J-S61043-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :       IN THE SUPERIOR COURT OF
                                       :             PENNSYLVANIA
                       Appellee        :
                                       :
                  v.                   :
                                       :
TERRENCE ALLEN,                        :
                                       :
                       Appellant       :       No. 1003 WDA 2014

                Appeal from the PCRA Order June 24, 2014,
            in the Court of Common Pleas of Allegheny County,
         Criminal Division at No(s): CP-02-CR-0007863-2007 and
                          CP-02-CR-0010882-2007

BEFORE: FORD ELLIOTT, P.J.E., WECHT and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED OCTOBER 14, 2014

      Terrance Allen (Appellant) appeals from the order entered on June 24,

2014, denying his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     The background underlying this matter can be summarized as follows.

At approximately 10 a.m. on October 10, 2006, Appellant shot his step-

father, Terrance Williams, four times in his legs. The shooting occurred in

the Beltzhoover neighborhood in the City of Pittsburgh. Williams died as a

result of his injuries on November 11, 2006.

     A jury convicted Appellant of third-degree murder, and the trial court

sentenced Appellant to twenty to forty years in prison.    On December 1,

2011, this Court affirmed the judgment of sentence.      Commonwealth v.

Allen, 40 A.3d 181 (Pa. Super. 2011) (unpublished memorandum).


* Retired Senior Judge assigned to the Superior Court.
J-S61043-14


Appellant petitioned our Supreme Court for allowance of appeal; the

Supreme Court denied that petition on October 16, 2012. Commonwealth

v. Allen, 54 A.3d 346 (Pa. 2012) (table).

      On September 9, 2013, Appellant timely filed a pro se PCRA petition.

The PCRA court appointed counsel to represent Appellant, and counsel filed

an amended petition on Appellant’s behalf.           In his amended petition,

Appellant claimed that trial counsel was ineffective for failing to call two alibi

witnesses at trial, Rahshedia Chapman and Garnett Brock.

      The PCRA court held hearings regarding Appellant’s petition on March

25 and 27, 2014.      Chapman, Appellant, and trial counsel testified at the

March 25th hearing, and Brock testified at the March 27th hearing.

      Chapman testified that Appellant was at the home she shares with

Brock in Wilkinsburg on the morning of the shooting.              Her testimony

regarding when Appellant arrived at her home was equivocal at best. She

eventually settled on her belief that Appellant arrived at her home between

10:00 and 11:00 a.m., but closer to 10:00 than 11:00. Brock testified that

Appellant arrived at his and Chapman’s home at 10:03 a.m. on the morning

of the shooting.

      Appellant testified that he arrived in Wilkinsburg at around 9:15 or

9:30 a.m. on the morning of the shooting. Appellant stated that he went to

the home of Chapman and Brock shortly after arriving in Wilkinsburg and

that he stayed there until the afternoon. Appellant further testified that he



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informed trial counsel that Chapman and Brock could provide him with an

alibi.

         Trial counsel testified that Appellant informed him of his alibi

witnesses.     Trial counsel stated that he sent a private investigator (PI) to

speak to Chapman and Brock.           According to trial counsel, PI informed

counsel that he spoke to the potential witnesses and that they placed

Appellant at their home at 11:00 a.m.           Trial counsel testified that he

subpoenaed the witnesses for trial and spoke to them in the hallway during

the trial.     Counsel, however, ultimately decided not to pursue an alibi

defense because “[t]here would be a window of opportunity for [Appellant]

to have done this shooting and still gotten to Wilkinsburg by 11.”           N.T.,

3/25/2014, at 38. Counsel instead pursued a “causation defense.”

         In an order dated June 19, 2014, but entered on June 24, 2014, the

PCRA court denied Appellant’s PCRA petition. In support of its decision to

deny the petition, the PCRA court ultimately concluded that

         trial counsel was not ineffective in abandoning the alibi defense
         and instead pursued the stronger more viable defense of
         causation. After discussing all of that with [Appellant,] trial
         counsel had an objective and reasonable basis for, and
         [Appellant] was not prejudiced by, the withdrawal of the alibi
         defense in favor of the causation issue.

N.T., 6/16/2014, at 11-12.        According to counsel, he called an expert

witness at trial who testified that Williams “did not die from gunshot wounds

but as a result of hardening of arteries that was a preexisting condition.”

N.T., 3/25/2014, at 39. In reaching its conclusion, the PCRA court clearly


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credited trial counsel’s testimony and discredited the other witnesses’

testimony.

        Appellant timely filed a notice of appeal.1   In his brief to this Court,

Appellant asks us to consider one question, namely,

        [] Did the [PCRA] court err in denying Appellant’s PCRA petition
        since trial counsel [] was ineffective for failing to call alibi
        witnesses Rahshedia Chapman and Garnett Brock to testify at
        Appellant’s jury trial since they would have testified that
        Appellant was with them at their home, which was a nineteen
        minute drive away from the shooting scene, when the victim was
        shot?

Appellant’s Brief at 3 (unnecessary capitalization and PCRA court’s answer

omitted).

         Our standard of review of the denial of a PCRA petition is limited to

examining whether the court's rulings are supported by the evidence of

record and free of legal error.    Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010).

        Appellant’s issue involves a claim that his trial counsel rendered

ineffective assistance of counsel. “To establish ineffectiveness of counsel, a

PCRA petitioner must show the underlying claim has arguable merit,

counsel’s actions lacked any reasonable basis, and counsel’s actions

prejudiced the petitioner. …”     Commonwealth v. Jones, 71 A.3d 1061,

1063 (Pa. Super. 2013) (citations omitted).




1
    The PCRA court did not direct Appellant to comply with Pa.R.A.P. 1925(b).


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      Appellant’s argument in support of his issue does not address directly

the PCRA court’s conclusion that trial counsel had a reasonable basis for not

pursuing an alibi defense.    Instead, Appellant highlights the PCRA hearing

testimony that is favorable to his claim and reasserts his position that trial

counsel was ineffective for failing to utilize Chapman and Brock as alibi

witnesses.

      Trial   counsel’s   testimony   established   that   he   investigated   the

possibility of pursuing an alibi defense.    His testimony further established

that he and Appellant decided not to present such a defense because

Chapman and Brock were unable to place Appellant in their home at a time

that would be consistent with an alibi defense. We can discern no error or

abuse of discretion in the PCRA court’s conclusion that counsel acted with a

reasonable basis in this regard.2

      Appellant has failed to convince us that he is entitled to relief.

Consequently, we affirm the order denying his PCRA petition.

      Order affirmed.




2
   While we agree with the PCRA judge that the causation defense was
Appellant’s strongest issue at trial, we do not view this as an “either/or”
situation. The alibi defense and the causation defense are not mutually
exclusive. If the alibi defense were meritorious, counsel could and should
have raised it along with the causation defense.          However, counsel
legitimately concluded that it was not meritorious and thus to raise it would
have been a mistake.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2014




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