J-S14032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                 Appellee                 :
                                          :
           v.                             :
                                          :
EMERSON RICHBURG,                         :
                                          :
                 Appellant                :           No. 2142 EDA 2014

           Appeal from the PCRA Order entered on June 25, 2014
           in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No. CP-51-CR-0809151-2005

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED MARCH 09, 2015

     Emerson Richburg (“Richburg”) appeals from the Order denying his

first Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     The PCRA court concisely set forth the relevant factual and procedural

history underlying this appeal in its Opinion, which we incorporate herein by

reference. See PCRA Court Opinion, 8/14/14, at 1-2.1, 2



1
  At trial, Richburg was represented by Jay Gottlieb, Esquire, and Norman
Scott, Esquire (hereinafter collectively referred to as “trial counsel”).
2
  Richburg’s PCRA counsel claimed in her Amended PCRA Petition that trial
counsel was ineffective for failing to call at trial an alleged alibi witness,
Jamie Richburg (hereinafter “Jamie” or “Ms. Richburg”). In support of this
claim, PCRA counsel submitted an “Affidavit of Declaration” (hereinafter “the
Affidavit”), prepared by Jamie in October 2012, wherein she alleged that she
was with Richburg on the morning that the victim was murdered. See
Memorandum of Law in Support of Amended PCRA Petition, 1/10/14, Exhibit
A.
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      On appeal, Richburg presents the following issues for our review:

       I.   Whether the PCRA court erred [] by denying [Richburg]
            post-conviction relief because trial counsel was ineffective
            for failing to call an alibi witness, Jamie [], who would
            testify that she was with [Richburg] on February 14,
            2005[?]

      II.   [Whether t]he PCRA court erred [] by denying [Richburg]
            an evidentiary PCRA hearing because his [PCRA P]etition
            … is facially sufficient to warrant an evidentiary hearing[,]
            as it contains facts[] that[,] if proven, would entitle him to
            relief[?]

Brief for Appellant at 3.

      The applicable standards of review regarding the denial of a PCRA

petition and ineffectiveness claims are as follows:

            This Court’s standard of review regarding an order denying
      a petition under the PCRA is whether the determination of the
      PCRA court is supported by the evidence of record and is free of
      legal error. The PCRA court’s findings will not be disturbed
      unless there is no support for the findings in the certified record.

                                   ***

             To prevail on a claim alleging counsel’s ineffectiveness
      under the PCRA, [a petitioner] must demonstrate (1) that the
      underlying claim is of arguable merit; (2) that counsel’s course
      of conduct was without a reasonable basis designed to effectuate
      his client’s interest; and (3) that he was prejudiced by counsel’s
      ineffectiveness, i.e.[,] there is a reasonable probability that but
      for the act or omission in question the outcome of the
      proceeding would have been different.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations

omitted).

      Richburg first argues that trial counsel was ineffective for failing to

present Jamie as a defense witness at trial, because she could have provided


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J-S14032-15


Richburg with an alibi.   See Brief for Appellant at 11-15. Richburg points

out Jamie’s statements in the Affidavit that, on the morning on which the

victim was murdered, Jamie drove Richburg to a store, and later, to buy

some marijuana. Id. at 11-12.

             When raising a claim of ineffectiveness for the failure to
      call a potential witness, a petitioner satisfies the performance
      and prejudice requirements of the [ineffectiveness] 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. To demonstrate []
      prejudice, a petitioner must show how the uncalled witnesses’
      testimony would have been beneficial under the circumstances of
      the case. Thus, counsel will not be found ineffective for failing to
      call a witness unless the petitioner can show that the witness’s
      testimony would have been helpful to the defense. A failure to
      call a witness is not per se ineffective assistance of counsel[,] for
      such decision usually involves matters of trial strategy.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations

and quotation marks omitted).

      In its Pa.R.A.P. 1925(a) Opinion, the PCRA court cogently addressed

Richburg’s claim, discussed the applicable law, and determined that trial

counsel was not ineffective because (1) the Affidavit does not provide

evidence of an alibi; and (2) the trial court asked Richburg, after the close of

the Commonwealth’s case-in-chief, if he wanted to call any other witnesses,

to which Richburg replied in the negative.          See PCRA Court Opinion,

8/14/14, at 5-7.       We    agree   with the    PCRA court’s rationale       and




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J-S14032-15


determination, which is supported by the record and the law, and thus affirm

on this basis with regard to Richburg’s ineffectiveness challenge. See id.

      As an addendum, we observe that Richburg’s claim also fails because

he did not establish the prejudice prong of the ineffectiveness test, in that

Jamie’s testimony would not have been beneficial, and may have even

harmed the defense.      See Wah, supra; Sneed, supra.            Specifically,

approximately two months after the murder, a police officer investigating the

crime interviewed Jamie.     The officer simultaneously prepared a written

report (hereinafter “the Report”) detailing the questions he asked Jamie, and

her responses thereto. See PCRA Petition, 3/17/10, Exhibit B. Contrary to

Jamie’s statements made in the Affidavit, she stated in the Report that

Richburg had contacted her via Richburg’s brother (Jamie’s boyfriend at the

time and current husband), and instructed her to provide a false alibi for

Richburg. See id. at p. 3 (wherein Jamie stated, inter alia, that “[i]t was

[Richburg] who told me to lie[,] and “I was told to tell [the police] the time

of when I was with [Richburg, i.e., on the morning of the murder,] and the

length of time I was supposed to be with him.”).

      Next, Richburg maintains that the PCRA court erred by denying his

PCRA Petition without conducting an evidentiary hearing, wherein the court

could have considered the alibi testimony of Jamie.     Brief for Appellant at

15-16.

             The right to an evidentiary hearing on a post-conviction
      petition is not absolute. It is within the PCRA court’s discretion


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J-S14032-15


     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. 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.

Wah, 42 A.3d at 338 (citations and brackets omitted).

     This claim does not entitle Richburg to relief because, as discussed

above, his ineffectiveness challenge concerning Jamie is patently frivolous.

See id.; see also Pa.R.Crim.P. 907(1).

     Because we conclude that the PCRA court neither abused its discretion

nor committed an error of law by denying Richburg’s first PCRA Petition

without a hearing, we affirm the Order on appeal.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2015




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     IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNT'f1
             FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                                                                        LED
                     CRIMINAL TRIAL DIVISION           AUG                                  14 2014
                                                                               Criminal Appeals Unit
                                                                             First Judicial District of PA
COMMONWEALTH OF PENNSYLVANIA                          COURT OF COMMON PLEAS
                                                      PHILADELPHIA COUNTY
              vs.
                                                      NOS.: CP-51-CR-0809151-2005
     EMERSON RICHBURG


                                       OPINION

       Defendant, Emerson Richburg, appeals from this Court's order dated June 25,

2014, denying him relief pursuant to the Post-Conviction Act, (PCRA) 42 Pa.C.S. §9541

et seq., without a hearing. By way of background, defendant was convicted in October of

2006 of first-degree murder, unlawful restraint, and abuse of corpse generally, following

a jury trial presided over by this Court. On December 7, 2006, this COUli sentenced

defendant to life imprisonment on the murder bill and also imposed a consecutive

sentence of one to two years' incarceration on the abuse of corpse charge. A verdict

without further penalty was imposed on the unlawful restraint charge. Defendant filed a

post-sentence motion following the imposition of sentence. It was denied by operation of

law on April 16, 2007.

       Defendant thereafter filed a notice of appeal to the Superior Court. On August 28,

2008, the Superior Court affirmed the judgment of sentence. Commonwealth v.

Richburg, 1268 EDA 2007. Defendant then filed a petition for allowance of appeal in the

Pennsylvania Supreme Court.      On January 27, 2009, the Supreme COUli denied the

petition. (512 EAL 2008).
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         Defendant filed a timely pro se petition under the PCRA on March 17, 2010.

Counsel was appointed to represent him and on January 10, 2014, counsel filed an

amended petition. As noted above, on June 25, 2014, this Court, having sent defendant a

Pa.R.Crim.P. 907 notice, issued an order denying him PCRA relief. Subsequent thereto,

defendant filed a notice of appeal along with a requested Pa.R.A.P. I 925(b) statement.

         The charges filed against defendant arose out of an incident that occurred       111


February of 2005. According to the evidence, defendant beat Ms. Javon Connor to death

after she accused him of touching her inappropriately. He had been heard saying that he

was going to assault her after hearing of Ms. Connor's intention to report what he had

done to her.

         Ms. Connor was observed entering defendant's residence on February 14, 2005,

but no one saw her leave. Her body was found wrapped inside an abandoned rug found in

the basement of an abandoned house. Evidence connecting defendant to the murder was

found both in the rug and in defendant's residence.

         Following the incident, defendant assaulted his girlfriend, Tanika Pagan.     In a

statement to police, Ms. Pagan told police that defendant admitted to her that he killed

Ms. Connor. In confessing to the crime to Ms. Pagan, defendant related facts only Ms.

Connor's killer would have known.

         In his 1925(b) statement, defendant raises two related issues.     He first issue

asserts that this Court erred by not granting him relief on a claim that trial counsel was

ineffective for failing to call Jamie Richburg as an alibi witness. Defendant further

contends that this Court erred by not granting him an evidentiary hearing on his first

claim.



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       In reviewing the propriety of a PCRA court's dismissal of a petition without a

hearing, the reviewing court is limited to determining whether the court's findings are

suppOlied by the record and whether the order in question is free of legal error.

Commonwealth v. Holmes, 905 A.2d 707, 509 CPa. Super. 2006) citing Commonwealth

v. Halley, 870 A.2d 795, 799 CPa. 2005).         The PCRA cOllli's findings will not be

disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 CPa. Super. 2001). A PCRA court may

decline to hold a hearing on the petition if the petitioner's claims are patently frivolous

and is without a trace of support either in the record or from other evidence.

Commonwealth v. Jordan, 772 A.2d 1011, 1014 CPa. Super. 2001). The reviewing court

on appeal must examine each of the issues raised in the PCRA petition in light of the

record in order to determine whether the PCRA court erred in concluding that there were

no genuine issues of material fact and denying relief without an evidentiary hearing. Id.

See also Commonwealth v. Hardcastle, 701 A.2d 541, 542 CPa. 1997).

       Pennsylvania law presumes counsel is effective and therefore, the burden is

placed upon the defendant to prove otherwise. Commonwealth v. Brown, 767 A.2d 576,

581 CPa. Super. 2001), citing Commonwealth v. Carpenter, 725 A.2d 154, 161 CPa. 1999),

citing Commonwealth v. Marshall, 633 A.2d 1100 CPa. 1993); see also Commonwealth v.

Baker, 614 A.2d 663, 673 CPa. 1992). Trial counsel has broad discretion in matters of

trial strategy and the determination of what tactics to employ during litigation.

Commonwealth v. Choi Chun Lam, 684 A.2d 153, 160 CPa. Super. 1996). Furthermore,

"[i]t is well established that failed trial tactics of defense counsel are not grounds for a

new trial." Commonwealth v. Hall, 565 A.2d 144, 148 CPa. 1989). Trial counsel will not



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be held ineffective if there was a reasonable strategic basis for his or her trial tactics.

Commonwealth v. Pursell, 724 A.2d 293, 311 (Pa. 1999).

       In order to establish that trial counsel's representation was deficient, a defendant

must establish all of the following three elements, as set forth in Commonwealth v.

Charles Pierce, 527 A.2d 973, 975-76 (Pa. 1987): (1) the underlying legal claim has

arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and

(3)   the   petitioner   suffered   prejudice       because   of   counsel's   ineffectiveness.

Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011), citing Commonwealth v.

Dennis, 950 A.2d 945, 954 (Pa. 2008).

       The threshold question in reviewing an ineffectiveness claim is whether the issue,

argument, or tactic, which trial counsel failed to use at trial and which is the basis of the

ineffectiveness claim, is of arguable merit. Commonwealth v. Balodis, 747 A.2d 341,343

(Pa. 2000). If defendant can prove that the argument or tactic which trial counsel failed

to use at trial is of arguable merit, then the "reasonable basis" test is applied to determine

if the course of action chosen by trial counsel was designed to effectuate his or her

client's interest. Id. With regard to the second element, defendant must prove that "an

alternative [action or inaction] not chosen offered a potential for success substantially

greater than the course actually pursued." Chmiel, 30 A.3d at                    1127, citing

Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (alteration added).                To

establish prejudice, defendant must demonstrate that there is a reasonable probability

that, but for counsel's error, the outcome of the proceeding would have been different.

Chmiel, 30 A.3d at 1127-28, citing Dennis, 950 A.2d at 954.




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         Further, "[i]f it is clear that if a defendant has not demonstrated that counsel's act

or omission adversely affected the outcome of the proceedings, the claim may be

dismissed on that basis alone and the court need not first determine whether the first and

second prongs have been met." Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007),

citing Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998). A PCRA proceeding

requires a defendant to establish that counsel's ineffectiveness "so undennined the truth-

determining process that no reliable adjudication of guilt or innocence could have taken

place." Rios, 920 A.2d at 799, citing Commonwealth v. Michael Pierce, supra, 786 A.2d

203,221-22 (Pa. 2001); Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999).

         Applying the foregoing to defendant's first claim, it is clear that no error was

committed by denying defendant relief thereon. According to an affidavit provided by

Ms. Richburg, she drove to defendant's residence on February 14, 2005, between 8:00

and 8:30 a.m., so that he could take her to purchase some marijuana. Defendant then

accompanied her to a store and then to someone's residence where defendant purchased

two bags of marijuana. She then drove him back to his home and then departed after

speaking to defendant for a couple of minutes inside her car. I

         The decision to deny defendant relief on this claim should be affirmed because

Ms. Richburg's affidavit fails to provide evidence of an alibi.                       An alibi is a defense that

places a defendant at the relevant time at a place different than the scene of the crime and

so far removed therefrom as to render it impossible for him to be the guilty.

Commonwealth v. Jones, 602 A.2d 820 (Pa. 1997).                      Although Ms. Richburg avers that


I To prevail on a claim that trial counsel was ineffective for failing to call an alibi witness, a defendant must
shoy\' that trial counsel knew that the alibi witness existed and must prove that the alibi testimony would
have been beneficial in establishing his defense. See Commonwealth v. Williams, 418 A.2d 499, 503 (Pa.
Super. 1980). It is noted that in her affidavit, Ms. Richburg indicated that she contacted defendant's trial
prior to trial and that she was available to testify at defendant's trial.

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she saw defendant the morning the killing allegedly occurred, her anticipated testimony

does not render it impossible for defendant to have committed the crime. First, she failed

to state with certainty the time she arrived at defendant's residence. She also indicated

that she did not enter the residence and that defendant told her to wait in the car until he

was ready to leave.    It is reasonably conceivable that the victim had already been killed

when Ms. Richburg arrived and that defendant had already placed her body in the

basement given that a witness saw the victim enter defendant's residence as early as 8:00

a.m.

       This claim was correctly rejected for a second reason. During defendant's trial

defendant was asked if he wanted any witnesses called in his defense and he indicated

that he did not. (N.T. 10118/06, 69). The Pennsylvania Supreme Court has held that, "a

defendant who makes a knowing, voluntary, and intelligent decision concerning trial

strategy will not later be heard to complain trial counsel was ineffective on the basis of

that decision. Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002), citing

Commonwealth v. Abu-Jamal, 720 A.2d 79, 93 (Pa. 1998). To do otherwise, "would

allow a defendant build into his case a ready-made ineffectiveness claim to be raised in

the event of an adverse verdict." Paddy, supra, citing Commonwealth v. Szuchon, 484

A.2d 1365, 1376 (Pa. 1984). In Paddy, the defendant, as the defendant cUlTently alleges

here, complained about trial counsel's ineffectiveness for failing to call alibi witnesses,

which led the court to hold that defendant's ineffectiveness claim fundamentally failed

because it was his as well as trial counsel's decision not to call the alibi witnesses. Paddy,

supra. The trial court in Paddy conducted a colloquy to determine whether defendant

understood his right to call the alibi witnesses and whether he knowingly waived his



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right. rd. The court concluded that his decision was not unknowingly, involuntarily, or

unintelligently made. rd.

            Likewise, in this case, this Court conducted a colloquy of defendant to determine

whether he was aware of his right to call the alibi witnesses and whether he wished to

waive his right. As noted above, defendant indicated that he did not. 2 Defendant cannot

now refute what he said in open court and thus, it is suggested that the denial of relief

with respect to this claim be affirmed for the reasons stated.             See Paddy, supra. See also

Rios, 920 A.2d at 803-804 (holding that counsel was not ineffective for failing to call

alibi witnesses because defendant advised court that he did not want them called to

testify).

            Regarding defendant's second claim, because defendant's ineffectiveness claim

lacks merit on its face, this Court did not commit any error by denying defendant PCRA

relief without first holding a hearing. Pa.R.Crim.P. 907(1) states:

                   "the [trial] judge shall promptly review the [PCRA]
                   petition ... If the judge is satisfied from this review
                   that there are no genuine issues concerning any
                   material fact and that the defendant is not entitled to
                   post-conviction collateral relief, and no purpose
                   would be served by any furiher proceedings, the
                   judge shall give notice to the parties of the intention
                   to dismiss the petition .... "

            Further, Rule 907 allows a judge to dismiss a PCRA petition without a hearing if:

1) the petition is patently frivolous and without support in the record; or 2) the facts

alleged therein would not, even if proven entitle the defendant to relief. Pa. R. Crim. P.

Rule 907 cmt. on Rule 907(1); see also Commonwealth v. Box, 451 A.2d 252 (Pa. Super.

1982), citing Commonwealth v. Sherard, 394 A.2d 971 (Pa. 1978) (finding that an

2 Notably, defendant neither mentioned the waiver colloquy nor argued that it was invalid in either his pro
se petition or in his amended petition.

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evidentiary "hearing may be denied if a petitioner's claim is patently frivolous and the

record or evidence would not entitle the petitioner to relief'). Thus, a petitioner's right to

an evidentiary hearing on a post-conviction petition is not absolute. Box, supra, citing

Commonwealth v. Cimaszewski, 339 A.2d 95 (Pa. Super. 1975).

       Instantly, the record herein belies defendant's claim that this COUli erred in failing

to hold an evidentiary hearing on his claim that trial counsel was ineffective for failing to

present the testimony of defendant's alibi witness. As the discussion of defendant's first

claim demonstrates, defendant's purported alibi witness does not provide him with an

alibi and, moreover, it was defendant's decision not to any evidence in his defense. Thus,

the record supports the denial of defendant's petition without a hearing and because this

Court's order is otherwise free oflegal error based on defendant's failure to prove that his

ineffectiveness claim had any merit, see Commonwealth v. Blackwell, 647 A.2d 915 (Pa.

Super. 1994), defendant's second claim should be rejected as well.

CONCLUSION

       Based on the foregoing,· this Court suggests that the order denying defendant

PCRA relief be affirmed for the reasons stated above.



                                                       By the Court,




       DATE   flu Iq                                     !

                                              8
