J-S04029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KHALIAF D. ALSTON

                            Appellant                  No. 645 EDA 2016


                  Appeal from the PCRA Order January 28, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0902311-2006


BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                FILED MARCH 28, 2017

        Khaliaf D. Alston appeals from the order entered January 28, 2016, in

the Court of Common Pleas of Philadelphia County, that denied his first

petition filed pursuant to the Pennsylvania Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541–9546. Alston was found guilty by a jury of attempted

murder, robbery, criminal conspiracy to commit robbery, aggravated assault,

and possessing an instrument of crime,1 and was sentenced to an aggregate

term of 40 to 80 years’ imprisonment. In this appeal, Alston contends the

PCRA court erred (1) in dismissing, without an evidentiary hearing, his PCRA

petition as to two issues — trial counsel’s ineffectiveness in failing to move
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. §§ 901(a) & 2502, 3701(a)(i)(i), 903 & 3701(a)(1)(i),
2702(a)(2), and 907(a).
J-S04029-17



for a mistrial and object to the court’s cautionary instruction, and newly

discovered evidence, respectively; and (2) in denying relief, following an

evidentiary hearing, on his claim of trial counsel’s ineffectiveness for failing

to call witnesses. Based upon the following, we affirm.

      The procedural history is fully set forth in the PCRA court’s opinion,

and there is no need to restate it herein.         See PCRA Court Opinion,

5/6/2016, at 1–3. The facts of this case were previously discussed by this

Court in Alston’s direct appeal:

      At approximately 1:30 a.m. on February 4, 2005, Antoine
      Pinkney left the Outer Limits bar at the corner of Somerset
      Street and 24th Street [in Philadelphia], stopping briefly at a deli
      on Somerset Street. As he walked, Mr. Pinkney was suddenly
      approached from behind by two men. Mr. Pinkney did not know
      the men, but had seen them in the Outer Limits bar before he
      left. One man . . . told Mr. Pinkney not to make any
      “sudden moves” and began searching [Mr. Pinkney’s] pockets,
      while the other man, [Alston], pointed a revolver at Mr. Pinkney.
      The two men took Mr. Pinkney’s cell phone and approximately
      $800.00 in cash. During this time, [Alston] was fewer than
      “three [or] four feet” from Mr. Pinkney.

      Thereafter, Mr. Pinkney pleaded for his life, and told his
      assailants that he was “just trying to make it home to my kids.”
      Nevertheless, [Alston] then shot Mr. Pinkney in the face. The
      bullet struck Mr. Pinkney directly in his right eye.

      Mr. Pinkney was able to run away from [Alston] and his co-
      conspirator despite having lost vision in his right eye. As Mr.
      Pinkney fled, he heard [Alston] shoot at him five or six more
      times. Mr. Pinkney ran into the street and flagged down a car,
      the occupants of which called the police. He was taken by
      ambulance to Temple University Hospital, where he remained for
      three days. Mr. Pinkney lost 90% of the vision in his right eye
      and has a permanent scar on the right side of his face.



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     On March 18, 2005, during an unrelated police investigation,
     Philadelphia Police Detective Ronald Dove executed a search
     warrant at 2849 North Taney Street, which was [Alston’s]
     home address. In the course of performing the search of the
     house, Detective Dove recovered three letters from the living
     room. One letter read, in part, “I just shot some bull in his eye
     the other day, but that Bitch nigger ain’t died, but I feel sorry for
     my next victim.” Handwriting analysis showed that the letter had
     been written by [Alston]. After reading this letter, Detective
     Dove began looking for unsolved shootings in Philadelphia in
     which someone had been shot in the eye but survived.

     Detective Dove was unsuccessful in matching the description in
     the letter to a specific shooting until December 2005, when he
     began working with a newly-formed task force in the
     Philadelphia Police Department. The task force was focused on
     investigating cases that involved “crimes of violence,” specifically
     “shootings and murders” that had previously gone unsolved. On
     December 5, 2005, at a meeting of the task force, Detective
     Dove told Detective Thomas Gaul about the shooting mentioned
     in the letter, and Detective Gaul began researching the incident.
     Using different search parameters within the police department’s
     computer system, Detective Gaul uncovered the police report for
     Mr. Pinkney’s shooting.

     On December 7, 2005, Detectives Dove and Gaul went to Mr.
     Pinkney’s house and interviewed him about the robbery and
     shooting. As a result of their investigation, they had prepared a
     photo array that included [Alston’s] photograph along with a
     second array. The detectives showed Mr. Pinkney the two photo
     arrays and asked him if he recognized anyone within those
     arrays. Mr. Pinkney immediately identified [Alston] as the man
     who robbed and shot him.

Commonwealth v. Alston, 81 A.3d 998 (Pa. Super. 2013) (unpublished

memorandum, at 1–3 (citation omitted)), appeal denied, 80 A.3d 774 (Pa.

2013).

     First, Alston contends the PCRA court erred in dismissing, without an

evidentiary hearing, his PCRA petition as to two issues, namely, (1)



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counsel’s ineffectiveness in failing to move for a mistrial and object to the

trial court’s cautionary instruction, and (2) newly-discovered evidence. We

address these issues sequentially.

     To obtain reversal of a PCRA court’s summary dismissal of a petition,

an appellant must show that he raised a genuine issue of fact which, if

resolved in his favor, would have entitled him to relief. Commonwealth v.

Baumhammers, 92 A.3d 708, 726 (2014).            Regarding ineffectiveness of

counsel (IAC) claims,

     “It is well-established that counsel is presumed effective, and [a
     PCRA petitioner] bears the burden of proving ineffectiveness.”
     Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1137
     (Pa. 2009); see also Commonwealth v. Pierce, 515 Pa. 153,
     527 A.2d 973, 975 (Pa. 1987) (“We . . . presume that counsel is
     acting effectively.”); accord Strickland v. Washington, 466
     U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
     (establishing the elements a defendant must prove to show
     IAC). As the Supreme Court of the United States has stated,
     “counsel should be ‘strongly presumed to have rendered
     adequate assistance and made all significant decisions in the
     exercise of reasonable professional judgment,’ and . . . the
     burden to ‘show that counsel’s performance was deficient’ rests
     squarely on the defendant.” Burt v. Titlow, 134 S. Ct. 10, 17,
     187 L. Ed. 2d 348 (2013) (quoting Strickland, 466 U.S. at 687,
     690).

     To prevail on an IAC claim, a PCRA petitioner must plead and
     prove by a preponderance of the evidence that (1) the
     underlying legal claim has arguable merit; (2) counsel had no
     reasonable basis for acting or failing to act; and (3) the
     petitioner suffered resulting prejudice. Commonwealth v.
     Baumhammers, 92 A.3d 708, 719 (Pa. 2014) (citing Pierce,
     527 A.2d at 975-76). A petitioner must prove all three factors of
     the “Pierce test,” or the claim fails. Id. In addition, on appeal, a
     petitioner must adequately discuss all three factors of the
     “Pierce test,” or the appellate court will reject the claim.


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      Commonwealth v. Fears, 624 Pa. 446, 86 A.3d 795, 804 (Pa.
      2014).

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779-80 (Pa. Super

2015) (en banc), appeal denied, 123 A.3d 331 (Pa. 2015).

      Here, Alston claims trial counsel was ineffective for failing to move for

a mistrial based on Detective Dove’s testimony that referenced his

membership in the homicide task force, and for failing to object to the trial

court’s curative instruction.   The underlying issue was raised in Alston’s

direct appeal. This Court summarized the claim as follows:

      Stated briefly, [Alston] seeks a mistrial on the basis that the trial
      court refused to preclude investigating officers from referring to
      the fact that the initial investigation of [Alston] in connection
      with another crime, which led to the attempted homicide and
      other charges at issue here, arose in connection with
      investigators' work with a “homicide task force.” Brief for
      Appellant at 10-15. [Alston] notes that the investigation that
      brought [Alston] to the detectives’ attention was not in
      connection with a homicide, and that the references to the task
      force and its role in investigating homicides necessarily and
      prejudicially implicated [Alston] in prior homicide investigations.
      [Alston] further argues that the trial court’s cautionary
      instruction, issued shortly after one witness mentioned the task
      force, not only did not ameliorate the prejudice, but in fact
      “caused the jurors to pay even more attention” to the
      problematic testimony. Id. at 11, 13.

Commonwealth v. Alston, supra, 81 A.3d 998 (Pa. Super. 2013)

(unpublished memorandum, at 5–6).

      This Court, on direct appeal, while not rejecting the Commonwealth’s

position that Alston had waived the issue by failing to move for a mistrial in

the trial court and by failing to object, concluded that the issue was waived


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for failure to develop the issue in Alston’s appellate brief. Id., at 6 (“Indeed,

we need not delve deeply into the Commonwealth’s bases for arguing that

[Alston] waived these claims, which is not to say that we reject these bases.

Rather, we find that [Alston’s] argument in connection with his first and

second issues as stated simply fails to satisfy the requirements of Pa.R.A.P.

2119(a), which requires citation and development of legal authority

pertinent to the issue raised.”).

      Alston now raises the instant ineffectiveness claim, contending that the

underlying issue has merit, trial counsel had no reasonable basis not to seek

a mistrial, and he suffered prejudice because the issue was waived for failure

to raise it in the trial court.

      In addressing Alston’s PCRA petition, the PCRA judge, the Honorable

Glenn B. Bronson, reiterated his reasoning previously set forth in his opinion

filed in connection with Alston’s direct appeal, explaining that the issue was

meritless:

      [Alston] raised the underlying basis for his current ineffective
      assistance of counsel claim on his direct appeal, contending that
      the Court erred in allowing the detectives to reference their
      membership in the homicide task force.            In its Opinion
      regarding [Alston’s] direct appeal this Court addressed the issue
      as follows:

          Any references at trial to “homicide” were made solely to
          identify police officers involved in [Alston’s] investigation,
          which included homicide detectives, and to identify the
          name of the task force that solved the case. After Mr.
          Pinkney’s robbery and shooting, the case remained
          unresolved until Detective Dove brought it to the
          attention of a task force that had been formed within the

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        Philadelphia Police Department. N.T. 12/18/2007 at 174,
        219–220. Detective Dove referred to this task force as a
        “homicide task force.” N.T. 12/18/2007 at 173, 174, 208,
        216. However, Detective Gaul explained that the task
        force investigated various “crimes of violence,” and was
        not exclusively focused on homicides. N.T. 12/18/2007 at
        219. Detective Dove testified that he had been
        attempting to identify the victim from the shooting
        described in [Alston’s] letter, and that when the task
        force was formed, he enlisted the help of the task force.
        N.T. 12/18/2007 at 211. Detective Gaul, who was a
        member of the task force, was able to locate the police
        report for Mr. Pinkney's shooting. N.T. 12/18/2007 at
        210–211. Both detectives then interviewed Mr. Pinkney,
        who identified [Alston] as the shooter. N.T. 12/18/2007
        at 221–227. [Alston] was thus arrested as a direct result
        of the detective work of the “homicide task force.” The
        testimony involving the task force itself was necessary to
        explain how police identified defendant as the shooter. In
        any event, potential prejudice due to the references to
        “homicide” were ameliorated by the following cautionary
        instruction, given by the Court in an abundance of
        caution:

          Folks, thank you for your patience. You heard this
          detective and some of the other detectives say that
          they were on a Homicide Task Force. Just want you
          to understand, ladies and gentleman, that this case
          is not a homicide. The most serious charge that's
          been leveled in this case is attempted murder, and
          you should not draw any inference adverse to the
          defendant from the fact that the detectives who
          happened to be working on the case were involved in
          a homicide task force. As you heard they were also
          investigating non homicide’s [sic] such as this case.
          So, make sure that you don’t hold it against the
          defendant in any manner that these detectives had
          said they’re working in homicide.

        N.T. 12/19/2007 at 22–23.

     Trial Court Opinion, filed 3/26/2012, at pp. 6–7. In that same
     Opinion, the Court addressed the issue as to whether [Alston]


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     was entitled to a mistrial due to references to the homicide task
     force as follows:

         [It] is well-established that “[a] mistrial is required only
         where the nature of the event is such that its unavoidable
         effect is to deprive the defendant of a fair trial.”
         Commonwealth v. Chamberlain, 30 A.3d 381, 420
         (Pa. 2011). Additionally, “[a] mistrial is not necessary
         where cautionary instructions are adequate to overcome
         prejudice.” Commonwealth v. Spotz, 716 A.2d 580,
         593 (Pa. 1998). As stated above, the Court gave the jury
         a cautionary instruction that fully ameliorated any
         potential prejudice that references to “homicide” may
         have created. N.T. 12/19/2007 at 22-23. Under these
         circumstances, it could not be said that those references
         had the “unavoidable effect” of depriving [Alston] of a fair
         trial.

     Trial Court Opinion, filed 3/26/2007, at pp. 7–8.

PCRA Court Opinion, 5/6/2016, 7–8 (footnote omitted).

     Applying this analysis to Alston’s ineffectiveness claim, the PCRA judge

concluded:

     Accordingly, for the reasons set forth above in this Court’s prior
     Opinion, the references to the homicide task force were neither
     improper nor prejudicial, and were properly permitted by the
     Court. Moreover, any conceivable prejudice was completely
     ameliorated by the clear cautionary instruction given to the jury.
     While [Alston] complained of this curative instruction in his
     Amended Petition, he at no time cited, and the Court is unaware
     of, any authority suggesting that the instruction was in any way
     improper. Therefore, defense counsel had no valid basis to
     move for a mistrial based on the references to the homicide task
     force, and no basis to object to the curative instruction. Since
     trial counsel could not have been ineffective for failing to present
     a meritless motion for mistrial, or an objection to a proper jury
     instruction, no relief is due. Because [Alston] cannot
     demonstrate that the underlying claims are of arguable merit,
     the Court did not need to hold an evidentiary hearing, as such a
     hearing would serve no purpose.



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Id. at 8–9 (citations omitted).

      Based on our review, we find the PCRA court’s discussion fully

addresses and properly disposes of Alston’s ineffectiveness claim. Moreover,

Alston makes only the bald assertion in his brief that “counsel’s failure to

offer an objection to the court’s ruling or jury instruction is of arguable

merit,” without any elaboration to demonstrate how the PCRA court erred in

its analysis. Alston’s Brief at 22. Accordingly, there is no basis upon which

to disturb the PCRA court’s decision to dismiss this ineffectiveness claim

without a hearing.

      Alston also contends his after-discovered evidence claim warranted an

an evidentiary hearing.

      To be entitled to relief under the PCRA on this basis, the
      petitioner must plead and prove by a preponderance of the
      evidence “[t]he unavailability at the time of trial of exculpatory
      evidence that has subsequently become available and would
      have changed the outcome of the trial if it had been
      introduced.”42 Pa.C.S.A. § 9543(a)(2)(vi). As our Supreme
      Court has summarized:

         To obtain relief based on after-discovered evidence, [an]
         appellant must demonstrate that the evidence: (1) could
         not have been obtained prior to the conclusion of the trial
         by the exercise of reasonable diligence; (2) is not merely
         corroborative or cumulative; (3) will not be used solely to
         impeach the credibility of a witness; and (4) would likely
         result in a different verdict if a new trial were granted.

      Commonwealth v. Pagan, 597 Pa. 69, 106, 950 A.2d 270, 292
      (2008) (citations omitted). “The test is conjunctive; the
      [appellant] must show by a preponderance of the evidence that
      each of these factors has been met in order for a new trial to be
      warranted.” Commonwealth v. Padillas, 2010 PA Super 108,
      997 A.2d 356, 363 (Pa.Super. 2010) (citation omitted).


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Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012).

      Alston contends he is entitled to a hearing based on newly discovered

evidence that former Detective Dove “has been arrested and charged with

various criminal offenses including conspiracy to commit murder. Allegedly,

he helped his girlfriend allude police and covered up her murders.” Alston’s

Brief at 23.   Alston asserts, “It is now known that he officer in question has

been so compromised that the Commonwealth will no longer prosecute his

cases. His role at the time of the instant trial was being investigated in at

least three homicides by the Commonwealth. None of this was revealed to

the defense at the time of trial.” Id. at 24. Our review confirms the PCRA

court’s summary dismissal of this claim.

      To be entitled to relief based upon an after-discovered evidence claim,

a petitioner must, inter alia, establish that the proposed after-discovered

evidence is “producible and admissible.”        Commonwealth v. Griffin, 137

A.3d 605, 608 (Pa. Super. 2016) (citation omitted), appeal denied, ___ A.3d

___ (Pa. 2016).        Here, however, Alston’s after-discovered “evidence” is

inadmissible because the evidence consists only of criminal charges against

a witness, not convictions. See, e.g., Griffin, supra, 137 A.3d at 609 (“[A

federal] indictment is not evidence.           Rather, an indictment ‘is a final

accusation by the grand jury charging a person with the commission of a

crime, and such charge, in itself, is no indication of an accused’s guilt.’”)

(citations omitted).




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      Moreover, even if the criminal charges were “evidence,” the charges

would only serve to impeach Detective Dove and, as such, do not meet the

four-prong after discovered evidence test. See Griffin, supra, 137 A.3d at

610 (“A defendant seeking a new trial must demonstrate he will not use the

alleged   after-discovered    evidence   ‘solely   to   impeach    a   witness’s

credibility.’”); Commonwealth v. Foreman, 55 A.3d 532 (Pa. Super. 2012)

(filing of criminal charges against detective in an unrelated matter does not

meet the after-discovered evidence test since such evidence would be used

solely to impeach the credibility of the detective).

      Also, as the PCRA court points out, in light of the overwhelming

evidence of Alston’s guilt independent of Detective Dove’s testimony —

specifically, the victim’s identification of Alston, and the incriminating letter

found at Alston’s home, determined by a handwriting expert, to be written

by Alston — Alston cannot possibly show that the proffered “evidence” of

Detective Dove’s alleged misconduct would lead to a different result.

Therefore, for all the above reasons, we conclude the PCRA court properly

dismissed Alston’s after discovered evidence claim without a hearing.

      Lastly, Alston argues the PCRA court erred in denying him relief on the

issue presented at the evidentiary hearing concerning trial counsel’s failure

to call two witnesses, Phillippe Bibbs and Dominique Everett.

      For the claims on which a hearing was held, we consider whether the

PCRA court’s findings are supported by the record and free of legal error.

Baumhammers, supra, 92 A.3d at 714.

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

a witness, an appellant must prove:

        (1) the witness existed; (2) the witness was available; (3) trial
        counsel was informed of the existence of the witness or should
        have known of the witness's existence; (4) the witness was
        prepared to cooperate and would have testified on appellant's
        behalf; and (5) the absence of the testimony prejudiced
        appellant.

Commonwealth v. Chmiel, 889 A.2d 501, 545-546 (Pa. 2005) (citations

omitted). Trial counsel’s failure to call a particular witness does not

constitute ineffective assistance without some showing that the absent

witness's testimony would have been beneficial or helpful in establishing the

asserted defense. Id. Thus, Appellant must demonstrate how the testimony

of the foregone witness would have been beneficial under the circumstances

of the case. Id.

        In the present case, at the conclusion of the evidentiary hearing, the

PCRA court accepted trial counsel’s testimony that Alston had told him not to

call Everett.   The PCRA court further found Bibbs’ account “utterly beyond

belief,”2 and concluded trial counsel had a reasonable basis for not calling

Bibbs based on counsel’s belief such testimony would weaken the defense’s

case. N.T., 1/7/2016, at 100–101. In its opinion, the PCRA court explained:

        The Court held an evidentiary hearing on this issue on January
        7, 2016. At the hearing, [Alston] testified on his own behalf,
        and presented the testimony of Bibbs and Everett.          The
____________________________________________


2
    N.T., 1/7/2016, at 100.



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     Commonwealth presented the testimony of trial counsel, Robert
     Miller, Esquire. The evidence presented at the hearing clearly
     established that Miller was not ineffective for failing to call
     Bib[b]s and Everett.

     At the hearing, [Alston] testified that on the night of the
     shooting, he was present in his house with his girlfriend,
     Dominique Everett. Everett corroborated [Alston’s] testimony,
     claiming that [Alston] was with her the evening of the robbery
     and spent the night. Bibbs testified at the PCRA hearing that he
     was present outside [Alston’s] home on the night of the shooting
     and that he saw [Alston] enter the home and not leave. Both
     Bibbs and Everett testified that they were willing and able to
     testify at [Alston’s] trial, but were not called as witnesses.

     Trial counsel Miller testified that he had compelling reasons for
     not calling either Bibbs or Everett. According to Miller, Everett
     had testified on behalf of [Alston] in a different case in which
     Miller had represented [Alston], and she was a very ineffective
     witness. Miller believed that Everett would not be believable and
     therefore would weaken the defense. In addition, [Alston]
     explicitly told Miller that [Alston] did not want Miller to call
     Everett as a witness. As to Bibbs, Miller testified that he was
     concerned that he had learned about Bibbs only shortly before
     the trial, and he believed that Bibbs was fabricating the alibi.
     Miller believed that he had a potentially winnable defense based
     upon misidentification, and did not want to weaken that defense
     with bad alibi witnesses.

     This Court, as the finder of fact at the evidentiary hearing, found
     attorney Miller’s testimony to be credible. Because the record
     established a reasonable basis for Miller not calling these
     witnesses, his failure to call them at trial was not constitutionally
     ineffective.

     Moreover, the record demonstrates that Miller’s failure to call
     these witnesses did not prejudice [Alston]. As stated above, the
     evidence at trial established that [Alston] wrote a letter bragging
     about shooting someone in the eye who managed to survive,
     which precisely matched the shooting at issue in this case. When
     his picture was placed in a fair photo spread, the victim
     unequivocally identified defendant as the assailant. The
     incredible alibi offered by Everett and Bibbs was certainly not
     reasonably likely to change the result at trial.

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      Accordingly, the record establishes that Miller had a reasonable
      basis for declining to call Everett and Bibbs at trial, and that no
      prejudice resulted from the lack of their testimony. Therefore,
      the Court properly found that Miller did not deprive [Alston] of
      effective assistance of counsel by failing to call Everett and Bibbs
      as alibi witnesses at trial.

PCRA Court Opinion, 5/6/2016, at 12-13 (record citations omitted).

      Based on our review, we discern no basis upon which to disturb the

decision of the PCRA court. While Alston assails the PCRA court’s credibility

findings and assessment of overwhelming evidence of guilt, the record

supports the PCRA court’s determinations.          Accordingly, Alston’s final

argument fails to warrant relief.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017




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