J-S20040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ELIGAH HAYES,                              :
                                               :
                      Appellant                :   No. 1992 EDA 2015

                   Appeal from the PCRA Order June 26, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006331-2009


BEFORE:      BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                     FILED JUNE 20, 2017

        Eligah Hayes appeals from the order entered on June 26, 2015, in the

Court of Common Pleas of Philadelphia County, denying him relief without a

hearing on his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. § 9541, et seq. In this timely appeal, Hayes raises three

claims. He argues the PCRA Court erred in failing to find trial counsel was

ineffective for: 1) failing to present two additional alibi witnesses; 2) failing

to present the same witnesses during sentencing; and 3) failing to request a

DNA test of clothing found near the scene of the crime.         After a thorough

review of the submissions by the parties, relevant law, and the certified

record, we affirm.1
____________________________________________


1
 At trial, Hayes was convicted of attempted murder, 18 Pa.C.S. § 901(a);
aggravated assault, 18 Pa.C.S. § 2702(a); robbery, 18 Pa.C.S. §
(Footnote Continued Next Page)
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      Our standard of review for the denial of PCRA relief is both well settled

and often repeated:

      Our standard of review from the denial of post-conviction relief
      “is limited to examining whether the PCRA court's determination
      is supported by the evidence of record and whether it is free of
      legal error.” Commonwealth v. Ousley, 21 A.3d 1238, 1242
      (Pa. Super. 2011). This Court “will not disturb findings that are
      supported by the record.” Id.

Commonwealth v. Watley, 153 A.3d 1034, 1039-40 (Pa. Super. 2016).

      The standard for reviewing a claim of ineffective assistance of counsel

is similarly well established.

      When analyzing ineffectiveness claims, we begin with the
      presumption that counsel was effective. Commonwealth v.
      Spotz, 610 Pa. 17, 18 A.3d 244, 259-60 (2011). “[T]he
      defendant bears the burden of proving ineffectiveness.”
      Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1137
      (2009). To overcome the presumption of effectiveness, a PCRA
      petitioner must demonstrate that: “(1) the underlying
      substantive claim has arguable merit; (2) counsel whose
      effectiveness is being challenged did not have a reasonable basis
      for his or her actions or failure to act; and (3) the petitioner
      suffered prejudice as a result of counsel's deficient
      performance.” Id. “A claim of ineffectiveness will be denied if the
      petitioner's evidence fails to meet any of these prongs.” Id. To
      establish the second ineffectiveness prong, the petitioner must
      prove that “an alternative not chosen offered a potential for
      success substantially greater than the course actually pursued.”
      Spotz, 18 A.3d at 260 (quoting Commonwealth v. Williams,
      587 Pa. 304, 899 A.2d 1060, 1064 (2006)). To establish the
      third prong, the petitioner “must show that there is a reasonable
      probability that the outcome of the proceedings would have been
      different but for counsel's action or inaction.” Id.
                       _______________________
(Footnote Continued)

3701(a)(1)(ii); and conspiracy, 18 Pa.C.S. § 903. He received an aggregate
sentence of 30 to 60 years’ incarceration.



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Id. at 1040.

        We quote the factual history of this matter from the PCRA court’s

Pa.R.A.P. 1925(a) opinion.

        On October 16, 2008, at approximately 10:00 p.m., complainant
        Vernon Kulb III entered a grocery store at the corner of Fifth[2]
        [sic] and Sepviva Streets in Philadelphia. As he was leaving the
        store, Mr. Kulb noticed two men, later identified as defendants
        Eligah Hayes and [Craig] Woodard, crouched behind a van and
        looking in his direction. Mr. Kulb proceeded on his bicycle
        toward Amber and Cumberland Streets where he was to meet
        his girlfriend before going home.        Defendants Hayes and
        Woodard approached Mr. Kulb on foot, along with a third
        unidentified man on a bicycle, with guns drawn. When the three
        men reached complainant, co-defendant Woodard struck Mr.
        Kulb in his head with his gun, sat on his back and proceeded to
        rummage through his pockets while defendant Hayes pointed a
        gun in his face. Co-defendant Woodard then shot Mr. Kulb in the
        back and the three men fled the area.3 During a search of the
        vicinity of the shooting, police officers recovered a .45
        semiautomatic pistol and a .44-caliber Ruger Super Blackhawk
        revolver.

        Following the incident, Mr. Kulb was taken to the hospital and
        treated for his serious and permanent injuries. While in the
        hospital, he was questioned by police but refused to tell anyone
        who was responsible for shooting him.         Approximately one
        month after the shooting, Mr. Kulb identified defendants Hayes
        and Woodard from separate photographic arrays. During the
        interview, Mr. Kulb stated that neither of the two defendants
        were responsible for shooting him, and blamed the third
        unidentified man as his assailant. Later, explaining the he had
        been pressured to falsely identify the shooter as the unidentified
        man, Mr. Kulb identified co-defendant Woodard as the shooter
____________________________________________


2
    It is actually Firth Street.
3
  The notes of testimony reflect that Kulb was shot at approximately 10:15
p.m.



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       and further implicated defendant Hayes in the shooting as
       articulated above.

PCRA Court Opinion, 1/19/2016, at 2-3.

       Additionally, relevant to this appeal, we note that Hayes presented an

alibi defense, claiming to have been in Atlantic City, with his mother, at her

home, at the time of the shooting.             N.T. 9/9/2010, at 100.   He further

testified that Woodard had called him at 10:09 p.m. on the night of the

shooting, informing Hayes that he was at the hospital being treated for a

head injury suffered as the result of an assault by an unknown person. Id.

at 107-08. Woodard also informed Hayes that he had been informed by a

person named Lou, that Kulb had been shot.4 Id. at 110. Hayes supported

his claim by presenting a purported copy of Woodard’s phone bill showing a

phone call at 10:09 p.m. to a number he claimed was his mother’s. Id. at

101.

       On cross-examination, Hayes specifically denied Woodard had told him

that Hayes was implicated in the shooting; Hayes also denied he had told his

mother that he had been accused of the crime. Id. at 117-20. The phone

bill was revealed to be in the name of Joan Johnson.             Id. at 112.    In

addition, when reminded that Kulb had not been shot until approximately

10:15 p.m., six minutes after the phone call, Hayes allowed that a 10:38


____________________________________________


4
 Kulb also testified that a person named Louis stole his bicycle after he had
been shot. It was not revealed if Louis and Lou are the same person.




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p.m. phone call listed on the bill might have been the relevant phone call.

Id. at 112, 114. When confronted with the fact the hospital records showed

Woodard was not admitted until 12:25 a.m.,5 Hayes explained that at the

time of the phone call, approximately two hours prior to admission, Woodard

said he was at the hospital, filling out paperwork. Id. at 135.

       Hayes’ alibi witness was his mother, Alia Macey. Macey testified that

at approximately noon on the day of the shooting, Hayes received a phone

call. Id. at 145, 140. In response to that call, he began crying and told her

that he was being accused of shooting Kulb. Id. at 140. Macey told him not

to worry because he clearly could not have committed the crime, having

been with her. Id. at 141. When confronted with the fact that Kulb did not

identify Woodard or Hayes as the attackers for more than one month after

the crime, Macey explained that Kulb had put the word out on the street.

Id. at 147-48.        When asked how her son could receive a phone call

identifying him as the person who shot Kulb hours before Kulb was shot,

Macey testified her medications might have confused her about the time.

Id. at 152.




____________________________________________


5
  Woodard did not testify at trial. The only evidence he presented was a
copy of the hospital records showing he was not admitted until 12:25 a.m.,
approximately two hours after the shooting.



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        Against this evidence, Hayes first claims his trial counsel was

ineffective for failing to call two additional alibi witnesses.      Based on our

review, this claim fails.

        Here, we agree with the PCRA court’s determination that Hayes’ offer

of proof failed to satisfy the legal standard for relief for a claim of failure to

call a witness. In order to prevail on such a claim, a petitioner must show:

(1) the witness existed, (2) the witness was available to testify, (3) counsel

knew or should have known about the witness; (4) the witness was willing to

testify; and (5) the absence of the testimony was so prejudicial as to deny

the petitioner a fair trial. See Commonwealth v. Thomas, 44 A.3d 12 (Pa.

2012).

        The first additional alibi witness was Leeann Mobley, a next-door

neighbor of Alia Macey.            Leeann Mobley provided an affidavit dated

12/23/2014.      Although this was Leeann Mobley’s affidavit, it is signed by

both Leeann and Deborah Mobley.6 In this affidavit, Mobley claims she went

to Macey’s home at approximately 9:45 p.m. in order to ask her for a

cigarette. At that time, she saw Hayes sitting at the computer, talking on

the telephone. He later told her about his predicament and she remembered

that as the night she borrowed a cigarette from Macey.                 See Mobley

Affidavit, December 23, 2014.           Despite the proffer of this affidavit, it is


____________________________________________


6
    We believe Deborah Mobley to be Leeann’s grandmother.



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undeniable that during trial Hayes specifically testified that Mobley could

have testified as to his whereabouts but was unable to attend the trial

because she had recently given birth. See N.T. Trial, 6/9/2010, at 108-09.

Accordingly, Mobley was not available to testify and counsel cannot be

ineffective for failing to call her to the stand.

      The second proposed alibi witness was James Butcher who provided an

undated affidavit explaining while he cannot remember the date or time, he

saw Hayes at his mother’s house on the computer when he received a phone

call telling him what had happened.        See Butcher Affidavit.    As the PCRA

court noted, a proposed alibi witness who cannot testify as to the date or

time he saw the accused is not, truly, an alibi witness.         See PCRA Court

Opinion, at 5-6. Because Butcher cannot state the actual date or time he

saw Hayes, the lack of his testimony cannot be prejudicial to Hayes.

Therefore, counsel cannot be ineffective for failing to call James Butcher to

testify.

      Next, Hayes claims trial counsel was ineffective for failing to call

Mobley and Butcher to testify during sentencing.             Hayes argues these

witnesses would have testified regarding Hayes’ “involvement in his

children’s lives, his good character as a family member and friend and about

the hardships that he suffered as a child.”         Appellant’s Brief at 14.   This

argument fails.

      First, we note that neither affidavit provides any statement regarding

Hayes’ character or that either Mobley or Butcher would have been willing

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and able to provide such testimony at sentencing. Accordingly, Hayes is not

entitled to relief on this issue.

       Additionally, the PCRA judge7 noted that at sentencing he had the

benefit of a pre-sentence report, mental health evaluation, guideline

computations and argument by defense counsel. Judge Byrd considered all

of those factors as well as balancing Hayes’ need for rehabilitation and the

needs of society.        In doing so, Judge Byrd opined that the proposed

character witnesses would not have altered the sentence.               Accordingly,

Hayes cannot demonstrate prejudice and cannot prevail on an ineffective

assistance of counsel claim.

       Although not included in his statement of questions involved, Hayes

also argues his sentence was excessive and had the court been informed of

the mitigating factors Butcher and Mobley would have provided, his sentence

would have been appropriately lessened.8                  As indicated above, the

sentencing court stated such information would not have affected the

sentence     imposed.        Further,    the   sentence    imposed,   20-40   years’

____________________________________________


7
 The Honorable Sandy L.V. Byrd was both trial and sentencing judge as well
as the PCRA judge.
8
   We accept this argument as being fairly included in the ineffective
assistance of counsel claim of failing to call character witnesses at
sentencing. See Pa.R.A.P. 2116(a). We do not accept this issue as an
ineffective assistance of counsel claim for failure to file a post-sentence
motion challenging the discretionary aspects of Hayes’ sentence. That would
be a separate claim requiring a separate question and argument. Id.



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incarceration for attempted murder was within the statutory limits as well as

within the standard range for a prior record score of five.             See N.T.

Sentencing, 7/30/2010, at 7, 25-26.            Therefore, Hayes is not entitled to

relief on this aspect of his claim.

        Hayes’ final argument is that trial counsel was ineffective for failing to

request DNA testing on the “jacket and a sweatshirt” 9 found near the crime

scene.     Hayes provides no citation to the certified record regarding the

“jacket and sweatshirt.” We believe he means the “jacket-type thing almost

like a hoody kind of thing” found by Police Officer Lonnie Claussen.          N.T.

Trial, 6/8/2010, at 139. If so, these are one in the same, not two separate

articles of clothing. In any event, Hayes’ clothing, on the night of the crime,

was never described. Accordingly, even if the clothing had been tested for

DNA, and even if that test indicated Hayes did not wear the clothing, the test

would not exonerate Hayes. Therefore, Hayes suffered no prejudice in the

failure to test the jacket/hoody for DNA. With no prejudice, counsel was not

ineffective for failing to request the test.

        In light of the foregoing, our review of this matter demonstrates the

PCRA court’s denial of relief is supported by the record and free from legal

error and abuse of discretion.

        Order affirmed.


____________________________________________


9
    Appellant’s Brief at 16.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2017




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