J-S61008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    BRIAN WALTERS

                             Appellant                No. 109 EDA 2017


                Appeal from the PCRA Order November 30, 2016
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0000912-2012


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED DECEMBER 12, 2017

        Brian Walters appeals from the order, entered in the Court of Common

Pleas of Montgomery County, denying his petition under the Post-Conviction

Relief Act (“PCRA”).1 After review, we affirm.

        The relevant factual and procedural history is as follows. In the early

morning hours of December 17, 2011, two masked men committed an armed

robbery at the residence of Ed and Rebecca Holland. Rebecca was awakened

by her dog growling. When she opened the door from the bedroom to the

hallway, she was startled to discover two masked men. One of the men wore



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*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.
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a ski mask, and the other had an improvised cloth bandana tied around his

face. Both men brandished handguns. The men pushed Rebecca back into

the bedroom and a struggle ensued when Rebecca tried to call 911 on her cell

phone. The robbery was interrupted when Ed Holland woke up, retrieved his

own gun, and chased the men from the house.

        Immediately after the robbers fled, Rebecca called 911 and identified

Walters as one of the perpetrators. Walters’ wife, Aisha Harris, had worked

as a housekeeper at the Holland residence prior to the robbery, and the

Hollands were acquainted with both Walters and Harris. In the weeks before

the robbery, Walters had assisted Ed Holland with several jobs around the

Holland residence, including cleaning the garage and assisting Ed with laying

tile. Rebecca had met Walters on several occasions as well, and the two had

spoken at length.       Based primarily on Rebecca’s eyewitness identification,

Walters was arrested on the night of the incident and charged with robbery, 2

burglary,3 and person not to possess a firearm.4

        At various times during the investigation and at trial, Rebecca stated

that she recognized Walters by his distinctive eyes, by his voice, and by his


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2   18 Pa.C.S. §3701(a)(1)(ii).

3   18 Pa.C.S. §3502(a).

4 18 Pa.C.S. §6105(a)(1). In 2009, Walters pled guilty to a charge of
possession with intent to distribute, thus making him ineligible for firearm
ownership.


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body shape. Further, one of the assailants addressed Ed Holland by name

during the robbery, telling him not to retrieve his gun.       The robbers also

appeared to have some knowledge of the Holland residence; they entered the

home through the only door that lacked an alarm, and they skillfully navigated

the home while fleeing. These facts, combined with the Hollands’ familiarity

with Walters, allowed the Hollands to identify Walters as the perpetrator.

        At trial, the Commonwealth relied extensively on Rebecca’s eyewitness

identification, along with other circumstantial evidence.       In his defense,

Walters relied primarily on the alibi testimony of Harris. Harris testified that

she and Walters had been asleep in bed on the night of the robbery, and that

Walters therefore could not have been involved.        To attack this alibi, the

Commonwealth introduced phone records which revealed that calls may have

been placed to and from Harris’ phone during the relevant periods.

        Ultimately, the jury convicted Walters of all three counts on February 7,

2013.      He received an aggregate sentence of ten to twenty years’

imprisonment on December 18, 2013. Walters then filed a direct appeal to

this Court; we affirmed his judgment of sentence on April 24, 2015.          See

Commonwealth v. Walters, 1377 EDA 2014 (Pa. Super. 4/24/15)

(unpublished memorandum decision).           Walters filed a timely pro se PCRA

petition on April 21, 2016. The PCRA court appointed present counsel, who

filed an amended PCRA petition on June 24, 2016. On October 19, 2016, the




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PCRA court held a hearing and denied Walters’ petition on its merits. Walters

now appeals that decision.

      Walters’ claims on appeal relate to the phone records and to the timing

of the phone calls placed to and from Harris’ phone.       Specifically, Walters

alleges that: (1) counsel failed to definitively establish that Harris called an

attorney after—and not before—speaking to the police about Walters; (2)

counsel failed to review the phone records and failed to cross-examine

Commonwealth witnesses regarding those records, which ultimately led to the

jury improperly discrediting Harris’ alibi testimony; (3) the PCRA court erred

in stating that it was “undisputed” that Harris spoke to Sergeant Fenerty of

the Norristown Police Department prior to Harris contacting an attorney

acquaintance; and (4) the PCRA court erred by concluding, in light of the

above, that counsel’s review of phone records was “irrelevant” to the outcome

of the trial.

      To be entitled to relief for ineffective assistance of counsel, a PCRA

petitioner must establish that: (1) the underlying claim has merit; (2) there

was no reasonable basis for counsel’s action or failure to act; and (3) but for

counsel’s course of conduct, there is a “reasonable probability the result of the

proceeding would have been different.”      Commonwealth v. Treiber, 121

A.3d 435, 444 (Pa. 2015). Failure to satisfy any of the three prongs is fatal

to a claim of ineffective assistance of counsel. Commonwealth v. Pond, 846

A.2d 669 (Pa. Super. 2004).        Counsel is presumed to provide effective


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assistance, and it is solely the petitioner’s burden to prove ineffectiveness.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).

      Walters first alleges that his trial counsel, Michael Walker, Esquire, was

ineffective for failing to establish that Harris called an attorney after she was

contacted by the police. In a closely related argument, he claims that Attorney

Walker failed to investigate the phone records and failed to cross-examine

Commonwealth witnesses regarding the accuracy of the phone records.

Walters is entitled to no relief on his ineffectiveness claims.

      “Our evaluation of counsel’s performance is . . . highly deferential, and

the reasonableness of counsel’s decisions cannot be based upon the distorting

effects of hindsight.” Commonwealth v. Mason, 130 A.3d 601, 647 (Pa.

2015) (internal citation omitted).     Further, “the mere fact that [a] trial

strategy ultimately proved unsuccessful does not render it unreasonable.”

Commonwealth v. Spotz, 896 A.2d 1191, 1238 (Pa. 2006) (internal citation

omitted). In short, we will not utilize the benefit of hindsight to find counsel

ineffective for failing to pursue an alternative course of action when the

attorney acted with diligence in the first instance. Id.

      To begin, Attorney Walker did not fail to review the phone records, as

alleged by Walters. To the contrary, Attorney Walker acted with diligence in

exploring the phone records and assessing their strategic impact on the case.

As Attorney Walker testified during the PCRA hearing, he was concerned that

the records may have undermined Harris’ testimony by revealing that her


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phone had changed locations during the night. N.T. PCRA Hearing, 10/19/16,

at 39-40. As a result of this assessment, Attorney Walker successfully moved

to have the records excluded from evidence.5 Id. at 30. In so doing, he made

a reasonable strategic decision, thus defeating the second prong of the test

for ineffective assistance of counsel.

       Prejudice also cannot be established. Harris first testified that the police

arrived around 3 a.m. N.T. Trial, 2/6/13, at 58. The Commonwealth then

introduced the phone record showing that Harris had called an attorney at

2:29 a.m. Id. at 70-71. Harris next stated that the police must have arrived

an hour earlier than she had thought. Id. at 71. Later, Attorney Walker asked

Harris, “Could you be mistaken about the times of when the officer got there

when you made the phone calls?”                Id. at 81.   Harris answered in the

affirmative, “Yes, I could have made a mistake.” Id. at 81.

       Harris went on to testify that she called the attorney after the police

arrived because she knew that Walters was being interrogated in relation to a

shooting.    Id. at 81.      This testimony is entirely consistent with the alibi

defense, and counsel’s failure to further question the specific timing of the

calls is not prejudicial error. Attorney Walker’s impeachment of the records

would have further confused the issue of timing, but it would not have served



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5 The telephone records only became an issue at trial after Harris opened the
door on cross-examination. The testimony of a witness on cross-examination
is, of course, beyond the control of counsel.

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to rehabilitate the essential facts of Harris’ alibi defense. In short, the issue

of timing does not provide a “reasonable probability the result of the

proceeding would have been different.” Treiber, supra.

      Walters’ next claims involve allegations of error by the PCRA court.

Specifically, Walters takes issue with the court’s statement that it was

“undisputed at trial that Sergeant Fenerty spoke with Ms. Harris prior to Ms.

Harris contacting an attorney.” PCRA Opinion, 11/30/16, at 7. This claim

warrants no relief. Rather, we agree that the PCRA court’s “arguably inartful

phrasing” does not amount to an actionable error.        Rule 1925(b) Opinion,

1/31/2017, at 10.       As discussed supra, we agree with the trial court’s

conclusion that Walker failed to establish that counsel was ineffective.

Accordingly, the PCRA court’s misstatement of a single fact does not render

its ultimate determination erroneous.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




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