J-S07026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DALPH D. KENNEDY-CHARLES                 :
                                          :
                    Appellant             :   No. 1038 EDA 2017

                 Appeal from the PCRA Order March 24, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0012807-2011


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

MEMORANDUM BY PANELLA, J.                          FILED AUGUST 22, 2018

      Dalph D. Kennedy-Charles appeals from the order entered in the

Philadelphia County Court of Common Pleas, denying his first petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

      The relevant facts and procedural history of this case are as follows. On

June 24, 2011, Appellant approached the victim in broad daylight and shot

him in the back of the head. The victim died from his wounds shortly

thereafter. A witness observed the entire encounter, and was able to describe

the shooter to police. Another witness did not see the shooting occur or

glimpse Appellant’s face, but described seeing a man matching Appellant’s

description speaking to the victim moments before his death. Police

apprehended Appellant, whom the first eyewitness confirmed was the

gunman.
J-S07026-18



      A jury convicted Appellant of first-degree murder, possession of an

instrument of crime, and carrying a firearm without a license. The court

sentenced him to life imprisonment without parole. After an unsuccessful

direct appeal, Appellant timely filed a pro se PCRA petition on November 11,

2015. The court appointed counsel, who filed an amended petition. The court

later issued notice of its intent to dismiss Appellant’s petition without a

hearing, before ultimately dismissing it. Appellant’s appeal is now before us.

      In his sole issue on appeal, Appellant challenges trial counsel’s failure

to investigate and present an alleged alibi witness at trial. Appellant claims

the PCRA court erred in dismissing his petition without an evidentiary hearing,

during which Appellant maintains he would have presented the witness’s

testimony.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of

law, our scope of review is de novo. See id.

      Appellant’s sole issue on appeal asserts the ineffective assistance of trial

counsel. We presume counsel provided effective assistance, and Appellant

bears the burden of proving otherwise. See Commonwealth v. Pond, 846

A.2d 699, 708 (Pa. Super. 2004). “In order for [an a]ppellant to prevail on a

claim of ineffective assistance of counsel, he must show, by a preponderance

of the evidence, ineffective assistance of counsel which … so undermined the

                                      -2-
J-S07026-18



truth-determining process that no reliable adjudication of guilt or innocence

could have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281

(Pa. Super. 2005) (citation omitted). Further,

      [an a]ppellant must plead and prove, by a preponderance of the
      evidence, three elements: (1) the underlying legal claim has
      arguable merit; (2) counsel had no reasonable basis for his action
      or inaction; and (3) [a]ppellant suffered prejudice because of
      counsel’s action or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).

A failure to satisfy any prong of the test will require rejection of the entire

claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

      “Arguable merit exists when the factual statements are accurate and

could establish cause for relief. Whether the facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,

540 (Pa. Super. 2015) (citations and internal quotation marks omitted).

      When raising a claim of ineffectiveness for the failure to call a
      potential witness, a petitioner satisfies the performance and
      prejudice requirements of the Strickland test by establishing
      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. Sneed, 45 A.3d 1096, 1108-1109 (Pa. 2012) (citations

omitted). “To demonstrate prejudice where the allegation is the failure to

interview a witness, the petitioner must show that there is a reasonable

probability that the testimony the witness would have provided would have



                                      -3-
J-S07026-18



led to a different outcome at trial.” Commonwealth v. Pander, 100 A.3d

626, 639 (Pa. Super. 2014) (en banc) (citation omitted). See also

Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014) (“To be eligible for an

evidentiary hearing on a claim of ineffective assistance for failing to call a

witness a petitioner must include in his petition a signed certification as to

each intended witness stating the witness's name, address, date of birth and

substance of testimony.”) (internal quotation marks omitted).

      Further, a claim that counsel was ineffective by failing to call alibi

witnesses lacks arguable merit where the trial court conducted a colloquy of

the defendant at trial, and the defendant agreed with counsel’s decision not

to present such witnesses. See Pander, 100 A.3d at 642. “[A] defendant who

makes a knowing, voluntary, and intelligent decision concerning trial strategy

will not later be heard to complain that trial counsel was ineffective on the

basis of that decision.” Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa.

2002) (citation omitted).

      Here, Appellant’s amended PCRA petition avers his brother would have

testified that Appellant was home at the time of the murder. Appellant also

states he made counsel aware of his brother’s existence, yet counsel failed to

investigate his brother as a potential alibi witness. Aside from this bald

allegation, Appellant proffers absolutely no evidence to support this claim. For

instance, Appellant did not include a signed certification in his PCRA petition.

      And, as the PCRA court notes in its opinion, the trial court conducted a

colloquy of Appellant at trial, at which point Appellant asserted that he agreed

                                     -4-
J-S07026-18



with trial counsel’s decision not to call any witnesses aside from Appellant’s

mother. In his appellate brief, he concedes that during the colloquy, he stated

his agreement with counsel’s decision not to call any other witnesses. See

Appellant’s Brief, at 15. Appellant does not claim his decision was unknowing,

involuntary, or unintelligently rendered. Appellant is due no relief on this

claim, and the PCRA court properly dismissed his petition as meritless.

Consequently, we affirm the PCRA court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/18




                                     -5-
