J. S16031/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                         Appellee           :
                                            :
                  v.                        :
                                            :
CHRISTOPHER L. ORTIZ,                       :
                                            :
                         Appellant          :     No. 1924 EDA 2015

                  Appeal from the PCRA Order June 8, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0014133-2008

BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

CONCURRING AND DISSENTING MEMORANDUM BY DUBOW, J.:

                                                         FILED July 1, 2016

      I agree with the majority that remand is necessary for a hearing on

Appellant’s ineffective assistance of counsel claim for failing to present the

testimony of Kaleem Stevenson at trial. However, unlike the majority, I

conclude that the PCRA court did not abuse its discretion in finding that

Appellant was not entitled to an evidentiary hearing on his claim that trial

counsel was ineffective for failing to call Ripka as an alibi witness.

      The statement of the investigator who interviewed Ripka indicates that

Appellant called Ripka on the day of trial to see if Ripka was able to testify

on his behalf, but that Ripka was unable to testify because he had moved to

Florida. The statement does not make even a prima facie claim that Ripka

was available at trial, or would have been available but for counsel’s
J. S16031/16


ineffectiveness. Therefore, on the face of Appellant’s claim, the trial court

properly concluded Appellant had failed to make the necessary showing that

Ripka was available to testify at trial.     Commonwealth v. Washington,

927 A.2d 586, 599 (Pa. 2007) (reiterating that a PCRA petitioner cannot

prevail on a claim of trial counsel’s ineffectiveness for failure to call a witness

unless the petitioner shows 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”).

      Therefore, I concur in the order to remand for an evidentiary hearing

as to Appellant’s ineffective assistance of counsel claims for failure to call Mr.

Stevensen, but respectfully dissent from the decision to grant an evidentiary

hearing as to Appellant’s ineffective assistance of counsel claims for failing to

call Mr. Ripka. I disagree with the majority because the certification should

explicitly state that the alibi witness was available to testify; it is not

sufficient for the trial court to infer this from the statements in the

certification.

      Accordingly, I would remand for a hearing only on Appellant’s

ineffectiveness claim as it pertains to Mr. Stevenson.




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