J. S30026/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
MARK ANTHONY ENDRES,                      :          No. 3045 EDA 2014
                                          :
                          Appellant       :


                  Appeal from the PCRA Order, August 22, 2014
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0001356-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 17, 2015

        Mark Anthony Endres, appeals, pro se, from the order of August 22,

2014, dismissing his Post Conviction Relief Act (“PCRA”) petition. 1        We

affirm.

        The trial court has summarized the facts of this case as follows:

              On June 1, 2011, following the denial of his motion
              to compel the production of the confidential
              informant, Appellant was found guilty of Possession
              with Intent to Deliver and Possession of a Controlled
              Substance in the subsequent waiver trial before the
              court.   The evidence at trial showed that, on
              November 4, 2010, between the hours of 2 P.M. and
              7 P.M., [a]ppellant sold heroin to a confidential
              informant (CI) inside the his [sic] barber shop (shop)
              located at 1022 S. 9th St. in Philadelphia.
              Philadelphia Police Officer Peggy McGrory, testified
              that she was alerted to drug sales occurring at
              [a]ppellant’s shop by the CI she used to make the

1
    See 42 Pa.C.S.A. §§ 9541-9546.
J. S30026/15


          buy on November 4, 2010.              Before entering
          [a]ppellant’s barber shop, the CI was searched and
          no drugs were found. Officer McGrory then observed
          the CI engage in a drug transaction with [a]ppellant
          from her position on the sidewalk across the street
          as she looked into the window and door of the
          [a]ppellant’s shop. Her view was unobstructed and
          she was not using any optics to enhance her vision.
          Officer McGrory clearly observed the transaction
          between [a]ppellant and the CI which occurred
          towards the rear of the barber shop and lasted about
          five minutes. She described the seller as a white
          male between 5’ 8” and 5’ 11” with short hair and a
          mustache. Officer McGrory testified further that, at
          the time, there was an employee in the shop along
          with [a]ppellant, and that there may have been
          someone getting a haircut. Officer McGrory never
          lost sight of the CI while he or she was inside
          [a]ppellant’s   shop.        The   CI    returned  to
          Officer McGrory with four packets of heroin. On
          November 6, 2010, a search warrant was obtained
          and the [a]ppellant’s shop was searched. Pursuant
          to the search warrant, approximately five grams of
          marijuana was found in a hat in a storage room at
          the back of the shop. Officer McGrory identified
          [a]ppellant as the person that engaged in the drug
          sale with the CI and [a]ppellant was arrested. At the
          time of his arrest, [a]ppellant had an Oxycodone pill
          and Clonazapam pills for which he had a
          prescription.

                At trial, [a]ppellant testified that he was in and
          out of his shop on the day of the drug transaction.
          He also testified that he employed two women at his
          shop. Appellant stated that a lot of people were in
          the shop getting their hair cut on the day of the drug
          buy. A page from the [a]ppellant’s appointment
          book dated November 4, 2010 that contained names
          and times of appointments was presented at trial.
          Some of the names on the document were not
          complete. There was a reference to a “Jeff, German
          lawyer”[Footnote 2] and a “former BC/BS guy.”
          While that date in his appointment book appeared to
          be full, [a]ppellant insisted that he could still have


                                   -2-
J. S30026/15


          been in and out of his shop under those
          circumstances. None of the persons identified on the
          page of the appointment book testified at trial.
          Following presentation of all the evidence, appellant
          was found guilty. On July 19, 2011, following denial
          of his oral motion for reconsideration of sentence
          and the testimony of several character witnesses,
          [a]ppellant was sentenced to two and one half to five
          years[’] incarceration and made work release
          eligible. He did not file a direct appeal.

                [Footnote 2] This individual was later
                identified as Jeff Adeli at the PCRA
                hearing.

                 On October 13, 2011, [a]ppellant timely filed a
          pro se PCRA petition and PCRA counsel was
          appointed.      Subsequently, [a]ppellant retained
          private counsel who filed an amended petition
          alleging that trial counsel was ineffective for failing
          to investigate or call the witnesses identified in
          [a]ppellant’s appointment book and for failing to
          pursue an alibi defense as [a]ppellant allegedly
          requested him to do. The Commonwealth filed a
          motion to dismiss on August 27, 2013 to which
          [a]ppellant filed a response on August 28, 2013.
          After carefully reviewing all of the submissions and
          relevant law, the Court filed a notice to dismiss on
          September 20, 2013. Both [a]ppellant and counsel
          filed a response to the notice to dismiss.           On
          November 1, 2013, the case was continued to permit
          PCRA counsel to conduct further investigation.
          Thereafter, on April 4, 2014, an evidentiary hearing
          was conducted on the issues raised in [a]ppellant’s
          petition.   Appellant testified that he gave trial
          counsel a copy of the November 4, 2010
          appointment schedule from his appointment book.
          The appointment schedule did not contain the full
          names of all individuals and contained no contact
          information. Appellant said that he told trial counsel
          that the patrons listed would prove that he did not
          engage in a drug transaction in his shop on that
          date. Initially, he testified that he told trial counsel
          to contact the listed individuals.        However, on


                                   -3-
J. S30026/15


          cross-examination [a]ppellant could not recall
          whether trial counsel instructed him to have the
          potential witnesses contact him, but stated that if
          counsel had instructed him to contact the patrons,
          he would have. He did not provide trial counsel with
          any contact information. Appellant further testified
          that trial counsel had discussed trial strategy with
          him and decided to pursue the defense theory of
          mistaken identity with which appellant agreed. In
          addition, [a]ppellant admitted that he modified the
          appointment schedule after his arrest by writing in
          that an individual arrived earlier than he was actually
          scheduled. There were also other notations written
          on the document post arrest. Both versions of the
          appointment schedule were presented during the
          hearing. The one given to trial counsel prior to trial
          and presented at trial did not include the
          modifications made by the [a]ppellant after his
          arrest.

                 Trial counsel also testified at the hearing
          stating that he met with [a]ppellant many times to
          prepare for trial including apprising [a]ppellant of
          what his defense strategy would be.            Counsel
          testified that given the limited information contained
          in the appointment book it would have been difficult
          to contact the witnesses. He also stated that he
          instructed the [a]ppellant to give him contact
          information for the witnesses or have the witnesses
          contact him directly.

                 Appellant called three witnesses during the
          evidentiary hearing: Mr. James Porreca, Mr. Jeff
          Adeli and Mr. Joseph Stivala. Mr. Porreca testified
          that he arrived at the shop sometime between 2 P.M.
          to 3 P.M. and stayed in the shop for an hour to an
          hour and a half. He stated that the [a]ppellant never
          left the shop during the time he was there. He also
          testified that he did not witness a drug transaction
          while he was in the shop. On cross examination
          Mr. Porreca did not have an independent recollection
          of what date he was in the shop. He stated that he
          knew he was in the shop on the date of the crime
          because it was the date the [a]ppellant was arrested.


                                   -4-
J. S30026/15


          When presented with the fact that the [a]ppellant
          was arrested two days after the events in question,
          Mr. Porreca said he just knew he was present the
          day in question. He could not articulate how he
          came to know this except that he heard it from
          someone after the fact. He also stated that there
          were other people in the shop, but he did not know
          who they were. Mr. Porreca did not contact the
          [a]ppellant’s trial counsel and was under the
          impression that counsel would contact him.
          Additionally, he noted that the [a]ppellant had his
          phone number and that he knew [a]ppellant his
          whole life. Finally, Mr. Porreca testified that he had
          never witnessed a drug transaction in his life.

                 Mr. Adeli testified that he was in the shop from
          approximately 3 P.M. to 3:30 or 4 P.M. He stated
          that the [a]ppellant was with him the whole time and
          that he did not see a drug transaction. On cross
          examination, Mr. Adeli had no independent
          recollection of [the] date he was at the shop. He
          stated he knew he was there because the [a]ppellant
          told him he was in the shop on the date in question.
          He also said that there were other people in the
          shop, but he did not know who they were. Mr. Adeli
          also never contacted trial counsel. He also testified
          that he had never seen a drug transaction in his life.

                Mr. Stivala testified that he was at the shop
          from 4:30 P.M. to either 5:30 or 6 P.M. He stated
          that the [a]ppellant did not leave the area of the
          barber’s chair while he was in the shop. He further
          stated that he had never witnessed a drug
          transaction. On cross examination, Mr. Stivala had
          no independent recollection of the date he was in the
          shop. When pressed, he said he remembered the
          date because of its association with astrological
          signs. He later admitted that it was the [a]ppellant
          who told him he was in the shop on the date in
          question.    He also testified that there was a
          customer seated in the barber chair when he entered
          the shop and that there was [sic] no other customers
          in the shop after he left. Mr. Stivala testified that he
          told the [a]ppellant that he was available for trial,


                                   -5-
J. S30026/15


            but did not contact counsel. He also stated that he
            had witnessed one or two narcotics transactions in
            his life.

                  Following the hearing, [a]ppellant submitted a
            post hearing brief on May 15, 2014 and the
            Commonwealth submitted their response on May 28,
            2014.     On September 23, 2014, after carefully
            reviewing all of the submissions and the notes of
            testimony from the evidentiary hearing, the Court
            entered an order denying [a]ppellant’s petition for
            PCRA relief. This appeal followed.

Trial court opinion, 12/24/14 at 1-5 (footnote one omitted).

      The following issues have been presented for our review:

            1.     Did the [PCRA] Court err in failing to find that
                   trial counsel was ineffective for failing to
                   investigate known witnesses who were in
                   [appellant’s] shop and would have testified
                   that no drug transaction took place while they
                   were there[?]

            2.     Did the [PCRA] Court err in failing to find that
                   trial counsel was ineffective for failing to call
                   known witnesses at trial who would have
                   testified that they were in [appellant’s] shop
                   and would have testified that no drug
                   transaction took place while they were there[?]

            3.     Did the [PCRA] Court err in failing to find trial
                   counsel ineffective for failing to follow
                   [appellant’s] request for an “alibi” defense
                   (customers were in the shop who would have
                   testified that they did not observe a drug
                   transaction) but instead limited the defense to
                   challenging      the       identification     by
                   Officer McGrory?

Appellant’s brief at 4.




                                      -6-
J. S30026/15


      Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination, and whether

the PCRA court’s determination is free of legal error.     Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

      Moreover, as most of appellant’s issues on appeal are stated in terms

of ineffective assistance of counsel, we also note that appellant is required to

make the following showing in order to succeed with such a claim: (1) that

the underlying claim is of arguable merit; (2) that counsel had no reasonable

strategic basis for his or her action or inaction; and (3) that, but for the

errors and omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different. Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010).         The failure to satisfy any

prong of this test will cause the entire claim to fail.   Commonwealth v.

Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed

to be effective, and appellant has the burden of proving otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).

      We find no error with the PCRA court’s holding.        After a thorough

review of the record, the briefs of the parties, the applicable law, and the

well-reasoned opinion of the PCRA court, it is our determination that there is

no merit to the questions raised on appeal.       First, appellant argues that



                                     -7-
J. S30026/15


counsel was ineffective for failing to present Porreca, Adeli, and Stivala as

alibi witnesses. Appellant avers they were each in the barbershop and would

have served as alibi witnesses. Here, counsel testified that the appointment

book at the barbershop did not have proper contact information for the listed

customers.     For instance, there were entries in the appointment book for

“Jeff the German Lawyer,” “Jerry from C and E,” and “Former BC/BS Guy.”

(Notes of testimony, 4/4/14 at 88, 98.)      Counsel told appellant that any

potential witnesses could contact him and provide their potential testimony.

(Id. at 99-100.)     Appellant never supplied counsel with the necessary

information.   Porreca testified that appellant never provided him with trial

counsel’s contact information. Adeli testified that appellant never asked him

to speak with his attorney. (Id. at 44-45, 58-59.) Stivala testified that he

never spoke with counsel and was not aware of appellant’s trial. (Id. at 76-

77.)

       Furthermore, at the PCRA hearing, none of the men demonstrated that

they had independent memory of being in the barbershop on November 4,

2010, to provide an alibi.   On cross-examination, Porreca testified that he

could not remember whom he spoke with while getting his hair cut; nor

could he remember what time of day he was there -- only that he usually

gets his hair cut in the afternoon.   (Id. at 41.)   Such testimony certainly

could not have altered the outcome of the trial. Adeli initially testified that

he was in the barbershop from about 3:00 p.m. to 4:00 p.m.; however, on



                                      -8-
J. S30026/15


cross-examination he contradicted himself and conceded he had no

independent recollection of November 4th and only testified he was in the

barbershop because appellant told him that he had been there.                    (Id. at

57-58.)    The absence of this testimony cannot be said to be prejudicial.

Similarly, Stivala testified that appellant did not “remind” him that he was in

the barbershop but “told him” “do you realize that you were in there at that

time.” (Id. at 73.) Appellant has not established prejudice and no relief is

due.

       Appellant next claims that counsel was ineffective in failing to present

an alibi defense in addition to the mistaken identity defense.           (Appellant’s

brief at 25.)   However, as the trial court aptly notes, each of appellant’s

witnesses presented at the evidentiary hearing placed appellant at the

barbershop during the entire span of time each were there, which included

the time when the CI made the buy.               (Id. at 38, 49, 63-64.)         An alibi

defense, however, places the defendant in a different place than the scene

involved   to   render   it   impossible   for    him   to   be   the   guilty    party.

Commonwealth v. Rainey, 928 A.2d 215, 234 (Pa. 2007). Thus, as the

PCRA court notes, counsel provided a reasonable strategy as to why he did

not pursue this defense but instead thought mistaken identity and

challenging the credibility of the officers were a stronger defense. (Id. at

84-85.)    There can be no finding of ineffectiveness here.              If anything,

counsel was very much acting in appellant’s best interest.



                                       -9-
J. S30026/15


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2015




                          - 10 -
