J-S56027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 HAKEEM MOORE                              :
                                           :
                    Appellant              :    No. 229 EDA 2019

           Appeal from the PCRA Order Entered January 9, 2019
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0004439-2008


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                          FILED DECEMBER 23, 2019

      Appellant, Hakeem Moore, appeals from the order entered on January

9, 2019 dismissing his first petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court summarized the procedural history of this case as

follows:

      On February 18, 2011, following a jury trial[, Appellant] was found
      guilty of first-degree murder, robbery, and possessing
      instruments of crime. [Appellant] was sentenced that same day
      to the mandatory term of life in prison for first-degree murder,
      and to concurrent sentences for the other convictions. […O]n
      February 29, 2012, [this] Court affirmed [Appellant’s] judgment
      of sentence. On March 1, 2013, our Supreme Court denied
      [Appellant’s] petition for [allowance of appeal].

      [Appellant] filed the instant timely [PCRA] petition on July 9,
      2013. On January 8, 2014, [Appellant] was appointed counsel.
      However, on February 25, 2015, counsel was relieved and, two
      days later, new counsel was appointed. On July 3, 2015, counsel
      for Appellant filed a [no-merit] letter [pursuant to
      Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
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       Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)].
       However, counsel for [Appellant] did not address all of the issues
       raised in [Appellant’s] pro se filing, so [the PCRA court] instructed
       him to do so. However, on August 3, 2015, before counsel for
       [Appellant] could comply, [Appellant] filed a motion to proceed
       pro se. [A hearing held pursuant to Commonwealth v. Grazier,
       713 A.2d 81 (Pa. 1998)] took place on January 26, 2016, after
       which [Appellant] was allowed to proceed pro se and given time
       to submit [an amended] filing. [Appellant’s] amended PCRA
       petition was filed on July 5, 2016. On October 13, 2016, the
       Commonwealth filed a motion to dismiss. After evaluation, [the
       PCRA c]ourt granted an evidentiary hearing as to [Appellant’s]
       claim regarding trial counsel’s ineffectiveness for choosing not to
       pursue an alibi defense or present [] alibi witnesses. Though a
       colloquy conducted at trial showed that [Appellant] mentioned
       that he did not have any alibi witnesses to present, [Appellant]
       asserted that he only waived the testimony of those witnesses
       after counsel spoke with [Appellant] off[-]the[-]record. [The
       PCRA c]ourt ordered that [Appellant] be appointed counsel for the
       evidentiary hearing, however, counsel was not appointed until
       April 4, 2018. [Appellant’s] bifurcated evidentiary hearing took
       place on July 23, 2018 and August 2, 2018. At the conclusion of
       the hearing, [the PCRA court’s] decision was held under
       advisement. On December 28, 2018, [the PCRA court] issued an
       order dismissing [Appellant’s] PCRA petition. On January 9, 2019,
       [the PCRA court] amended its order dismissing [Appellant’s] PCRA
       petition [to clarify that Appellant was entitled to counsel on
       appeal].

PCRA Court Opinion, 5/16/2019, at 1-3 (footnotes omitted).           This timely,

counseled appeal resulted.1

       On appeal, Appellant presents the following issue for our review:

       Did the PCRA [c]ourt err and/or abuse its discretion when it denied
       [Appellant’s] petition under the PCRA seeking a new trial based

____________________________________________


1  On January 18, 2019, appointed counsel for Appellant filed a notice of
appeal. On February 14, 2019, Appellant filed a counseled statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on May 16, 2019.

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      upon a claim that trial counsel was ineffective for failing to present
      two alibi witnesses at trial?

Appellant’s Brief at 4.

      Appellant claims that trial counsel was ineffective for failing to call

purported alibi witnesses at trial. Id. at 23-47. More specifically, Appellant

argues that privately retained trial counsel failed to call three alibi witnesses

identified in a prior notice of alibi filed by appointed counsel who no longer

represented Appellant. Id. at 14. Appellant claims that Lisa Jabbar Moore

(Appellant’s mother), Shakeya Shavis, n.k.a., Shakeya Johnson (the mother

of Appellant’s child), and Marcell Miller (Appellant’s longtime friend) were

present for trial and prepared to testify that Appellant was at his mother’s

home, thirty minutes away from the scene of the shooting, at the time of the

crimes. Id. at 17-19. Appellant acknowledges that the trial court colloquied

him at the close of the Commonwealth’s case regarding his right to testify and

present witnesses, but argues that he was confused when he agreed not to

present witnesses or testify on his own behalf. Id. at 42-43. Appellant claims

that “he believed that his mother and Marcell Miller would still be called to

testify, but that the defense would not call Shakeya Johnson (nee Shavis)

because of their troubled relationship” which included, “alleged acts of

violence towards her.” Id. at 43.

      Furthermore, Appellant claims that the PCRA court erred by determining

that trial counsel had a reasonable strategy for not calling the proffered

witnesses because Appellant “admitted to counsel that [Appellant] committed



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the murder multiple times prior to trial.” Id. at 44. Appellant claims that the

record belies trial counsel’s claim that Appellant confessed to committing the

crimes because: (1) Appellant denies making the confession; (2) trial counsel

did not withdraw the alibi notice until the first day of trial despite claiming to

have     received   Appellant’s   confession   at   several   different   meetings

beforehand; (3) trial counsel concedes that he made no file notations

documenting the confession; (4) Appellant “gave up the considerable

constitutional benefit of free counsel, and opted to hire a private attorney to

mount an alibi defense against charges that carried a life sentence without the

possibility of parole[;]” (5) “the witnesses appeared at trial with the intent of

testifying[;]” and, (6) Appellant initially told the trial court that he wanted to

present witnesses, but there was a misunderstanding with counsel. Id. at

44-46.

       Finally, Appellant claims that he was prejudiced by trial counsel’s

stewardship “when [counsel] failed to present alibi testimony to rebut the

Commonwealth’s case premised on a single, exceedingly reluctant, non-verbal

identification from a witness so unstable that she had to be repeatedly excused

during her testimony.” Id. at 46. Based upon all of the foregoing allegations

of trial counsel ineffectiveness, Appellant claims that “if the jury had been

presented with alibi evidence, there is a reasonable probability that at least

one juror would have paused or hesitated and thus had a reasonable doubt as

to [Appellant’s] guilt.” Id. at 46-47. Accordingly, Appellant maintains that




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his convictions should be vacated and the matter remanded for a new trial.

Id. at 47.

      We adhere to the following standard:

      [T]his Court [must] determine whether the ruling of the PCRA
      court is supported by the record and 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. Moreover, the PCRA court's
      credibility determinations, when supported by the record, are
      binding on this Court.

Commonwealth v. Payne, 210 A.3d 299, 312 (Pa. Super. 2019).

      Furthermore,

      [i]t is well-established that counsel is presumed to have provided
      effective representation unless the PCRA petitioner pleads and
      proves all of the following: (1) the underlying legal claim is of
      arguable merit; (2) counsel's action or inaction lacked any
      objectively reasonable basis designed to effectuate his client's
      interest; and (3) prejudice, to the effect that there was a
      reasonable probability of a different outcome if not for counsel's
      error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner's evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel's ineffectiveness.

Commonwealth v. Miller, 212 A.3d 1114, 1126 (Pa. Super. 2019) (citation

omitted).

      “The failure to call a possible alibi witness is not per se ineffective

assistance of counsel.” Commonwealth v. Williams, 418 A.2d 499, 503,

(Pa. Super. 1980) (citations omitted). “It is only where it is shown that a

defendant has informed his attorney of the existence of an alibi witness and



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trial counsel, without investigation and without adequate explanation,

fails to call the witness at trial that counsel will be deemed ineffective.” Id.

(citations omitted; emphasis added). “[T]here can be no ineffectiveness of

trial counsel for failure to call an alibi witness when the defendant admits that

[] testimony would be perjured. Counsel cannot be held ineffective for failure

to suborn perjury.” Commonwealth v. Hall, 701 A.2d 190, 201 (Pa. 1997);

see also Commonwealth v. Chmiel, 738 A.2d 406, 415 (Pa. 1999) (trial

counsel may rebut a claim of ineffectiveness for failing to call an alibi witness

when his client tells him more than one version of the events at issue and

there was a risk of suborning perjury if the alibi witness testified at trial).

      Here, trial counsel testified that he was aware that prior counsel

representing Appellant filed an alibi notice listing the three witnesses as set

forth above. N.T., 7/23/2018, at 9. Trial counsel testified that he formally

withdrew the alibi notice “based on [his] investigation and discussion[s] with

[Appellant,]” and that counsel informed Appellant “it would be suborning

perjury to have the alibi[s] continue, and that’s why [he] withdrew [the alibi

notices] as soon as the trial started.”      Id. at 10.    Counsel testified that

Appellant admitted he “was at the scene [of the crimes] and told [counsel]

that he did it.” Id. Trial counsel testified that Appellant told him that only a

hood disguised him at the time of the crimes and that the decedent recognized

him just before the murder and asked Appellant not to shoot him. Id. at 11.

Trial counsel testified that Appellant was afraid he would be identified and so

he “had to do what [he] had to do” by shooting the victim. Id. Accordingly,

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trial counsel testified that he knew the purported alibis’ testimony would be

untrue. Id. at 16.

      The PCRA court found trial counsel’s testimony credible, the record

supports that determination, and we will not disturb the court’s findings. In

this case, Appellant admitted to trial counsel that his alibi defenses were false.

Thus, trial counsel cannot be held ineffective for failing to present perjured

testimony. Accordingly, there was no merit to Appellant’s PCRA claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/19




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