J-S03003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MARIANO MARTINEZ

                            Appellant                   No. 520 EDA 2015


                  Appeal from the PCRA Order January 30, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010891-2007


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                               FILED JUNE 10, 2016

        Appellant Mariano Martinez appeals from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed his petition

filed for relief pursuant to the Post Conviction Relief Act (“PCRA”).1     After

careful review, we remand this matter to the PCRA court for an evidentiary

hearing on Appellant’s ineffective assistance of counsel claim.

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

On June 29, 2007, Dennis Michael Decker, Robert Campellone, and some

other co-workers were eating lunch at a restaurant when Decker observed

Campellone’s stolen quad2 drive past the restaurant. N.T., 8/4/2008, at 96-

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1
    42 Pa.C.S. §§ 9541-9546.
2
    A quad is a four-wheeled all-terrain vehicle.
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97.   Decker and his co-workers followed the quad in a truck until they

encountered five or six men who were “mostly black and Hispanic” on the

southern alleyway between Neilson and Ormond streets. Id. at 99-100. A

“black gentleman” started shooting at Decker and his friends, and soon

“more than one person” were shooting at them, including an individual

whom Decker later identified as Appellant. Id. at 102, 108.

      Detective Matthew Gillespie heard three or four gunshots from his

patrol car.   N.T., 8/5/2008, at 23-34. He drove toward the gunshots and

observed a man with a blue shirt running away from him on Neilson Street

about two minutes after he initially heard the gunshots.      Id. at 37, 38.

Detective Gillespie then spoke with a person at the VFW, got back in his car

and began driving slowly up Neilson Street.      Id. at 38.    He observed

Appellant, wearing a blue shirt, on Neilson Street.   He said “Police, don’t

move,” and Appellant said, “I didn’t do nothing.” Id. at 39. Appellant then

“put his hands up and kept walking towards [him].” Id. Detective Gillespie

arrested Appellant.

      On August 7, 2008, a jury convicted Appellant of four counts of

aggravated assault, four counts of recklessly endangering another person

(“REAP”), one count of possession of an instrument of crime (“PIC”), and




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one count of firearms not to be carried without a license.3             The jury

acquitted Appellant of four counts of criminal attempt murder and one count

of criminal conspiracy.

        On October 2, 2008, the court sentenced Appellant to 20-40 years’

incarceration and 12 years’ consecutive probation.4 On November 3, 2008,

Appellant filed a timely notice of appeal.5       This Court affirmed Appellant’s

judgment of sentence on February 22, 2010, and our Supreme Court denied

his petition for allowance of appeal on August 12, 2010. On April 4, 2011,

Appellant filed a pro se PCRA petition, and the PCRA court appointed

counsel.    On March 9, 2012, new PCRA counsel entered his appearance.

Appellant filed an amended PCRA petition on August 17, 2012. On July 21,

2014, the PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss

Appellant’s petition without a hearing. On January 30, 2015, the PCRA court

dismissed Appellant’s petition.         On February 18, 2015, Appellant filed a

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3
    18 Pa.C.S. §§ 2702(a)(1), 2705, 907(a), and 6106, respectively.
4
  The court imposed four consecutive sentences of 5-10 years’ incarceration,
one for each of his aggravated assault convictions. The court consecutively
imposed 7 years’ probation for his firearms not be carried without a license
count and 5 years’ probation for his PIC conviction. Appellant’s REAP
convictions merged for sentencing purposes.
5
  November 1, 2008 fell on a Saturday. Thus, he timely filed his notice of
appeal on Monday, November 3, 2008. See 1 Pa.C.S. § 1908 (when
computing the 30-day filing period, “[if] the last day of any such period shall
fall on Saturday or Sunday… such day shall be omitted from the
computation.”).



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timely notice of appeal. Appellant and the trial court complied with Pa.R.A.P.

1925(b).6

       Appellant raises the following issue for our review:

          WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO CALL
          ALIBI WITNESSES WHO HE KNEW OF AND KNEW COULD
          PROVIDE    A   POWERFUL    RESPONSE     TO    THE
          COMMONWEALTH’S        SPECIOUS        EYEWITNESS
          IDENTIFICATIONS?

Appellant’s Brief at 2.

       Appellant argues his trial counsel was ineffective for failing to call

Appellant’s wife and daughter as alibi witnesses, because trial counsel knew

of the witnesses, knew that they were available and willing to testify, and

their testimony was consistent with counsel’s mistaken identity defense. He

claims counsel’s error prejudiced him and requests a new trial, or a remand

for an evidentiary hearing on counsel’s ineffectiveness.      We agree that an

evidentiary hearing is necessary.

       Our standard of review is well-settled.     “In reviewing the denial of

PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).

“The scope of review is limited to the findings of the PCRA court and the

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6
  On February 26, 2015, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and he timely complied on March 6, 2015.



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evidence of record, viewed in the light most favorable to the prevailing party

at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014)

(citation omitted).

      Both the Pennsylvania and the United States Constitutions provide the

accused the right to the assistance of counsel:

         In all criminal prosecutions, the accused shall enjoy the
         right to a speedy and public trial, by an impartial jury of
         the State and district wherein the crime shall have been
         committed, which district shall have been previously
         ascertained by law, and to be informed of the nature and
         cause of the accusation; to be confronted with the
         witnesses against him; to have compulsory process for
         obtaining witnesses in his favor, and to have the
         Assistance of Counsel for his defence.

U.S. Const. amend. VI. See also Pa. Const. art. I, § 9.

      “[T]he right to counsel has been recognized as a fundamental right,

one that is essential to the goal of ensuring that every criminal defendant

receives a fair trial before an impartial tribunal.”      Commonwealth v.

Chmiel, 738 A.2d 406, 422 (Pa.1999), cert. denied sub nom. Pennsylvania

v. Chmiel, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d 841 (2000) (citing

Gideon v. Wainwright, 372 U.S. 335, 344–45, 83 S.Ct. 792, 796–97, 9

L.Ed.2d 799 (1963)). “Moreover, it is axiomatic that a criminal defendant is

constitutionally entitled to the effective assistance of counsel.” Id. (internal

quotations and citations omitted) (emphasis in original). “Every citizen of

this nation is entitled to the effective assistance of counsel, and [our

Supreme Court] has been scrupulous in its efforts to assure effective

representation to all criminal defendants who appear before the courts of


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this Commonwealth.”          Commonwealth v. Breaker, 318 A.2d 354, 360

(Pa.1974).

       Trial counsel is presumed to be effective, and the petitioner bears the

burden to prove otherwise. Commonwealth v. Steckley, 128 A.3d 826,

831 (Pa.Super.2015).        Further, “claims of ineffective assistance of counsel

are to be deferred to PCRA review.” Commonwealth v. Holmes, 79 A.3d

562, 576 (Pa.2013). To succeed on a claim of ineffective assistance of

counsel, a PCRA petitioner must plead and prove each of the following three

Pierce7 factors by a preponderance of the evidence:

          (1) the underlying claim has arguable merit; (2) no
          reasonable basis existed for counsel’s actions or failure to
          act; and (3) petitioner suffered prejudice as a result of
          counsel’s error such that there is a reasonable probability
          that the result of the proceeding would have been different
          absent such error.

Steckley, 128 A.3d at 831 (quoting Commonwealth v. Reed, 971 A.2d

1216, 1221 (Pa.2009)).

       “If an appellant fails to prove by a preponderance of the evidence any

of the Pierce prongs, the Court need not address the remaining prongs of

the    test.”     Commonwealth           v.    Fitzgerald,   979   A.2d   908,   911

(Pa.Super.2009), appeal denied, 990 A.2d 727 (Pa.2010) (citation omitted).

       When a claim has arguable merit, and there has been no evidentiary

hearing below to determine if there was a reasonable basis for counsel’s
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7
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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actions, this Court will remand for an evidentiary hearing. Commonwealth

v. Shablin, 524 A.2d 511, 512 (Pa.Super.1987) (quoting Commonwealth

v. Spotts, 491 A.2d 132, 134 (Pa.Super.1985)).

     However,

        the right to an evidentiary hearing on a post-conviction
        petition is not absolute. Commonwealth v. Jordan, 772
        A.2d 1011, 1014 (Pa.Super.2001). It is within the PCRA
        court’s discretion to decline to hold a hearing if the
        petitioner’s claim is patently frivolous and has no support
        either in the record or other evidence. Id. It is the
        responsibility of the reviewing court on appeal to examine
        each issue raised in the PCRA petition in light of the record
        certified before it in order to determine if the PCRA court
        erred in its determination that there were no genuine
        issues of material fact in controversy and in denying relief
        without      conducting      an      evidentiary     hearing.
        Commonwealth v. Hardcastle, 701 A.2d 541, 542-543
        ([Pa.]1997).

Commonwealth v. Khalifah, 852 A.2d 1238, 1239-40 (Pa.Super.2004).

     Further,

        remand for an evidentiary hearing is not a discovery tool
        wherein     counsel    may    conduct    investigation  and
        interrogation to search for support for vague or boilerplate
        allegations of ineffectiveness. Rather, appellant “must set
        forth an offer to prove at an appropriate hearing sufficient
        facts upon which a reviewing court can conclude that trial
        counsel may have, in fact, been ineffective,” before
        remand for an evidentiary hearing will be granted.
        Commonwealth v. Pettus, 424 A.2d 1332, 1335
        ([Pa.]1981). Moreover, if it is clear that: the allegation
        lacks arguable merit; an objectively reasonable basis
        designed to effectuate appellant’s interests existed for
        counsel’s actions or inactions; or appellant was not
        prejudiced by the alleged error by counsel, then an
        evidentiary hearing is unnecessary. Commonwealth v.
        Clemmons, 479 A.2d 955, 957 ([Pa.]1984).



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Commonwealth v. Petras, 534 A.2d 483, 485 (Pa.Super.1987).

      The record reflects that before defense counsel gave his opening

statement, Appellant requested a continuance to obtain new counsel, but

that request was denied.    See N.T., 8/01/2008 at 24-25.      Appellant now

claims counsel was ineffective for failing to call two witnesses, his wife and

daughter, who would have testified that Appellant was with them during the

time he allegedly committed the crimes, and that they watched him walk out

of their apartment, heading toward work, when he was immediately

arrested.   Appellant’s wife would have further testified that she asked the

police officer why he was arresting her husband, who had just departed from

their home.

      To obtain relief for ineffective assistance of counsel on a missing

witness claim, the appellant is required to establish that (1) the witness

existed; (2) the witness was available; (3) counsel was informed of the

existence of the witness or counsel should otherwise have known of him; (4)

the witness was prepared to cooperate and testify for appellant at trial; and

(5) the absence of the testimony prejudiced appellant so as to deny him a

fair trial. Commonwealth v. Stanley, 632 A.2d 871, 872 (Pa.1993) (citing

Commonwealth v. Petras, 534 A.2d 483, 485 (Pa.Super.1987)). It is the

appellant’s responsibility to show that counsel was actually aware of the

witness’s existence or had a duty to know of the witness. Id. “Moreover,

Appellant must show how the uncalled witnesses’ testimony would have


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been beneficial under the circumstances of the case.” Commonwealth v.

Gibson, 951 A.2d 1110, 1134 (Pa.2008) (internal citations omitted).

      The PCRA court acknowledges that the witnesses existed, were

prepared and available, and that counsel was aware of their existence.

However, it finds that Appellant’s claim lacks arguable merit because the

affidavits of the witnesses lacked a definitive timeframe such that the

“proposed alibi testimony does not place Appellant at home at the time he

committed these crimes[.]” PCRA Court Opinion, filed 4/7/2015, at 7.

      Appellant’s daughter would have testified as follows:

         On June 29, 2007, I was at home at 4050 Neilson Street,
         Philadelphia, PA. I was with my mother, father, brothers
         and sisters on the date that my father was arrested. He
         was working at a restaurant in Cinnaminson, New Jersey,
         on Route 130.       We had moved to Philadelphia from
         Merrimac, New Jersey, three months or less before the
         time of his arrest. My dad was still working at that
         restaurant at the time, and worked almost every day.

         He was home with us all day until he left for work. Within
         seconds after he left, he was arrested by the police. I
         became scared and went back into the house because they
         were arresting my dad and I was only ten years old at the
         time. The police came and told me to get out of the house
         and that no one was allowed in until they had searched it.
         If I had been asked to testify, I would have been ready,
         willing, and able to do so for my father.

Affidavit of D.F., 7/9/2012.

      Appellant’s wife would have testified in relevant part as follows:

         On the day of the shooting, June 29, 2007, [Appellant]
         was awakened, we showered together; we dressed and
         ate.   He left the house to go to work on public
         transportation because our car was broken down. I was at

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        the door waving good-bye to [him]. My daughter [D.F.]
        was also at the door with me. We looked with horror when
        the police grabbed him and placed him in handcuffs.

        I immediately ran out of the house to the police to ask
        what they were doing. When they told me that he was
        going to be arrested, I spoke with a police woman and said
        that he was with me. Why is he being arrested? I told her
        that he had been with me all day until he left.

        We were new in the neighborhood and my husband worked
        a lot. [Appellant] worked hard because we have five
        children ranging in the age from five to sixteen years old.
        When he was not working, he would be with me and/or the
        children. There was no time for [Appellant] to get to know
        anyone and he really did not know anyone in the area well.

        When the policewoman told me that he had shot someone,
        I was surprised to hear that. I couldn’t believe that the
        police were saying that he shot at anybody because he had
        been with me the whole day before he left for work.

        After his arrest, I spoke with someone from the Office of
        the Public Defender who I think was the trial lawyer. I told
        him that my husband was with me all day before he left
        home so he could not be at a shooting. I told him I spoke
        to the police immediately after they arrested [Appellant]
        and told them that. He told me that my testimony was not
        necessary.

English Translation of Affidavit of Carolyn Matos, 8/14/2012.

     Although the affidavits do not state that Appellant opened the door of

his home at a precise time, they both state that Appellant was with the

affiants for the entire day and that they watched him walk out of the door

and get arrested within seconds. The affidavits do not allow for any gap in

time during which Appellant could have committed the crimes, because the

affiants’ eyes were on Appellant between the time he walked out the door


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and the time he encountered Detective Gillespie.8       The affiants’ testimony

would have contradicted Detective Gillespie’s conclusion that Appellant was

the perpetrator.

       Although neither affidavit provides the exact time that Appellant left

his home for work, the affidavits in their present form are sufficient.

Appellant’s claim has arguable merit.

       Further, the PCRA court’s determination that counsel’s omission was

based on a reasonable trial strategy is not supported by the record.

       Appellant’s affidavit states:

          4.) When I presented these facts to Attorney Jordan, he
          responded by attempting to convince me not to present
          this crucial evidence by stating that he has a tremendous
          amount of experience and that this wouldn’t be the best
          course of action.

                                       *       *    *

          6.) After continually attempting to get Attorney Jordan to
          use this testimony of my innocence, he insisted that this
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8
  The dissent suggests that Appellant’s presence at his home does not
preclude him from participating in the shooting, because the affidavits do
not definitively indicate that Appellant was inside of the house throughout
the entire duration of the shooting. Although the possibility that Appellant
could have left his home, committed the shooting, and come back inside
before departing for work could be presented upon cross-examination,
Appellant’s wife indicated in her affidavit that she would have testified that
she was with Appellant “all day.” She would have testified that after he
woke up, they “showered together,” “dressed and ate” before he departed to
go to “work on public transportation because [the] car was broken down.”
English Translation of Affidavit of Carolyn Matos. Being with his wife in their
home all day would preclude Appellant from participating in the outside
shooting.



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         “wasn’t going to work anyway,” and my testimony would
         be, “no good because the evidence against you is
         overwhelming and the jury won’t believe you.”

Appellant’s Affidavit, 6/28/12, at 1.

      Appellant’s affidavit indicates that counsel did not honor his request to

present the witnesses.      Moreover, the presentation of alibi witnesses

appears to be consistent with counsel’s actual trial strategy. In his opening

statement, Attorney Jordan stated the following:

         First of all, there is no argument there was a senseless
         crime that took place on the day in question. The issue we
         are going to ask that you focus on is who did it? There are
         numerous individuals out in this neighborhood anywhere
         from five to eight people.        There were other people
         obviously not involved in this incident. There was [sic]
         actually children at this incident. These gentlemen, as
         stated, were chasing, I call it the quad, in the area. They
         came upon this group of individuals described as black and
         Hispanics. At some point they open fire. The people in the
         car had to react quickly or they would have been in serious
         danger and they did, they pulled out. So their opportunity
         to observed [sic] the individuals that took place in this
         assault was lifted….

         It is our position that at the time of this unfortunate event
         my client who lives in the area was at home with his
         wife. He does not – although he lived in the area, he only
         lived there for three months. He goes to work, he takes
         care of his family, he was not involved with the people out
         in the street.

         As you hear the testimony you will hear the person saw
         what he thought was a person committed the shooting
         because he saw him with a gun and then saw him walking
         away, then he saw my client walking down the street. We
         would argue is [sic] inconsistent, it’s inconsistent that he
         would move or run into his house, discard the gun, and
         then come back in the street.


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N.T. 8/1/2008, at 34-35 (emphasis added).

     From the opening statement, defense counsel’s strategy appears to be

a mistaken identity defense; Appellant was at home with his wife while

someone else was shooting at the victims, and when he departed from his

home, the police arrested the wrong person. However, trial counsel offered

no testimony or evidence to support this mistaken identity defense.

Although counsel might have had some hidden strategy for not presenting

the testimony of Appellant’s wife and daughter, without an evidentiary

hearing, it is impossible to determine what that strategy might be.

     We must next determine whether Appellant was prejudiced by

counsel’s alleged error.   If Appellant was not prejudiced by the error, we

need not remand for an evidentiary hearing. See Petras, supra.

     Appellant directs us to Khalifah, supra, where this Court reversed a

PCRA court order and remanded for an evidentiary hearing where the PCRA

court denied an appellant the opportunity to present a witness whose

testimony would have contradicted the victim’s testimony and may have

affected the outcome of the trial.    See Appellant’s Brief at 24, See also

Khalifah, 852 A.2d at 1240.

     As in Khalifah, Appellant likely was prejudiced by counsel’s omission.

Appellant did not have a gun on his person at the time of his arrest, nor was

a gun recovered from a search of the surrounding area or his home. See

N.T., 8/5/2008, at 16, 18-19, 29. Further, the detectives did not conduct a


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paraffin test to determine whether Appellant had gunpowder residue on his

hands. Id. at 29. The only evidence linking Appellant to these crimes is the

testimony of other witnesses, who gave varying descriptions of Appellant,

and some of whom identified him while he was in the back of a police

vehicle.9 The alibi testimony that he was with his wife and children at the

time of the shooting could have very well altered the outcome of the trial.

       It is “our duty as an error correcting court … to determine if the PCRA

[c]ourt’s decision is legally correct and fully supported by the certified

record.” Commonwealth v. Glover, 738 A.2d 460, 466 (Pa.Super.1999).

       In denying Appellant relief for his ineffective assistance of counsel

claim relating to counsel’s failure to call alibi witnesses, the PCRA court

reasoned:

          The proposed alibi testimony does not place Appellant at
          home at the time that he committed these crimes and
          there are three eyewitnesses to the shooting. Clearly,
          trial counsel considered this proposed testimony in
          light of the other evidence. Trial counsel will not be
          deemed to have rendered ineffective [assistance] if any
          reasonable basis exists for his actions or inactions.
          Moreover, in order to show entitlement to relief under the
          PCRA, Appellant must demonstrate prejudice, i.e., that but
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9
   The dissent correctly observes that police found ammunition in Appellant’s
home and fired cartridge casings on the driveway directly outside of his
residence. Appellant does not contest that the crime occurred, or that it
occurred in close proximity to his home; he contests that he was the
perpetrator. He claims that he was right outside of his home because he
lives there, not because he committed a crime there.     The only evidence
that links Appellant to the crime of which he is being accused is the
testimony of the witnesses.



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         for the failure of trial counsel to call the alibi witnesses, the
         outcome of the proceedings would have been different,
         and he must also demonstrate that ineffectiveness of trial
         counsel was of the sort which in the circumstances of the
         instant case, so undermined the truth-determining process
         that no reliable adjudication of guilt or innocence could
         have taken place. To demonstrate prejudice, Appellant
         must show that the witness’ proposed testimony would
         have affected the verdict or that such evidence would have
         been beneficial to his defense. Here, Appellant failed to
         carry his burden of proof and the PCRA Petition was
         dismissed. Error was not committed.

PCRA Court Pa.R.A.P. 1925(a) Opinion, filed April 7, 2015, at 7-8 (internal

citations omitted; emphasis added).

      The PCRA court did not conduct an evidentiary hearing on Appellant’s

ineffective assistance of counsel claim. The PCRA court’s determination that

trial counsel “clearly” considered the proposed testimony in light of the other

evidence is not supported by testimony from counsel to that effect, and the

record does not support such a conclusion.           Further, defense counsel’s

failure to call his alibi witnesses might well have prejudiced the outcome of

Appellant’s trial.

      The PCRA court’s decision is neither legally correct nor supported by

the certified record.

      Order reversed. Case remanded to the PCRA court for an evidentiary

hearing on Appellant’s ineffective assistance of counsel claim.        Jurisdiction

relinquished.

      Judge Ott joins in the memorandum

      President Judge Emeritus Ford Elliott files a dissenting memorandum.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2016




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