J-S18031-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOVON JAVAR DESHIELDS                      :
                                               :
                       Appellant               :   No. 1606 MDA 2019

            Appeal from the PCRA Order Entered September 9, 2019
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0006613-2010


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED MAY 12, 2020

        Appellant, Jovon Javar DeShields, appeals from the order entered in the

Court of Common Pleas of York County dismissing his first petition filed under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, at the

conclusion of an evidentiary hearing. Herein, Appellant claims trial counsel

rendered ineffective assistance by failing to convey the Commonwealth’s plea

offer and pursue an alibi witness. We affirm.

        In this Court’s memorandum decision affirming judgment of sentence,

we set forth the underlying facts and procedural history of Appellant’s case in

the direct appeal phase, as follows:

        On August 21, 2010, the victim, Rose Bosley, arrived at the York
        City Police Station with a gunshot wound to her abdomen, and
        was transported to York City Hospital for treatment. Affidavit of
        Probable Cause, 9/28/10. Ms. Bosley informed the police that she
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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       had arranged to buy crack cocaine in York City, and met her
       supplier in the area of 17 West Maple Street. N.T., 5/7–10/12, at
       166–187. Ms. Bosley had previously been involved in two hostile
       encounters with Appellant in the area of West Maple Street. Id.

       After meeting with her supplier, Ms. Bosley was preparing to leave
       the area when Appellant approached her car. Id. Ms. Bosley, who
       recognized Appellant from her previous encounters with him, saw
       Appellant reach for his waistband, and heard Appellant say
       “remember me” before he pointed a gun at her and fired. Id. Ms.
       Bosley managed to drive away from the scene to the police
       station. Id. Ms. Bosley was shot once in the stomach, and her
       car was shot approximately two more times as she drove away.
       Affidavit of Probable Cause, 9/28/10.

       Based on information provided by Ms. Bosley, York City Police
       Detective Anthony Fetrow prepared a photographic lineup, and
       Ms. Bosley identified Appellant as the shooter. Appellant was
       subsequently arrested and charged with [attempted murder, two
       counts of aggravated assault, possession of a firearm by a minor,
       and carrying a firearm without a license.1].

       Appellant was fifteen years old at the time of the shooting. On
       April 13, 2011, he filed a petition to transfer the case from the
       jurisdiction of criminal court to juvenile court. On September 15,
       2011, the trial court denied Appellant's petition. A jury trial
       commenced on May 7, 2012[, at which time Appellant was 17
       years old]. The jury rendered their verdicts on May 10, 2012. On
       June 20, 2012, the trial court sentenced Appellant to twelve to
       twenty-four years of imprisonment.

Commonwealth v. Deshields, No. 1545 MDA 2012, 2013 WL 11274837, at

*1 (Pa.Super. Apr. 19, 2013).             Subsequent to our decision and order,

Appellant filed a petition for allowance of appeal with the Pennsylvania

Supreme Court, which denied his petition.


____________________________________________


118 Pa.C.S.A. §§ 901(a) and 2502(a); 2702(a)(1) and (4); 6110.1(a); and
6106(a)(1).


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        On October 10, 2017, Appellant filed a timely first PCRA petition raising,

inter alia, the two ineffectiveness issues presently before this Court. The PCRA

court appointed counsel, who filed an amended PCRA petition on June 29,

2018.

        On August 2, 2019, the PCRA court presided over an evidentiary hearing

at which trial counsel, Appellant, and the purported alibi witness provided

testimony.     At the conclusion of the hearing, the PCRA court discredited

Appellant’s testimony accusing counsel of never having conveyed the

Commonwealth’s plea offers, and concomitantly found credible counsel’s

specific recollection of discussing plea offers with both Appellant and his

family. In addition, the court concluded Appellant’s alibi witness’ vague and

nonspecific testimony failed to supply an actual alibi. Accordingly, the court

denied Appellant relief and dismissed his petition. This timely appeal followed.

        “[W]e review a denial of PCRA relief to determine whether the findings

of the PCRA court are supported by the record and free of legal error.”

Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa.Super. 2017)

(quoting Commonwealth v. Treiber, 632 Pa. 449, 121 A.3d 435, 444

(2015)). A PCRA court's credibility findings are to be accorded great

deference, and where supported by the record, such determinations are

binding on a reviewing court. Commonwealth v. Abu–Jamal, 720 A.2d 79,

99 (Pa. 1998). A PCRA court's legal conclusions, however, are reviewed de

novo. Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011).




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     We presume that the petitioner’s counsel was effective, and a petitioner

bears the burden of proving otherwise. Commonwealth v. Williams, 732

A.2d 1167, 1177 (Pa. 1999). In assessing Appellant's ineffectiveness claim,

we apply the well-settled test enunciated in Strickland v. Washington, 466

U.S. 668 (1984) and adopted in Commonwealth v. Pierce, 527 A.2d 973,

975 (Pa. 1987):

     To prevail on an ineffectiveness claim, appellant must establish:
     (1) the underlying claim has arguable merit; (2) no reasonable
     basis existed for counsel's actions or failure to act; and (3)
     [appellant] suffered prejudice as a result of counsel's error such
     that there is a reasonable probability that the result of the
     proceeding would have been different absent such error.

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). The failure to prove

any one prong is cause alone for dismissal of the claim without the need to

determine whether the other two prongs have been met. Commonwealth v.

Basemore, 744 A.2d 717 (Pa. 2000).

     In Appellant’s first issue, he contends trial counsel failed altogether to

advise him of the Commonwealth’s plea offer of 3 to 10 years, which he says

he would have accepted had he known of the offer.        Instead, because of

counsel’s ineffectiveness, he is serving a sentence three times greater than

what was offered.

      This Court has recognized “it is evident that incorrect advice or failing

to properly advise a client can be grounds for an ineffectiveness claim.”

Commonwealth v. Markowitz, 32 A.3d 706, 716 (Pa.Super. 2011) (citing

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999); Commonwealth


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v. Boyd, 688 A.2d 1172, 1175 (Pa. 1997) (failure to properly explain the

advantages and disadvantages of accepting or rejecting a plea offer may be

ineffective    assistance      of   counsel),    overruled   on   other   grounds,

Commonwealth ex rel. Dadario v. Goldberg, 565 Pa. 280, 773 A.2d 126

(2001)).

       At the PCRA evidentiary hearing below, Appellant testified that trial

counsel had come to see him only three times while in pre-trial detention, and

with just five days left before trial, counsel sent him a letter summarizing

pretrial proceedings to-date and explaining defense strategy. N.T. 8/2/19, at

50. According to Appellant, the letter represented the first time he learned

the Commonwealth had offered a plea deal of 3 to 10 years’ incarceration.2

       Citing his young age at the time, Appellant testified he did not

understand what a plea offer even meant when he read the letter. N.T. at 51.

He maintained it was not until the day of trial that he had an opportunity to

ask trial counsel about the offer, but trial counsel told him the deal “was off

the table.” N.T. at 51-52. Had counsel informed him earlier about the deal,

Appellant insisted, he would have accepted it. N.T. at 52.

       On cross-examination, the Commonwealth explored Appellant’s claim

that he was unfamiliar with the practice of plea dealings, and it confirmed

Appellant previously had been charged criminally and processed before, albeit
____________________________________________


2 Counsel’s letter discussed two plea offers, one for 3 to 10 years and a
subsequent one for 1 to 4 years, which the Commonwealth apparently had
offered in the wake of its concerns about the victim contacting Appellant’s
aunt but then had retracted immediately thereafter.

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it disposition was ultimately in the juvenile system, such that he had “some

awareness of how the system works.” N.T. at 53-54. The Commonwealth

also confirmed that Appellant received counsel’s letter five days before trial,

and it asked if he ever attempted to contact counsel regarding the plea offers.

Appellant maintained he did not have the opportunity to do so. N.T. at 55.

      Trial   counsel’s   testimony    contradicted    Appellant’s   assertions.

Specifically, counsel testified that he maintained frequent contact with

Appellant’s mother and grandmother at his office and visited Appellant at the

prison an estimated “dozen times.” N.T. at 7-8. Counsel described going to

the prison often as the trial date approached:

      Trial Counsel: I do know towards – right before trial the issue
      came in with – the victim left some crazy message on an aunt’s
      voicemail. I remember I was out a lot [to the prison] then because
      we were talking about the last offer that got revoked by the
      Commonwealth and making sure that – is it going to be a plea, is
      it not going to be a plea, all right, we’re going to go to trial, how
      are we going to frame it, and everything else.

N.T. at 9.

      Counsel also averred that he conveyed to Appellant, his mother, and

grandmother the Commonwealth’s 3 to 10 year plea deal, which he further

maintained had been offered even before he succeeded prior counsel in

representing Appellant. N.T. at 10-11. Specifically, counsel testified:

      PCRA Counsel: Attorney Gross [trial counsel], were there plea
      deals in this case?

      Trial Counsel: The one that was right from the beginning, and
      that’s the one that was offered, I think, even to [prior trial
      counsel], was a 3 to 10 time period, and that was not acceptable,

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     No. 1, by Mr. DeShields [Appellant]. And to be fair, I talked to his
     parents, his mother and grandmother the most on that because
     he would always be, [“]What does my family want me to do?[”],
     you know, because he’s young. It was always, [“]He didn’t do it,[”]
     [“]He wasn’t involved,[”] so the offer was rejected.       And Mr.
     DeShields still said that he wasn’t involved, he didn’t do it, he
     wasn’t there when Miss Bosley was shot on the day – the day she
     was shot.

     PCRA Counsel: So it’s your testimony that the first time you
     brought a 3 to 10 offer to Mr. DeShields, who was 17 at the time,
     was not in the letter you wrote him on April 27th?

     Trial Counsel: No. There was that offer before for 3 to 10 that,
     you know, I talked – I can’t even say when, but it was an offer.

     ...

     The only time it went to something different was when Dave
     Sunday came to me and said, hey, why don’t we do a 1 to 2 or 1
     to 3, something in that time period, because Ms. Bosley left a
     really highly impaired voicemail on I believe it was Jovon’s aunt’s
     answering machine, and unfortunately that got revoked . . . .

     I remember when I first got that offer, I remember I talked on my
     cell number to his mother, grandmother, then also I went out. I
     was excited, talked to Jovon about that. But then before we could
     even get into court, that was revoked.

     ...

     PCRA Counsel: So you would have written the letter and gone
     to see him?

     Trial Counsel: Right. The letter is – I know I had already talked
     to him in person about the offer and being revoked. This letter is
     what I like to call CYA, which is I like to cover myself, which is,
     hey, by the way, it’s in writing, it’s going out to the prison so you
     have a copy, and then I talk to him as well and family.

     PCRA Counsel: Attorney Gross, the second paragraph in your
     letter, it’s the second to last sentence . . . starts with, “I feel . . .
     .” Could you read that sentence?


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     Trial Counsel: Absolutely. I feel very confident about our
     success in the case, yet the DA is still only offering a 3 to 10-year
     sentence. As such, I see we are going to trial. If you are
     convicted, then you do face a 20 to 40-year sentence on the most
     serious charge of attempted homicide.

     PCRA Counsel: So the first sentence I had you read, you would
     agree that that is more or less promising an outcome.

     Trial Counsel: No. Looking for my opinion. I do feel confident.
     He said he didn’t do it. I felt very confident that we could present
     a good defense to the case.

     You can’t promise anything. I really think a 3 to 10 would have
     been a great resolution; but if the Defendant and family don’t
     accept it, I can’t make somebody – I can’t force somebody to
     plead ‘cause then I get PCRA’d for voluntariness and forcing a
     client to plead.

     ...

     PCRA Counsel: Is it possible that your confidence in the outcome
     could have led Mr. Deshields to pursue trial?

     Trial Counsel: Absolutely not. Unfortunately, a lot of people tell
     me, why aren’t you fighting for me, or aren’t you going to, like –
     why are you trying to make me plead to something I didn’t do,
     because when you plead guilty or no contest, you have the control
     over what happens. And Jovon [Appellant] was 17. Even with a
     3 to 10, he’d still be out in his early 20s.

     But it’s – it was rejected. Therefore, we went to trial. I would
     much rather not have to go through a trial and resolve it with a
     negotiated plea.

N.T. at 11-12, 15-16, 20.

     At the close of evidence, the PCRA court indicated it found trial counsel’s

testimony credible, such that it rejected Appellant’s allegation that counsel

failed to inform him of the Commonwealth’s plea offers:




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     PCRA Court: The offers are conveyed in the letter of April 27,
     2012, so as the Commonwealth indicated, under the law, the fact
     that an offer was made was conveyed to [Appellant].

     I find Attorney Gross’s testimony accurate. It rings true that –
     and there’s nothing wrong with this – that Appellant was asserting
     his innocence all along. He’s entitled to do that. Nothing wrong
     with that. But that also undercuts that prejudice component of
     the case. If he wasn’t intending to plead guilty because he
     thought he was innocent, that’s his right. He doesn’t get to have
     buyer’s remorse later on and say, gee, I should have taken that
     deal, and then try to lay it at the feet of his attorney. I see no
     basis for that in this case.

     The Court finds that Attorney Gross did convey all plea offers to
     Appellant. He did to in a timely fashion. He did it with the original
     3 to 10. He did it when it dropped to 1 to 2. He conveyed the
     withdrawal of the 1 to 2, and what he did testify truthfully to was
     he just wasn’t sure if the 3 to 10 was still on the table the morning
     of the trial. He didn’t testify that he didn’t know the morning of
     the trial. He testified he didn’t know here today whether that was
     still the case on the morning of trial.

     The Court doesn’t find that defense counsel was dilatory in any
     way in not timely communicating all plea offers, nor that he was
     dilatory or negligent in any way in not jumping on a great deal in
     a timely fashion.

     [PCRA] counsel argues well, like when you get a sweetheart deal,
     you need to jump on it right away. Yeah. You know, the Court
     thinks that’s a good argument. But you got to have a client who
     is willing to take the deal, and I don’t have any evidence that that
     was the case in this situation.

     Mr. DeShields overplayed his hand in this hearing. Some of what
     he testified to might have been true. When he went off on saying
     that, [he] didn’t even know what a plea offer was, when he’s 17
     years old, then I’m going, okay, this guy is not just trying to set
     up a record to benefit himself. . . . [T]hat’s the point I became
     convinced Mr. DeShields was just lying in his testimony, so that
     means I can’t trust the rest of what he’s saying.

     Some of what else he was saying might have been true, but he
     was overreaching, so I can’t tell when he’s lying and when he’s

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      telling the truth, so I am not going to give credibility to his
      testimony.

N.T., at 70-72.

      The record confirms, therefore, the PCRA found counsel testified credibly

that he engaged in pre-trial discussions with Appellant regarding the

Commonwealth’s plea offer of 3 to 10 years’ incarceration, but that it was

Appellant’s election to decline that offer.      In contrast, the court deemed

Appellant incredible as a witness, as explained in the excerpt above, and we

discern no reason why the court’s credibility determinations shall not be

binding upon this Court. Therefore, Appellant’s first ineffectiveness claim fails,

as it hinged upon the court finding credible his testimony that counsel never

informed him of the plea offer prior to trial.

      In Appellant’s second issue, he argues trial counsel was ineffective for

failing to investigate and call an available alibi witness, Appellant’s 16-year

old cousin, Jonae DeShields, at trial. We disagree.

      To prevail on a claim of trial counsel’s ineffectiveness for failure to call

a witness, an appellant must show: (1) the witness existed; (2) the witness

was available; (3) counsel was informed of the existence of the witness or

should have known of the witness’s existence; (4) the witness was prepared

to cooperate and would have testified on appellant’s behalf; and (5) the

absence of the testimony prejudiced appellant. Commonwealth v. Cousar,

154 A.3d 287, 312 (Pa. 2017) (citation omitted). “The failure to call a possible

witness will not be equated with a conclusion of ineffectiveness, absent some

positive demonstration that the testimony would have been helpful to the

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defense.” Commonwealth v. Jones, 652 A.2d 386, 389 (Pa.Super. 1995).

See also Commonwealth v. Auker, 681 A.2d 1305, 1319 (Pa. 1996) (“A

failure to call a witness is not per se ineffective assistance of counsel for such

decision usually involves a matter of trial strategy”).

      Likewise, “[t]he failure to call a possible alibi witness is not per se

ineffective assistance of counsel.” Commonwealth v. Williams, 418 A.2d

499, 503, (Pa. Super. 1980) (citations omitted). “It is only where it is shown

that a defendant has informed his attorney of the existence of an alibi witness

and trial counsel, without investigation and without adequate explanation,

fails to call the witness at trial that counsel will be deemed ineffective.” Id.

      According to Appellant, Ms. DeShields testified at the PCRA hearing that

she was with Appellant on the date and time of the incident. She also testified,

he maintains, that she told trial counsel that she was able and willing to testify

on Appellant’s behalf, and she appeared at Appellant’s trial but was not called

to the witness stand.

      The PCRA court, however, determined that Ms. Deshields’ testimony “did

not provide the PCRA Court with even a de minimis amount of information

necessary to determine whether Jonae Deshields’ testimony could have

provided an alibi for Appellant.” Opinion at 2. Ms. Deshields never spoke to

what Appellant was doing at the time the victim in the case sub judice was

shot. Instead, the court notes, “[s]he merely testified as to being available to

testify, without stating the substance of her supposed alibi. Accordingly, there

are no facts on the PCRA hearing record that an alibi existed. As such, the

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Court cannot conclude that defense counsel erred in not calling Ms.

DeShields.” Id.

      The notes of testimony from the PCRA hearing support the court’s

observation that particular details necessary to establish the ineffectiveness

claim at issue were lacking. Specifically, Jonae Deshields testified on direct

examination as follows:

      PCRA Counsel:       [D]o you remember having discussions with
      [trial counsel]?

      Ms. Deshields:      Yes.

      PCRA Counsel:       And what were those discussions regarding?

      Ms. Deshields:     He was asking me about the day – the night of
      the situation that happened with Jovon. He was asking me what
      we were doing, how old was I, what time was it, things like that.

      PCRA Counsel:       And    what   was      your   explanation   to   [trial
      counsel]?

      Ms. Deshields:  I told him everything. I told him what time it
      was, where we was at, the date, what was happening.

      PCRA Counsel:      Did you tell [trial counsel] that you were willing
      to testify to those --

      Ms. Deshields:      Yes. Um-hum.

      PCRA Counsel:       --facts?

      Ms. Deshields:      Yes.

      PCRA Counsel:       And what, if anything, was [trial counsel’s]
      reaction?

      Ms. Deshields:      He said I will come on the stand and talk at the
      trial.


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      ...

      PCRA Counsel: Were you present for the trial?

      Ms. Deshields:      Yes, I was.

      But you did not testify?

      Ms. Deshields:      No, I didn’t.

N.T. at 42-43.

      On cross-examination, Ms. Deshields acknowledged that she never

approached Appellant’s first trial lawyer with her alibi testimony, nor did she

add any particular facts placing Appellant in her company at the time of the

shooting. N.T. at 44-45.

      For his part, trial counsel did not recall anyone coming forward with a

“real” or “true” alibi.    N.T. at 18.        Counsel remembered Ms. Deshields

attending trial, but he did not remember her offering an alibi in which she said

Appellant wasn’t at the scene of the crime but was with her, instead.

      “It would be great if there was an alibi specifically that could say that[,]”

counsel stated. “I would have loved it if it was actually true, you know, that

she could physically say [that], then she would be subpoenaed, and her parent

would have to come to court.” N.T. at 19.

      Presented with this record, the PCRA court reasonably concluded

Appellant failed to establish, at the very least, that he was prejudiced by the

absence of Ms. Deshield’s testimony at his trial. Without offering any facts at

the PCRA hearing to substantiate her purported alibi for Appellant, Ms.



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Deshields failed to show her testimony would have been helpful to Appellant

at his criminal trial. Accordingly, the PCRA court did not err in declining to

hold trial counsel ineffective for electing against presenting Ms. Deshields as

an alibi witness.

          For the foregoing reasons, we affirm the order denying Appellant PCRA

relief.

          Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/12/2020




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