J-S17020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 LEONARD WEST                             :
                                          :
                    Appellant             :   No. 3823 EDA 2017

               Appeal from the PCRA Order November 9, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0011936-2009


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                                FILED MAY 08, 2019

      Appellant, Leonard West, appeals from the order entered on November

9, 2017, denying him relief on his petition filed under the Post Conviction

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

      The trial court provided us with an able summary of the evidence

presented during Appellant’s trial:

        [C.M. (hereinafter “the Victim”)] identified [Appellant] in the
        courtroom and testified that he and [Appellant] had grown up
        together as children, as adults, and as friends living a block
        apart. He testified that on April 18, 2009, at approximately
        8:22 p.m., while walking towards Mifflin Street, he
        encountered [Appellant] at or near the intersection of
        Hemberger and Mifflin Streets in the City of Philadelphia and
        exchanged greetings. When they were approximately [four
        to six] feet apart, he saw [Appellant] “reaching behind his
        back with his right arm and I tried to get out of his direct
        line.” [The Victim] testified that, as he turned to his right,
        two shots hit him in the chest and a third shot hit him in the
        mouth as he fell to the ground. While on the ground he was
        shot in the thigh and twice more in the right shoulder. He
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         testified that the shots came from directly in front of him
         where [Appellant] was standing at the time. As a result of
         the shooting, [the Victim] now has a bullet lodged in his spine
         and is confined to a wheelchair.

         After being shot, [the Victim] testified that someone came to
         his aid and called police. While being transported to the
         hospital, he was questioned by Detective Tolliver and
         identified [Appellant] by his nickname, “Twin,” as his
         assailant.

         [The Victim] testified that although “I didn’t per se see the
         gun but when he stuck his right hand behind his back, I knew
         what was coming next.” He further testified that on seeing
         [Appellant’s] actions, that “I knew that the next action, it
         wasn’t going to be anything nice. Okay? I knew that he was
         reaching behind his back for a gun. I know that.”

Trial Court Opinion, 5/16/11, at 4-5 (citations omitted).

       The jury found Appellant guilty of attempted murder, aggravated

assault, possession of a firearm by a prohibited person, firearms not to be

carried without a license, carrying firearms on the public streets of

Philadelphia, and possessing instruments of crime.1 On January 26, 2011, the

trial court sentenced Appellant to serve an aggregate term of 33 ½ to 67 years

in prison for his convictions. We affirmed Appellant’s judgment of sentence

on December 29, 2011 and the Pennsylvania Supreme Court denied

Appellant’s    petition    for    allowance      of   appeal   on   July   10,   2012.

Commonwealth v. West, 40 A.3d 206 (Pa. Super. 2011) (unpublished

memorandum) at 1-3, appeal denied, 48 A.3d 1249 (Pa. 2012).



____________________________________________


118 Pa.C.S.A. §§ 901(a) (and 2502(a)), 2702(a), 6105(a)(1), 6106(a)(1),
6108, and 907(a), respectively.

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      On August 9, 2012, Appellant filed the current, timely, pro se PCRA

petition. Within this petition, Appellant claimed:

        Ineffective assistance of trial counsel, for failing to conduct a
        pre-trial investigation, and failing to obtain experts in the
        field of ballistic, which could have overcome the testimony of
        the Commonwealth’s witness, and ineffective assistance of
        counsel for failing to obtain medical records of the [Victim]
        which would have shown that [the Victim] was not
        functioning properly and was making a number of different
        stories up.

Appellant’s Pro Se PCRA Petition, 8/9/12, at 3 (some capitalization omitted).

      The PCRA court appointed counsel to represent Appellant during the

proceedings and, on March 3, 2015, counsel filed an amended petition on

Appellant’s behalf. The amended petition listed the following claims for relief:

        [1.] Trial counsel failed to obtain the [Victim’s] medical
        records;

        [2.] Trial counsel failed to obtain a ballistic expert to track
        the path of the bullets and show they were fired from
        different areas;

        [3.] Trial counsel failed to locate eye witnesses;

        [4.] Trial counsel failed to present alibi evidence;

        [5.] Trial counsel failed to obtain surveillance recordings[;]

                                      ...

        [6.] Counsel was ineffective for failing to file a post verdict
        motion that the verdict was against the weight of the
        evidence[;]

        [7.] Counsel was ineffective for failing to properly have an
        investigator investigate the case and obtain expert
        witnesses[;]


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        [8.] Counsel was ineffective for failing to interview and
        present a witness[;]

        [9.] Appellate counsel was ineffective for failing to properly
        represent [Appellant].

Appellant’s Amended PCRA Petition, 3/3/15, at 2-3.

      Appellant attached a written statement to his petition, where he

declared:

        I told my lawyer that I was at my girlfriend house at the time
        of the shooting. Her name is Benita Dixon. . . .

        My counsel knew about her, because I gave my counsel her
        name, address, and phone number.

        My alibi witness (Benita) left messages on my lawyer answer
        machine, stating that she will testify on my behalf. My
        counsel said that it will not be a wise choice for [her to] testify
        for me at trial. Because the jury is going to believe that
        Benita will defend her boyfriend for all purpose.

Appellant’s Statement, 3/3/15, attached as “Appendix A” to Appellant’s

Amended PCRA Petition, at 1 (paragraph numbering omitted).

      On November 9, 2017, the PCRA court held a hearing on Appellant’s

petition. The hearing was limited to Appellant’s claim that his trial counsel

was ineffective for failing to present his girlfriend, Benita Dixon, as an alibi

witness at trial.   N.T. PCRA Hearing, 11/9/17, at 7.        During this hearing,

Appellant, Benita Dixon, and Appellant’s trial counsel, Constance Clarke,

Esquire (hereinafter “Attorney Clarke”), testified.

      Appellant testified that Benita Dixon is his current girlfriend and that she

was his girlfriend at the time of the shooting. Id. at 14. He testified that, at



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the time of the shooting, he was with Ms. Dixon, at her residence,

approximately six or seven blocks away from the scene of the crime. Id. at

11-12. As Appellant testified, he informed Attorney Clarke about Ms. Dixon

and he “wanted [Attorney Clarke] to interview [Ms. Dixon], to question her,

anything in th[e] ordinary.” Id. at 13.

      Benita Dixon testified that, at the time of the shooting, Appellant was

sitting in her house while she was making their dinner. Id. at 21. She testified

that, after they ate, she and Appellant “stayed up in [her] room watching TV,

watching movies.” Id. As Ms. Dixon also testified, she attempted to contact

Attorney Clarke prior to Appellant’s trial, but Attorney Clarke did not return

her telephone calls. Id. at 22.

      Attorney Clarke testified that, prior to Appellant’s trial, she knew of Ms.

Dixon and knew that Ms. Dixon was a purported alibi witness.          Id. at 32.

Thus, Attorney Clarke assigned an investigator to speak with Ms. Dixon. Id.

at 30. However, Attorney Clarke testified, she did not learn until later that

the investigator was suffering from Alzheimer’s disease and had “never talked

to [Ms. Dixon].” Id. Attorney Clarke testified: “I'm the attorney, I should

have interviewed [Ms. Dixon] myself, not relied on an investigator. So it's my

fault.” Id.

      Nevertheless, Attorney Clarke testified that, prior to trial, she knew of

the potential for an alibi defense and knew that the purported alibi witness

was Appellant’s girlfriend. Id. at 32. She testified that, prior to trial, she and

Appellant “had numerous discussions about what the best possible strategy

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was for this case. It changed from time to time. He was going to plead and

then we were going to bring the alibi witness in, then we weren't going to,

and it was a long time too . . . there was a 600 motion. . . . But there were

numerous discussions and numerous theories that went back and forth.” Id.

at 33-34. She testified that, ultimately, she decided against the use of an alibi

defense because “I had concerns about an alibi witness, what could happen

with an alibi witness. I thought that our defense was a really strong defense

based on the evidence we had.” Id. at 34.

       Attorney Clarke testified that, “[i]n hindsight,” her defense strategy was

“not correct,” as the trial court did not admit the evidence that Attorney Clarke

believed was necessary to effectively mount her particular defense.2 Id. at

35.   Moreover, Attorney Clarke testified that she “shouldn’t have pressed

[Appellant] to go to trial” and that she should have, instead, pressured




____________________________________________


2 Attorney Clarke’s PCRA hearing testimony was, at times, difficult to
understand. She testified that, going into trial, her anticipated defense was:

         [the Victim] sold drugs for everybody. He had encounters
         with the Wests, with [Appellant’s] brother. He was like a little
         bit of a thief. So he had a lot of people that were after him.
         At this particular time, this Asian gang was really strong in
         this neighborhood and they were after him. We had, again,
         photographs of the people we believed to be the gang. We
         have photographs of them. You know, the victim selling drugs
         for them and the evidence was not allowed into the trial.

N.T. PCRA Hearing, 11/9/17, at 33.


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Appellant to accept the Commonwealth’s offer of seven-and-a-half to 15 years

in prison. Id. at 30 and 33.

       At the conclusion of the hearing, the PCRA court denied Appellant

post-conviction collateral relief. Id. at 48. As the PCRA court explained:

         Let's cut to the chase. I just don't believe [Attorney Clarke].
         I just absolutely do not believe her. . . .

         I think at the heart of [Attorney Clarke’s] testimony is her
         regret that she didn't hit [Appellant] over the head and
         convince him to take the [seven-and-a-half] to 15 plea and
         instead went to trial thinking she had the Asian defense or
         some other defense and she was wrong. Lawyers make
         strategy calls all the time. It was her strategy call and she
         feels bad about it.

Id. at 43-44.

       Appellant filed a timely notice of appeal. Appellant numbers four claims

on appeal:3

____________________________________________


3 The PCRA court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Appellant filed a timely Rule 1925(b) statement and,
within the statement, Appellant listed the following claims:

         1. The court was in error in not granting [Appellant’s] PCRA
         [petition] following the evidentiary hearing. [Appellant’s]
         attorney testified that she was ineffective for failing to
         interview and call to testify an alibi witness. Additionally the
         alibi witness testified that she was never interviewed or called
         to testify and [Appellant] testified he asked counsel to
         interview and call the alibi witness.

         2. The court was in error in failing to grant the PCRA [petition]
         on the additional issues listed and explained in full in the
         amended PCRA [petition] filed by PCRA counsel.



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         [1.] Counsel was ineffective for failing to interview and
         present a witness.

         [2.] Counsel was ineffective for failing to file a post verdict
         motion that the verdict was against the weight of the
         evidence.

         [3.] Trial counsel was ineffective by failing to properly have
         an investigator investigate the case and obtain expert
         witnesses.

         [4.] Appellate counsel was ineffective for failing to properly
         represent Appellant.

Appellant’s Brief at 16-23 (some capitalization omitted).4

       Our Supreme Court has held:

         Under the applicable standard of review, we must determine
         whether the ruling of the PCRA court is supported by the
         record and is free of legal error. The PCRA court's credibility
         determinations, when supported by the record, are binding
         on this Court. However, this Court applies a de novo
         standard of review to the PCRA court's legal conclusions.

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citations omitted).
____________________________________________




         3. The court was in error in failing to grant an evidentiary
         hearing on the additional issues listed in the amended PCRA
         filed by PCRA counsel.

Appellant’s Rule 1925(b) Statement, 12/7/17, at 1.

4 We direct counsel to Pennsylvania Rule of Appellate Procedure 2116(a) and
warn counsel not to disregard the rule in the future. Pa.R.A.P. 2116(a) (“The
statement of the questions involved must state concisely the issues to be
resolved, expressed in the terms and circumstances of the case but without
unnecessary detail. The statement will be deemed to include every subsidiary
question fairly comprised therein. No question will be considered unless
it is stated in the statement of questions involved or is fairly
suggested thereby.”) (emphasis added).


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      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is 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.A. § 9543(a)(2)(ii).

      Counsel is presumed to be effective and “the burden of demonstrating

ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead

and prove by a preponderance of the evidence that:

        (1) his underlying claim is of arguable merit; (2) the
        particular course of conduct pursued by counsel did not have
        some reasonable basis designed to effectuate his interests;
        and, (3) but for counsel’s ineffectiveness, there is a
        reasonable probability that the outcome of the challenged
        proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has

explained:

        A claim has arguable merit where the factual averments, if
        accurate, could establish cause for relief.                 See
        Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
        (“if a petitioner raises allegations, which, even if accepted as
        true, do not establish the underlying claim . . . , he or she
        will have failed to establish the arguable merit prong related
        to the claim”). Whether the facts rise to the level of arguable
        merit is a legal determination.



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        The test for deciding whether counsel had a reasonable basis
        for his action or inaction is whether no competent counsel
        would have chosen that action or inaction, or, the alternative,
        not chosen, offered a significantly greater potential chance of
        success. Counsel’s decisions will be considered reasonable if
        they effectuated his client's interests. We do not employ a
        hindsight analysis in comparing trial counsel's actions with
        other efforts he may have taken.

        Prejudice is established if there is a reasonable probability
        that, but for counsel’s errors, the result of the proceeding
        would have been different. A reasonable probability is a
        probability sufficient to undermine confidence in the
        outcome.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some

quotations and citations omitted). “A failure to satisfy any prong of the test

for ineffectiveness will require rejection of the claim.” Id.

      Appellant first claims that his trial counsel was ineffective for failing to

contact and interview the purported alibi witness, Benita Dixon, and that the

PCRA court erred when it refused to grant him relief on this claim. Appellant’s

Brief at 22-23.

      Our Supreme Court has explained:

        Generally, an alibi is a defense that places the defendant at
        the relevant time in a different place than the scene involved
        and so removed therefrom as to render it impossible for him
        to be the guilty party. At the core of an alibi defense is, of
        course, consistency between the date and time of the crime
        and that of the defendant's alibi.

Commonwealth v. Ali, 10 A.3d 282, 316 (Pa. 2010) (citations, quotations,

and corrections omitted).

      Further:




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        In order to prevail on a claim of ineffectiveness for failing to
        call a witness, a [petitioner] must [plead and] prove, in
        addition to . . . the three [general ineffective assistance of
        counsel] requirements [listed above], that: (1) the witness
        existed; (2) the witness was available to testify for the
        defense; (3) counsel knew or should have known of the
        existence of the witness; (4) the witness was willing to testify
        for the defense; and (5) the absence of the witness's
        testimony was so prejudicial as to have denied [the
        petitioner] a fair trial.

Commonwealth v. Wright, 961 A.2d 119, 155 (Pa. 2008).

      The PCRA court thoroughly explained why Appellant was not entitled to

relief on his claim that Attorney Clarke was ineffective for failing to call Ms.

Dixon as an alibi witness at trial:

        During her testimony, [Attorney Clarke], reflecting back on
        the history of the case, seemed to be taking personal
        responsibility for [Appellant’s] conviction, stating: "I thought
        that our defense was a really strong defense based on the
        evidence we had and I was wrong." She [was] most critical
        of herself in failing to persuade [Appellant] to accept a plea
        offer of [seven-and-a-half] to 15 [years’] incarceration.
        Instead, [Appellant] received what amounted to a life
        sentence upon his conviction.

        Although [Attorney Clarke] attempted to take personal
        responsibility for [Appellant’s] conviction and sentence by
        portraying herself as being ineffective, the [PCRA] court did
        not find her attempt to take personal responsibility credible;
        stating for the record:

            Let's cut to the chase. I just don't believe [Attorney
            Clarke]. I just absolutely do not believe her. . . .

            I think at the heart of her testimony is her regret that she
            didn't hit him over the head and convince him to take the
            [seven-and-a-half] to 15 plea and instead went to trial
            thinking she had the Asian defense or some other defense
            and she was wrong. Lawyers make strategy calls all the
            time. It was her strategy call and she feels bad about it.


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       [N.T. PCRA Hearing, 11/9/17, at 43-44.]

       [Appellant’s] conviction arose from his unprovoked shooting
       and crippling of the [Victim]. At trial, the [Victim] identified
       [Appellant] as the shooter, testifying that he and [Appellant]
       had grown up together as children, as adults, and as friends
       living a block apart. His identification of [Appellant] as the
       shooter was positive and unequivocal.

       It is clear from the record that [Attorney Clarke’s] decision
       not to call Ms. Dixon as an alibi witness resulted from a
       reasonable trial strategy. In light of the [Victim’s] positive
       identification of [Appellant] as the shooter, she decided on
       this course of action after numerous discussions with
       [Appellant] and balancing the risks and benefits of calling Ms.
       Dixon as an alibi witness. It is also clear that this strategy
       was not decided upon because of any shortcoming of her
       office's investigator. Furthermore, in his exhibit attached to
       his PCRA petition, [Appellant] acknowledges he was aware of
       this trial strategy, wherein he stated:

          My alibi witness (Benita) left messages on my lawyer
          answer machine, stating that she will testify on my behalf.
          My counsel said that it will not be a wise choice for
          her to testify for me at trial. Because the jury is
          going to believe that Benita will defend her
          boyfriend for all purpose.

       [Appellant’s Statement, 3/3/15, attached as “Appendix A” to
       Appellant’s Amended PCRA Petition, at 1 (paragraph
       numbering omitted) (emphasis added).]

       It is clear that [Attorney Clarke], "through comparing, in
       hindsight, the trial strategy employed with alternatives not
       pursued," truly regretted the outcome at trial. However, this
       is not sufficient to find her trial strategy [rose] to the level of
       ineffective assistance of counsel. It is clear that [Appellant]
       has failed to prove [that the “particular course of conduct
       pursued by [Attorney Clarke] did not have some reasonable
       basis designed to effectuate [Appellant’s] interests.”
       Stewart, 84 A.3d at 707 (some quotations and citations
       omitted)]. Furthermore, in considering the potential harmful
       effects of Ms. Dixon's alibi testimony, [Appellant] has also

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         failed to establish that he was in fact prejudiced by [Attorney
         Clarke’s] trial strategy.

PCRA Court Opinion, 9/28/18, at 7-9 (citations and some quotations and

capitalization omitted).

      The PCRA court’s credibility and factual determinations are supported

by the record and, thus, are binding on this Court. Further, the PCRA court’s

ultimate conclusion that Attorney Clarke’s trial strategy – and her decision not

to call Ms. Dixon as an alibi witness – was reasonable in light of the Victim’s

“positive and unequivocal” identification of Appellant, his longtime friend, as

the shooter, was also supported by the record and is consistent with our law.

Therefore, the PCRA court did not err when it denied Appellant relief on his

ineffective assistance of counsel claim and Appellant’s current claim of PCRA

court error fails.

      Appellant’s final three claims on appeal are waived, as Appellant did not

specifically list these claims of error in his Rule 1925(b) statement and

Appellant’s Rule 1925(b) statement was too vague to allow the PCRA court to

identify the issues he currently raises on appeal. See Appellant’s Rule 1925(b)

Statement, 12/7/17, at 1 (declaring: “2. The court was in error in failing to

grant the PCRA [petition] on the additional issues listed and explained in full

in the amended PCRA [petition] filed by PCRA counsel[;] 3. The court was in

error in failing to grant an evidentiary hearing on the additional issues listed

in the amended PCRA filed by PCRA counsel”); PCRA Court Opinion, 9/28/18,

at 3 (finding that Appellant’s second and third numbered claims in his Rule

1925(b) statement were “too vague to allow the court to identify the issues

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raised   on    appeal”)   (citations   and      quotations   omitted);   see   also

Commonwealth v. Dowling, 778 A.2d 683, 686-687 (Pa. Super. 2001) (“a

concise statement which is too vague to allow the court to identify the issues

raised on appeal is the functional equivalent of no concise statement at all”)

(some capitalization omitted); Commonwealth v. Jackson, 900 A.2d 936,

939 (Pa. Super. 2006) (“in Commonwealth v. Castillo, 888 A.2d 775 (Pa.

2005), the Supreme Court reaffirmed the bright-line rule established in

Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), which requires waiver

whenever an appellant fails to raise an issue in a court-ordered [Rule] 1925(b)

statement”).

      Order affirmed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/19




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