J-S84014-18



                              2019 PA Super 207

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

ANTHONY SHAW,

                          Appellant                 No. 1573 EDA 2018


              Appeal from the PCRA Order Entered April 25, 2018
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006238-2010



BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOT, P.J.E.

OPINION BY BENDER, P.J.E.:                            FILED JULY 03, 2019

      Appellant, Anthony Shaw, appeals from the order dismissing his timely

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we reverse and remand for a new trial.

      The PCRA court summarized the facts leading to Appellant’s conviction

as follows:
            On November 30, 2009 [Appellant] and an accomplice,
      Daniel Vincent, forced their way into the Darby Borough
      apartment of … [V]ictim, Alex Adebisi. [Victim] saw [Appellant]
      and Vincent “hanging” around his apartment building before the
      home invasion and in fact spoke with them.            When the
      conversation concluded[,] [Victim] then went into his apartment
      where he was entertaining guests. [Appellant] and Vincent came
      to the door and asked [Victim] to change a hundred dollar bill.
      [Victim] accommodated the men and returned to his guests.
      When there was another knock at his door [Victim] assumed that
      it was a delivery of take-out food and he opened the door.
      [Appellant] and Vincent forced their way in and demanded money.
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     The two men assaulted [Victim] and [Appellant] shot him in the
     thigh and chest before fleeing. [Victim]’s guests, who were hiding
     in the bathroom, called 911. Eventually police officers and
     paramedics arrived and [Victim] was taken to a hospital where he
     was treated.

            In addition to [Victim], a neighbor who lived two doors from
     [Victim] testified that he had seen [Appellant] and Vincent in front
     of the house earlier and that he had warned others to lock their
     doors. A guest of [Victim]’s also lived nearby. He saw two
     strangers outside the house. He asked them to leave and locked
     the door. A female guest saw Vincent enter the apartment and
     punch [Victim] before she ran to the bathroom to hide. After the
     incident when he was being treated for his injuries, [Victim]
     identified both [Appellant] and Vincent in separate photo arrays
     that he viewed on different days.

PCRA Court Opinion (PCO), 6/20/18, at 2-3 (quoting Trial Court Opinion,

12/17/13, at 2-3).

     A jury convicted Appellant of attempted murder, robbery, aggravated

assault, burglary, firearms not to be possessed without a license, possession

of an instrument of crime, and criminal conspiracy to commit aggravated

assault, robbery, and burglary.    On December 15, 2011, the trial court

sentenced him to an aggregate term of 15-30 years’ imprisonment, and a

consecutive term of five years’ probation. Appellant’s judgment of sentence

was affirmed on direct appeal. See Commonwealth v. Shaw, 105 A.3d 794

(Pa. Super. 2014) (unpublished memorandum), appeal denied, 106 A.3d 726

(Pa. 2015).

     Appellant filed a timely, pro se PCRA petition, his first, on November 5,

2015. PCRA Counsel, Stephen Molineux, Esq., was appointed to represent

Appellant on November 16, 2015. Attorney Molineux filed an amended PCRA



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petition on Appellant’s behalf on October 19, 2017. A PCRA hearing was held

on April 5, 2018. On April 25, 2018, the PCRA petition was denied. Appellant

filed a timely Notice of Appeal, and a timely, court-ordered Pa.R.A.P. 1925(b)

statement. The PCRA court issued its Rule 1925(a) opinion on June 20, 2018.

       Appellant now presents the following questions for our review:

         I.   Were Appellant’s Fifth, Sixth and Fourteenth Amendment
              rights violated due to [trial] counsel’s ineffective failure to
              file a pre-trial motion to preclude the in-court identification
              of … Appellant?

        II.   Were Appellant’s Sixth Amendment rights violated due to
              [trial] counsel’s ineffective failure to request a Kloiber[1]
              instruction?

       III.   Were Appellant’s Sixth Amendment rights violated due to
              PCRA counsel’s ineffective failure to preserve a potentially
              meritorious claim which was the basis for the PCRA [c]ourt’s
              evidentiary hearing?

Appellant’s Brief at 3.

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

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

citations omitted).
____________________________________________


1   Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).

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      Appellant’s claims concern the alleged ineffectiveness of his trial and

PCRA attorneys.

      We begin with the presumption that counsel rendered effective
      assistance. To obtain relief on a claim of ineffective assistance of
      counsel, a petitioner must rebut that presumption and
      demonstrate that counsel’s performance was deficient, and that
      such performance prejudiced him. Strickland v. Washington,
      466 U.S. 668, 687–91[] (1984). In our Commonwealth, we have
      rearticulated the Strickland Court’s performance and prejudice
      inquiry as a three-prong test. Specifically, a petitioner must
      show: (1) the underlying claim is of arguable merit; (2) no
      reasonable basis existed for counsel’s action or inaction; and (3)
      counsel’s error caused prejudice such that there is a reasonable
      probability that the result of the proceeding would have been
      different absent such error. Commonwealth v. Pierce, 515 Pa.
      153, 158–59, 527 A.2d 973, 975 (1987).

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (some internal

citations omitted).

      In Appellant’s first claim, he asserts that trial counsel was ineffective for

failing to seek to preclude Victim’s in-court identification testimony by means

of a pre-trial motion to suppress.        Appellant argues that the pre-trial

identification of him was so suggestive that the trial court would have

suppressed the in-court identification of Appellant by Victim due to the taint

of the pre-trial identification.

      Whether an out of court identification is to be suppressed as
      unreliable, and therefore violative of due process, is determined
      from the totality of the circumstances. Suggestiveness in the
      identification process is a factor to be considered in determining
      the admissibility of such evidence, but suggestiveness alone does
      not warrant exclusion.       Identification evidence will not be
      suppressed unless the facts demonstrate that the identification
      procedure was so impermissibly suggestive as to give rise to a
      very substantial likelihood of irreparable misidentification.

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      Photographs used in line-ups are not unduly suggestive if the
      suspect’s picture does not stand out more than the others, and
      the people depicted all exhibit similar facial characteristics.

Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa. Super. 2011) (cleaned

up). Furthermore, “[f]ollowing a suggestive pre-trial identification procedure,

a witness should not be permitted to make an in-court identification unless

the prosecution establishes by clear and convincing evidence that the totality

of the circumstances affecting the witness’s identification did not involve a

substantial likelihood of misidentification.” Commonwealth v. Fowler, 352

A.2d 17, 19 (Pa. 1976).

      The PCRA court found that Appellant’s claim lacked arguable merit for

the following reasons:

             [Appellant] alleges that [Victim]’s pre-trial identification
      tainted his in-court identification and that trial counsel was
      ineffective for failing to file a motion to suppress. In support[,]
      he alleges only that [Victim] chose [Appellant]’s “picture very
      quickly after indicating that two guys that he had never seen
      before, walked up to him and shot him” and also describes[,] inter
      alia, discrepancies between [Victim]’s description of his assailants
      and the actual appearance of [Appellant] and his co-defendant.
      These allegations do not in any way raise the specter of an unduly
      suggestive identification procedure. Rather, they are matters that
      the jury would properly consider in determining the accuracy of
      [Victim]’s identification and the weight to assign his testimony.
      This claim has no merit.

             At trial[,] Officer Charles Schuler of the Darby Borough
      Police Department testified that he traveled with [Victim] in an
      ambulance that transported them to the University of
      Pennsylvania Hospital following the shooting.          During the
      transport Officer Schuler attempted to interview [Victim] because
      there was a concern that [Victim] would die as a result of the
      injuries that he sustained. [Victim] appeared to be in a great deal
      of pain and the EMT’s were tending to his wounds and
      administering oxygen. Officer Schuler reported that [Victim] said

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      that he was shot by two men that he had never seen before. One
      was a small, dark-skinned black man wearing a gray hoodie and
      [Victim] could not remember anything about the second man.
      During the course of this interview Officer Schuler was repeatedly
      interrupted by medics and at other times [Victim] was unable to
      respond. At the hospital[,] [Victim] was immediately taken to a
      trauma bay and he was not questioned any further. Officer
      Schuler was told that [Victim] couldn’t answer any more
      questions.    [Victim] was in a coma for two days following
      emergency surgery. At trial[,] [Victim] testified that he did not
      recall speaking to Officer Schuler during his transport and that he
      had no recollection of ever saying that he had never seen the two
      men before.

             On December 2, 2009[,] after [Victim] regained
      consciousness[,] Lieutenant Richard Gibney of the Darby Borough
      Police Department visited him while he was in the Intensive Care
      Unit. At trial[,] Lieutenant Richard Gibney testified that he went
      to the hospital and spoke with [Victim] after he was out of
      immediate danger of death. He offered [Victim] the photo array
      with instructions to take his time and to let the Lieutenant know
      if he saw the man who shot him. [Victim] scanned the photos and
      immediately chose [Appellant]’s photo. The Lieutenant asked if
      [Victim] was “positive” and confirmed that medication did not
      hamper his ability to make identification. “[Victim] was very clear
      and very positive that this was the man who shot him.”

              There is absolutely no evidence, from within or outside the
      record, that support[s] a claim that [Victim]’s in-court
      identification was tainted by an unduly suggestive procedure that
      created     a    substantial    likelihood  of  a[n]    irreparable
      misidentification. Counsel will not be deemed ineffective for
      failing to raise a meritless claim.

PCO at 5-6 (citation omitted).

      We agree with the PCRA court. There was no evidence presented that

the photo lineup shown to Victim was unduly suggestive. The fact that Victim’s

initial descriptions did not comport with his photo-array identification goes to

the credibility, not the suggestiveness of the identification procedure. See



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Commonwealth v. Kyle, 533 A.2d 120, 132 (Pa. Super. 1987) (holding that

the discrepancies between an initial description and the person identified in a

photo array concern “credibility,” not “undue suggestiveness”).

      Appellant further argues that Lt. Gibney’s statement to [Victim] just

prior to the photo lineup tainted the initial identification of Appellant, where

the officer told Victim not to waste his time, and that he would close the case

if Victim refused to cooperate. Appellant’s Brief at 9. Appellant believes this

pressured Victim to make an identification. However, on its face, this was not

evidence that the photo array was unduly suggestive. At best, this was further

evidence pertaining to the credibility of Victim’s identification of Appellant.

      Moreover, Appellant sought to exclude the out-of-court identification in

a pre-trial suppression motion, albeit unsuccessfully.         As this Court has

previously ruled, when “nothing in the record indicates any of the pretrial

proceedings were tainted, we need not reach the second question of whether

the in-court identification is inadmissible based on the suggestiveness of the

out-of-court identifications and lacking an independent basis.” Fulmore, 25

A.3d at 349; see also Commonwealth v. Johnson, 668 A.2d 97, 103 (Pa.

1995) (“Because the out-of-court identifications were not tainted, we need not

address [the] appellant’s argument that the in-court identifications lacked an

independent basis.”).      Here, Appellant was not prejudiced by his trial

attorney’s failure to seek suppression of Victim’s in-court identification

because the out-of-court identification was already ruled admissible.

Accordingly, Appellant is not entitled to relief on his first ineffectiveness claim.

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      Next, Appellant contends that his trial attorney was ineffective for failing

to seek a Kloiber instruction. “A Kloiber charge is appropriate where there

are special identification concerns: a witness did not have the opportunity to

clearly view the defendant, equivocated in his identification of a defendant, or

had difficulty making an identification in the past.” Commonwealth v. Reid,

99 A.3d 427, 448 (Pa. 2014).          Here, Appellant argues that a Kloiber

instruction was appropriate based on the allegations presented in his first

claim that the photo array was unduly suggestive and due to the discrepancies

with Victim’s initial description.

      The PCRA court rejected this claim because:

      Through [Victim]’s trial testimony[,] the Commonwealth
      established that he recognized both [Appellant] and his co-
      defendant from two interactions earlier in the day. His assailants
      forced their way into his apartment and he recognized them
      immediately. When he came out of his coma days after the
      shooting[,] he quickly identified [Appellant]. At trial[,] his in-court
      identification was unequivocal on both direct and on cross[-
      ]examination.      Under these circumstances, the statements
      [Victim] gave during his ambulance ride where he was unable to
      give a description of [Appellant] provided trial counsel an
      opportunity to challenge his credibility but it was not a
      mis[]identification warranting a Kloiber instruction.

PCO at 8-9 (citation, quotation marks, and footnote omitted).

      We again agree with the PCRA court. None of the factors warranting a

Kloiber charge were present in this case. Victim had three opportunities to

view Appellant before and during the assault, and he never equivocated in his

identification before or during the trial. Accordingly, there is no arguable merit

to this ineffectiveness claim.


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        Finally, Appellant argues that his PCRA counsel, Stephen Molineux, Esq.,

was ineffective for failing to preserve a potentially meritorious claim in

Appellant’s Rule 1925(b) statement.              Specifically, Appellant asserts that

Attorney Molineux should have preserved a claim that trial counsel was

ineffective for failing to seek to amend the alibi notice prior to trial. We agree.

         Through his mother, Monique Shaw,2 Appellant informed trial counsel

that he had two potential alibi witnesses, April Wynn and Devon Crowley,3 and

he gave counsel contact information for those individuals.              As Appellant

explains:

               Crow[le]y and Appellant lived together prior to Appellant’s
        arrest. Crow[le]y was pregnant with Appellant’s child. The
        Commonwealth contended that the crime occurred in Darby
        between 4:00 pm and 4:30 pm.[4] Appellant and his mother told
        trial counsel that Appellant had been with Crow[le]y during this
        period of time and then he went to Wynn’s house around 5:30 pm
        and remained there through the next day. []N.T.[,] 4/5/18[, at]
        33, 52, 55.

               While counsel met with Wynn, he did not contact Crow[le]y.
        [Id. at] 15, 31[]. However, still believing that Crow[le]y was
        willing to testify to the alibi, counsel drafted and filed a Notice of
        Alibi on April 29, 2011. [Id. at] 31, 34[].

Appellant’s Brief at 18.

____________________________________________


2   Ms. Shaw hired trial counsel for her son.

3 There are variations of the spelling of the surname ‘Crowley’ in the record
and in the parties’ briefs; the name also appears at times as ‘Cowley’ and
‘Crawley.’   For consistency, we use ‘Crowley’ throughout this opinion.

4 The testimony of the Commonwealth’s witnesses at trial, however,
established that the crime had occurred no earlier than 7:00 p.m. See
Footnote 8, infra.

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      The Notice of Alibi read, in pertinent part, as follows:     “[Appellant]

denies committing these crimes. [Appellant] contends that [at] the time of

the commission of the alleged crimes, he was with April Wynn, who resides at

..., and Devon [Crowley], who resides at ….” Notice of Alibi, 5/2/11, at 1.

Trial counsel further stated in the alibi notice:

      The substance of the testimony of April Wynn and Devon Crowley
      will be that at the time of the commission of the alleged crimes,
      [Appellant] was with them and they were in Philadelphia and not
      in Darby at [the location of the crime] at the time of the alleged
      assault upon [Victim].

Id. at 2.

      Thus, the alibi notice indicated that Appellant was with both Wynn and

Crowley at the time of the offense. At the PCRA hearing, trial counsel admitted

that Appellant had told him otherwise: that he was with Crowley during the

first part of the day, and later went to visit with Wynn at 5:30 p.m., where he

remained overnight. See N.T., 4/5/18, at 33. The discrepancy in the alibi

notice was later used by the Commonwealth to impeach Wynn’s testimony at

trial with regard to the credibility of Appellant’s alibi. See Commonwealth’s

Brief at 8 (“During trial, the prosecutor used the notice of alibi as a basis to

cross-examine Ms. Wynn and to effectively impeach Appellant regarding the

veracity of his alibi. []N.T.[,] 9/14/11, [at] … 156-[]87[].”) (emphasis added).

      Trial counsel also admitted at the PCRA hearing that he never spoke to

Crowley and, in fact, never even attempted to contact Crowley directly. N.T.,

4/5/18, at 35. When asked to explain his failure to investigate, he stated:




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        In this particular case, … I didn’t know Devon Cr[o]wley. And I
        had never seen her before. And, however, Monique Shaw—
        [Appellant]’s mother knew them and she was the person—she was
        the point person. She was the person who knew these young
        ladies and who would bring them in to me for meetings. She did
        bring—every time I met with April W[y]nn and I met with April
        W[y]nn—I may have met with April W[y]nn—you know, five, six
        times. Okay? [S]he came in with [Monique] Shaw…. Mrs. Shaw
        never brought Devon Cr[o]wley in even though up to the trial—
        you know, I was under the impression that Mrs. Shaw was still—
        well, that Mrs. Shaw would make her available so I could speak
        with her about the alibi one and two, prep her for the jury trial
        that we were having. And with respect to these witnesses—these
        particular witnesses, Mrs. Shaw and I were in constant
        communications, telephone calls to one another on a consistent
        basis.

N.T., 4/5/18, at 35-36.

        Despite never speaking to Crowley and having filed an inaccurate alibi

notice, trial counsel failed to seek to amend the alibi notice prior to trial. He

unsuccessfully objected to the use of the alibi notice when it was used to

impeach Wynn, having entertained the belief that the content of the notice

could not be used for impeachment purposes.

        In Appellant’s Amended PCRA petition, Attorney Molineux added a claim

that trial counsel was ineffective for failing to call Crowley as an alibi witness.

The PCRA granted a hearing as to that claim, but denied a hearing for the

remaining claims.5        However, after interviewing Crowley, PCRA counsel

determined that he was unable to proceed on that specific issue. See id. at

4-5. Instead, at the PCRA hearing, Attorney Molineux sought to orally amend

the PCRA petition to add a related issue: whether trial counsel was ineffective

____________________________________________


5   Including the first two claims addressed in this opinion.

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for failing to amend the alibi notice prior to trial. Id. at 5-6. The PCRA court

permitted Attorney Molineux to proceed at the hearing with that claim. Id. at

8. Following the hearing, the PCRA court denied the petition, and Appellant

timely appealed that decision.

      However,    in   Appellant’s   1925(b)   statement,    Attorney   Molineux

abandoned the only claim he had presented at the PCRA hearing.

Subsequently, Attorney Molineux withdrew his appearance, and Appellant

hired present appellate counsel.       Appellant now contends that Attorney

Molineux was ineffective for failing to preserve the claim that trial counsel was

ineffective for failing to amend the alibi notice prior to trial. This constitutes

a layered ineffectiveness claim. We will address each layer in turn; however,

first we must address the Commonwealth’s argument that this derivative

claim concerning Attorney Molineux’s ineffectiveness has been waived.

      In its brief, the Commonwealth asserts that Appellant waived the claim

regarding Attorney Molineux’s ineffectiveness, or that it is otherwise

unreviewable, because it has been raised for the first time on appeal. See

Commonwealth’s Brief at 28-29 (citing Commonwealth v. Henkel, 90 A.3d

16, 20 (Pa. Super. 2014) (en banc) (“Claims of PCRA counsel’s ineffectiveness

may not be raised for the first time on appeal.”)). We disagree, as we find

Henkel and the various authorities discussed therein distinguishable from the

circumstances of this case. Here, Attorney Molineux’s alleged ineffectiveness

did not occur during the PCRA proceedings, or in his capacity as PCRA counsel.

Instead, the alleged ineffectiveness occurred after the PCRA court lost

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jurisdiction over this case; that is to say, Attorney Molineux’s alleged

ineffectiveness occurred during appellate proceedings, not in the PCRA court.

      Here, Appellant presented the underlying claim of trial counsel’s

ineffectiveness in an oral amendment to the petition at the PCRA hearing, as

discussed above. By denying the petition on April 25, 2018, the PCRA court

effectively ruled on the merits of that claim. Appellant filed a timely notice of

appeal on May 15, 2018. Appellant then filed his Rule 1925(b) statement on

June 14, 2018. It is on that date that Appellant alleges Attorney Molineux

provided ineffective assistance. As such, Appellant had no opportunity to raise

that claim before the PCRA court, practically or theoretically, as the alleged

ineffectiveness did not occur until after the PCRA court was deprived of

jurisdiction to modify or otherwise rescind its order denying relief. See 42

Pa.C.S. § 5505.

      In all the cases discussed in Henkel, the alleged ineffectiveness of PCRA

counsel occurred before this Court assumed jurisdiction or could assume

jurisdiction.   Although Attorney Molineux was responsible for the alleged

ineffectiveness in the filing of the 1925(b) statement, it is perhaps somewhat

of a misnomer to refer to him as ‘PCRA counsel’ at all within the context of

Henkel. When the 1925(b) statement was filed, the PCRA proceedings had

ended and the PCRA court no longer had jurisdiction. Attorney Molineux, at




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that time, was acting as appellate counsel, not PCRA counsel, even though he

had previously served as Appellant’s PCRA counsel.6

       Because      this    claim    concerning    Attorney   Molineux’s   alleged

ineffectiveness does not fall under the purview of Henkel, and because

Appellant raised it at the earliest possible opportunity, the issue has not been

waived. Thus, we now will consider the merits of each layer of Appellant’s

layered ineffectiveness claim.

                      Attorney Molineux’s ineffectiveness

                                     Arguable Merit

       The arguable merit prong of the claim concerning Attorney Molineux’s

alleged ineffectiveness is established by the merit of the underlying

ineffectiveness claim concerning trial counsel’s alleged ineffectiveness, as

discussed below. If trial counsel was ineffective for failing to amend the alibi

notice prior to trial, then there is arguable merit to the claim that PCRA counsel

was ineffective for failing to preserve that claim.

                                    Reasonable Basis

       Given that Attorney Molineux amended the PCRA petition to include the

underlying claim of trial counsel’s ineffectiveness, and because he litigated

only that specific claim during the PCRA hearing, we cannot ascertain any
____________________________________________


6  This is analogous to when a defendant’s trial counsel continues his
representation in the appeal from the defendant’s conviction. After the filing
of a timely notice of appeal, it would be a misnomer to describe that attorney
as ‘trial counsel’ when both his role and the forum for adjudication have
fundamentally changed. Similarly, here, after the filing of the notice of appeal,
Attorney Molineux ceased being ‘PCRA counsel’ within the meaning of Henkel.

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reasonable basis upon which he subsequently abandoned that claim by

omitting it from Appellant’s 1925(b) statement.       This is undeniably true if, in

fact, the underlying claim was potentially meritorious. Moreover, nothing that

occurred during the course of the PCRA hearing demonstrated a reason to

abandon the claim for any purpose, strategic or otherwise. Accordingly, we

conclude that PCRA counsel could have had no reasonable basis to abandon

the claim of trial counsel’s ineffectiveness when he filed the Rule 1925(b)

statement on Appellant’s behalf.

                                   Prejudice

      Here, the prejudice that ensued is obvious: Attorney Molineux’s

omission of the claim of trial counsel’s ineffectiveness in Appellant’s 1925(b)

statement caused the waiver of that claim on the appeal from the denial of his

PCRA petition. Thus, the only remaining question is whether the underlying

claim of trial counsel’s ineffectiveness has merit.

                       Trial counsel ineffectiveness

                                Arguable Merit

      Trial counsel’s own testimony at the PCRA hearing established that he

filed an alibi notice that did not reflect the information he had received from

Appellant and Appellant’s mother. The notice indicated that Appellant was

with both Crowley and Wynn at the time of the offense, whereas trial counsel

was told that Appellant was with Crowley first, and then with Wynn at a later

time that day. In any event, by the time the trial started, trial counsel had

not spoken to Crowley at all, and there is no indication in the record that Wynn

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ever told trial counsel that she was with Appellant and Crowley at the same

time, or even how trial counsel came to that conclusion. Yet, trial counsel

failed to amend the alibi notice to reflect the actual nature of Appellant’s alibi

claim and that Crowley was not willing to provide an alibi. Thus, we agree

with Appellant that this claim has arguable merit.

                               Reasonable Basis

      We fail to ascertain any reasonable basis for trial counsel’s inaction in

this regard. At the PCRA hearing, trial counsel suggested that, in his view,

the content of the alibi notice could not be used for impeachment purposes,

and that reasonable legal minds could disagree on that point.          See N.T.,

4/5/18, 57-58. This suggests the admissibility of alibi notice for impeachment

purposes was an open question at the time of Appellant’s trial and, thus, that

trial counsel’s failure to amend the alibi notice was a reasonable strategy,

because it ostenisibly could not be used to impeach the sole alibi witness he

presented at Appellant’s trial. However, that issue was not an open question.

Contrary to trial counsel’s legal analysis, it is well-established that an alibi

notice can be used for impeachment purposes.

      In Commonwealth v. Thomas, 575 A.2d 921 (Pa. Super. 1990), the

defendant was charged with the robbery of a convenience store. Although he

wore a mask, a store employee picked him out of a photo array. Prior to trial,

the defendant “filed a notice of alibi defense in which he listed three alibi

witnesses whom he intended to call at trial. When these witnesses were not

called, the Commonwealth was permitted to cross-examine [him] regarding

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his alibi defense and to introduce in rebuttal his notice of alibi.” Id. at 923.

In Thomas, we upheld the trial court’s decision because “at no time prior to

trial … did [the defendant] attempt to withdraw or amend his notice of alibi

defense.”   Id. at 924 (concluding that “[u]nder these circumstances, we

perceive no error in the trial court’s allowing [the] appellant to be impeached

by his notice of alibi defense”).   Indeed, Pennsylvania’s Rules of Criminal

Procedure provide that “if the defendant has filed notice and testifies

concerning his or her presence at the time of the offense at a place or time

different from that specified in the notice, the defendant may be cross-

examined concerning such notice.” Pa.R.Crim.P. 567(G).

      Furthermore, it is of no moment that, in the present case, the

Commonwealth used the alibi notice to impeach Appellant’s alibi witness,

Wynn, rather than Appellant (who did not testify). In Commonwealth v.

Hill, 549 A.2d 199 (Pa. Super. 1988), we held that “the fact that the

Commonwealth presented rebuttal testimony, rather than cross-examining

[the] appellant, to impeach [his] testimony is of no consequence. It is well

settled that evidence is admissible in rebuttal to contradict that offered by a

defendant or his witnesses[.]” Id. at 202 (cleaned up; emphasis added).

      Our Supreme Court has also held that when an alibi notice is withdrawn

prior to trial, it cannot be subsequently used as evidence of the defendant’s

untruthfulness. In Commonwealth v. Alicea, 449 A.2d 1381 (Pa. 1982),

the defendant filed an alibi notice, but withdrew it a day before trial, at which

he instead argued self-defense. At sentencing, the trial court indicated that it

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was imposing a harsher sentence because the defendant had lied by giving a

false alibi notice.   Our Supreme Court rejected the trial court’s reasoning,

holding that “although a sentencing court, where it has observed false

testimony as to a material fact at trial, may consider the defendant’s perjury

as one factor in imposing an appropriate sentence, it may not so consider an

abandoned, albeit fabricated, notice of alibi defense.”    Id. at 1384. Thus,

given these authorities, we conclude that trial counsel’s belief that the alibi

notice could not be used to impeach Wynn was unreasonable in light of

existing case law and Pennsylvania’s Rules of Criminal Procedure.

      Trial counsel also suggested that he did not amend the alibi notice prior

to trial because he hoped that Crowley would eventually show up to testify on

Appellant’s behalf. This was also not a reasonable basis to justify his failure

to amend the alibi notice. Trial counsel’s reliance on Appellant’s mother to

communicate with Crowley, one of the only witnesses he intended to call to

testify at trial, was not reasonable. At least, it was not reasonable to continue

to rely on Appellant’s mother for that purpose as the trial approached and

counsel still had not spoken with Crowley. Trial counsel made no attempts to

contact Crowley beyond his reliance on Appellant’s mother. In any event, trial

counsel testified that, long before the trial occurred, he was aware that the

content of the alibi notice was inaccurate in that it stated that Appellant was

with Crowley and Wynn at the same time. N.T., 4/5/18, 55-56. When asked

why he did not amend the alibi notice based on that knowledge, trial counsel

answered that he did not do so because, essentially, he did not believe the

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content of the alibi notice could be used to impeach his witnesses. Id. at 56-

57.    As noted above, that belief was incorrect as a matter of law.

Consequently, for the aforementioned reasons, we ascertain no reasonable

basis for trial counsel’s failure to amend the alibi notice.

                                        Prejudice

       Finally, we must determine whether counsel’s failure to amend the alibi

notice prejudiced Appellant to the extent “that there is a reasonable

probability that the result of the proceeding would have been different absent

such error.” Dennis, 17 A.3d at 301. The primary issue in this case was one

of identity and, therefore, Victim’s identification of Appellant was essential to

the conviction.       As noted above with regard to Appellant’s first two

ineffectiveness claims, there was at least some evidence that Victim’s

identification was not credible, even though it was admissible. There was no

physical evidence presented at trial that tended to corroborate the

identification.   Furthermore, the record does not establish that any other

witnesses were able to identify Appellant.7 Wynn’s alibi testimony indicated
____________________________________________

7In the trial court’s summary of the facts adduced at trial, reproduced in the
PCRA court’s opinion, the court stated:

       In addition to [Victim], a neighbor who lived two doors from
       [Victim] testified that he had seen [Appellant] and Vincent in front
       of the house earlier and that he had warned others to lock their
       doors. A guest of [Victim]’s also lived nearby. He saw two
       strangers outside the house. He asked them to leave and locked
       the door. A female guest saw Vincent enter the apartment and
       punch [Victim] before she ran to the bathroom to hide. After the



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that she was with Appellant in Philadelphia from 5:30 p.m. onward on the date

in question.      The Commonwealth’s witnesses indicated that Victim was

assaulted at some point after 7:00 p.m. in Darby Borough.8 Thus, if believed

by the jury, Wynn’s testimony might have produced a reasonable doubt in a

juror’s mind as to whether Appellant was the perpetrator of the crime against

Victim, as it was not possible for him to be in Philadelphia and in Darby

Borough at the same time.           Accordingly, we conclude that Appellant was

prejudiced by trial counsel’s failure to amend the alibi notice prior to trial, as

that alibi notice was then used to impeach Appellant’s only alibi witness.

Indeed, this was particularly prejudicial where, here, the inaccuracies in the

____________________________________________


       incident when he was being treated for his injuries, [Victim]
       identified both [Appellant] and Vincent in separate photo arrays
       that he viewed on different days.

TCO at 3. This may suggest that other witnesses identified Appellant and his
co-defendant, but that was not the case. While these witnesses testified that
they had observed two individuals’ lurking around the apartment complex
prior to the assault, and one witness described the men who entered Victim’s
apartment, none of these witnesses specifically identified Appellant as one of
the men that they had observed.

8 See N.T., 9/13/11, at 75 (Victim testifying he arrived at his apartment
around 7:00 p.m., prior to the shooting); id. at 303 (Bobatuna Oke, who was
inside Victim’s apartment at the time of the shooting, testifying that he arrived
in Darby between 5:30 p.m. and 6:00 p.m.); id. at 306 (Mr. Oke testifying
that after he arrived at Victim’s apartment sometime later, they ordered
Chinese food); id. at 307 (Mr. Oke testifying that the shooting occurred
approximately 45 minutes after they placed the order); id. at 330 (Tanisha
Garraway, who was also inside Victim’s apartment at the time of the shooting,
testifying that Victim arrived at the apartment at 7:00 p.m. with, among
others, Mr. Oke); id. at 336 (Ms. Garraway testifying that, after they ordered
Chinese food, she engaged in conversation with people present, and that the
shooting occurred approximately ten minutes after that conversation).

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alibi notice were solely the fault of trial counsel, whereas Appellant had never

informed counsel that he was with both Wynn and Crowley at the same time

and, even if he had, counsel was aware that version of events was inaccurate

long before trial.

      As we have determined that Appellant’s underlying claim of trial

counsel’s ineffectiveness is meritorious, his claim concerning PCRA counsel’s

ineffectiveness for abandoning this claim in Appellant’s 1925(b) statement has

arguable merit.      Moreover, as discussed above, PCRA counsel lacked a

reasonable basis for omitting the claim of trial counsel’s ineffectiveness, and

Appellant was prejudiced by that omission. Accordingly, Appellant is entitled

to relief in the form of a new trial.

      Order reversed. Judgment of Sentence vacated. Case remanded for

a new trial. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/19




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