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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
                      v.                     :
                                             :
TYREE WILSON,                                :            No. 1551 EDA 2018
                                             :
                            Appellant        :


                   Appeal from the PCRA Order, April 30, 2018,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0007352-2009


BEFORE: BENDER, P.J.E., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED FEBRUARY 27, 2019

        Tyree Wilson appeals from the April 30, 2018 order dismissing his

petition   filed   pursuant    to   the   Post   Conviction    Relief   Act    (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

        The PCRA court set forth the extensive factual history of this case in its

July 11, 2018 opinion, and we need not reiterate it here. (See PCRA court

opinion, 7/11/18 at 3-6, quoting trial court opinion, 8/26/14 at 2-6.)                 In

sum, appellant was found guilty in a bench trial of two counts of first-degree

murder and one count of possessing instruments of crime (“PIC”)1 in

connection     with   the    2009   shooting     deaths   of   Daheem         White   and

Hassan Baldwin. On May 9, 2012, the trial court sentenced appellant to two




1   18 Pa.C.S.A. §§ 2501(a) and 907, respectively.
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consecutive life sentences on the murder convictions, and a concurrent two

and one-half to five years’ imprisonment for PIC.             James S. Bruno, Esq.

(“trial counsel”), represented appellant at trial.

        On February 17, 2015, a panel of this court affirmed appellant’s

judgment of sentence, and our supreme court denied allowance of appeal on

August 17, 2015.         Commonwealth v. Wilson, 120 A.3d 382 (Pa.Super.

2015), appeal denied, 123 A.3d 331 (Pa. 2015).                Appellant did not seek

review with the United States Supreme Court. On March 22, 2016, appellant

filed   a    timely   pro    se   PCRA   petition,   and   David     Rudenstein,   Esq.

(“PCRA counsel”), was appointed to represent him. On May 9, 2017, PCRA

counsel filed an amended petition on appellant’s behalf, arguing that trial

counsel was ineffective in failing to investigate or call the following five alibi

witnesses:          Lamont    Priester[2];   Macdijon   White;      Donesha   Williams;

Denean Winston; and an individual identified only as “Miss Winston.” (See

letter brief in support of amended PCRA petition, 5/9/17 at 8.)

        An evidentiary hearing was scheduled for August 4, 2017, but was

ultimately continued at appellant’s request. That same day, the PCRA court

ordered appellant to provide the Commonwealth with the full names,

addresses, dates of birth, and the substance of the proposed testimony of

four    of    the     five   alleged   witnesses,    specifically    White,   Williams,


2 This individual is also referred to as “Lamont Priestly” in both the PCRA
court opinion and the Commonwealth’s brief. (See PCRA court opinion,
7/11/18 at 2; Commonwealth’s brief at 4.)


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Denean Winston, and “Miss Winston,” within 30 days of the next scheduled

hearing.   (PCRA court order, 8/4/17.)         The evidentiary hearing was

rescheduled for December 27, 2017, but was continued after appellant was

unable to contact any of the aforementioned witnesses.         On January 8,

2018, the PCRA court again ordered appellant to provide the Commonwealth

with the full names, addresses, and statements of any witness he intended

to call, and rescheduled the evidentiary hearing for February 28, 2018.

(PCRA court order, 1/8/18.) On that date, Priester appeared and informed

the PCRA court that he had no knowledge of the shooting and could not

identify the shooter. (See PCRA court opinion, 7/11/18 at 10.). No other

witnesses appeared or were called to testify on appellant’s behalf.

      The PCRA court rescheduled the evidentiary hearing for the fourth time

on March 28, 2018, but no witnesses appeared. Thereafter, the PCRA court

provided appellant with notice of its intention to dismiss his petition without

a hearing, pursuant to Pa.R.Crim.P. 907(1).         Appellant did not file a

response to the PCRA court’s Rule 907 notice. Thereafter, on April 30, 2018,

the PCRA court entered an order dismissing appellant’s petition without an

evidentiary hearing.   This timely appeal followed on May 30, 2018.         On

June 1, 2018, the PCRA court directed appellant to file a concise statement

of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b),

within 21 days.     Appellant filed his timely Rule 1925(b) statement on




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June 22, 2018, and the PCRA court filed its Rule 1925(a) opinion on July 11,

2018.

        Appellant raises the following issue for our review:

              I.    Did the [PCRA] Court err when it dismissed the
                    PCRA petition without a hearing and before
                    determining, through a hearing, whether trial
                    counsel was ineffective for having failed to
                    pursue an alibi defense when it was fresh?

Appellant’s brief at 3.

        Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants

great deference to the findings of the PCRA court, and we will not disturb

those findings merely because the record could support a contrary holding.”

Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa.Super. 2002)

(citation omitted). In order to be eligible for PCRA relief, a defendant must

plead and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2). These issues must be neither previously litigated nor waived.

42 Pa.C.S.A. § 9543(a)(3).

        To prevail on a claim of ineffective assistance of counsel under the

PCRA, a petitioner must establish the following three factors:       “first[,] the

underlying claim has arguable merit; second, that counsel had no reasonable



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basis for his action or inaction; and third, that Appellant was prejudiced.”

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014)

(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

            [A] PCRA petitioner will be granted relief only when
            he proves, by a preponderance of the evidence, that
            his conviction or sentence resulted from 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.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation

marks   omitted;    some    brackets    in   original),   citing   42   Pa.C.S.A.

§ 9543(a)(2)(ii). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.”         Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation omitted), appeal

denied, 30 A.3d 487 (Pa. 2011). Additionally, counsel is not ineffective for

failing to raise a claim that is devoid of merit. Commonwealth v. Ligons,

971 A.2d 1125, 1146 (Pa. 2009).

      Instantly, appellant argues that trial counsel was ineffective in failing

“to pursue an alibi defense when it was fresh” by investigating or calling the

following five alibi witnesses:   Priester; White; Williams; Denean Winston;

and an individual identified only as “Miss Winston.”        (Appellant’s brief at

10-14.) Appellant contends that the PCRA court erred in failing to conduct

an evidentiary hearing on this ineffectiveness claim prior to dismissing his

petition. (Id.) We disagree.


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      Generally, a claim that counsel was ineffective for failing to investigate

or call potential witnesses at trial requires a petitioner to establish that:

              (1) the witness existed; (2) the witness was
              available to testify for the defense; (3) counsel knew
              of, 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 testimony of the
              witness was so prejudicial as to have denied the
              defendant a fair trial.

Commonwealth v. Matias, 63 A.3d 807, 810-811 (Pa.Super. 2013)

(en banc) (citation omitted), appeal denied, 74 A.3d 1030 (Pa. 2013).

“Counsel will not be found ineffective for failing to call a witness unless the

petitioner can show that the witness’s testimony would have been helpful to

the defense.” Id. at 811 (citation omitted).

      Furthermore, we emphasize that “[t]here is no absolute right to an

evidentiary hearing on a PCRA petition[.]” Commonwealth v. Jones, 942

A.2d 903, 906 (Pa. 2008) (citation omitted), appeal denied, 956 A.2d 433

(Pa. 2008). A PCRA petitioner who seeks an evidentiary hearing on a claim

that counsel was ineffective for failing to call alleged alibi witnesses is not

required to attach sworn affidavits of proposed witnesses to his petition.

See Commonwealth v. Pander, 100 A.3d 626, 641 (Pa.Super. 2014),

appeal denied, 109 A.3d 679 (Pa. 2015).            However, the petition must

include “a signed certification as to each intended witness,” setting forth the

“witness’s name, address, date of birth and the substance of the proposed

testimony.”     Commonwealth v. Brown, 767 A.2d 576, 582 (Pa.Super.



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2001); see also 42 Pa.C.S.A. 9545(d)(1).3 The PCRA court does not err in

failing to conduct an evidentiary hearing where this information has not been

provided. Brown, 767 A.2d at 583.




3   Section 9545(d)(1) provides, in relevant part, as follows:

              (i)     Where a petitioner requests an evidentiary
                      hearing,     the   petition shall  include  a
                      certification signed by each intended witness
                      stating the witness’s name, address, date of
                      birth and substance of testimony and shall
                      include any documents material to that
                      witness’s testimony.

              (ii)    If a petitioner is unable to obtain the signature
                      of a witness under subparagraph (i), the
                      petitioner shall include a certification, signed
                      by the petitioner or counsel, stating the
                      witness’s name, address, date of birth and
                      substance of testimony. In lieu of including
                      the witness’s name and address in the
                      certification under this subparagraph, counsel
                      may provide the witness’s name and address
                      directly    to   the   Commonwealth.           The
                      certification under this subparagraph shall
                      include any documents material to the
                      witness’s testimony and specify the basis of
                      the petitioner’s information regarding the
                      witness and the petitioner’s efforts to obtain
                      the witness’s signature.        Nothing in this
                      subparagraph shall be construed to contravene
                      any     applicable    attorney-client    privilege
                      between the petitioner and post conviction
                      counsel.

              (iii)   Failure to substantially comply with the
                      requirements of this paragraph shall render the
                      proposed witness’s testimony inadmissible.

42 Pa.C.S.A. § 9545(d)(1).


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     Here, our review of the record reveals no evidence that the

aforementioned alibi witnesses were available at the time of appellant’s

May 2012 trial and/or were willing to testify on his behalf. See Matias, 63

A.3d at 810-811. In fact, appellant provided no certification with respect to

any of the aforementioned alleged alibi witnesses in either his pro se or

amended PCRA petitions. On the contrary, the three “affidavits” from White,

Williams, and Denean Winston that appellant attached to his pro se PCRA

petition were signed by appellant rather than the alleged witnesses,

pursuant to Section 9545(d)(1)(ii), but did not include their addresses or

dates of birth.    (See pro se PCRA petition, 3/22/16; attachments.)

Likewise, appellant did not offer any evidence whatsoever to prove the

existence of an individual identified in appellant’s petitions only as

“Miss Winston.” Additionally, appellant failed to provide the date of birth of

alleged witness Lamont Priester.   (Id. at 7.)   Appellant and PCRA counsel

also failed to provide any of the witness information directly to the

Commonwealth or the PCRA court, despite the fact that the PCRA court

continued appellant’s evidentiary hearing no less than four times to allow

him the opportunity to do.    (See PCRA court order, 8/4/17; PCRA court

order, 1/8/18.)   The only alleged witness that did appear on appellant’s

behalf, Lamont Priester, informed the PCRA court that he had no knowledge

of the shooting and could not identify the shooter. (See PCRA court opinion,

7/11/18 at 10.)



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      Based on the foregoing, we agree with the PCRA court that trial

counsel was not ineffective for failing to call any of appellant’s purported

alibi witnesses at trial. See Commonwealth v. Malloy, 856 A.2d 767, 782

(Pa. 2004) (finding that counsel cannot be deemed ineffective for failing to

call a witness that is unavailable or unwilling to testify).   Accordingly, we

discern no error on the part of the PCRA court in dismissing appellant’s

petition without conducting an evidentiary hearing. See Brown, 767 A.2d

at 583 (holding, “[s]ince Appellant failed to provide any certification with

respect to potential witnesses, the [PCRA] Court clearly did not abuse its

discretion by failing to conduct an evidentiary hearing.”). Therefore, we

affirm the April 30, 2018 order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/27/19




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