel responded:
Again, I go back to the argument that at that point to just ask for leave to file [alibi notice] would not - - there would be no reasonable way I could investigate this at this point, because of the fact that him telling me on the day in which jury selection took place, whether it was before jury selection, after jury selection, sometime during that day, I don't have an independent recollection.PCRA Court Opinion, 5/22/12, at 5 (quoting N.T., 6/14/11, at 25-27).
But to change the entire playing field or to change the entire plan of how I was going to attack this case on the day before with a statement from him, having spent time with him and investigating and talking to him and not believing, in my mind, half the things that he was telling me, one, I didn't think that this avenue of approach was going to be credible or fruitful.
Two, I didn't believe him.
And three, to ask for leave at this point, I think, again, would have gone back to my other point; that if Ms. Grazier had been permitted to be interviewed by the Commonwealth at this point, she would not have been a credible witness in this case if she were called as an alibi witness.
My strategy in this case was to try to pin this murder on Alvin Hooper. My strategy was basically to point to him, saying that he was the one that was involved in the killing.
The PCRA court found that Stewart met all three prongs of the test to establish ineffectiveness of counsel:
In the instant case, the record established that [Stewart] had told counsel of the existence of the alibi witness some time prior to trial but at least as late as the day jury selection began. The witness was present and willing to testify. Trial counsel recalled, and the record from trialPCRA Court Opinion, 5/22/12, at 9-11 (footnotes omitted).
bore out, that he had learned of Ms. Grazier as an alibi witness at least the day before opening statements, and yet made no attempt to explore her testimony to determine whether it would be beneficial for [Stewart] to call her as a witness. The only explanation that trial counsel offered at the evidentiary hearing for this failure was his conclusion, made without any discussion with the witness as to her possible testimony, that she was incredible and would be subject to heavy cross-examination by the prosecution. This explanation was unacceptable.
In the instant case, the only issue was the credibility of the Commonwealth witnesses versus that of [Stewart]. Interviewing and possibly calling a known alibi witness was inexcusable here where there was only one eyewitness presented by the Commonwealth. Counsel did not offer any reasonable basis for his decision to not even investigate this possible alibi witness, nor can this Court find any. That conclusion might have been reasonable had counsel at least spoken to the witness to assess her information. However, for trial counsel to personally determine that Ms. Grazier was incredible absent an interview of her constituted ineffectiveness. As the Court stated in [ Commonwealth v. McCaskill , 468 A.2d 472, 478 (Pa. Super. 1983)], the duty to investigate exists even if counsel believes the particular avenue offers little chance of leading to a successful defense. Trial counsel also cited to the possibility that Ms. Grazier would have been strenuously cross-examined by the prosecution as to why she had failed to tell anyone about her testimony sooner, but that was for [trial counsel] to inquire about in the first instance, and then for the jury to hear and decide whether she was credible or not. Matters of credibility are best left to the fact-finders. Commownealth v. Adams , 350 A.2d 412, 416 (Pa. 1976).
Trial counsel's stated strategy was to pin the murder on the one eyewitness, Alvin Hooper. Presenting an alibi defense, which was done through [Stewart's] testimony, was not inconsistent with that strategy and having had a witness to corroborate [Stewart's] testimony would only
have augmented that defense. Instead, the jury was left to possibly wonder where [Stewart's] fiancée was.
In support of its issues raised on appeal, the Commonwealth first contends that the PCRA court erred in concluding that trial counsel failed to provide any reasonable basis for his decision not to interview Ms. Grazier. To the contrary, the Commonwealth asserts that trial counsel reasonably concluded that Ms. Grazier "would be easily impeached and would therefore harm the defense." Commonwealth Brief at 18. According to the Commonwealth, because trial counsel "had a reasonable basis for his strategic choice," the trial court erred in granting Stewart a new trial. Id. The Commonwealth further contends that the PCRA court erred by not considering the prejudice prong of the ineffectiveness test. As noted above, in order to be entitled to relief, Stewart bore the burden of establishing that had trial counsel called Ms. Grazier to testify, the outcome of his trial would likely have been different. Johnson , 966 A.2d at 533. The Commonwealth asserts that Ms. Grazier's testimony at the evidentiary hearing failed to establish this fact.
After careful review of the record, we agree with the Commonwealth that trial counsel's decision not to call Ms. Grazier as an alibi witness was a reasonable strategic decision and that Stewart failed to establish prejudice.
Initially, the PCRA court determined that trial counsel's strategic decision would have been reasonable had he at least spoken to Ms. Grazier. By definition, however, alibi testimony establishes that a person was somewhere else when a crime was perpetrated. Rainey, supra . Thus, trial counsel was aware of the essence of Ms. Grazier's testimony, i.e., that [Stewart] was with her when the murder occurred. At the evidentiary hearing, Ms. Grazier testified to this fact. Moreover, Ms. Grazier stated in her affidavit and testified at the evidentiary hearing that she was in communication with trial counsel before both of Stewart's trials. See N.T., 6/14/11, at 109-10. Stewart failed to establish that Ms. Grazier had any additional information that would have benefitted him. Thus, because trial counsel's strategy in not calling Ms. Grazier as an alibi witness was reasonably based, Stewart's ineffectiveness claim fails. See e.g. , Commonwealth v. Davis, 554 A.2d 104, 112 (Pa. Super. 1989) (rejecting the defendant's claim that trial counsel was ineffective for failing to call an alibi witness; "By calling an alibi witness, trial counsel would have risked a shift in focus from the credibility of the Commonwealth's witness to that of the alibi witness. If successfully impeached, the alibi witness could have done more harm than good for the defense").
Finally, Stewart failed to establish the requisite prejudice. By questioning Stewart at trial about his whereabouts at the time of the murder, trial counsel introduced "alibi" testimony, and the Commonwealth was unable to ask Stewart about his post-arrest silence. Although the PCRA court determined that "having had a witness to corroborate [Stewart's] testimony would only have augmented that defense," PCRA Court Opinion, 5/22/12, at 11, Ms. Grazier's proffered alibi would have been subject to scrutiny on cross-examination by the Commonwealth, regarding her bias and her failure to come forward sooner. Thus, presenting "corroborating" alibi testimony may have harmed Stewart's defense. See e.g. , Commonwealth v. Hammond, 953 A.2d 544, 560 (Pa. Super. 2008) (reversing PCRA court's grant of new trial based upon failure to call witness; even assuming trial counsel's failure to interview personally was unreasonable, the defendant could not demonstrate that the failure to call the witness prejudiced him).
In sum, the PCRA court erred in concluding that trial counsel did not have a reasonable basis for not calling Ms. Grazier as an alibi witness. In addition, the PCRA court erred in concluding that Stewart met his burden of establishing that he was prejudiced by the absence of Ms. Grazier's testimony. We therefore reverse the order granting Stewart a new trial, and reinstate his judgment of sentence.
Order reversed. Judgment of sentence reinstated. Jurisdiction relinquished.
Judge Bowes files a Dissenting Memorandum. COMMONWEALTH OF PENNSYLVANIA,
No. 393 EDA 2012
Appeal from the Order entered December 9, 2011,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0410601-2006
Retired Senior Judge assigned to the Superior Court.
As the distinguished majority fails to adhere to our standard of review by viewing the evidence in a light most favorable to the losing party and improperly rejects the PCRA court's credibility determinations and factual findings, I must respectfully dissent.
Initially, I note that the testimony from the witnesses at the PCRA evidentiary proceedings and the trial testimony is missing from the certified record. Items dehors the certified record have traditionally been viewed as non-existent. See Commonwealth v. Bracalielly , 658 A.2d 755, 763 (Pa. 1995) (appellate courts only consider facts which have been duly certified in the record and items do not become part of the certified record by including it in the reproduced record); Commonwealth v. Montalvo , 641 A.2d 1176, 1183 (Pa.Super. 1994).
The certified record does contain the transcript from a July 8, 2011 PCRA hearing wherein the Commonwealth and Appellee presented legal argument.
The Commonwealth as the appellant is responsible for ensuring a complete record on appeal. Indeed, the Commonwealth frequently invokes waiver on the basis of a defendant's failure to ensure a complete certified record. However, the Commonwealth in this case did request that the requisite transcripts be provided to this Court. In addition, those transcripts clearly exist as the PCRA court references them and the Commonwealth provided them in the reproduced record. Our Supreme Court recently opined,
under the Rules of Appellate Procedure, while the duty is on the appellant to initiate the action necessary to provide the appellate court with all the documents necessary to allow a complete and effective appellate review, once the appellant has discharged that duty, court personnel are charged with assembling and transmitting the official record to the appellate court.Commonwealth v. Almodorar , 20 A.3d 466, 467 (Pa. 2011). For reasons not apparent from the record, though occurring far too frequently in cases arising in Philadelphia, court personnel herein did not comply. Accordingly, I do not lay blame on the Commonwealth for the missing transcripts.
The majority in footnote one asserts that because Appellee has not objected to the contents of the reproduced record that it relies on the reproduced record. I do not take issue with this reliance but believe the more prudent course would have been to request that the certified record have been made complete at an earlier juncture.
I turn now to the source of my disagreement with the majority, application of our standard and scope of review. We review an order granting a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Sam , 952 A.2d 565, 573 (Pa. 2008). This review is limited to the findings of the PCRA court and the evidence of record. Id. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. Id. "Further, we afford great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record." Commonwealth v. Carter , 21 A.3d 680, 681-82 (Pa.Super. 2011) (emphasis added).
Instantly, Appellee, the defendant, was the prevailing party at the PCRA level. Thus, we must review the record in a light most favorable to him, not the Commonwealth. Viewing the evidence in a light most favorable to Appellee, his alibi witness and then-fiancée Rasheda Grazier, was in the courtroom at his first trial and spoke with Appellee's trial attorney about being an alibi witness before that time. Ms. Grazier telephoned trial counsel and spoke to him about testifying as an alibi witness. Appellee during his second trial informed the court that he wished Ms. Grazier to testify. Ms. Grazier was present in the courtroom and available to testify at Appellee's trial.
Ms. Grazier, in her affidavit, set forth that she would testify consistently with Appellee's trial testimony, i.e., Appellee was home with her at the time of the murder. The reproduced record indicates that Ms. Grazier testified at the evidentiary hearing consistently with that affidavit. Appellee's grandmother provided copies of two letters that Appellee sent to trial counsel before his trial, one of which explicitly referred to Ms. Grazier and set forth her phone number and address. The other letter referenced a female witness who spoke with counsel and would testify on his behalf.
Trial counsel's file was extraordinarily sparse. The file contained one page which set forth the date and location of the murder, the charges leveled against Appellee, that the victim suffered a shotgun wound, and that three people were present: the victim, Appellee, and the eyewitness. Counsel did not meet with Ms. Grazier nor did an investigator speak with her. Trial counsel met with Appellee one time before his first trial and had two or three telephone conversations with Appellee. Appellee informed trial counsel at their initial meeting that he wanted counsel to call Ms. Grazier and that she would state that Appellee was with her on the date in question. Trial counsel then met with Appellee two days before his second trial. At no time did trial counsel discuss trial strategy with Appellee. Appellee asserted that he did not tell counsel that he was at the bar at the time of the killing, in direct contradiction to trial counsel's averment. He also maintained that trial counsel's statement to the trial court that he did not tell him of his alibi witness until the day before trial was not true.
Prison visitation records confirmed that counsel only met with his client twice.
Additionally, the PCRA court made credibility determinations and factual findings in Appellee's favor. We are bound by a PCRA court's credibility decisions. Commonwealth v. Johnson , 51 A.3d 237, 242-243 (Pa.Super. 2012) (en banc). Indeed, the underlying premise of the prosecuting attorney's argument at the PCRA hearing on July 8, 2011, was that Appellee and his purported alibi witness were not credible. A sampling of the arguments proffered will suffice to show that credibility was at the heart of resolving this matter.
At the outset the prosecutor asserted, "The defendant's testimony about having an alibi to begin with was just not credible. This is an issue of credibility, and I ask the Court to look at the credibility of the defendant in this case." N.T., 7/8/11, at 16. Regarding Appellee's alibi witness, the prosecutor continued, "I just can't imagine a reasonable person having their fiancé arrested and sitting in custody and not telling somebody, other than his grandmother, that he was with me. How do you do that? That doesn't make sense. That's just not credible." Id. at 20; see also id. at 21 ("none of her testimony makes sense, and again, she is biased.").
The prosecutor also maintained that letters from Appellee to his trial attorney indicating that he had an alibi witness and asking if counsel had talked with her were fabrications. Id. at 18 ("when you make things up sometimes you just go a little too far, and that was his way of allegedly trying to prove to the Court that the date he claims he sent the letters he sent them. It's just insane. It just does not make sense."). According to the prosecution, Appellee saved county prison scratch papers for over two years that conveniently had dates on them, and then wrote the letters on the back of those documents, after the fact, to show that he alerted counsel to his alibi witness. Id. at 34-41. The Commonwealth continued to hammer at issues of credibility, stating, "I contend that there absolutely is no credibility to the fact that there was an alibi at all, and I ask the Court when you consider the defendant's testimony that you also consider his crimen falsi for unauthorized use of a vehicle. I think that's relevant to whether he's being candid with the Court." Id. at 26.
In spite of these arguments, the PCRA court afforded relief. It is evident from my review that the PCRA court determined that Appellee was credible in several important respects, and that Appellee's trial counsel was not credible. Specifically, the PCRA court deemed that Appellee and Ms. Grazier were credible to the extent that Appellee's counsel was alerted of her proposed alibi testimony earlier than he claimed. Second, Appellee did not fabricate his letters to counsel, see e.g. N.T., 7/8/11, at 38, and trial counsel never interviewed the alleged alibi witness. In this regard, the PCRA court noted that trial counsel's file contained no notes regarding any discussions he had with Ms. Grazier, see PCRA Court Opinion, 5/22/12, at 5 n.17, but that "the record established that petitioner had told counsel of the alibi witness some time prior to trial [and] at least as late as the day jury selection began." Id. at 9. The PCRA court expressly made the factual finding that counsel, in a first-degree murder case, "made no attempt to explore [Ms. Grazier's] testimony to determine whether it would be beneficial for petitioner to call her as a witness." Id. (underline in original).
Most importantly, the PCRA court did not find credible trial counsel's explanation for failing to interview or call the witness, since he allowed his client to testify as to the same alibi. At the July 8, 2011 PCRA hearing, the court cogently questioned the prosecution, "So you are saying that although [trial counsel] knew that it was incredible and although the defendant had told him that he had been there at the bar, that he put on perjured testimony, although you hold him up as a paragon of whatever his duties are as counsel[?]" N.T., 7/8/11, at 30. When the prosecution responded that the PCRA proceeding was not about trial counsel's ethical obligations, the court agreed and said, "but it impacts on his credibility, because every trial attorney, certainly by the time you are doing homicide cases, should know that you do not perpetrate a fraud upon the tribunal[.]" Id. at 31. Phrased differently, trial counsel put Appellee on the stand to testify as to an alibi and argued that his testimony was credible. Therefore, trial counsel's after-the-fact explanation that Ms. Grazier's substantially identical testimony would have been viewed as incredible rings hollow.
In its opinion, the court further expounded that trial counsel's explanation that he did not present Ms. Grazier because she was not credible "might have been reasonable had counsel at least spoken to the witness to assess her information." PCRA Court Opinion, 5/22/12, at 10. According to the PCRA court, which presided over this trial, failing to interview the "known alibi witness was inexcusable here where there was only one eyewitness presented by the Commonwealth." Id. The court found that counsel "did not offer any reasonable basis for his decision not to even investigate this possible alibi witness." Id. Thus, while trial counsel offered an explanation for why he did not call the witness, he gave no credible answer to why he conducted no investigation into this case and did not interview the alibi witness. With respect to other important factual findings, the PCRA court found that trial counsel met with Appellee only one time before his first trial, and the evidence introduced at the PCRA court hearing demonstrated that trial counsel only met with Appellee twice—once before his first trial and once before his second trial.
To the extent the majority decision can be read to credit trial counsel's testimony that he did not know the witness could provide an alibi until one day before trial, this finding improperly views the evidence in a light most favorable to the Commonwealth and rejects facts that support the opposite conclusion.
The majority affords no deference to these factual findings and credibility determinations. Pointedly, the majority ignores the PCRA court's finding that trial counsel's explanation as to why he did not call the alibi witness was incredible in light of his placing Appellee on the stand to testify about the alibi and arguing that Appellee's testimony was credible. Instead, the majority comes to the opposite conclusion. Only by ignoring the contrary evidence introduced at the PCRA hearing does the majority reach its conclusion.
The majority also does not confront the PCRA court's analysis relative to trial counsel's failure to investigate and interview the witness; rather, it holds that trial counsel, despite having no prior experience with the witness and never interviewing her, had a reasonable basis for not calling her as a witness. This finding misses the point of the PCRA court's holding, which was that trial counsel was ineffective for failing to investigate and interview the witness. Neglecting to call a witness differs from failing to investigate a witness in a subtle but important way.
Commonwealth v. Perry , 644 A.2d 705 (Pa. 1994), provides some guidance. There, the defendant stabbed his friend inside a bar after arguing over whether the victim broke into the defendant's apartment. The Court examined the case as follows:
There is no question that appellant's underlying allegations of ineffectiveness-failure to interview appellant prior to trial, failure to prepare for trial, failure to use his investigator, unawareness that he was defending a capital case, and failure to prepare for the death penalty hearing-have merit. Counsel's failure to interview witnesses was ineffective, arguably per se: See Commonwealth v. Weiss , 530 Pa. 1, 606 A.2d 439 (1992); Commonwealth v. Jones , 496 Pa. 448, 437 A.2d 958 (1981); Commonwealth v. Mabie , 467 Pa. 464, 359 A.2d 369 (1976).Perry , supra at 709 (footnote omitted) (emphasis added).
The second prong of establishing ineffectiveness of counsel-whether counsel had a reasonable basis for his performance-requires little reflection and scant discussion. It is not even arguable that counsel's failure to utilize his investigator for nine months until the eve of trial could have had any reasonable basis designed to effectuate his client's interest. The other allegations of ineffectiveness, fitting broadly under the rubric of failure to prepare for trial, are not even arguably reasonable tactics serving some broad strategic plan for the defense. 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. It is not possible to provide a reasonable justification for appearing in front of a death penalty jury without thorough preparation.
Finally, Pierce requires that appellant demonstrate prejudice flowing from counsel's ineffective representation. Again, we do not think extensive analysis necessary to perceive the prejudice to appellant's defense. There is a reasonable probability that counsel's failure to interview his own client, failure to investigate a potential eyewitness, gross inattention to the capital nature of his client's plight, failure to prepare for the penalty phase of trial, failure to present known character witnesses, and presentation of such a pitiful parody of a defense case at the penalty hearing, in combination, affected the outcome of the trial.
Trial counsel failed to substantively interview either Appellee or his alibi witness, and declined to present the possible alibi witness despite permitting Appellee to testify as to the alibi. As our Supreme Court stated in Perry , "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." Id. While Perry was a death penalty case, as Justice Eakin lucidly explained in his concurrence in Commonwealth v. Brooks , 839 A.2d 245 (Pa. 2003), the right to effective counsel attaches to "the capital defendant, the felon, and the misdemeanant alike." Id. at 255-256. Presently, it is untenable to conceive a reasonable justification for appearing in a first-degree murder case without thorough preparation, including interviewing a known potential alibi witness. Yet this is precisely what the majority does.
The majority proclaims that Appellee did not establish that his alibi witness would have provided "any additional information that would have benefitted him." Majority Memorandum, at 16. Apparently, under the majority view, if the defendant himself testifies that he was not present at the crime scene, there is no purpose in calling the actual alibi witness. Such a position is untenable ab initio. The alibi witness's testimony that Appellee was with her at the time of the commission of the crime would obviously have benefitted him. While it is true that the Commonwealth could have sought to impeach her credibility, this is no different than any other criminal matter in which an alibi witness is presented.
Pointedly, our Supreme Court in a PCHA case held that it was improper for trial counsel to judge the credibility of a witness without interviewing that person. See Jones, supra at 960. In Jones , our Supreme Court specifically found trial counsel ineffective for failing to interview a witness where the key issue was between the credibility of the defendant and an undercover police officer. In doing so it opined, "It is not for this Court to decide what effect [the witness's] testimony may have had on the jury if he had been called to testify. Matters of credibility are best left to the fact-finders." Id.
The majority attributes a reasonable basis for counsel's total failure to interview a witness where none exists. Here, counsel argued during his closing statement that Appellee testified credibly as to his alibi. Yet, he never even interviewed the alibi witness. Only in his attempt to explain his utter neglect in conducting any meaningful investigation in this matter did counsel maintain that Appellee's alibi lacked credulity. Nonetheless, counsel himself argued during his closing statement that Appellee testified credibly about the alibi. Trial counsel was thus either dishonest in his closing or dishonest in asserting his reason for not interviewing and presenting Ms. Grazier. The PCRA court determined the latter.
Equally unavailing is the majority's reliance on Commonwealth v. Davis , 554 A.2d 104 (Pa.Super. 1989) and Commonwealth v. Hammond , 953 A.2d 544 (Pa.Super. 2008), to conjure a reasonable basis for trial counsel's complete failure to investigate the alibi witness. In Davis , a case involving a direct appeal and no credibility or factual findings in favor of the defendant, this Court determined that counsel was not ineffective for declining to call an alibi witness who lived with the defendant. In contrast, the PCRA court herein observed the alibi witness, heard her testimony, and deemed it sufficiently credible to award relief.
In Hammond , a PCRA matter, this Court, with one judge dissenting, did reverse an award of a new trial based on counsel's alleged failure to interview a witness. However, in Hammond , trial counsel interviewed the defendant over ten times and his investigator thoroughly interviewed the purported witness, who was not an alibi witness, had serious drug charges pending, and was incarcerated at the time of trial. Hammond is wholly inapposite for these reasons as well as the factual dissimilarities between what the witness therein would have testified to and the evidence arrayed against Hammond . Here, neither counsel nor any investigator interviewed the alibi witness, and she was not facing serious drug charges or in jail.
Finally, the majority in cursory fashion asserts that the PCRA court erred in finding actual prejudice, i.e., that there was a reasonable probability that a corroborating alibi witness's testimony would have altered the outcome of the trial, if found credible. The majority finds that the alibi witness would have been subject to cross-examination regarding bias and failure to come forward sooner. Essentially, the majority assumes, without stating, because that would plainly violate our appellate review, that the alibi witness would not have been credible. Of course, all alibi witnesses are subject to cross-examination and the PCRA court herein made its own credibility determination regarding the alibi witness. Had counsel had prior experience with the witness, seen her demeanor, interviewed her, and decided that she was unlikely to be deemed credible, I could agree that counsel actually had a reasonable strategy. Absent this type of substantive interaction with the witness, the credibility of the alibi witness was not for trial counsel to arbitrarily decide. See Jones , supra at 960; Mabie , supra.
I acknowledge that permeating throughout the Commonwealth's entire brief is its belief that the alibi witness was not credible. See e.g. , Commonwealth's brief at 22 ("No amount of additional interviewing of Ms. Grazier would have made her belated account more believable[.]"). To the extent that the Commonwealth relies heavily on the lack of credibility of the alibi witness it is important to note that while I may agree that her testimony is suspect based on the totality of the facts presented, it is not I nor this Court that makes credibility findings. The Commonwealth and this Court are simply bound by the findings of the PCRA court. Further, viewing the evidence as we must, the PCRA court, contrary to the Commonwealth's representation, determined that Ms. Grazier did not belatedly tell counsel of the alibi. Indeed, the Commonwealth is guilty of what defendants so often do in their appeals, viewing the evidence in a light most favorable to itself and not the winner below.
Moreover, trial counsel absurdly claimed that presenting the actual alibi witness, when Appellee himself was going to testify as to the alibi, was going "to change the entire playing field or to change the entire plan of how [he] was going to attack this case[.]" N.T., 7/14/11, 27. How an alibi witness testifying consistently with counsel's own client's testimony changes the playing field is beyond my comprehension. Perhaps this is why the PCRA court simply did not credit trial counsel's unbelievable explanation. Further, counsel's strategy to "pin this murder on Alvin Hooper[,]" id. , simply cannot provide a basis for not calling an alibi witness since it in no manner conflicts with that strategy.
Instantly, a solitary witness testified that Appellee committed the killing, a witness whom defense counsel argued committed the crime. In addition, the Commonwealth impeached the credibility of Appellee with one witness. Specifically, Appellee asserted that he was not at the bar on the date of the murder. The Commonwealth called a surprise witness to rebut that testimony. The witness, Barbara Boulware, was a cousin of the victim. She testified that she did not know the defendant, but knew someone named Spawn, which is the defendant's nickname. When asked if she saw Spawn in the courtroom, she replied, "His face looks familiar." R.R. 204a (N.T., 8/1/2007, at 108). Ms. Boulware further provided that Spawn and the victim gave her a ride home from the bar on the date of the murder. On cross-examination, the witness admitted that she had been consuming alcohol for twelve hours straight on the day in question. The evidence in this case was not overwhelming in any manner. Thus, I agree with the PCRA court's conclusion that there is a reasonable probability that the alibi witness's testimony could alter the outcome of the proceeding.
I note that, "[t]he 'reasonable probability' test is not a stringent one," and is a probability sufficient to undermine confidence in the outcome." Commonwealth v. Rathfon , 899 A.2d 365, 370 (Pa.Super. 2006) (emphasis in original).
Counsel in this case did nothing to advance his client's case, except to place Appellee on the stand. He conducted no investigation, did not substantively interview witnesses, nor did he substantively meet with and discuss trial strategy with his client. This cannot be the type of representation that we are to expect from attorneys. As our Supreme Court said in Mabie, supra ,
the question here is the decision not to interview [the witnesses], not the decision to refrain from calling them at trial....the value of the interview is to inform counsel of the facts of the case so that he may formulate strategy. Perhaps, after questioning these witnesses, counsel may have concluded that the best strategy was not to call them due to hostility and, as a matter of strategy, that decision on counsel's part would not be subject to a claim of ineffective assistance of counsel. Commonwealth v. Owens , 454 Pa. 268, 312 A.2d 378 (1973). However, no such claim of strategy can be attached to a decision not to interview or make an attempt to interview eyewitnesses prior to trial. Therefore, no reasonable basis designed to effectuate Mabie's interest can be attributed to counsel's failure to question these witnesses.Id. at 374-375.
As was stated in Mabie , perhaps counsel could have determined after interviewing the alibi witness that she should not be presented. Nonetheless, no such claim of a reasonable strategy attaches to a decision to entirely fail to interview the alibi witness before trial. Today's decision invites counsel to perform in a manner wholly inconsistent with the duties of a defense attorney and will have a chilling effect on a PCRA court's willingness to afford relief in those rare cases where it is actually warranted.
Since the majority acknowledges, but does not apply, our standard and scope of review, fails to view the evidence in a light most favorable to Appellee, and casts aside the PCRA court's credibility determinations and factual findings in favor of its own, I am compelled to respectfully dissent.