J-S73027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

JEFFREY ANDERSON,

                          Appellant                    No. 688 WDA 2018


            Appeal from the PCRA Order Entered April 10, 2018
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0003325-2015

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED JANUARY 30, 2019

      Appellant, Jeffrey Anderson, appeals from the post-conviction court’s

April 10, 2018 order denying his timely-filed petition under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The PCRA court summarized the facts of Appellant’s case, as follows:
            This case involves a robbery that occurred at the Avalon
      Hotel in downtown Erie, Pennsylvania[,] at approximately 3:42
      a.m. on October 2, 2015. Dawn Keister was working the front
      desk at the Avalon when she was approached by a white male in
      the main lobby. The suspect brandished a knife and told Keister
      to give him the money. Keister filled the bag with approximately
      $70.00 in cash and the suspect fled. Although the robber was
      wearing a blue hoodie and a scarf over the lower half of his face,
      Keister recognized him as someone who had previously worked at
      the Avalon whose name was “Jeff.” The [robbery] was captured
      on the hotel surveillance video. Later, Keister positively identified
      [Appellant] “without hesitation” in a photo line-up as the robber.

PCRA Court Opinion (PCO), 4/10/18, at 1.
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       Based on this evidence, a jury convicted Appellant of robbery, theft by

unlawful taking, receiving stolen property, simple assault, and possessing an

instrument of crime. He was sentenced on July 21, 2016, to an aggregate

term of 40 to 120 months’ incarceration, followed by 5 years’ probation.

Appellant filed a timely appeal, and this Court affirmed. Commonwealth v.

Anderson, 174 A.3d 120 (Pa. Super. 2017) (unpublished memorandum).

       On September 22, 2017, Appellant filed a pro se PCRA petition. Counsel

was appointed and originally filed a Turner/Finley1 ‘no-merit’ letter.

However, the court ordered counsel “to supplement his no[-]merit letter to

address the issue of trial counsel’s failure to call alibi witness Patricia M.

Anderson ([Appellant’s] mother) at trial.” PCO at 3. Counsel thereafter filed

an amended petition arguing the merits of this single ineffectiveness claim.

Attached thereto, counsel included a statement by Ms. Anderson setting forth

her alibi defense for Appellant, which will be discussed in more detail, infra.

       The court conducted a PCRA hearing on April 6, 2018. On April 10,

2018, the court issued an order and accompanying opinion denying

Appellant’s petition.     Appellant filed a timely notice of appeal, and he also

timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.         In lieu of a separate Rule

1925(a) opinion, the court relied on its April 10, 2018 opinion in support of its

____________________________________________


1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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order denying Appellant’s petition. Herein, Appellant raises the following two

issues for our review:
       A. Whether the [PCRA] court erred in failing to declare a mistrial?

       B. Whether [Appellant] was afforded ineffective assistance of
          counsel in that defense counsel failed to formally move for a
          mistrial based upon the conduct of [the] Commonwealth … and
          defense counsel failed to present an alibi witness, namely,
          Patricia Anderson, who was present at trial and who had been
          the predicate for counsel[’s] issuing a Notice of Intention to
          Present Alibi?

Appellant’s Brief at 2.2

       Our standard of review regarding an order denying post-conviction relief

under the PCRA is whether the determination of the court is supported by the

evidence of record and is free of legal error. Commonwealth v. Ragan, 923

A.2d 1169, 1170 (Pa. 2007). This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding. Commonwealth v. Touw, 781 A.2d

1250, 1252 (Pa. Super. 2001).

       In Appellant’s first issue, he contends that the trial court erred by “failing

to grant a mistrial as of its own accord” when “the Commonwealth presented

evidence of a video on social media in which [] [A]ppellant was identified as

the perpetrator, which constituted blatant and express hearsay evidence….”

Appellant’s Brief at 4. According to Appellant, while the court “admonish[ed]

____________________________________________


2We note that Appellant fails to adhere to Pa.R.A.P. 2119’s mandate that his
Argument “be divided into as many parts as there are questions to be
argued….” Nevertheless, because we can discern the claims he raises, we will
overlook this briefing error.

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the Commonwealth and … threaten[ed] the issuance of a mistrial[,]” it erred

by only issuing a cautionary instruction to the jury. Id.

      We initially chastise Appellant for not citing to where in the record this

alleged trial court error occurred. Notwithstanding, however, his claim fails

on its face, as it is not cognizable under the PCRA.        See 42 Pa.C.S. §

9543(a)(2) (setting forth the claims that are cognizable under the PCRA).

Moreover, we would also deem this claim waived because Appellant could have

raised it on direct appeal but failed to do so. See 42 Pa.C.S. § 9543(a)(3)

(stating that to be eligible for PCRA relief, the [Appellant] must demonstrate

that the claim was not previously litigated or waived); 42 Pa.C.S. § 9544(b)

(directing that “an issue is waived if the [Appellant] could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal or in a

prior state post[-]conviction proceeding”).

      In Appellant’s second issue, he alleges that his trial counsel, Brian

Arrowsmith, Esq., acted ineffectively in two ways: (1) by failing to request a

mistrial based on the Commonwealth’s admission of the social media video

that ostensibly contained hearsay; and (2) by not calling to the stand his alibi

witness, Patricia Anderson. In regard to ineffectiveness claims, our Supreme

Court has directed that the following standards apply:
      [A] PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence
      resulted from the “[i]neffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
      “Counsel is presumed effective, and to rebut that presumption,

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     the PCRA petitioner must demonstrate that counsel’s performance
     was deficient and that such deficiency prejudiced him.”
     [Commonwealth v.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,]
     886 [(Pa. 2010)] (citing Strickland[ v. Washington, 104 S.Ct.
     2053 (1984)]). In Pennsylvania, we have refined the Strickland
     performance and prejudice test into a three-part inquiry. See
     [Commonwealth v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa.
     1987)]. Thus, to prove counsel ineffective, the petitioner must
     show that: (1) his underlying claim is of arguable merit; (2)
     counsel had no reasonable basis for his action or inaction; and (3)
     the petitioner suffered actual prejudice as a result.
     Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291 (2010).
     “If a petitioner fails to prove any of these prongs, his claim fails.”
     Commonwealth v. Simpson, [620] Pa. [60, 73], 66 A.3d 253,
     260 (2013) (citation omitted). Generally, counsel’s assistance is
     deemed constitutionally effective if he chose a particular course of
     conduct that had some reasonable basis designed to effectuate his
     client’s interests. See Ali, supra. Where matters of strategy and
     tactics are concerned, “[a] finding that a chosen strategy lacked
     a reasonable basis is not warranted unless it can be concluded
     that an alternative not chosen offered a potential for success
     substantially greater than the course actually pursued.” Colavita,
     606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks
     omitted). To demonstrate prejudice, the petitioner must show
     that “there is a reasonable probability that, but for counsel’s
     unprofessional errors, the result of the proceedings would have
     been different.” Commonwealth v. King, 618 Pa. 405, 57 A.3d
     607, 613 (2012) (quotation, quotation marks, and citation
     omitted). “‘[A] reasonable probability is a probability that is
     sufficient to undermine confidence in the outcome of the
     proceeding.’” Ali, 608 Pa. at 86–87, 10 A.3d at 291 (quoting
     Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244
     (2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

     We conclude that Appellant’s first allegation of ineffectiveness,

regarding counsel’s failure to request a mistrial, is waived. Appellant merely

tacks this claim onto his first argument that the court should have granted a

mistrial after the Commonwealth ostensibly admitted a video containing



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hearsay. Notably, Appellant’s entire argument to support this ineffectiveness

claim amounts to the following, single sentence: “Moreover, counsel failed to

even take up [] [A]ppellant’s right to a fair trial through stepping up and

seeking the provision of a mistrial when confronted with the conduct leading

up to the admonition and curative instruction by the trial [c]ourt.” Appellant’s

Brief at 4. Additionally, Appellant provides no citations to the record or any

legal authority to support his argument that a mistrial was warranted and that

Attorney     Arrowsmith   should   have    moved    for   such   relief.     See

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“When

briefing the various issues that have been preserved, it is an appellant’s duty

to present arguments that are sufficiently developed for our review. The brief

must support the claims with pertinent discussion, with references to the

record and with citations to legal authorities. Citations to authorities must

articulate the principles for which they are cited.”) (citations omitted).

Therefore, we deem Appellant’s first ineffectiveness claim waived. See id.

(“[W]hen defects in a brief impede our ability to conduct meaningful appellate

review, we may dismiss the appeal entirely or find certain issues to be

waived.”).

      Nevertheless, even if not waived, we would discern no error in the PCRA

court’s rationale for concluding that no mistrial was warranted and, therefore,

counsel was not ineffective. Specifically, the court reasoned:

            First[, Appellant] claims the trial court should have declared
      (and his counsel should have requested) a mistrial. This claim is
      meritless, because no mistrial was warranted. [Appellant]

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     apparently relies on the trial court’s cautionary statements to
     Assistant District Attorney Lightner when [Appellant]’s counsel,
     Attorney Arrowsmith, appropriately objects to a video tape about
     to be played for the jury:

       MR. ARROWSMITH: Your Honor, my objection is based on
       the entirety of this video as highly prejudicial.

       THE COURT: Yeah, and let me tell you, [Assistant District]
       Attorney Lightner, in my view we are on the cusp of me
       granting a motion for mistrial, if one’s made, if this video
       blunders into improper territory. You’ve already done
       something that I think is improper, and that is you put in
       somebody else calling this guy and offering a name, which
       is hearsay of the most prejudicial form3...now I don’t know
       what’s in the video...If this video gets into things - and I’ve
       seen enough interviews in which police officers basically try
       to, quote, unquote, dirty up the suspect with a thousand
       irrelevancies, if it goes there, I will grant a -
          3 The [c]ourt gave a curative instruction to the jury as
          follows: “Ladies and gentlemen, first of all, I'm the
          gatekeeper of evidence. Here I heard something in my
          ear that’s improper and I’m going to stop it. He’s [the
          detective] investigating what occurred at the Avalon.
          He tells us he put something [o]n the internet and
          some person calls him and gives him a name.
          Absolutely improper. Strike it, disregard it. All right?
          You have a witness from the Avalon who made an
          identification. What someone in cyber space looks at
          and calls and says, not relevant, not admissible, not
          to be considered, not even to be speculated about.
          Wipe it from your mind as much as humanly possible.”
          (N.T. [Trial, 5/9/16,] at 90).

       MR. LIGHTNER: Your Honor -

       THE COURT: -- mistrial - let me finish - I will grant a mistrial
       quickly. So you have to ask yourself how much of this do
       you need to play...

       MR. LIGHTNER: Your Honor, the question I propose is at
       11:15 in the interview he asked, “Why does he pick you out
       of a lineup then?” And he goes, “I don’t know. I went there
       on Thursday night.”


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         THE COURT: That's fine, that's fine...

      ([Id. at] 93-95.) There was further discussion about the potential
      danger that the video might show a discussion of [Appellant’s]
      drug use (as a motive for the robbery), but the [c]ourt [gave] the
      parties a chance to review the video tape prior to showing it to
      the jury in order to prevent the disclosure any improper
      statements. ([Id. at] 96). Thus, the potential error of admitting
      improper character or propensity evidence was successfully
      averted. There was no need for the [c]ourt to carry out its threat
      to declare a mistrial, as no improper testimony was elicited. This
      was apparently disappointing to [Appellant], but does not provide
      a meritorious basis for PCRA relief.

PCO at 5-6.     The record supports the court’s conclusion.       Thus, even had

Appellant not waived this ineffectiveness claim for our review, we would deem

it meritless.

      Regarding Appellant’s second claim of ineffectiveness, he contends that

counsel erred by not calling Ms. Anderson, his alibi witness, to the stand at

trial. In rejecting this claim, the PCRA court explained:

            On February 16, 2018, [Appellant’s PCRA counsel] filed a
      Supplement to Motion for Post Conviction Relief and attached a
      statement by Patricia Anderson as follows:

         To whom it may concern[:]                              2/15/18

             I’m writing this letter to let you know that I was at Jeffrey
         Anderson’s trail (sic) and I was available to testify. On
         October 2, 2015, I worked until midnight and then went to
         the hospital to see my boyfriend. I got home at 2 a.m. and
         was upset because they had told me at the hospital that my
         boyfriend would never be able to come home because he
         had to be on oxygen all the time.[] Shortly after I got home
         my son [Appellant] got up to go to the bathroom and I
         explained to him what had happened at the hospital[. W]e
         talked for about 20 minutes and he went back to bed. Our
         rooms are right next to each other and his bedroom door is
         noisy so I know he never came out of the room for the rest
         of the night[.] [B]esides that[,] I am a very light sleeper and


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        wake up to every little sound. At the time I lived in a small
        apartment on the second floor.

                                           Ms. Patricia Anderson

     Attachment to Supplement to Motion for Post Conviction Collateral
     Relief, 2/16/18.

            An evidentiary hearing was held on April 6, 2018 to address
     the question of whether the failure to call Ms. Anderson as a trial
     witness constituted ineffective assistance of counsel. At the
     evidentiary hearing, Ms. Anderson testified that on the night of
     October 2, 2015[,] she worked until midnight, then went to the
     hospital to see her boyfriend and returned home at 2 a.m., which
     would have been the morning of October 3, 201[5].              Ms.
     Anderson’s alibi is problematic since the robbery took place at
     3:42 a.m. on October 2, 2015, not October 3, 2015. We also note
     that Ms. Anderson denied having been subpoenaed for trial and
     denied talking with Attorney Arrowsmith during a break in the
     trial, about whether she would testify on behalf of her son. We
     found Ms. Anderson’s testimony less than credible.

            At the PCRA evidentiary hearing, Attorney Arrowsmith[]
     credibly testified that he made a strategic trial decision in the
     middle of trial not to call Ms. Anderson for two reasons: 1. he
     doubted Ms. Anderson’s accuracy with respect to the date she had
     spoken to her son in the middle of the night (as evidenced by her
     continued confusion in her written statement and during the
     evidentiary hearing)[,] and 2. he was concerned that Ms.
     Anderson lacked credibility. Attorney Arrowsmith had a vivid
     recollection of speaking with Ms. Anderson in the hallway outside
     the courtroom during a break in the trial. He had hoped to use
     her in light of the fact that the victim clearly recognized his client
     as the burglar. However, it was clear that Ms. Anderson was not
     able to accurately pinpoint the date she spoke with her son in the
     middle of the night. Furthermore, it was evident to counsel that
     she was “struggling over the truth.”           For these bona fide
     reasons[,] Attorney Arrowsmith declined to call this potential
     witness.

PCO at 3-4 (emphasis in original). In sum, the PCRA court found,

     that[,] in light of Ms. Anderson’s obvious confusion about the date
     she spoke to her son, she would not have been an asset to
     [Appellant’s] case. Furthermore, we acknowledge and share


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      Attorney Arrowsmith’s legitimate concern about Ms. Anderson’s
      credibility.

Id. at 9.

      As the PCRA court correctly notes, “[w]here the record supports the

PCRA court’s credibility determinations, such determinations are binding on a

reviewing court.” Id. (citing Commonwealth v. Dennis, 17 A.3d 297, 305

(Pa. 2011) (citing Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa.

1998)). Here, the PCRA court found Ms. Anderson’s alibi incredible, or at least

inaccurate, and believed that Attorney Arrowsmith had a reasonable basis for

not calling her to the stand at trial.      As the record supports the court’s

credibility determinations, we discern no error in the court’s denying

Appellant’s second ineffectiveness claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2019




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