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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

DANIEL T. HARRIS

                            Appellee                 No. 863 MDA 2015


                Appeal from the Order Entered on May 11, 2015
               In the Court of Common Pleas of Lebanon County
               Criminal Division at No.: CP-38-CR-0000707-2009


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                         FILED OCTOBER 15, 2015

       The Commonwealth of Pennsylvania appeals the May 11, 2015 order

granting Daniel Harris’ petition for relief pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm.

       The PCRA court has summarized the factual and initial procedural

history of this case as follows:

       Following a jury trial on December 11, 2009, Daniel Harris [] was
       found guilty of theft, criminal conspiracy to commit theft,
       criminal attempt to commit theft, and criminal mischief. All
       charges stem from incidents that occurred overnight on
       November 14, 2008 at Adams Auto Sales. On that date, one
       vehicle[, a Saturn,] was stolen from the car lot and twelve were
       entered into and damaged. Shauna Adams, one of the owners
       of Adams Auto Sales, outlined all of the damages in her
       testimony at trial. These damages totaled $55,404.08. Adams
       Auto Sales provided security camera footage of the occurrence
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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     to police, but Adams testified that the video was not clear
     enough to identify the individuals involved. The video did,
     however, show four separate individuals present at Adams Auto
     Sales on the night of the incident.

     The Commonwealth’s key evidence against [Harris] was the
     testimony of his co-defendants, James Jeter (hereafter “Jeter”)
     and Jeffrey Zombro, Jr. (hereafter “Zombro”). Before trial, Jeter
     and Zombro spoke with police regarding the November 14, 2008
     incident. On December 30, 2008, Zombro was questioned by
     police.   During the interview, he admitted that he, Jeter,
     [Steven] Santiago, and Michael Ratcliff were the individuals that
     went to Adams Auto Sales and broke into cars. He made no
     mention of [Harris’] involvement. Zombro prepared a written
     statement that same day memorializing this information.

     Zombro was interviewed again on January 9, 2009 by police in
     the presence of his mother, Lynda Reigle.         Zombro again
     explained that four individuals participated in the Adams Auto
     Sales incident on November 14, 1008 – Zombro, Jeter, Steven
     “Saint” Santiago, and “a guy named ‘Crunch.’” He testified at
     trial that [Harris] is not known as “Saint” or “Crunch.” He
     explained that it was possible that [Harris] was with them at
     Adams Auto Sales, but he “thought he was locked up” at the
     time of the incident and that he was “pretty sure” that “Crunch”
     was with them. At that time, Zombro denied any knowledge of
     the stolen Saturn, and claimed that he traveled to New York City
     on November 15, 2008 with Jeter and Santiago when they were
     stopped in Jeter’s Geo Metro.

     Jeter was interviewed by police on January 16, 2009 in the
     presence of his mother, Dusown Jeter. Contrary to Zombro’s
     explanation of the incident, Jeter explained that there were only
     three individuals at Adams Auto Sales that night – Jeter,
     Zombro, and [Harris]. Jeter also explained that he, Zombro, and
     Santiago drove the stolen Saturn to New York City.

     Zombro was interviewed again by police on January 16, 2009,
     where his story changed. During that meeting, he initially
     explained that it was he, Jeter, Santiago, and “Crunch” who were
     present at Adams Auto Sales. After the detective informed him
     that “Crunch” was not in town at the time of the incident, he
     claimed that there were three individuals at Adams Auto Sales
     that night – Jeter, Zombro, and [Harris]. He explained that he,



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     Jeter, and Santiago then drove the stolen vehicle to New York
     City.

     At trial, both Zombro and Jeter testified that three individuals
     participated: Zombro, Jeter, and [Harris]. When asked why their
     stories to the police changed, Zombro and Jeter explained that
     they changed their stories after speaking with their parents
     because telling the truth would be better for them in the long
     run.

     Trooper James Linn also testified at trial. Trooper Lin explained
     that he was unable to obtain fingerprints from the vehicles
     because it had rained overnight.        During his interview of
     [Harris], he informed [Harris] that two other individuals provided
     written statements explaining that he was involved in the
     November 14, 2008 incident. When asked if he knew who these
     individuals were, [Harris] responded, “Jeffrey Zombro and James
     Jeter.”

     Prior to trial, the Adams Auto Sales surveillance video was
     provided to trial counsel. At no point did trial counsel show the
     video tape depicting four individuals to the jury. The video
     would have contradicted the trial testimony of Zombro and Jeter
     that only three people were present at Adams Auto Sales. As
     per protocol, the police station’s copy of the surveillance video
     was destroyed after [Harris’] appeal was denied.

     As a result of this evidence, a jury found [Harris] guilty on all
     four counts. With respect to [the criminal mischief count,] the
     jury found that the total damages suffered by the victim in this
     offense exceeded $5,000. [Harris] was called for sentencing on
     February 17, 2010.

     [The trial court sentenced Harris to an aggregate term of three
     to seven years’ incarceration.] Further, [the court] determined
     that [Harris] should be eligible for the RRRI program and
     imposed an RRRI minimum of 27 months.

     [Harris] filed post-sentence motions on February 25, 2010,
     which [the trial court] denied on May 4, 2010 due to trial
     counsel’s failure to file a brief. [Harris] filed a timely appeal to
     [this Court] on June 2, 2010, which was similarly dismissed on
     October 29, 2010 when trial counsel failed to file a brief.
     [Harris] filed a [PCRA] petition on March 15, 2013, alleging that
     he received ineffective assistance of counsel. More specifically,
     [Harris] alleged that trial counsel failed to:

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          (1)    Call witnesses supplied by [Harris] for a potential
                 alibi;

          (2)    Follow through with [Harris’] appeal; and

          (3)    Impeach the credibility of [Harris’] co-defendants by:

                     (a)    Properly cross-examining     [Harris’]     co-
                            defendants; and

                     (b)    Introducing    and    cross-examining      the
                            surveillance video.

PCRA Court Opinion (“P.C.O.”), 5/12/2014, at 2-6 (minor grammatical and

capitalization alterations made for clarity; references to notes of testimony

omitted).

       The PCRA court scheduled a hearing for December 10, 2013.               The

primary purpose of that hearing was to ascertain whether Harris’ PCRA

petition was timely filed according to the strict time constraints set forth in

the PCRA. See 42 Pa.C.S. § 9545(b)(1). However, on December 4, 2013,

counsel for Harris filed an amended PCRA petition, in which Harris identified

two individuals, James Jeter and Beverly Harris, as witnesses at the PCRA

hearing. The hearing proceeded as scheduled on December 10, 2013, but

the PCRA court continued the hearing in part due to the late notice by Harris

regarding his witnesses.

       At the conclusion of the hearing, the PCRA court issued an order in

which the court determined that the petition was timely.1            The court also

____________________________________________


1
        For purposes of timeliness, Harris contended that he did not know
initially that his attorney did not file a brief and that his direct appeal had
(Footnote Continued Next Page)


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scheduled another hearing for the parties to present testimony regarding

Harris’ claims of ineffective assistance of counsel, which included claims that

trial counsel failed adequately to cross-examine Jeter, that trial counsel

failed to meet with Harris before trial, that trial counsel failed to file an

appellate brief, that trial counsel failed to meet with Harris’ mother, Beverly

Harris, to establish or confirm an alibi defense, and that counsel failed to

present the surveillance video at trial and failed to cross-examine Zombro

and Jeter about the contents of the video.

      The PCRA court held a hearing on January 20, 2014. At the hearing,

Harris’ mother testified regarding Harris’ alibi on the night of the incident.

Jeter testified that he lied at trial when he implicated Harris in the theft. The

PCRA court found Jeter’s testimony to be incredible. Regardless, the PCRA

court held that trial counsel was ineffective for failing to file an appellate

brief. The PCRA court then continued the hearing for additional testimony.

      On January 30, 2014, the court reconvened the hearing.                 The

Commonwealth called two witnesses to counter Beverly Harris’ alibi

testimony. At the conclusion of the hearing, the PCRA court held that trial
                       _______________________
(Footnote Continued)

been dismissed. He further contended that he filed his PCRA petition within
sixty days of when he actually learned that his appeal had been dismissed.
Relying upon 42 Pa.C.S. § 9545(b)(1)(ii) (newly-discovered fact exception)
and § 9545(b)(2) (sixty-day time limit to file a PCRA petition based upon
one of the exceptions), the PCRA court ruled that the petition was timely.
The Commonwealth does not contest that ruling in this appeal. Hence, we
will not consider the PCRA court’s application of the exception, and we have
jurisdiction over this appeal.



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counsel was not ineffective for electing to forego an alibi defense. On May

12, 2014, the PCRA court issued an order and opinion.       In the order, the

Court held that trial counsel was not ineffective for failing to call any other

witnesses at trial.    However, consistent with its earlier holding, the PCRA

court again held that trial counsel was ineffective for failing to file an

appellate brief.      Moreover, trial counsel was ineffective for failing to

introduce the surveillance video as evidence at Harris’ jury trial, and for

failing to cross-examine Jeter and Zombro regarding the number of

individuals that the video showed compared to how many they claimed in

their testimony were involved in the heist.     Accordingly, the PCRA court

granted Harris’ PCRA petition, vacated his sentence, and awarded him a new

trial.

         The Commonwealth appealed the decision to this Court.      This Court

entered an order affirming in part, and reversing in part the PCRA court’s

order. We held that, once the PCRA court found counsel to be ineffective for

failing to file an appellate brief, the correct remedy was to reinstate Harris’

direct appellate rights. Once done, the court could not also award Harris a

new trial. We remanded the case without prejudice to Harris’ right to forego

the direct appeal, and, essentially, recommence his PCRA proceedings and

seek the same relief that the PCRA court had already granted.       The PCRA

court met with the parties to discuss Harris’ options.       Harris elected to

forego his direct appeal, and to reinstate his PCRA petition.     On May 11,

2015, the PCRA court incorporated the prior proceedings, and again granted

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Harris’ PCRA petition based upon counsel’s ineffectiveness regarding the

surveillance videos.

      On May 15, 2015, the Commonwealth filed a notice of appeal. On May

26, 2015, the Commonwealth filed a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). On June 11, 2015, the PCRA

court issued a statement pursuant to Pa.R.A.P. 1925(a), in which the court

directed this Court to the reasoning and analysis that the court set forth in

its May 12, 2014 order and opinion.

      The Commonwealth raises the following issue for our review: “Did the

PCRA court err in granting [Harris’] PCRA petition when trial counsel

effectively represented [Harris] by making strategic decisions during

[Harris’] trial?”   Brief for the Commonwealth at 13.        For the reasons

articulated below, we disagree with the Commonwealth, and we hold that

the PCRA court did not err.

      The governing legal standards attendant to our review in the PCRA

context are well-defined: “[A]n appellate court reviews the PCRA court’s

findings of fact to determine if they are supported by the record, and

reviews its conclusions of law to determine whether they are free from legal

error.”   Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citing

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)). “The scope

of review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level.” Id. (citing Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008)).

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Furthermore, the PCRA court’s credibility determinations, when supported by

the record, are binding upon this Court. Commonwealth v. Johnson, 966

A.2d 523, 532, 539 (Pa. 2009). We apply a de novo standard of review with

regard to the PCRA court’s legal conclusions. Commonwealth v. Rios, 920

A.2d 790, 810 (Pa. 2007).

     The Commonwealth challenges the PCRA court’s conclusion that trial

counsel was ineffective.    Our standard of review in this context is well-

defined:

     [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.” 42
     Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
     rebut that presumption, the PCRA petitioner must demonstrate
     that counsel’s performance was deficient and that such
     deficiency prejudiced him.” Colavita, 993 A.2d at 886 (citing
     Strickland v. Washington, 466 U.S. 668, 690 (1984)). In
     Pennsylvania, we have refined the Strickland performance and
     prejudice test into a three-part inquiry. See Commonwealth v.
     Pierce, 527 A.2d 973, 975-77 (Pa. 1987). Thus, to prove
     counsel ineffective, the petitioner must show that: (1) his
     underlying claim is of arguable merit; (2) counsel had no
     reasonable basis for his action or inaction; and (3) the petitioner
     suffered actual prejudice as a result. Commonwealth v. Ali,
     10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any
     of these prongs, his claim fails.” Commonwealth v. Simpson,
     66 A.3d 253, 260 (Pa. 2013).

Spotz, 84 A.3d at 311 (internal citations modified). We need not analyze

“the elements of an ineffectiveness claim in any particular order of priority;

instead, if a claim fails under any necessary element of the [Pierce] test,


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the court may proceed to that element first.” Commonwealth v. Lambert,

797 A.2d 232, 243 n.9 (Pa. 2001).            Furthermore, “counsel will not be

considered     ineffective   for   failing   to    pursue   meritless   claims.”

Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999) (citing

Commonwealth v. Parker, 469 A.2d 582, 584 (Pa. 1983)).

        The PCRA court concluded that trial counsel was ineffective because

she failed to introduce at trial the surveillance video from Ames Auto Sales

that showed that four actors participated in the theft of, and damage to,

vehicles on the lot. The Commonwealth’s two key witnesses against Harris,

Jeter and Zombro, both unequivocally testified that only three people were

involved in the robbery. It is undisputed that counsel had the video in her

possession at the time of trial. Nonetheless, trial counsel elected not to play

the video for the jury, which, at minimum, would have proven that Jeter and

Zombro’s version of events was inaccurate. We must consider whether this

decision amounted to ineffective assistance of counsel.

        Although the Commonwealth recites the three-pronged test for claims

of ineffective assistance of counsel, the Commonwealth does not contend

that Harris’ claim lacks arguable merit.          Thus, the Commonwealth has

conceded that prong, and we move directly to the final two prongs of the

test.

        With regard to the reasonable basis prong, an appellate court may not

“question whether there were other more logical courses of action which


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counsel could have pursued; rather, we must examine whether counsel’s

decisions had any reasonable basis.” Commonwealth v. Washington, 927

A.2d 586, 594 (Pa. 2007). Counsel’s chosen strategy lacked a reasonable

basis only if a PCRA petitioner has proven that “an alternative not chosen

offered a potential for success substantially greater than the course actually

pursued.” Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006)

(citation omitted). Here, we do not hesitate to conclude that the alternative,

i.e., playing the video for the jury, offered Harris a substantially greater

opportunity for success.

         The Commonwealth had no direct evidence to implicate Harris in the

theft.    Instead, the Commonwealth relied upon two of the individuals who

were known to have been involved in the theft: Jeter and Zombro. Initially,

Zombro told the police that four individuals participated in the crimes. He

did not name Harris as one of those men. He named himself, Jeter, “Saint”

Santiago, and a man named Michael Ratcliff.      Zombro provided the police

with a written statement to this effect.

         A few months later, Zombro changed his story. In his second meeting

with the police, and with his mother present, Zombro again stated that four

people were involved in the incident, but again did not implicate Harris as

being one of those men. He told the police that the four men were himself,

Jeter, “Saint” Santiago, and a man known to him as “Crunch.”          Zombro

admitted that Harris is neither “Saint” Santiago nor “Crunch.”        To the


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contrary, Zombro told the           police   that he   thought    that Harris was

incarcerated at the time of the incident.        Zombro reduced this version of

events to writing as well.

      A week later, Zombro offered the police a third version of events. This

time, Zombro insisted that only three people participated in the crimes.

Zombro initially implicated himself, Jeter, and “Crunch.” However, his story

clearly was evolving as he told it. When the police told Zombro that they

knew that “Crunch” was not involved in the case, Zombro, for the first time,

stated that Harris was the third person involved. Zombro never reverted to

the version of his story that involved four people.

      Jeter similarly told the police that only three people were involved in

the caper. Jeter admitted to his involvement, and informed the police that

Zombro and Harris were the other two men involved.

      At trial, Jeter and Zombro maintained their story that only three

people were present during the crimes at Ames Auto Sales.                     The

Commonwealth did not present the video to the jury.              The video was not

sufficiently clear to depict the faces of the perpetrators, and, thus, no one

could be definitively identified.    More importantly, however, the video was

inconsistent with the testimony of the Commonwealth’s witnesses. It clearly

showed that four people were involved in the crime, not three as the

Commonwealth’s witnesses insisted at trial. The Commonwealth’s decision

not to play the video emphasizes the value that it had to the defense.


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Indeed, it is fair to conclude that the Commonwealth did not play the video

because it severely damaged the credibility of the Commonwealth’s key

witnesses, and it undercut the Commonwealth’s case.

      There was no physical evidence implicating Harris in the crimes. He

could not be identified from the video. The police were unable to find any

fingerprints at the scene that would place Harris there on the night in

question. Harris did not admit to being involved. There is no doubt that the

Commonwealth’s case against Harris rested almost exclusively upon the

testimony of Jeter and Zombro, and, necessarily, their credibility.

      Defense counsel cross-examined Jeter and Zombro regarding their

inconsistent statements, and attacked their credibility based upon those

inconsistent versions of events, their criminal backgrounds, and their

participation in the crimes at issue.   However, counsel had one piece of

evidence that would have definitively demonstrated that the web of events

that Jeter and Zombro spun at trial was, at least in part, not true:      the

surveillance video. Traditional cross-examination obviously was not enough

to exculpate Harris. But, counsel did not have to resort solely to traditional

cross-examination.   The video from the lot conclusively demonstrated that

Jeter and Zombro were not telling the entire truth.           That the video

demonstrates that they both were not forthright to the jury (or the police

and prosecutor) about the events in question also strongly suggests

collusion between Jeter and Zombro in an effort to tell a unified, but untrue,


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story. The jury was denied the opportunity to assess their testimony fully,

and that was due to counsel’s decision not to show them compelling and

conclusive evidence that significantly discredited the Commonwealth’s case.

      Nonetheless, our task is not simply to decide whether counsel should

have played the tape for the jury. We must decide whether the decision not

to do lacked a reasonable basis, and whether playing it would have provided

Harris with a greater opportunity for success at trial. Trial counsel asserted

at the PCRA hearing that she decided not to introduce the video at trial if the

Commonwealth did not do so first.     She claimed that she did not want to

present any evidence that could possibly tie Harris to the crime, and did not

want the jury to draw negative inferences against Harris when viewing the

video. Counsel’s decision was palpably unreasonable. Trooper Franklin Linn

testified at the PCRA hearing. The trooper testified that the video did not

provide a clear picture of any of the actors.    In fact, he testified that the

video did not clearly depict any characterizing features such as height,

weight, gender, clothing, etc. Thus, counsel’s concern that the jury would

have identified Harris, and then linked him to the video, was entirely

unwarranted. Trooper Linn testified that the only thing that the video could

show was the number of individuals involved. There was no possibility that

the jury could have identified Harris from the video. Counsel’s concern to

the contrary was unreasonable. The only value that the video had was to

show that four, rather than three, people were involved, a fact that would


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have raised incontrovertible, and probably insurmountable, problems with

Jeter’s and Zombro’s testimony.

         Counsel did not assert a reasonable basis for not showing the video,

and we discern none from the record or from any viable trial strategy that

we can envision.      The video would have done invaluable damage to the

credibility of the two essential pieces of the Commonwealth’s case. Counsel

had this arrow in her arsenal, yet she never elected to remove it from her

quiver. To not do so was unreasonable, and could not have been designed

to effectuate Harris’ best interests.    Harris would have had a substantially

better opportunity to win the case had counsel played the video for the jury.

         We now turn to whether counsel’s unreasonable decision caused

prejudice to Harris.      To establish prejudice in the PCRA context, the

petitioner must show that there is a reasonable probability that the outcome

of   the    proceedings   would   have    been   different   but   for   counsel’s

ineffectiveness.    Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa.

2008). Once more, the Commonwealth’s case rested almost entirely on the

testimony of Jeter and Zombro. No other evidence could link Harris to the

crime beyond a reasonable doubt.         To convict Harris, the jury must have

credited these two witnesses, at least in part. Counsel cross-examined Jeter

and Zombro in an attempt to discredit their version of events, but to no

avail.     These traditional cross-examination tactics were insufficient to

convince the jury that Jeter and Zombro were lying. However, counsel had


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definitive proof that they were not telling the truth about one main aspect of

the case, and possibly the rest of their testimony.      That there were four

people involved in the case, of course, does not prove that Harris was not

involved in the case. But, it does prove that Jeter and Zombro were lying,

and strongly suggests that they colluded in fabricating a materially false

story. We cannot say that definitive proof that the Commonwealth’s main

witnesses lied on the stand would have guaranteed a different verdict. But,

that is not the legal standard that we must employ.              Because the

Commonwealth could only prove its case with the testimony of Jeter and

Zombro, and because the video proved that their testimony was false in one

major aspect, there is a reasonable probability that but for counsel’s decision

not to play the video for the jury would have resulted in a different verdict.

See Dennis, supra.

      The PCRA court’s decision was supported by the record, and the

court’s legal conclusions were correct.      Consequently, we affirm the order

granting Harris’ PCRA petition, and we remand for a new trial.




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     Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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