J-S62026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                    v.

JAMES BACON,

                           Appellant                No. 2742 EDA 2013


             Appeal from the Order Entered September 20, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0802121-2006


BEFORE: ALLEN, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 16, 2014

      Appellant, James Bacon, appeals from the order entered on September

20, 2013 denying relief on his first petition pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

      The PCRA court set forth the applicable factual and procedural history

of this case as follows:

           On April 4, 2006, an arrest warrant was issued for
        [Appellant] in connection with a shooting on April 1, 2006
        (herein, the April 2006 shooting).

            On April 19, 2006, Police Officer Jose Perez observed
        [Appellant] on 2600 Cecil B. Moore Avenue but was unable
        to arrest him. On May 7, 2006, Officer Perez observed
        [Appellant] in the same location while on patrol with Officer
        James Taylor. Officer Taylor exited the patrol vehicle and
        pursued [Appellant] on foot while Officer Perez proceeded to
        drive past [Appellant]. Once [Appellant] observed Officer
        Taylor pursuing him, [Appellant] began to run northbound
        on Bailey Street. While still running from Officer Taylor,
        [Appellant] retrieved a gun from his backpack.        Officer
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       Perez radioed for backup and told the police dispatcher that
       he observed [Appellant] and that he was armed and
       dangerous. Officer Perez exited the patrol car to pursue
       [Appellant] on foot. [Appellant] then turned around and
       fired his gun while continuing to run. He then ran around
       the southeast corner of Bailey and Montgomery Avenue and
       waited. As Officer Perez turned the corner, [Appellant] fired
       a single shot that missed the officer. [Appellant’s] gun then
       jammed and he fled once again, eluding arrest (herein, the
       May 2006 shooting). [Appellant] then turned himself in the
       next day, May 8, 2006.

           Attorney Emily Mirsky from the Defender[’s] Association
       of Philadelphia represented [Appellant] for the April 2006
       shooting and the May 2006 shooting[, which were tried
       separately]. [Appellant] was acquitted by a jury of the April
       2006 shooting. During [his subsequent] trial for the May
       2006 shooting, [Appellant] advanced a misidentification
       theory through the eyewitness testimony of his neighbor,
       Raymond Jackson.      At trial, Jackson testified that the
       shooter was not [Appellant]. Jackson’s testimony was in
       direct conflict with the testimony of Officers Perez and
       Taylor, who both identified [Appellant] as the shooter. The
       jury for the May 2006 shooting found [Appellant] guilty of
       attempted murder, aggravated assault, and possession of
       an instrument of crime.        [The trial court sentenced
       Appellant to an aggregated sentence of 15 to 30 years of
       incarceration. On appeal, this Court affirmed Appellant’s
       judgment of sentence in January 2010. The Pennsylvania
       Supreme Court denied further review on December 29,
       2010.]

           [Appellant filed a timely pro se PCRA petition in March
       2010.] On January 24, 2012, [appointed counsel] filed an
       amended [p]etition pursuant to the [PCRA]. [Appellant]
       claimed that Emily Mirsky ([Appellant’s] trial counsel) was
       ineffective for failing to call [Appellant’s] mother, Mary Fair,
       as an alibi witness; and (2) failing to call Janice Shappelle
       as an alibi witness.          The [PCRA] court granted an
       evidentiary hearing concerning [Appellant’s] two claims.
       The evidentiary hearing was held on April 12, 2013.
       [Appellant], Mary Fair, Janice Shappelle, and defense
       counsel testified at the hearing[.]


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PCRA Court Opinion, 4/4/2014, at 1-3 (record citations and headings

omitted).       By order entered on September 20, 2013, the PCRA court

dismissed Appellant’s PCRA petition. This timely appeal resulted.1

       On appeal, Appellant presents the following issues for our review:

         1. Did the PCRA court err in determining that trial counsel
            was not ineffective for failing to call Janice [S]happelle 2
            as an alibi witness when Ms. [S]happelle was willing and
            available to testify?

         2. Did the PCRA court err in concluding that trial counsel
            was not ineffective for failing to call a second alibi
            witness, Mary Fair?

Appellant’s Brief at 4.

       Both of Appellant’s issues allege, under the PCRA, that trial counsel

was ineffective for failing to call witnesses at trial. Our standard of review is

well-settled:

                We review an order of the PCRA court to determine
         whether the record supports the findings of the PCRA court
         and whether its rulings are free from legal error. To be
         eligible for PCRA relief, a petitioner must plead and prove,
____________________________________________


1
   Appellant filed a notice of appeal on September 20, 2013. On September
25, 2013, the PCRA court entered an order pursuant to Pa.R.A.P. 1925(b)
directing Appellant to file a concise statement of errors complained of on
appeal. Appellant complied timely on October 7, 2013. The PCRA court filed
an opinion pursuant to Pa.R.A.P. 1925(a) on April 4, 2014.
2
  Throughout his brief, Appellant refers to Ms. Shappelle as Ms. Chappelle.
Upon review of the record, the witness confirmed that she spells her name
“S-H-A-P-P-E-L-L-E.” N.T., 4/12/2013, at 28. Accordingly, for accuracy and
consistency, we will refer to her as Ms. Shappelle throughout this
memorandum.



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       by a preponderance of the evidence, that his conviction or
       sentence resulted from one or more of the reasons set forth
       in 42 Pa.C.S.A. § 9543(a)(2). In this case, Appellant alleges
       that his conviction and sentence resulted from ineffective
       assistance of counsel, as set forth at 42 Pa.C.S.A.
       § 9543(a)(2)(ii).

           In order to obtain relief under the PCRA premised upon
       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. When considering such a
       claim, courts presume that counsel was effective, and place
       upon the appellant the burden of proving otherwise.
       Counsel cannot be found ineffective for failure to assert a
       baseless claim.

           To succeed on a claim that counsel was ineffective,
       Appellant must demonstrate that: (1) the claim is of
       arguable merit; (2) counsel had no reasonable strategic
       basis for his or her action or inaction; and (3) counsel's
       ineffectiveness prejudiced him.

          Furthermore:

          to demonstrate prejudice, appellant must show there
          is a reasonable probability that, but for counsel's
          error, the outcome of the proceeding would have
          been different. When it is clear the party asserting
          an ineffectiveness claim has failed to meet the
          prejudice prong of the ineffectiveness test, the claim
          may be dismissed on that basis alone, without a
          determination of whether the first two prongs have
          been met. Failure to meet any prong of the test will
          defeat an ineffectiveness claim. Counsel is not
          ineffective for failing to raise meritless claims.

           […] Where an appellant claims that counsel was
       ineffective for failing to call a particular witness, we require
       proof of that witness's availability to testify, as well an
       adequate assertion that the substance of the purported
       testimony would make a difference in the case.


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           With respect to such claims, our Court has explained
        that:

            the appellant must show: (1) that the witness
            existed; (2) that the witness was available; (3) that
            counsel was informed of the existence of the witness
            or should have known of the witness's existence; (4)
            that the witness was prepared to cooperate and
            would have testified on appellant's behalf; and (5)
            that the absence of the testimony prejudiced
            appellant.

        Thus, trial counsel will not be found ineffective for failing to
        investigate or call a witness unless there is some showing
        by the appellant that the witness's testimony would have
        been helpful to the defense. A failure to call a witness is
        not per se ineffective assistance of counsel for such decision
        usually involves matters of trial strategy.

Commonwealth v. Michaud, 70 A.3d 862, 867-868 (Pa. Super. 2013)

(citations, quotations, and brackets omitted).

      In his first issue presented, Appellant claims that Janice Shappelle was

available as an alibi witness at trial, would have testified that Appellant was

with her during the May 2006 shooting, and was made known to trial

counsel prior to trial. Appellant’s Brief at 8. He claims that the PCRA court

erred in determining that the Defender’s Association mistakenly listed Janice

Shapiro, rather than Janice Shappelle, as a potential witness.        Id. at 9.

Further, Appellant claims that the PCRA court mischaracterized defense

counsel’s testimony that Ms. Shappelle was a potential witness in the April

2006 shooting, but not the May 2006 shooting. Id. at 10. Appellant also

claims “that someone at [defense counsel’s] office was told about Ms.

Shappelle with regard to the matter presently at issue.”            Id. at 11.



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Appellant claims he was prejudiced because another eyewitness testified at

trial that Appellant was not the shooter, Appellant was not stopped at the

scene, and there was no physical evidence tying Appellant to the shooting.

Id. at 11-12.

      The PCRA court determined that the witness was not made known to

counsel regarding this particular crime. The PCRA court credited defense

counsel’s testimony that her trial notes indicated that the Defender’s

Association was told about a woman named Janice Shapiro, not Janice

Shappelle. Trial Court Opinion, 4/4/2014, at 7. Although, it is undisputed

that “the two names represent the same person[,]” the PCRA court also

determined that Ms. “Shappelle’s name came up as a potential alibi only in

regards to the April 2006 shooting and not the May 2006 shooting[,]” the

judgment of sentence that is the subject of this collateral challenge. Id. at

6. Defense counsel testified that Appellant and his mother told her that Kia

Reese, another woman, was with Appellant at the time of the May 2006

shooting.   Id. at 7.     Thus, the PCRA court “found that there was no

competent evidence that [Ms.] Shappelle was available and willing to testify

at the trial for the May 2006 shooting, notwithstanding [Ms.] Shappelle’s

testimony that she would have been available to testify at trial but was

waiting for a subpoena.” Id. Moreover, the PCRA court found that Appellant

was not prejudiced because there was overwhelming evidence to support his

convictions, specifically “[t]he officers identified [Appellant] at the scene and

were previously familiar with [Appellant’s] appearance[;] Officer Perez []

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identified [Appellant] by name when calling police dispatch.”         Id. (record

citations omitted).

      Viewing    the      evidence   in   the   light   most   favorable   to   the

Commonwealth, as our standard of review requires, we discern no abuse of

discretion or error of law in denying relief under the PCRA. Upon review of

the notes of testimony from the PCRA hearing, defense counsel testified that

“Janice Shapiro or Shappelle was linked only to the first case[- the April

2006 shooting,]” but not the criminal matter at issue. N.T., 4/12/2013 at

55, 61. Defense counsel testified that either Appellant or his mother told her

that another woman, named Kia Reese, was with Appellant at the time of

the May 2006 shooting. Id. at 47. Defense counsel testified that “Kia was a

constant name that was coming up” and counsel believed that she “talked to

her multiple times.”      Id. at 50. Based upon all of the foregoing, we agree

that Appellant failed to produce evidence that trial counsel knew of the

existence of Ms. Shappelle in relation to the May 2006 shooting. Thus, we

discern no abuse of discretion or error of law in dismissing Appellant’s PCRA

petition on this basis.

      With regard to Appellant’s second claim, he argues that counsel was

ineffective for failing to call Mary Fair, his mother, at trial.       Id. at 12.

“Appellant’s mother would have testified that she was on the telephone with

her son when she saw the man who had shot at the police fleeing the

scene.” Id. Appellant claims that Ms. Fair was an available witness at trial.

Id. Appellant asserts that trial counsel had no reasonable basis not to call

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Ms. Fair at trial and he was prejudiced.         Id.   More specifically, Appellant

avers that defense counsel conceded that “Ms. Fair was a witness for

Appellant at a first attempted murder trial when Appellant was found not

guilty and that Ms. Fair was a good witness.” Id. at 13 (internal quotation

omitted).    Appellant argues it was an unreasonable strategy not to call Ms.

Fair at trial because counsel “was afraid that Ms. Fair would mention that

Appellant had an arrest warrant[].”        Id.     Appellant claims that he was

prejudiced   because   had   Ms.   Fair   testified,   her   testimony,   plus   the

eyewitness’ testimony as presented at trial, as well as Ms. Shappelle’s

proposed trial testimony, would have changed the outcome at trial. Id. at

15.

      The PCRA court found that trial counsel had a reasonable strategy for

not calling Ms. Fair and that there was otherwise no prejudice to Appellant.

PCRA Court Opinion, 4/4/2014, at 8-9.        Defense counsel chose not to use

Appellant’s mother as an alibi “because she regarded [that] alibi witness[] as

weak or not solid enough[;]” “the best defense for the May 2006 shooting

was based upon a misidentification theory, which was supported at trial by

[eyewitness] testimony[;]” Ms. Fair’s credibility was in question because of

“previous failures to provide any information regarding [Appellant’s] location

to police when they had previously come to her home[;]” and, “defense

counsel expressed her professional opinion that family members and

girlfriends do not make good alibi witnesses because they are easily

impeached due to their relationship with [Appellant].”         Id.   Moreover, the

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PCRA court concluded that “[Appellant] was not prejudiced by the failure to

call [Ms.] Fair as a witness due to the overwhelming evidence in support of

[Appellant’s] convictions.” Id. at 9.

      The certified record supports the PCRA court’s finding.         At the PCRA

hearing, defense counsel testified that she was concerned about calling Ms.

Fair as an alibi witness because:

          If [the jury] heard that [Appellant] was wanted for another
          attempted murder, that would have been a devastating
          piece of information. […] So [counsel] was worried that
          because of [Ms. Fair] wanting to be helpful and her talkative
          nature, that she would, that somehow she would open the
          door and somehow more than the [arrest] warrant would
          come out: the fact that [Appellant] was on the run for
          several weeks, that she knew where he was. There was a
          lot of damaging material. And again, it was a strategic
          decision.

N.T., 4/12/2013, at 60.         Defense counsel also testified that the alibi

witnesses that she spoke with gave statements that did not match up with

the statements given by the eyewitness.             Id. at 52.      Thus, counsel

strategized to “go with [her] witness” on a theory of misidentification, rather

than an alibi defense. Id. Defense counsel testified that she believed “that

alibi witnesses who are mothers” are “easier to impeach [] because they

have connections to the defendant.” Id. After careful review, we agree that

trial counsel had a reasonable strategy in not calling Ms. Fair at trial.

      Moreover, based upon our review of the evidence presented at trial,

Officer   Perez   testified   that   he   knew   Appellant   from   patrolling   the



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neighborhood, that he was specifically looking for Appellant for a prior crime,

and that he had photographs of Appellant in his possession when he saw

Appellant. N.T., 11/5/2007, at 73-74. Officer Perez “recognized [Appellant]

as soon as he saw the pictures.” Id. at 75. Officer Perez first saw Appellant

on a street corner on April 19, 2006 from a distance of 40-50 feet, but

Appellant fled. Id. at 78-79. Officer Perez saw Appellant again on May 7,

2006, walking down the street.       Id. at 80.     Officer Perez still had the

photographs of Appellant in his possession when he made eye contact with

Appellant. Id. at 82. Officer Perez testified, without qualification, that he

“knew it was him” because he had seen Appellant in person and he had seen

the photographs. Id. at 83. Officer Perez and his partner, Officer Taylor,

chased Appellant. Id. at 84-88. Officer Perez testified that Appellant took a

firearm out of his backpack and “looked in [the officer’s] direction, smiled at

[him], and [] took a shot[.]” Id. at 89. Officer Perez testified that he was

sure the shooter was Appellant.        Id. at 105; N.T., 11/6/2007, at 22

(“[Appellant is] the person I chased.     He’s the person that shot at me.”).

Officer Taylor testified similarly, stating that he had a picture of Appellant in

his hand when the officers first saw Appellant.       N.T., 11/6/2007, at 33.

Officer Taylor testified that Appellant was approximately 50 feet away when

he saw Appellant shoot at Officer Perez. Id. at 37. Based on this positive

identification evidence, we conclude that Appellant has not demonstrated




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prejudice to support his ineffective assistance of counsel claims for failing to

call witnesses.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2014




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