J-S08010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

STEVEN EDWARD SCALES

                        Appellant                   No. 332 WDA 2016


           Appeal from the PCRA Order dated February 23, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0002213-2010

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                              FILED MAY 03, 2017

      Appellant, Steven Edward Scales, appeals from the order denying his

petition filed under the Post–Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541–9546. We affirm.

      This PCRA court summarized the factual background of this case as

follows:

            This matter arises out of [Appellant]’s conviction of third
      degree murder, attempted homicide, criminal solicitation,
      aggravated assault, persons not to possess a firearm, carrying a
      firearm without a license and criminal conspiracy as a result of a
      shooting that occurred on July 14, 2000 outside the Traveler’s
      Club in the Homewood/East Liberty area of the City of Pittsburgh
      which resulted in the death of Timothy Raines and the wounding
      of Kennya Simpson. Despite the fact that there were several
      witnesses in the area [at the] time of the shooting, the actor or
      actors were not identified at that time.       In January 2009,
      detectives working on the case were contacted by an attorney
      for an alleged witness, Allen White, who was incarcerated at the
      time.    The detectives subsequently interviewed White who
      informed them that he witnessed the shooting and saw Sean
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     Greene (nicknamed “Elbows”) shoot both Raines and Simpson.
     Shortly thereafter the detectives interviewed Simpson, who was
     serving a federal prison sentence in Loretto, Pennsylvania for
     drug trafficking. In a taped statement, Simpson told detectives
     that it was Sean Greene who shot him and Raines outside the
     Traveler’s Club. Simpson also indicated that only months before
     the shooting outside the Traveler’s Club, Greene, [Appellant] and
     [a] third person had also shot him while he stood outside Joe’s
     Bar in the East Liberty area of the City.

           In August of 2009, [Appellant] who was then incarcerated
     on unrelated offenses, contacted law enforcement and indicated
     that he wanted to speak to detectives concerning the shooting.
     The detectives made arrangements to interview [Appellant] and
     during a taped interview on August 5, 2009, [Appellant]
     implicated himself in the Traveler’s Club shooting, which killed
     Raines and wounded Simpson. As a result of their investigation,
     including [Appellant’s] confession, [Appellant] and Greene were
     charged for their roles in Raines’ death and Simpson’s wounding.
     At trial the Commonwealth presented extensive evidence,
     including [Appellant]’s recorded confession.

             In his defense, [Appellant] testified that when he gave the
     statement implicating himself in the Traveler’s Club shooting, he
     was serving a 21 year sentence for drug dealing. He contended
     that he learned some basic facts about the shooting from
     Simpson himself, when they were both incarcerated in Loretto,
     and that he decided to give a false statement to the detectives
     implicating Greene, and thus himself, in an ill-conceived and
     misguided attempt to appear to be cooperating with authorities.
     [Appellant] contended that he believed his cooperation could be
     used to negotiate an early release from prison. [Appellant]
     recanted his confession, contending it was a complete lie, and
     testified that he was never involved with Simpson, who was the
     apparent target of the shooting, and had no reason to want him
     killed.

           [Appellant] also presented the testimony of an attorney
     who had represented him in other criminal charges, who testified
     that [Appellant] had attempted to obtain a sentence reduction
     during his earlier prosecution for drug charges by providing
     information about other drug dealers.       (T., pp. 230-233).
     Although this had been unsuccessful, [Appellant] contended this
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        evidence demonstrated that he knew that providing incriminating
        evidence about others could be used to negotiate a reduced
        sentence.

               Prior to trial, [Appellant] had filed a notice of alibi defense
        pursuant to Pa.R.Crim.P. 573 in which Qwenda Reed, who was
        his girlfriend at the time, was identified as an alibi witness. The
        notice indicated that Reed would testify that during the late night
        hours of July 13, 2000 through the early morning hours of July
        14, 2000, the time during which the Commonwealth contended
        [Appellant] was in the area of the Traveler’s Club, [Appellant]
        was with Reed at their apartment celebrating their one year
        anniversary. Although there were indications during the trial
        that [Appellant] would call Reed to testify, [Appellant] rested
        after his testimony, without Reed being called to testify.
        [Appellant] was found guilty as set forth above and his
        conviction was affirmed by the Superior Court on February 11,
        2013.

PCRA Court Opinion, 7/18/16, at 2-4 (footnote omitted).

        The jury convicted Appellant on January 13, 2011.           On March 28,

2011, the trial court sentenced him to an aggregate 424 to 848 months’

incarceration.    As the trial court’s opinion notes, Appellant filed a direct

appeal, and this Court affirmed the judgment of sentence on February 11,

2013.      Commonwealth v. Scales, 68 A.3d 359 (Pa. Super. 2013)

(unpublished memorandum). Appellant petitioned for allowance of appeal,

which the Supreme Court denied on October 30, 2013. Commonwealth v.

Scales, 79 A.3d 1098 (Pa. 2013).




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       On January 5, 2015, Appellant filed the PCRA petition that is now

before us pro se.1 The PCRA court appointed counsel, who filed an amended

petition on April 6, 2015.         The essence of Appellant’s request for post-

conviction relief is that trial counsel was ineffective for failing to call Qwenda

Reed as an alibi witness at trial. On July 8, 2015, the Commonwealth filed

an answer, indicating that an evidentiary hearing was warranted for the

introduction of testimony and to create a record. The PCRA court convened

a hearing on February 22, 2016. On February 23, 2016, it entered an order

denying Appellant’s petition. Appellant then filed this timely appeal, in which

he presents the following three issues:

       1. Did the PCRA court err or abuse its discretion in failing to
          grant Appellant a new trial based on a properly pled,
          preserved and supported IAC [ineffective assistance of
          counsel] claim involving trial counsel’s failure to call alibi
          witness Qwenda Reed, who was known to trial counsel, ready,
          willing and available to testify at trial and where the failure of
          trial counsel to call the alibi witness was prejudicial to
          Appellant entitling him to relief?

       2. Did the PCRA court err or abuse its discretion in dismissing
          the Amended PCRA Petition where Qwenda Reed, an alibi
          witness, would have been able to provide credible testimony,
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1
  Appellant’s petition was timely because it was filed within one year of his
sentence becoming final. 42 Pa.C.S. § 9545(b)(1). Appellant’s sentence
became final on January 28, 2014, which was 90 days after the Pennsylvania
Supreme Court’s denial of his petition for allowance of appeal (the period of
time that he had to petition for a writ of certiorari with the United States
Supreme Court). 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. Rule 13.



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          supported by evidence of record, exculpatory in nature, that
          would exonerate Appellant in his involvement in the shooting
          outside of Traveler’s Club in the early morning hours of
          July 14, 2000, thereby creating an issue of material fact
          which warrants Appellant a new trial?

       3. Did the PCRA court err or abuse its discretion in dismissing
          Appellant’s PCRA matter if the matter was dismissed as a
          result of the Court making a credibility determination
          regarding the alibi witness, Qwenda Reed, since Appellant has
          surmounted the prongs of a properly plead and supported IAC
          claim entitling him to a new trial where a jury would hear,
          weigh and assess the testimony and credibility of the
          available alibi witness?

Appellant’s Brief at 5.

       Appellant’s three issues encompass one claim that trial counsel was

ineffective for failing to call Qwenda Reed as an alibi witness at Appellant’s

trial.2 Preliminarily, we note our standard of review:

       We review an order dismissing a petition under the PCRA in the
       light most favorable to the prevailing party at the PCRA level.
       This review is limited to the findings of the PCRA court and the
       evidence of record. We will not disturb a PCRA court's ruling if it
       is supported by evidence of record and is free of legal error.
       This Court may affirm a PCRA court's decision on any grounds if
       the record supports it. We grant great deference to the factual
       findings of the PCRA court and will not disturb those findings
       unless they have no support in the record. However, we afford
       no such deference to its legal conclusions. Further, where the

____________________________________________



2
  At the PCRA hearing Appellant’s counsel stated, “There’s really one issue
we have raised before the Court today involving an ineffectiveness of
counsel claim. . . . It is an alibi witness. . . . It’s Qwenda Reed[.] That is the
sole issue for today[.]” N.T., 2/22/16, at 3.



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      petitioner raises questions of law, our standard of review is de
      novo and our scope of review is plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      The law presumes trial counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).                The

burden of demonstrating ineffectiveness rests on the petitioner.       Id.    To

satisfy this burden, the petitioner 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). Failure to satisfy any prong of

this test will result in rejection of the petitioner’s ineffective assistance of

counsel claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      When claiming counsel’s ineffectiveness for failure to call a potential

witness, the PCRA petitioner must 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.

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Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007).                    To

demonstrate prejudice, the PCRA petitioner “must show how the uncalled

witnesses’ testimony would have been beneficial under the circumstances of

the case.” Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008);

see also Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) (“Trial

counsel’s failure to call a particular witness does not constitute ineffective

assistance without some showing that the absent witness’ testimony would

have been beneficial or helpful in establishing the asserted defense”).

      Instantly, three witnesses testified at the PCRA hearing:           Kirsha

Weyandt Trychta, who was Appellant’s trial counsel; Qwenda Reed; and

Appellant. Ms. Trychta testified to learning of Ms. Reed as a potential alibi

witness from an “initial meeting” with Appellant. N.T., 2/22/16, at 6-7. Ms.

Trychta hired a private investigator to meet with Ms. Reed, and the

investigator secured a written statement from Ms. Reed.       Thereafter, Ms.

Trychta spoke with Ms. Reed and filed a notice of alibi. She recalled that Ms.

Reed was present “by and large” for Appellant’s trial and available to testify.

Id. at 9, 12. Ms. Trychta stated that “[u]p until the very last minute, yes,

we anticipated calling her.” Id. She recalled:

      [Ms. Reed] was going to state that at the time the defendant is
      alleged to have engaged with a co-defendant, Sean Greene, to
      set up the homicide, that he was actually with her at their home.
      I believe she was quite pregnant at the time and it was a
      complicated pregnancy and she wanted him to stay there and
      take care of her. . . . The Commonwealth presented that Mr.
      Scales, although not the shooter, had to be near the scene of the
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      crime at the time that the homicide occurred. She would have
      testified that he was home with her at that time. . . . Her
      testimony would have been that it was for the entire evening,
      yes.

N.T., 2/22/16, at 11.

      Ms. Trychta explained that Appellant testified at his trial, and after his

testimony, she and Appellant discussed Ms. Reed and whether she would be

called to testify.   N.T., 2/22/16, at 14.      She specifically testified that

Appellant was involved in the decision. Id. at 15. She explained:

      My recollection is that something happened towards the very end
      of the trial out in the hallway. I can’t remember specifically
      what it was, but I believe she got cold feet or – Something
      happened, and Mr. Scales and she decided that would not be
      what they wanted to do anymore. . . . She went out in the hall.
      Her and I think [another potential alibi witness] was still here
      and maybe some family members of his as well, and then they
      came back in really flustered. . . . I don’t know what happened
      in the hall but they came back in. . . . They were all worked up.
      . . . And at that point, I don’t remember why, and then I
      remember something happened because I actually told the
      intern to then go stand in the hallway to just have someone
      there should future incidents occur. . . . And I believe once that
      happened, whatever it was at that point, either she refused to
      testify or Mr. Scales said, “Never mind. I don’t want her to
      testify.” There was some change in course of action at that
      point.

Id. at 16-18.

      On re-direct, Ms. Trychta opined that Ms. Reed’s testimony would have

been helpful to Appellant. She also stated, “The jury’s verdict was so bizarre

that I could see it changing the jury’s mind.” N.T., 2/22/16, at 19. She said

that not calling Ms. Reed “would have been a mutual decision we made


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together, to the best of my recollection” and she did not believe she would

have instructed Appellant not to call Ms. Reed. Id.

     Qwenda Reed testified that she was willing to testify for Appellant at

his trial in 2011 and is still willing to testify as an alibi witness.     She

expressly stated that on the night the offenses occurred, Appellant came

home at 8 or 9 p.m. and was with her all night. N.T., 2/22/16, at 24-25, 31.

Ms. Reed testified that the couple slept in the same room, and Appellant

never left until the next morning.     Id. at 24, 31.    Ms. Reed attended

Appellant’s trial, and expected to be called as a witness.   Id. at 29.    She

conceded that there was “a discussion” in the hallway, but said that she

wanted to testify, and nothing happened to change her mind.       Id. at 30.

Ms. Reed did not know why Ms. Trychta did not call her to testify, saying,

“his lawyer, all she said was my statements could only hurt him, and I didn’t

see how.” Id. at 38.

     On cross-examination, Ms. Reed acknowledged testifying at Appellant’s

sentencing hearing, and stating that she did not believe that Appellant was a

murderer or committed the murder for which he was convicted.              N.T.,

2/22/16, at 34-36. Ms. Reed said she did not mention that Appellant had an

alibi and was with her on the night of the murder because she “just gave a

statement of how I felt. So, no, I wasn’t a witness[.]” Id. at 36-37.

     Appellant testified to living with Ms. Reed at the time of the murder.

He estimated that on that night, he arrived home around 8:10 p.m. because
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he worked until 8:00 p.m. at a nearby body shop. N.T., 2/22/16, at 43. He

said he was there “all night long.”    Id. at 44. He added that he told Ms.

Trychta in the middle of the trial to present Ms. Reed as an alibi witness, and

Ms. Trychta “said she would.” Id. Appellant denied that there was ever a

discussion about not calling Ms. Reed. Id.

      On cross-examination, Appellant conceded that he initiated contact

with law enforcement regarding the murder and acknowledged that until he

contacted law enforcement it was a “cold case.” N.T., 2/22/16, at 46. He

admitted that by initiating contact with law enforcement and confessing to

the murder he had put himself in a bad situation. Id. at 48.

      After considering the above testimony, the PCRA court denied

Appellant’s petition for post-conviction relief. The PCRA court referenced the

three prong test for proving counsel’s ineffectiveness by a preponderance of

the evidence, as well as the applicable five prong test for a claim that

counsel was ineffective for failing to call a witness at trial. See Fulton, 830

A.2d at 572; Washington, 927 at 599. The PCRA court then reasoned:

            In the present case there is not dispute that the witness
      existed, the witness was available to testify during the course of
      the trial and that trial counsel knew of the existence of the
      witness. Trial counsel credibly testified that she expected Reed
      to testify but that as a result of some incident or “discussion” in
      the hallway just prior to her testimony, [Appellant] made the
      decision that Reed would not testify. Reed acknowledged that
      there was a “discussion” of some kind but offered no explanation
      to what occurred. She testified she remained willing to testify as
      an alibi witness at trial but that trial counsel did not call her,
      stating only that her testimony would hurt [Appellant]’s case.
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     Interestingly, [Appellant] gives even less explanation as to why
     Reed did not testify. [Appellant] contends that in the middle of
     the trial he told trial counsel to present Reed’s testimony and
     expected her to be called. [Appellant] denies that there was any
     discussion about not calling Reed to testify.             However,
     [Appellant] offered absolutely no testimony as to what transpired
     between him and his trial counsel when he realized, during the
     trial, that Reed’s testimony was not being presented. Trial
     counsel testified that [Appellant] was active in the presentation
     of his case and [Appellant] understood the criminal trial system
     enough to believe that he could possibly negotiate a reduction in
     his existing sentence by cooperating with the Commonwealth in
     prosecuting a crime. In fact, accepting [Appellant]’s defense, he
     was willing to concoct a scheme to implicate himself in a crime
     that he did not commit in order to make it appear that he had
     information that would be helpful to the Commonwealth. Yet
     [Appellant] offers no testimony about what happened when he
     realized that counsel was not presenting Reed’s testimony.
     [Appellant] now simply asserts that when his trial counsel
     suddenly decided not to call what he believed to be a key alibi
     witness, there was no discussion with his counsel as to why the
     witness was not called. [Appellant]’s testimony at the PCRA
     hearing lacks credibility as it offers no explanation whatsoever as
     to what occurred between him and his counsel when Reed did
     not testify when she was in the courthouse and allegedly ready
     to testify. By comparison, trial counsel’s testimony is credible
     that after [Appellant]’s testimony she discussed with him
     whether or not to call Reed. While trial counsel was unable to
     specifically identify what occurred, she was certain that
     “something happened” and [Appellant] and Reed determined
     that she did not want to testify. Trial counsel credibly testified
     that she conferred with [Appellant] and [Appellant] ultimately
     told her, “Never mind. I don’t want her to testify.” Therefore,
     there is no evidence that the fact that Reed did not testify was
     the result of any ineffectiveness of trial counsel.

            [Appellant] has also failed to establish that he was
     prejudiced by the fact that Reed did not testify. In order to be
     entitled to relief [Appellant] must establish that the absence of
     the testimony of the witness was so prejudicial as to have denied
     him a fair trial. [Appellant]’s recorded confession unequivocally
     implicated him in the shooting. It is highly unlikely that the
     presentation of his girlfriend’s testimony that he was with her on
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      the night of the murder, without other substantial corroborating
      evidence, would have affected the outcome of the trial.
      Therefore, [Appellant]’s PCRA petition was appropriately
      dismissed.

PCRA Court Opinion, 7/18/16, at 9-10.

      Upon review, we find that the PCRA court’s denial of Appellant’s

petition is supported by the record.    It is well-settled that a PCRA court’s

credibility determinations are binding upon an appellate court as long as

they are supported by the record.      Commonwealth v. Miller, 102 A.3d

988, 992 (Pa. Super. 2014). Therefore, we are bound by the PCRA court’s

determination that Ms. Trychta was credible and Ms. Reed and Appellant

were not.      Because Ms. Trychta testified that Appellant indicated to her

toward the end of the trial that he did not want Ms. Reed to testify, we find

from our de novo review that the record supports the legal conclusion that

Appellant did not meet the first or second prongs of the tripartite test for

ineffectiveness because Appellant’s claim was not of arguable merit and Ms.

Trychta’s course of conduct in not calling Ms. Reed to testify evidenced a

reasonable basis designed to effectuate Appellant’s interests.    Fulton, 830

A.2d at 572.

      We recognize Ms. Trychta’s testimony that Ms. Reed’s alibi testimony

would have been helpful to Appellant.        N.T., 2/22/16, at 19.   However,

failure to satisfy any prong of the tripartite test will result in rejection of

Appellant’s ineffective assistance of counsel claim.     Jones, 811 A.2d at

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1002. Therefore, because of our conclusion regarding the first and second

prongs of the ineffectiveness test, the third prong of the test for

ineffectiveness (prejudice) does not impact our disposition.

        Based on the foregoing, we defer to the PCRA court’s credibility

findings, particularly Ms. Trychta’s testimony that not calling Ms. Reed

“would have been a mutual decision . . . made together” with Appellant,

and her belief that she would not have advised Appellant not to call Ms.

Reed as an alibi witness. N.T., 2/22/16, at 19. In doing so, we make the

legal   conclusion   that   Appellant   failed   to   demonstrate   trial   counsel’s

ineffectiveness by a preponderance of the evidence. Accordingly, we affirm

the PCRA court’s denial of Appellant’s claim for post-conviction relief.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2017




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