            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                       IN AND FOR NEW CASTLE COUNTY



STATE OF DELAWARE,                           )
                                             )
                      Plaintiff,             )
                                             )
                                             )
       v.                                    )       Cr. ID. No. 1207000397 A & B
                                             )
                                             )
JERMAINE L. WATSON,                          )
                                             )
                      Defendant.             )
                                             )



                                Submitted: June 2, 2015
                               Decided: September 9, 2015


        COMMISSIONER’S REPORT AND RECOMMENDATION THAT
         DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
                       SHOULD BE DENIED.




Matthew B. Frawley, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Patrick J. Collins, Esquire and Albert J. Roop, V, Esquire, 716 North Tatnall Street, Suite
300, Wilmington, Delaware, Attorneys for Defendant Jermaine Watson.




PARKER, Commissioner
          This 9th day of September, 2015, upon consideration of Defendant’s Motion for

Postconviction Relief, it appears to the Court that:

BACKGROUND AND PROCEDURAL HISTORY

1.        On July 6, 2012, Defendant Jermaine Watson was arrested for an incident that

occurred on June 25, 2012.            Defendant was subsequently indicted on a number of

charges.

2.        On January 31, 2013, a Superior Court jury found Defendant guilty of Robbery

First Degree (as to Jerome Ames), two counts of Possession of a Firearm during the

Commission of a Felony (as to Jerome Ames), and Assault Second Degree (as a lesser

included offense of Assault First Degree) (as to Jerome Ames).             The jury found

Defendant not guilty of Aggravated Menacing and its companion Possession of a Firearm

during the Commission of a Felony (as to Crystal Stewart).

3.        During a simultaneous bench trial on the severed count of Possession of a Firearm

by a Person Prohibited, the Superior Court judge found Defendant guilty.

4.        On April 12, 2013, Defendant was sentenced to a total of 20 years of unsuspended

Level V time, followed by decreasing levels of probation.

5.        Defendant filed a direct appeal to the Delaware Supreme Court. On October 21,

2013, the Delaware Supreme Court affirmed the judgment of the Superior Court. 1

FACTS

6.        The facts giving rise to the subject charges, as mainly set forth by the Delaware

Supreme Court in its opinion on Defendant’s direct appeal, are as follows: The evidence

presented at trial established that, on June 25, 2012, at approximately 3:00 p.m., the male

victim (Jerome Ames) was sitting with his female cousin (Crystal Stewart) on the steps of
1
    Watson v. State, 2013 WL 5745708 (Del.).


                                                1
the residence at 1023 Bennett Street, Wilmington, Delaware. An African-American man

with who neither was familiar walked past them. From about five feet away, the man

turned around, pulled out a revolver with his left hand, pointed it at the male victim and

demanded money. The victim took his money from his left pocket and gave it to the

robber. The victim then grabbed for the robber’s left wrist and the two struggled over the

gun. During the struggle, the gun fired, hitting the victim above his left knee. The robber

ran away and the victim’s cousin called 911. 2

7.      The Affidavit of Probable Cause stated that after the victim was shot the assailant

“walked” southbound on Bennett Street out of sight. 3 At trial, the victim, Jerome Ames,

testified that after he was shot the assailant “walked up the street, ran up the street, like a

little jog up the street.” 4

8.      The victim was taken to the Christiana Hospital Emergency Room. While in the

Emergency Room, the victim told a Wilmington police detective that the robber was a

thin, medium-skinned African-American male, 5 foot 7 or 8, with a short Afro and

wearing tan khaki shorts. The victim’s cousin gave a description of the robber to police

and stated that she could identify the man if she saw him again. Neither the victim nor

his cousin had known the Defendant prior to the robbery. 5

9.      On June 29, 2012, four days after the robbery, both the victim and his cousin

identified Defendant as the robber after being shown a photographic line-up. The victim




2
  Watson v. State, 2013 WL 5745708, at *1 (Del.); January 29, 2013 Trial Transcript, at pgs. 32-43..
3
  Superior Court Docket No. 47-Appendix to Defendant’s Amended Rule 61 Motion, at pg. 14.
4
  January 29, 2013 Trial Transcript, at pg. 43.
5
  Watson v. State, 2013 WL 5745708, at *2 (Del.).


                                                    2
and his cousin were separate and apart from each other at the time each were shown the

photographic line-up and each of them identified the Defendant as the robber. 6

10.      At trial, both the victim and his cousin testified, but reluctantly. The trial had

originally been scheduled to begin on January 15, 2013, but was continued at the State’s

request when the victim failed to appear for trial. 7 A material witness warrant was issued

for the victim and the trial was rescheduled for January 29, 2013. 8

11.      On January 29, 2013, at trial, the victim’s presence was secured by means of a

material witness warrant. Prior to trial, the victim told the prosecutor that he had been

intimidated. 9

12.      The victim’s cousin appeared for trial with a face covering, which the judge

subsequently ordered her to remove. She told the prosecutor that she did not want the

defendant to see her face. 10

13.      Neither the victim nor his cousin identified Defendant as the robber at trial.

However, the police witnesses testified that the victim and his cousin had previously

given statements describing the robber and had identified Defendant as the robber in the

photographic line-up. 11

14.      Based upon that evidence, the jury found Defendant guilty of robbery, assault and

two weapon charges and found him not guilty of aggravated menacing and the associated

weapons charge. The charge of weapon possession by a person prohibited was severed




6
  Watson v. State, 2013 WL 5745708, at *2 (Del.).
7
  See, Superior Court Docket No. 20.
8
  Superior Court Docket No. 13; January 29, 2013 Trial Transcript, at pgs. 3-4.
9
  Watson v. State, 2013 WL 5745708, at *2 (Del.).
10
   Watson v. State, 2013 WL 5745708, at *2 (Del.).
11
   Watson v. State, 2013 WL 5745708, at *2 (Del.).


                                                     3
and, in a separate proceeding, the Superior Court judge found Defendant guilty of that

charge. 12

15.     On direct appeal, Defendant claimed, inter alia, that there was insufficient

evidence introduced by the State to support his convictions. The Delaware Supreme

Court held that Defendant’s claims raised on appeal were without merit and further

concluded that, under the circumstances of this case, the record reflected that the State

introduced more than sufficient evidence to support Defendant’s convictions. 13

DEFENDANT’S RULE 61 MOTION

16.     On May 8, 2014, Defendant filed a pro se motion for postconviction relief. 14

Thereafter, Defendant was assigned counsel and an Amended Motion for Postconviction

Relief was filed on February 27, 2015. In the subject motion, as amended by Rule 61

counsel, Defendant claims that trial counsel was ineffective for failing to investigate, and

as a result, failed to present alibi witnesses or evidence that Defendant had previously

been shot and was physically unable to commit the robbery at issue.

17.     Before making a recommendation, the Commissioner enlarged the record by

directing Defendant’s trial counsel to submit an Affidavit responding to Defendant’s

ineffective assistance of counsel claim. Thereafter, the State filed a response to the

motion. Defendant filed a reply thereto. 15

18.     In order to prevail on an ineffective assistance of counsel claim, Defendant must

meet the two-pronged Strickland test by showing that: (1) counsel performed at a level

“below an objective standard of reasonableness” and that, (2) the deficient performance


12
   Watson v. State, 2013 WL 5745708, at *2 (Del.).
13
   Watson v. State, 2013 WL 5745708, at *2-3 (Del.).
14
   See, Superior Court Docket No. 32.
15
   Super.Ct.Crim.R. 61(g)(1) and (2).


                                                   4
prejudiced the defense. 16          The first prong requires the defendant to show by a

preponderance of the evidence that defense counsel was not reasonably competent, while

the second prong requires him to show that there is a reasonable probability that, but for

defense counsel’s unprofessional errors, the outcome of the proceedings would have been

different. 17 When a court examines a claim of ineffective assistance of counsel, it may

address either prong first; where one prong is not met, the claim may be rejected without

contemplating the other prong. 18

19.     Mere allegations of ineffectiveness will not suffice; instead, a defendant must

make and substantiate concrete allegations of actual prejudice. 19                        Although not

insurmountable, the Strickland standard is highly demanding and leads to a strong

presumption that counsel’s conduct fell within a wide range of reasonable professional

assistance. 20 Moreover, there is a strong presumption that defense counsel’s conduct

constituted sound trial strategy. 21

20.     In considering post-trial attacks on counsel, Strickland cautions that trial

counsel’s performance should be reviewed from the defense counsel’s perspective at the

time decisions were being made. It is all too easy for a court, examining counsel’s

defense after it has proved unsuccessful, to conclude that a particular act or omission of

counsel was unreasonable. 22 A fair assessment of attorney performance requires that




16
   Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
17
   Id.
18
   Strickland, 466 U.S. at 697.
19
   Younger v. State, 580 A.2d 552, 556 (Del. 1990).
20
   Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008).
21
   Strickland v. Washington, 466 U.S. 668, 689 (1984).
22
   Strickland, 466 U.S. at 688-89.


                                                     5
every effort be made to eliminate the distorting effects of hindsight. Second guessing or

“Monday morning quarterbacking” should be avoided. 23

21.      The United States Supreme Court recently reiterated the high bar that must be

surmounted in establishing an ineffective assistance of counsel claim. In Harrington v.

Richter, 24 the United States Supreme Court explained that representation is

constitutionally ineffective only if it so undermined the proper functioning of the

adversarial process that the defendant was denied a fair trial. 25 The challenger’s burden

on an ineffective assistance of counsel claim is to show that counsel made errors so

serious that counsel was not functioning as the “counsel” guaranteed the defendant by the

Sixth Amendment. It is not enough to show that the errors had some conceivable effect

on the outcome of the proceeding. Counsel’s errors must be so serious as to deprive the

defendant of a fair trial. 26

22.      The United States Supreme Court reasoned that it is difficult to establish an

ineffective assistance claim when counsel’s overall performance indicates active and

capable advocacy. 27 Counsel’s representation must be judged by the most deferential of

standards. The United States Supreme Court cautioned that reviewing courts must be

mindful of the fact that unlike a later reviewing court, the attorney observed the relevant

proceedings, knew of materials outside the record, and interacted with his client, with

opposing counsel, and with the judge. 28




23
   Id. at 688-89.
24
   Harrington v. Richter, 131 S.Ct. 770 (2011).
25
   Id., at * 791.
26
   Id.
27
   Id. at 791.
28
   Id. at 787-88.


                                                  6
23.     Turning now to the subject case, when reviewing the entire proceeding, the record

reflects counsel’s overall performance as being active, thorough and capable advocacy.

The record reflects that defense counsel consistently and diligently defended the charges

against Defendant. Indeed, at trial, Defendant was found not guilty of the charges related

to the eyewitness, Crystal Stewart, of Aggravated Menacing and its companion

Possession of a Firearm during the Commission of a Felony.

24.     With these standards as the backdrop, we turn to Defendant’s claim.

25.     Defendant’s medical records reveal that on April 16, 2012, 10 weeks before the

subject incident of June 25, 2012, Defendant had suffered gunshot wounds to his left

upper extremity, right buttock and left flank. He was hospitalized on April 16, 2012 and

discharged on April 25, 2012. 29 Defendant was fitted with a colostomy bag as a result of

his gunshot wounds.

26.     On June 21, 2012, Defendant went to the Emergency Room at Wilmington

Hospital complaining of abdominal pain and pain at the colostomy site. He was treated

and released that day. 30

27.     On July 6, 2012, 11 days after the incident at issue, Defendant was arrested.

Following his arrest, he was evaluated at the infirmary at Howard R. Young Correctional

Institute. The intake records note that Defendant’s colostomy bag was not properly

attached. He was counseled, provided supplies and approved for and released to the

general prison population. 31       There is no indication in the medical records that

Defendant’s physical condition required any daily assistance from any caretaker or aide

while in prison.

29
   Superior Court Docket No. 47- Appendix to Defendant’s Amended Rule 61 Motion, at pgs. A220-A242.
30
   Superior Court Docket No. 47- Appendix to Defendant’s Amended Rule 61 Motion, at pgs. A220-A242.
31
   Appendix to Defendant’s Rule 61 motion, at pgs. A240-A242.


                                                 7
28.     Defendant, in his amended Rule 61 motion, contends that his trial counsel was

ineffective for failing to investigate and present exculpatory evidence as to his physical

condition on the date of the robbery. Specifically, Defendant contends that had counsel

conducted a proper investigation, he would have secured the appearance of Defendant’s

then 17 year old sister, Sharnagia Watson, at trial. Defendant’s Rule 61 counsel provided

an Affidavit from Ms. Watson that stated that she was helping Defendant recuperate from

gunshot wounds, that he had a colostomy bag, walked with difficulty and could not feed

or bathe himself, and required fulltime care. In her Affidavit, she further stated that had

she been contacted by counsel, she would have testified as to Defendant’s condition at

the time of the offense. She would have testified that Defendant could “hardly walk” or

care for himself and could not possibly have struggled with someone or ran away from an

incident. 32

29.     In response to Defendant’s claim that trial counsel failed to properly investigate

and present exculpatory evidence as to Defendant’s physical condition on the date of the

robbery, Defendant’s trial counsel provided a detailed Affidavit, with supporting

documents and exhibits. 33

30.     In his Affidavit, Defendant’s trial counsel explains that although he was aware

that Defendant had suffered gunshot wounds 10 weeks prior to the incident at issue,

Defendant never advised him that he had any medical condition that impaired his

physical abilities. At no point during the pendency of the case did Defendant suggest that

he was incapable of committing the offense due to being shot. 34



32
   Superior Court Docket No. 47- Appendix to Defendant’s Amended Rule 61 Motion, at pgs. A243-A244.
33
   See, Affidavit of Timothy J. Weiler, Superior Court Docket No. 49.
34
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49.


                                                 8
31.      During the pendency of the case, as Defendant’s trial counsel was conducting his

pre-trial investigation, Defendant remained adamant in his belief that the victim and

witness would not appear for trial and Defendant would not consider any plea offer

because he did not believe that the trial would be going forward. 35 Indeed, the trial was

originally scheduled to begin on January 15, 2013, but was continued at the State’s

request when the victim failed to appear for trial. 36 A material witness warrant was

issued for the victim and the trial was rescheduled for January 29, 2013. 37

32.      At trial, both the victim and his cousin testified, but reluctantly. 38 The victim’s

cousin appeared for trial with a face covering, which the judge subsequently ordered her

to remove. She told the prosecutor that she did not want the defendant to see her face. 39

Neither the victim nor his counsel identified Defendant as the robber at trial.

33.      Defendant’s trial counsel explains that during the initial intake interview, on July

10, 2012, the Public Defender’s office became aware that:

         *        Defendant had been shot three months earlier but Defendant advised that

he had only mental health issues and seizures as a result thereof;

         *        Defendant was living with his Aunt, Mere Dollard, at 226 North Clayton

Street, Wilmington, Delaware 19805 and if released, he would be returning and residing

at that address; 40 and

         *        Defendant did not know of any witnesses who could assist the defense in

the trial. 41


35
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 16.
36
   See, Superior Court Docket No. 20.
37
   Superior Court Docket No. 13; January 29, 2013 Trial Transcript, at pgs. 3-4.
38
   Watson v. State, 2013 WL 5745708, at *2 (Del.).
39
   Watson v. State, 2013 WL 5745708, at *2 (Del.).
40
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 1.
41
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 1.


                                                     9
34.      During the initial intake interview on July 10, 2012, Defendant did not advise that

he had any medical conditions that impaired his physical abilities. 42

35.      On August 9, 2012, Defendant’s trial counsel conducted a videophone interview

with Defendant.        Defendant never mentioned to trial counsel that he had any alibi

witnesses nor did he ever mention that that he had any medical condition that impaired

his physical abilities. 43

36.      On September 19, 2012, Defendant’s trial counsel conducted another videophone

interview with Defendant. Defendant advised counsel that he was at home recuperating

from gunshot wounds at the time of the incident and that his Aunt Gia Mayo would

provide an alibi. Defendant provided the telephone number for Aunt Gia Mayo. 44

37.      Following the videophone interview, Defendant’s trial counsel instructed Special

Investigator James Lane to contact Gia Mayo. 45

38.      Special Investigator James Lane spoke to Defendant on September 28, 2012 to

obtain additional witness contact information.               Defendant directed Mr. Lane to call

Defendant’s father, Jermane Dollard, to get the additional witness contact information. 46

39.      On October 1, 2012, Special Investigator James Lane spoke with Gia Mayo. She

would not provide any information and expressed reluctance about testifying in court. 47

40.      On October 1, 2012, Defendant’s trial counsel wrote Defendant a letter advising

him that Gia Mayo was refusing to be of any assistance and would not testify as an alibi

witness. 48


42
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49.
43
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 2.
44
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 3.
45
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 3.
46
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 4.
47
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 5.
48
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 6.


                                                    10
41.        On November 7, 2012, Defendant’s trial counsel met personally with Defendant

at the Howard R. Young Correctional Institute. During the meeting, Defendant never

mentioned any physical problems he was experiencing on the date of the incident.

Defendant did advise counsel of alibi witnesses: Gia Mayo (Defendant’s aunt), Jermaine

Clark (Defendant’s brother age 22) and Sharnagia Watson (Defendant’s sister age 17).

Defendant provided telephone numbers to contact these witnesses. 49

42.        On that same day, November 7, 2012, Defendant’s trial counsel asked Special

Investigator Lane to investigate Defendant’s three alibi witnesses. 50

43.        One of the exhibits attached to Defendant’s trial counsel’s Affidavit was the e-

mail he sent to Special Investigator Lane on November 7, 2012, in which trial counsel

requested that Mr. Lane again contact Defendant’s aunt, Gia Mayo. 51 Defendant’s trial

counsel also requested that Mr. Lane contact Jermaine Clark, Defendant’s brother, and

Sharnagia Watson, Defendant’s sister, to determine if they could support an alibi defense.

Defendant’s trial counsel provided the special investigator with the telephone number

given to him by Defendant for Sharnagia Watson. 52

44.        On November 8, 2012, Mr. Lane called the telephone number that Defendant

provided for Sharnagia Watson and left a voice mail message requesting that she call him

back. 53

45.        On November 11, 2012, Mr. Lane called Sharnagia Watson again at the telephone

number provided by Defendant. A female answered the telephone and told him that he

had the wrong number. 54

49
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 7.
50
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 7; Exhibit D to counsel’s Affidavit.
51
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, Exhibit D.
52
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, Exhibit D.
53
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 9.


                                                    11
46.      On November 11, 2012, Mr. Lane called Defendant’s father, Jermane Dollard,

and left a voice mail requesting his assistance in locating the witnesses. 55

47.      On November 14, 2012, Mr. Lane advised Defendant’s trial counsel that Gia

Mayo was refusing to be of any assistance. 56 Mr. Lane further advised that he “spoke to

a female on 11-11 at the number for Sharnaigh (sic) and she informed me that the subject,

Sharnaigh, did not live there and she had no knowledge of the case.” Mr. Lane continued:

“I also tried to get in touch with a subject, Jamine Dollar (sic), who had identified himself

as our client’s father in a previous conversation. I left a message on the answering

machine . . . on 11-11 asking the subject to return my call to assist in locating the witness.

I tried the number again on 11-14 and found it was out of service. At this point I do not

have any other options. I think we have made a strong effort in locating the alleged

witnesses in this case.” 57

48.      On November 14, 2012, Defendant’s trial counsel wrote a letter to Defendant

enclosing the e-mail between trial counsel and Special Investigator Lane and advising:

“Our special investigator, Mr. Lane, attempted to re-initiate contact with your alibi

witness, your aunt, Gia Mayo, and was unsuccessful; likewise with your other alibi

witness . . .” 58

49.      On January 3, 2013, Defendant’s trial counsel had another videophone meeting

with Defendant and advised of the lack of contact with Gia Mayo. Defendant told counsel

that Gia Mayo was “out running the streets on drugs.” 59



54
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 10.
55
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 10.
56
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, Exhibit D.
57
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, Exhibit D.
58
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 13; Exhibit E to counsel’s Affidavit.
59
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 14.


                                                     12
50.      On January 15, 2013, Mr. Lane went to 226 North Clayton Street, Wilmington,

Delaware. This was the address that Defendant provided to counsel as the residence

where he was residing. Defendant had also advised counsel that he was living with his

aunt, Mere Dollard, at this address and that if released, he would be returning to this

address to reside. 60

51.      On January 15, 2013, Mr. Lane spoke to Defendant’s aunt, Amira, at this address.

She told Mr. Lane that she would contact the witnesses he was trying to reach and have

them contact him. 61

52.      On January 29, 2013, the first day of trial, counsel spoke with Defendant’s family

members and they were aware that counsel was trying to locate witnesses. 62

53.      On January 29, 2013, prior to the start of trial, Defendant’s trial counsel advised

the court that counsel was trying to contact alibi witnesses but was not successful in

doing so. Counsel reserved the right to call the three alibi witnesses in the hopes that

their appearance could be secured for trial. 63

54.      Defendant’s father was in the courtroom during the entire trial. Defendant’s

father called Jermaine Clark, Defendant’s brother, and told him to come in and testify for

his brother. 64

55.      On January 29, 2013, Defendant’s trial counsel spoke with Jermaine Clark,

Defendant’s brother. Although Defendant had advised trial counsel that his brother

would be an alibi witness, when counsel spoke to Jermaine Clark he learned that Mr.



60
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶¶ 1, 15.
61
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 15.
62
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, at ¶ 17.
63
   January 29, 2013 Trial Transcript, Jury Selection, at pg. 11.
64
   January 30, 2013 Trial Transcript, at pgs. 139-141.


                                                    13
Clark was not with his brother on the day of the incident. Mr. Clark was with the

Defendant 11 days later, on the day he was arrested. 65

56.     Jermaine Clark testified at trial that his brother was right-handed.               He also

testified that he never saw his brother hold a gun and did not know if his brother would

hold a gun in his left or right hand. 66

57.     In order to prevail on an ineffective assistance of counsel claim, Defendant must

show that counsel performed at a level “below an objective standard of reasonableness.”

Strickland cautions that trial counsel’s performance should be reviewed from the defense

counsel’s perspective at the time decisions are being made. A fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of

hindsight. Second guessing or “Monday morning quarterbacking” should be avoided. 67

58.     Evaluating trial counsel’s performance from counsel’s perspective at the time

decisions were being made, it is clear that trial counsel was aware that Defendant

suffered gunshot wounds 10 weeks prior to the incident at issue, but he was not advised,

nor was he aware through his interactions with Defendant, that Defendant sustained any

physical impairment resulting therefrom that would have affected his ability to commit

the robbery on the day at issue.

59.     The medical records establish that Defendant was shot on April 16, 2012, but do

not suggest what Defendant’s physical ability or inability was on the date of the incident,

June 25, 2012, 10 weeks later. Eleven days after the incident, on July 6, 2012, at the time

of his arrest, Defendant was evaluated by the prison infirmary and determined to be

physically able to be placed in general prison population.                    Moreover, there is no

65
   Affidavit of Timothy J. Weiler, Superior Court Docket No. 49, Exhibit I.
66
   January 30, 2013 Trial Transcript, at pgs. 136-139.
67
   Strickland, 466 U.S. at 688-689.


                                                    14
indication in the medical records that Defendant’s physical condition required any daily

assistance from any caretaker or aide while in prison for any physical condition.

60.    Defendant provided counsel with three possible alibi witnesses:            Gia Mayo,

Jermaine Clark, and Sharnagia Watson. Defendant’s trial counsel, with the assistance of

a special investigator, attempted to locate these witnesses and secure their appearance for

trial. The special investigator called Gia Mayo and Sharnagia Watson at their last known

telephone numbers. A number of attempts were made to secure Gia Mayo’s assistance

but on each occasion she refused to be of assistance.       Sharnagia Watson could not be

located. Calls were made to her last known telephone number. Family members were

approached to assist in locating her. The special investigator went to the address where

Defendant told counsel he was residing and requests were made to the family member at

that residence to assist in locating the witnesses. Defendant was keep appraised of

counsel’s inability to locate his alibi witnesses. Defendant directed counsel to contact to

his father to assist in locating his witnesses. Requests were made to Defendant’s father to

assist in locating Defendant’s alibi witnesses. Requests were again made at the time of

trial to the Defendant’s father as well as other family members that were in the courtroom

during the trial. In fact, Defendant’s father, who was in the courtroom during the entire

trial, contacted Defendant’s brother and told his brother to come to trial to testify.

61.    In short, Gia Mayo refused to assist the defense. Jermaine Clark, Defendant’s

brother, was located and testified at trial. Defendant’s sister, Sharnagia Watson, could

not be located.

62.    If Sharnagia Watson, Defendant’s sister, was as actively involved in Defendant’s

care as her Affidavit appears to suggest, it is curious that Defendant’s family members,




                                              15
who were at trial, would not have assisted in securing her appearance at trial. Defendant’s

father and other family members were at Defendant’s trial and trial counsel requested

their assistance in helping to locate Jermaine Clark and Sharnagia Watson. Trial counsel

even reserved the right to call these witnesses at trial, in the hopes that counsel was

somehow able to secure their appearance.      Yet, although Defendant’s father contacted

Jermaine Clark and told him to come to trial on his brother’s behalf, no family member

assisted in securing the appearance of Sharnagia Watson, Defendant’s sister, either before

trial or during trial.

63.     It is hard to believe that Ms. Watson, if she was so involved in Defendant’s care,

and given her knowledge of his arrest, would not have spoken to her brother or any other

family member present at the trial, and would not have known about her brother’s trial

date, and would not have made the effort to reach out to her brother, or to his counsel, to

assist with her brother’s defense. This is especially so given the fact that Defendant’s

family members, including his father, were present at trial, and trial counsel asked those

family members to reach out and assist him in having Defendant’s alibi witnesses come

to court to testify at trial.

64.     The standard to be employed is whether trial counsel’s investigation was

objectively reasonable judging defense counsel’s conduct at the time the decisions were

being made. Every effort should be made to eliminate the distorting effects of hindsight.

Second guessing or Monday morning quarterbacking should be avoided.           Defendant’s

trial counsel made reasonable efforts to locate and contact the “alibi” witnesses provided

by Defendant. Two witnesses did not pan out, one, Gia Mayo would not be of any

assistance, and the other Jermaine Watson, could not provide an alibi defense, because he




                                            16
was not with his brother on the date of the incident. The third witness, Sharnagia Watson

could not be located. Defendant’s trial counsel’s representation was not objectively

unreasonable and Defendant’s ineffective assistance of counsel claim must fail.

Defendant’s trial counsel did not “fail to investigate”, he did investigate the “alibi”

witnesses provided by Defendant and did attempt to secure their appearance at trial. His

efforts to locate Sharnagia Watson were reasonable.

65.        It is important to emphasize that Rule 61 counsel also made an effort to secure

Defendant’s three alibi witnesses. Rule 61 counsel also retained an investigator and Rule

61 counsel spent months attempting to track down and interview witnesses to support

Defendant’s defense that he was physically unable to commit the robbery at issue. 68 Rule

61 counsel, unlike trial counsel, did not have any other pressing issues attendant with this

case.      Unlike trial counsel, Rule 61 counsel did not have any other pre-trial, trial

preparation or trial considerations. Unlike trial counsel, Rule 61 counsel were able to

focus all their efforts on locating Defendant’s alibi witnesses in support of his claim

raised herein. There were no other outstanding considerations that also needed attention.

Unlike trial counsel, Rule 61 counsel did not have to focus any attention on plea

negotiations, evaluating the State’s witnesses and preparing cross-examinations,

researching legal issues, considering voir dire questions, preparing proposed jury

instructions, preparing an opening statement, considering a closing argument, nor did

Rule 61 counsel have to be concerned about the plethora of other issues attendant with

the preparation and defense of a criminal jury trial.

66.        Despite all of Rule 61 counsels’ efforts, of which the focus was only on this one

issue, their investigation yielded only one witness- Sharnagia Watson. Rule 61 counsel
68
     See, Rule 61 counsels’ letter to the court dated December 22, 2014, Superior Court Docket No. 42.


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spent months on their investigation. Given the lack of any Affidavit from Gia Mayo

and/or Jermaine Clark on this issue, it is clear that both of them were unable or unwilling

to provide any assistance on this issue. Given the fact that Rule 61 counsel spent months

tracking down and interviewing “witnesses” 69 and their extensive investigation yielded

only one witness, it is clear that they were unable to locate anybody else to assist

Defendant on this issue.

67.      The law requires that trial counsel perform a reasonable investigation. It does not

require that counsel employ Herculean efforts to locate any conceivable witness that may

have a bearing on the case. Here, trial counsel’s investigation was reasonable.

68.      Rule 61 counsels’ months of effort yielded Sharnagia Watson, Defendant’s then

17 year old sister. In her Affidavit, Ms. Watson contends that she assisted Gia Mayo in

Defendant’s “fulltime care.” She claims that “Jermaine could hardly walk and care for

himself and could not possibly have struggled with someone or ran away from the

incident.” 70

69.      Sharnagia Watson was not with the Defendant at the time of the incident. It is

therefore unclear the extent to which Ms. Watson would be of assistance to the defense at

trial. The victim testified that Defendant “walked up the street, ran up the street, like a

little jog up the street.” The victim and eyewitness testified about a “struggle” over the

gun. Since Ms. Watson was not with Defendant at the time of the incident, the value of

her proposed testimony would have to be assessed by trial counsel. The specifics of the

“struggle”, what it entailed would have to be explored as would the details of whether the

69
   See, Rule 61 counsels’ letter to the court dated December 22, 2014, Superior Court Docket No. 42,
wherein they request a two month extension for the filing of their amended Rule 61 motion so that their
investigator can continue to locate “witnesses” since their investigator was still in the process of tracking
down and interviewing “witnesses.”
70
   Superior Court Docket No. 47-Appendix to Defendant’s Amended Rule 61 Motion, at pgs. A243-244.


                                                      18
assailant walked, did a “little jog” or ran. Defendant’s trial counsel would have certainly

wanted to interview Ms. Watson, assess her credibility, and the nature and extent of her

testimony.

70.    Defendant’s trial counsel would have had to weigh the competing considerations

of introducing Defendant’s gunshot wounds into trial and the strength or weakness of Ms.

Watson’s testimony would have factored into that analysis.     Perhaps Defendant having

suffered gunshot wounds ten weeks prior to the incident at issue would have benefited the

defense; perhaps it would have negatively impacted the defense.          Defendant’s trial

counsel would have had to consider whether cross-examination of Defendant’s brother,

Jermaine Clark, on this issue would negate any benefit that may be derived from Ms.

Watson’s testimony.

71.    Moreover, Defendant represented to trial counsel that he was living at 226 North

Clayton Street at the time of the incident and that if released from prison he would be

returning to that address. Ms. Watson’s Affidavit provided in support of Defendant’s

Rule 61 motion is inconsistent with Defendant’s representation in that regard. Ms.

Watson claims that both she and Defendant were residing at 408 North Broom Street, and

that she along with Gia Mayo were caring for Defendant on a “fulltime” basis. Yet, 11

days later, Defendant was arrested, evaluated by the prison infirmary, and cleared for

placement in the general population. The medical records do not reflect that Defendant

needed any aide or caretaker on a daily basis while incarcerated. Similarly, Defendant’s

brother, Jermaine Clark, who was with Defendant 11 days later, cannot support this

physical inability theory or else he would have said so- either to trial counsel or to Rule

61 counsel.




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72.    The fact of the matter remains that despite trial counsel’s reasonable efforts, he

was unable to locate Ms. Watson. Trial counsel used reasonable efforts to locate Gia

Mayo, Jermaine Clark, and Sharnagia Watson. Gia Mayo refused to be of assistance.

Jermaine Clark came to court and testified at his father’s request but was not able to

provide an alibi defense and was not then, or now, able to provide exculpatory evidence

as to Defendant’s alleged physical inability to have performed the robbery at issue.

Sharnagia Watson could not be located despite trial counsel’s, and his special

investigator’s, reasonable efforts to do so.

73.    Defendant failed to establish that trial counsel’s conduct was deficient.

Defendant’s ineffective assistance of counsel claim is undermined by the record and fails

to satisfy Strickland. The conduct of defense counsel does not appear to be deficient in

any regard.



       For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief

should be denied.




       IT IS SO RECOMMENDED.



                                                    ___________/s/_______________
                                                    Commissioner Lynne M. Parker




oc:    Prothonotary
cc:    Timothy J. Weiler, Esquire



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