J-S67005-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                                        :
         v.                             :
                                        :
                                        :
ANTOINE GARDINER,                       :
                                        :
                 Appellant              :     No. 1494 EDA 2017

                   Appeal from the PCRA Order April 20, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002773-2014

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                                        :
         v.                             :
                                        :
                                        :
ANTOINE GARDINER,                       :
                                        :
                 Appellant              :     No. 1526 EDA 2017

                Appeal from the PCRA Order April 20, 2017
           In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-000002774-2014,
           CP-51-CR-0002780-2014, CP-51-CR-0002781-2014,
           CP-51-CR-0002782-2014, CP-51-CR-0002784-2014,
           CP-51-CR-0002785-2014, CP-51-CR-0002786-2014,
           CP-51-CR-0002787-2014, CP-51-CR-0002788-2014,
           CP-51-CR-0002790-2014, CP-51-CR-0002791-2014,
           CP-51-CR-0002802-2014, CP-51-CR-0002841-2014,
           CP-51-CR-0002842-2014, CP-51-CR-0002843-2014,
            CP-51-CR-0002844-2014, CP-51-CR-0014370-2013

BEFORE: OTT, J., NICHOLS, J. and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 15,
2019




* Retired Senior Judge assigned to the Superior Court.
J-S67005-18

      I join the Majority Memorandum, except regarding its holding that

Appellant’s alibi claim is waived.

      In Appellant’s PCRA petition, Appellant alleged that trial counsel was

ineffective for failing to call Appellant’s wife as an alibi witness because she

would have testified that Appellant “was with her during all times relevant to

said charges.” PCRA Petition, 6/2/2016, at 5; see also Pa.R.A.P. 1925(b)

Statement, 5/15/2017, at 3.       On appeal, in response to the PCRA court’s

finding it incredible that Appellant’s wife would be able to recall all of the

times and dates of the alleged thefts, Appellant clarified that “[h]is wife

would testify that he was never out at nighttime [on] any day, [and]

therefore, the specific times and dates are not as critical as the fact of his

common     behavior[,]    which   would    refute”   the   testimony   implicating

Appellant. Appellant’s Brief at 24-25.

      I disagree with the Majority’s characterization of Appellant’s claim on

appeal as an abandonment of his PCRA alibi claim. In both his PCRA petition

and his brief on appeal, Appellant alleges counsel was ineffective for failing

to call Appellant’s wife as an alibi witness to testify that Appellant was not at

the crime scene during the times of the thefts. As such, I would not find this

claim waived and would proceed directly to the Majority’s merits analysis.

      Accordingly, while I would have proceeded directly to the merits on

Appellant’s alibi claim, I otherwise join the Majority’s analysis in full.




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