J-S39023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

HASSAN GRIMES

                            Appellant              No. 2640 EDA 2014


                 Appeal from the PCRA Order August 21, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0003104-2011


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                          FILED OCTOBER 16, 2015

       Hassan Grimes appeals the order entered August 21, 2014, in the

Delaware County Court of Common Pleas, dismissing his first petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.

Grimes seeks relief from the judgment of sentence of an aggregate six

years, three months to 12 years, six months’ incarceration, followed by

seven years’ probation, imposed after a jury found him guilty of robbery,

theft, simple assault, unlawful restraint, forgery and access device fraud.1

On appeal, Grimes argues the PCRA court erred in denying his claim that



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1
   18 Pa.C.S. §§ 3701(a)(1)(ii), 3921(a),         2701(a)(3),     2902(a)(1),
4101(a)(2), and 4106(a)(1)(ii), respectively.
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trial counsel was ineffective for failing to present an alibi witness. For the

reasons that follow, we affirm.

      The PCRA court aptly summarized the facts underlying Grimes’

conviction as follows:

            On May 5, 2011, Kimberly Shoup exited a Starbucks
         with her one-year-old daughter. As she walked with her
         child in her arms and opened the car door, someone
         grabbed her from behind. The assailant pulled Ms. Shoup
         back against him, told her not to turn around, and put a
         gun against her face. The assailant told Ms. Shoup to give
         him her rings and watch and asked where her purse was
         located. Ms. Shoup told him it was on the front passenger
         seat of her car. Because Ms. Shoup’s head was lowered,
         she did not see the assailant take the purse. Ms. Shoup
         heard the assailant move away, and she heard a car start.
         Ms. Shoup then placed her child in the car seat, and drove
         to the front of the Starbucks. She alerted a staff member,
         who called 911. Ms. Shoup was able to provide the police
         with a general description of the assailant, including skin
         color, facial hair, height, and clothing. After giving her
         statement to the police, Ms. Shoup learned that the credit
         cards that were in her stolen purse had been used. She
         then informed the police as to the stores where the credit
         cards had been used.

            The police were able to recover a video from one of
         those stores. A copy of the video showing the person who
         used the credit card played on the local news. [Grimes]
         subsequently turned himself in to the police.

      Commonwealth v. Hassan Grimes, [82 A.3d 457] 1279 EDA
      2012 pp. 1-2 (filed June 7, 2013) [unpublished memorandum]
      (citations omitted).

            The robbery took place outside a Starbucks located on
      Lancaster Avenue in Wayne, Delaware County just before 10:00
      a.m. At trial the Commonwealth presented the testimony of
      Megan Johnson. Ms. Johnson lived in Wayne on Midland Avenue,
      a street that is adjacent to the Starbucks parking lot. Sometime
      before 10:00 a.m., around the time of the robbery, Ms.


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       Johnson’s dog began to bark. She went outside of her home to
       investigate and saw someone trying to get through bushes on a
       neighbor’s property. She yelled at the person and saw an
       African-American man jump through the bushes and run to a
       white Toyota that was parked on Midland Avenue near her
       house. She was able to get the license plate number and she
       reported her observations to the police.      Sometime earlier,
       around 9:25 a.m., another neighbor, Rebecca Wood, saw a white
       Toyota occupied by a black male illegally parked on Midland
       Avenue. She saw the man exit the white Toyota and look down
       a driveway in the direction of the Starbucks. He re-entered the
       Toyota and drove away. At about the time of the robbery a
       Radnor Township police officer “chaulked” the tire of a white
       [Toyota] parked on Midland Avenue when he was conducting a
       routine patrol of the area to determine whether parked vehicles
       were in compliance with a two-hour parking restriction in effect
       on that street. He “chaulked” a few other vehicles on the street
       and then saw the white Toyota turn in the middle of the street
       and leave. He was dispatched to the Starbucks robbery at this
       time.

              At trial [Grimes] testified. He admitted that he used the
       victim’s credit cards to “shop,” but claimed that he did not rob
       her. He came to possess the cards through an acquaintance,
       Antoine Twizzy, who he knew from playing basketball. [Grimes]
       testified that while he was waiting for a bus at the Darby
       Transportation Center, Twizzy drove up and told [Grimes] he had
       “some work” and would split the proceeds of the work with
       [Grimes]. [Grimes] and Twizzy went on a shopping spree with
       Ms. Shoup’s credit cards and shared the items that [Grimes]
       purchased.

PCRA Court Opinion, 12/2/2014, at 3-4 (record citations omitted).

       Grimes was arrested and charged with a multitude of offenses.2 The

case proceeded to a jury trial.        On January 13, 2012, the jury returned a


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2
  Although Grimes was charged with 33 counts in all, the case proceeded to
the jury on only seven counts.




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verdict of guilty on the aforementioned charges.3 Grimes was sentenced on

March 1, 2012 to an aggregate term of six years, three months to 12 years,

six months’ incarceration, followed by seven years’ probation.4       A panel of

this Court affirmed his judgment of sentence on direct appeal.          Grimes,

supra.

        On February 18, 2014, Grimes filed a timely, counseled PCRA petition5

asserting trial counsel’s ineffectiveness for failing to present a purported alibi

witness, Nashira Harris.        Grimes averred trial counsel knew Harris was a

potential witness, but failed to call her to testify. To support his claim, he

attached to his PCRA petition an affidavit, signed by Harris, in which she

attested:     (1)    she was at the Darby Transportation Center in Darby,

Pennsylvania, on the morning of May 5, 2011; (2) at 9:26 a.m., she saw

Grimes there and spoke with him for a few minutes; (3) a week after

Grimes’ arrest, she received a telephone message from his trial attorney

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3
  Grimes was found not guilty of terroristic threats.        See 18 Pa.C.S. §
2706(a)(1).
4
  We note the trial court imposed a mandatory minimum five-year sentence
for Grimes’ conviction of robbery pursuant to 42 Pa.C.S. § 9712, a statute
that has been found to be constitutionally infirm in light of the United States
Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151
(U.S. 2013). See Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super
2014). Nevertheless, this Court has recently held that “Alleyne is not
entitled to retroactive effect in [a] PCRA setting.” Commonwealth v.
Riggle, ___ A.3d ___, 2015 PA Super 147, *6 (July 7, 2015).
5
    PCRA counsel entered his appearance on July 22, 2013.



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asking her to call him; (4) she returned the call, leaving four or five

messages for Grimes’ attorney, but never spoke to him; and (5) she would

have been available to testify on Grimes’ behalf at trial.      See Petition for

Post-Conviction Collateral Relief, 2/18/2014, at Exhibit A, Affidavit of Harris.

After the Commonwealth filed a response, the PCRA court scheduled an

evidentiary hearing for August 12, 2014.

       Both Grimes and his trial attorney testified at the evidentiary hearing. 6

Although Harris attended the hearing, PCRA counsel did not present her as a

witness. Counsel provided the following explanation to the court:

       I have interviewed and received an affidavit from a Nashira
       Harris. The affidavit is of January the 15th, 2014, which was
       attached to the Petition for Post-Conviction Relief. I have had an
       opportunity to speak with Ms. Harris this morning, who is
       present in the courtroom, she’s seated to your left in the first
       row. Ms. Harris has indicated to me that she would not be able
       to testify consistent with her affidavit.         Based on that
       representation to me, Judge, I am not calling her as a witness in
       this.

N.T., 8/12/2014, at 54.          Thereafter, on August 21, 2014, the PCRA court

denied Grimes’ petition for relief. This timely appeal follows.7

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6
  Trial counsel testified that prior to trial, he had a discussion with Grimes
regarding a witness who Grimes told him could “testify as to seeing me at
the Darby Transportation Center.” N.T., 8/12/2014, at 44. However, they
both determined that “bringing that witness forward would have harmed Mr.
Grimes’ case.” Id. at 45. Counsel also denied leaving a telephone message
for Harris or receiving a message from her. Id. at 48.
7
  On September 18, 2014, the PCRA court ordered Grimes to file a concise
statement of errors complained of on appeal. After requesting and receiving
(Footnote Continued Next Page)


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      Our standard of review is well-established:

      Our standard of review of an order denying PCRA relief is
      whether the record supports the PCRA court’s determination and
      whether the PCRA court’s decision is free of legal error. The
      PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014).

      Here, Grimes’ sole issue on appeal involves the ineffective assistance

of trial counsel.      Our review of an ineffectiveness claim is guided by the

following:

      In order to obtain relief on a claim of counsel ineffectiveness, a
      PCRA petitioner must satisfy the performance and prejudice test
      set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
      2052, 80 L.Ed.2d 674 (1984). In Pennsylvania, we have applied
      the Strickland test by requiring that a petitioner establish that
      (1) the underlying claim has arguable merit; (2) no reasonable
      basis existed for counsel’s action or failure to act; and (3) the
      petitioner suffered prejudice as a result of counsel's error, with
      prejudice measured by whether there is a reasonable probability
      that the result of the proceeding would have been different.
      Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213
      (2001).     Counsel is presumed to have rendered effective
      assistance, and, if a claim fails under any required element of
      the Strickland test, the court may dismiss the claim on that
      basis. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291
      (2010).

Commonwealth v. Reid, 99 A.3d 470, 481 (Pa. 2014).

      Furthermore,        in   order   to   establish   that   trial   counsel   provided

ineffective assistance in failing to call an alibi witness, Grimes must
                       _______________________
(Footnote Continued)

an extension of time, Grimes complied with the court’s directive, and filed a
concise statement on November 21, 2014.




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demonstrate:    (1) the witness existed and was available; (2) trial counsel

was aware of, or should have been aware of, the existence of the witness;

(3) the witness was ready and willing to testify on Grimes’ behalf; and (4)

“the absence of the proposed testimony prejudiced him.” Commonwealth

v. Lopez, 739 A.2d 485, 496 (Pa. 1999) (citation omitted), cert. denied,

530 U.S. 1206 (2000).

      Here, Grimes argues Harris’ signed affidavit, as well as her presence at

the PCRA hearing, was sufficient to satisfy his burden of proof. Although he

acknowledged PCRA counsel did not call Harris to testify at the hearing

because he claimed she would not testify consistent with her affidavit,

Grimes asserts “[t]hat does not mean she was unwilling to testify[,]” and

“[t]here is no way for the Court to examine the record and discern whether

Ms. Harris protested PCRA counsel’s decision.”          Grimes’ Brief at 13.

Furthermore, Grimes contends trial counsel had no reasonable basis for

failing to call Harris as an alibi witness. He notes trial counsel feared Harris

could connect Grimes to the white Toyota used in the robbery.         However,

Grimes “connected himself to the white Toyota when he testified that

[Twizzy] picked him up from the bus station after the robbery took place.”

Id. at 15 (emphasis in original).     Therefore, he argues Harris’ testimony

would not have been harmful, and would have “bolstered [his] testimony

that he was at the bus station at the time of the robbery[.]” Id.




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      The PCRA court concluded that Grimes’ “inability to present the

testimony of Ms. Harris is fatal to his claim.”        PCRA Court Opinion,

12/2/2014, at 6. The court opined:

      The affidavit attached to the PCRA petition demonstrated the
      necessity of a PCRA hearing in this case but it is not evidence
      through which [Grimes] can meet his burden of proof. In
      Commonwealth v. Dennis, 950 A.2d 945, 964 (Pa. 2008)
      where similarly the petitioner attached the affidavits of putative
      alibi witnesses to his petition but failed to produce their
      testimony to support his claim at an evidentiary hearing, the
      Supreme Court found that the petitioner failed to prove “his
      foundational claim of ineffective assistance of counsel.”

            In the case sub judice Ms. Harris was subpoenaed and
      appeared at the evidentiary hearing. Counsel represented that
      she would not be called to testify because, “she would not be
      able to testify consistent with [the] affidavit.” Without Ms.
      Harris’s favorable testimony [Grimes’] burden of proof is not
      met. Additionally, we note that [trial counsel’s] credible
      testimony supports the finding that after consultation, he and
      [Grimes] concluded that Ms. Harris’s testimony would not be
      helpful to [Grimes’] defense, because although she was the
      witness that [Grimes] “could have” [had] testify that she saw
      him at the Darby Transportation Center she had also seen him in
      a white Toyota before the robbery. This testimony would clearly
      tie [Grimes] to the vehicle that three eyewitnesses saw near the
      Starbucks in Wayne before the robbery and as it left the scene
      and support the inference that [Grimes] was the man who
      appeared to be conducting his own surveillance in the area
      before he committed the robbery.

Id. at 7-8.

      We agree with the well-reasoned analysis of the PCRA court. Grimes’

failure to present the testimony of Harris at the PCRA hearing necessarily

defeats his claim. As the Supreme Court held in Dennis, a PCRA petitioner

“cannot demonstrate prejudice sufficient to establish the ineffectiveness of



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trial counsel” by simply relying on affidavits attached to a PCRA petition.

Dennis, supra, 950 A.2d at 964. Rather, a petitioner has “failed to carry

his burden before the PCRA court by failing to take the requisite steps to

secure these witnesses’ testimony at the evidentiary hearing that was held

precisely for that purpose.” Id. The same is true here.

       Moreover, we also agree with the PCRA court’s determination that

even if Grimes’ claim had arguable merit, which we conclude it did not, trial

counsel had a reasonable basis for failing to present Harris as an alibi

witness. First, trial counsel testified Grimes told him about the possibility of

Harris providing alibi testimony “just before trial.” N.T., 8/12/2014, at 44.

Moreover, after discussing her proposed testimony with Grimes, particularly

the fact that Harris had “seen him in a certain vehicle [i.e., the white

Toyota] before[,]” they both decided not to call her as a witness. 8 Id. at 43.

Although Grimes challenges this decision based on the fact he admitted he

was in a white Toyota with Twizzy after the robbery took place, trial

counsel’s testimony implied that Harris could place him in the car before the

robbery. See Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009)

(“A PCRA court passes on witness credibility at PCRA hearings, and its


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8
  Trial counsel also testified he had conducted his own investigation, which
included visiting the Darby Transportation Center and viewing surveillance
videotape from a Dunkin’ Donuts store that Grimes said he been in the
morning of the robbery, but that counsel was unable to corroborate any
aspect of Grimes’ story. See id. at 46-47.



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credibility determinations should be provided great deference by reviewing

courts.”). Accordingly, we detect no error on the part of the PCRA court in

concluding trial counsel had a reasonable basis for his actions.

      Therefore, because Grimes failed to establish at the evidentiary

hearing that trial counsel was ineffective for not calling Harris as an alibi

witness, we affirm the order of the PCRA court dismissing his petition for

collateral relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2015




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