Com. v. Miller, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT GENE MILLER :
:
Appellant : No. 777 WDA 2018
Appeal from the PCRA Order May 2, 2018
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000398-2014
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 30, 2018
Appellant Robert Gene Miller appeals from the Order entered in the
Court of Common Pleas of Fayette County denying his first, counselled petition
for relief filed under the Post Conviction Relief Act (PCRA).1 We affirm.
On direct appeal, a panel of this Court reiterated the trial court’s
recitation of the facts herein as follows:
On January 13, 2014, Stephanie Kendall was working at the
Footedale [M]arket with co-worker, Samantha Guseman, and
owner, Janet Shaffer, when at approximately 8:50 p.m. Appellant
walked into the store with a bandana on his face and a gun pointed
at the workers. Appellant approached the counter and instructed
Kendall and Guseman not to run, but they ran to the back of the
store nonetheless. Appellant jumped over the counter to follow
them while pointing the gun and demanding money. Guseman
began yelling for help from Janet Shaffer and Appellant took off in
[her] direction. Although out of her sight, Kendall could hear an
argument and then a gunshot. Kendall noted that money was
missing from the lottery drawer and that the drawer, which had
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1 42 Pa.C.S.A. §§ 9541-9546.
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* Former Justice specially assigned to the Superior Court.
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been closed prior to Appellant entering the store, was open.
Kendall identified Appellant by a physical description that included
his eyes, height, weight, gender, and voice.
Samantha Guseman confirmed that just prior to the 9:00
p.m. closing time, Appellant entered the Footedale Market, cocked
his gun, and told her and Kendall not to run. No customers were
in the store, but Janet Shaffer and her children were in the office
and James Fisher, Jr. (“Jim”) was in the attached apartment.
While Appellant was three to four feet away and pointing the gun
straight at her, Guseman summoned for Shaffer by yelling her
name three or four times. Appellant kept asking where “she” was,
referring to Shaffer, but Guseman would not answer him.
Appellant left in Shaffer’s direction and shortly thereafter
Guseman heard a gunshot. Then, Guseman heard Appellant
running through the store and the lottery drawer open. Guseman
confirmed on the television monitor that Appellant had left the
store and proceed[ed] to check on Jim who[m] she had heard say
that he “got hit.” Guseman found Jim crouched over with blood on
the floor and asked if they “knew the Miller boys.” Guseman
recognized the identity of Appellant by his voice when she
confirmed that they grew up on the same street, had the same
circle of friends, and stated, “[Y]ou don’t forget somebody you’ve
known your whole life.” With regards to his features, Guseman
testified that only Appellant’s eyes and forehead were visible that
night, but that his eyes are recognizable from the “piercing like
bluish color.”
Janet Shaffer is the owner of the Footedale Market and was
in the office of the store on the evening of January 13, 2014, when
she heard Guseman and Kendall yelling for her. As Shaffer stood
up, Appellant met her in the doorway to the office demanding
money. Shaffer refused to give him money and she felt something
touch her in the nose, but could not identify it as either Appellant’s
hand or the gun he was carrying. Appellant continued to demand
money in a violent and loud manner, and Shaffer began yelling for
her boyfriend Jim, who was located directly behind the office wall
in the adjoining apartment. Jim entered the office through the
apartment doorway and Appellant started yelling to “back the ‘F’
up, Jim, back up Jim.” Jim slammed Shaffer back into the office
portion and closed the door. From the other side of the door,
Shaffer could hear Jim saying that he was shot. Shaffer was
unable to provide an exact amount of money stolen from the
lottery drawer because she had not counted it for the evening prior
to Appellant entering the store, but she was able to estimate the
amount to be between $60.00 and $100.00. Shaffer stated that
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she has known Appellant throughout his entire life and that she
recognized his voice and eyes.
[Jim] testified that he was at the apartment adjacent to the
Footedale Market on the evening of January 13, 2014, when he
heard a commotion from the workers and Shaffer yelling for him.
When Jim entered into the office, he saw Appellant pointing a gun
at Shaffer and then turning towards him, stating “Back up, the
gun’s loaded, I ain’t playin.” The rag on Appellant’s face was
drooping down and Jim immediately recognized the identity of
Appellant, stating that he knew Appellant “since he was born.” Jim
was able to slam a door shut between Appellant and Shaffer and
he attempted to jump back into the apartment when Appellant
fired the gun hitting Jim with a bullet through the kneecap. With
regards to medical treatment, Jim had a plate put in his leg
because he was shot through the joint where his knee bends and
anticipates a knee replacement in the future. Jim explained that
the bullet “blew [his] femur” and “destroyed [his] knee.”
Trooper James A. Pierce of the Pennsylvania State Police, a
criminal investigator, recovered a bullet between the hallway and
the front of the store.
At trial, Appellant presented the testimony of Natalie Sykes
in his defense. Sykes testified that she and Appellant were on and-
off boyfriend and girlfriend, and that he spent the entirety of the
day at her house, except for a trip to the gas station and drug
store around five o’clock in the afternoon. Sykes testified that the
car used to go on the errands at five o’clock belonged to
Appellant’s mother and that when Appellant returned to Sykes’s
house, Appellant’s mother took the car, leaving him and Sykes
without a vehicle. According to Sykes, the distance from her home
to Footedale Market is fifteen minutes by car and Appellant did not
leave until after nine o’clock when Sykes told him to leave to avoid
the police.
Commonwealth v. Miller, No. 238 WDA 2015, unpublished memorandum at
1-4 (Pa.Super. filed July 29, 2015) (some brackets in original) (citing Trial
Court Opinion, filed 3/31/15, at 2-6).
Following a jury trial held on December 8 and 9, 2014, Appellant was
found guilty of five (5) counts of Robbery; four (4) counts each of Terroristic
Threats and Recklessly Endangering Another Person; and one (1) count each
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of Theft by Unlawful Taking and Aggravated Assault.2 Appellant was
sentenced to seven (7) years to fifteen (15) years’ incarceration on January
12, 2015. Although he did not file a post-sentence motion, Appellant filed
timely a notice of appeal. Finding none of the issues Appellant raised had
arguable merit, this Court affirmed Appellant’s judgment of sentence on July
29, 2015. Appellant filed a petition for allocator, and our Supreme Court
denied the same on December 16, 2015.
On November 7, 2016, Appellant filed the instant PCRA petition, and
he filed an amended petition on January 19, 2017, wherein he set forth various
allegations of trial counsel’s ineffectiveness. The PCRA court conducted a
hearing on March 15, 2017. Thereafter, in its Opinion and Order entered on
May 2, 2018, the PCRA court denied Appellant’s petition.
Appellant filed a timely notice of appeal with this Court and his Concise
Statement of Issues on Appeal on May 25, 2018, wherein he raised the issues
he presents in the Statement of Questions Involved portion of his appellate
brief as follows:
1. Whether the PCRA court erred in not finding defense
counsel ineffective for failing to object to the witnesses’
identification of Appellant as the perpetrator?
2. Whether the PCRA court erred in not finding defense
counsel ineffective for failing to object to the Commonwealth’s
impeachment of defense witness, Natalie Sykes, concerning her
prior conviction for hindering apprehension or concealment?
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218 Pa.C.S.A. §§ 3701(a)(1)(ii); 2706(a)(1); 2705; 3921(a); and 2702(a)(4),
respectively.
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3. Whether the PCRA court erred in not finding defense
counsel ineffective for failing to object to the jury charge
concerning crimen falsi?
4. Whether the PCRA court erred in not finding defense
counsel ineffective for failing to request a jury instruction
concerning an alibi witness regarding defense witness, Natalie
Sykes?
Brief for Appellant at 3 (unnecessary capitalization omitted).
Our review of these claims is guided by the following well-settled legal
principles:
[O]ur scope of review “is limited to the findings of
the PCRA court and the evidence on the record of the
PCRA court's hearing, viewed in the light most favorable
to the prevailing party.” ... We defer to the PCRA court's
factual findings and credibility determinations supported
by the record. In contrast, we review the PCRA court's
legal conclusions de novo.
Commonwealth v. Reyes–Rodriguez, 111 A.3d 775, 779 (Pa.
Super. 2015) (en banc ) (citations omitted).
It is well settled that
[c]ounsel is presumed effective, and in order to
overcome that presumption a PCRA petitioner must
plead and prove that: (1) the legal claim underlying the
ineffectiveness claim has arguable merit; (2) counsel's
action or inaction lacked any reasonable basis designed
to effectuate petitioner's interest; and (3) counsel's
action or inaction resulted in prejudice to petitioner.
Commonwealth v. Mason, 634 Pa. 359, 130 A.3d 601, 618
(2015) (citations omitted). The petitioner must plead and prove
all three prongs, and the failure to establish any one prong
warrants denial of an IAC claim. Id.
Commonwealth v. Becker, 192 A.3d 106, 112–13 (Pa.Super. 2018).
Appellant initially argues the PCRA court erred in failing to find trial
counsel ineffective for not objecting to various witness testimony identifying
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him as the perpetrator. At trial, the Commonwealth presented four witnesses
who testified that they were present and viewed the perpetrator during the
commission of the crimes: Stephanie Kendall, Samantha Guseman, Janet
Shaffer, and James Elwood Fisher, Jr. See N.T. Trial, 12/8/14, at 25-26; 34-
36- 44-45; 47-50; and 59-60, respectively; however, Appellant did not
identify with specificity or clarify the way in which his or her testimony was
objectionable in his Concise Statement of Issues on Appeal.
It is well-established under Pennsylvania law that issues not raised in a
Rule 1925(b) concise statement will be deemed waived. Pa.R.A.P.1925(b)
(4)(vii); Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“in
order to preserve their claims for appellate review, appellants must comply
whenever the trial court orders them to file a statement of matters complained
of on appeal pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P.
1925(b) statement will be waived.”) (internal citations, quotations, and
corrections omitted; some internal capitalization omitted).
This rule of waiver also has been found to apply to concise statements
“which are so vague as to prevent the court from identifying the issue to be
raised on appeal.” Commonwealth v. Dowling, 778 A.2d 683, 686–87
(Pa.Super. 2001) (“[A] Concise Statement which is too vague to allow the
court to identify the issues raised on appeal is the functional equivalent of no
Concise Statement at all.”). Additionally, “when an appellant fails to identify
in a vague Pa.R.A.P.1925(b) statement the specific issue he/she wants to raise
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on appeal, the issue is waived, even if the trial court guesses correctly and
addresses the issue in its Pa.R.A.P.1925(a) opinion.” Commonwealth v.
Lemon, 804 A.2d 34, 38 (Pa.Super. 2002).
As presented in his concise statement of errors complained of on appeal,
Appellant's first issue alleging trial counsel’s ineffectiveness for failing to
object to witnesses’ identification of him was impermissibly vague, as
numerous individuals testified and identified Appellant both on direct and on
cross-examination. Accordingly, Appellant's first claim is waived. See
Lemon, 804 A.2d at 37–38.3
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3 Even had Appellant properly preserved this claim for our review, we note
that on direct appeal, Appellant argued that the eyewitness identifications
were unreliable because the witnesses had testified that his eyes were blue,
when, in fact they are green and that they placed the gun in Appellant’s right
hand, and he is left handed. Upon considering such testimony, this Court
found that “viewed in the light most favorable to the Commonwealth as the
verdict winner, we cannot agree that the evidence was as unreliable and
speculative as claimed by Appellant. These witnesses lived in a small town
where Appellant was known to them. They recognized his voice, as well as
other features. Such testimony, if believed by the jury, was sufficient to
identify Appellant as the perpetrator.” Commonwealth v. Miller, No. 238
WDA 2015, unpublished memorandum at 7-9 (Pa.Super. filed July 29, 2015).
In his brief herein, Appellant baldly avers that “[t]he Commonwealth failed
to provide a proper foundation before these witnesses testified” and that “their
testimony against him was motivated by personal animosity.” Therefore,
Appellant posits counsel should have objected because “the issue whether the
witnesses could positively identify the perpetrator as the Appellant is not [a]
matter of the weight of the evidence but rather is a matter of admissibility,
and so Attorney Camson did not have a reasonable basis for his failure to
object.” Brief for Appellant at 10-11. The PCRA precludes relief for claims that
have been previously litigated on direct appeal. 42 Pa.C.S.A. § 9543(a)(3),
9544. A claim is previously litigated for PCRA purposes where the “highest
appellate Court in which the Petitioner could have had review as a matter of
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Next, Appellant maintains defense counsel had been ineffective for
failing to object to the Commonwealth’s impeachment of Appellant’s alibi
witness Natalie Sykes in light of her prior conviction of 18 Pa.C.S.A. §
5105(a)(1), Hindering Apprehension. Appellant argues this Court has held
that not all crimes relating to hindering apprehension or concealment
constitute crimen falsi and in doing so relies upon this Court’s decision in
Commonwealth v. Harris, 658 A.2d 811 (Pa.Super. 1995) wherein we
stated:
It is evident from a reading of Subparagraphs (1)–(3) and (5) of
Section 5105(a), had the appellant engaged in some form of
“concealment,” “disguise,” or providing the authorities with “false”
information, he was guilty of crimen falsi behavior triggering the
prosecution's entitlement under Randall, supra, 515 Pa. 410,
528 A.2d 1326, to impeach the witness guilty of such misconduct.
Instantly, however, we are not advised of any false statements
attributable to the appellant regarding the whereabouts of the at-
large friend, nor do we equate dishonesty with his failure to
volunteer the location of the wanted man.
Id. at 813-14.
Appellant reasons that this language is dispositive herein as follows:
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right has ruled on the merits of the issue or it has been raised and decided in
a proceeding collaterally attacking the conviction or sentence.” 42 Pa.C.S.A.
§ 9544(a)(3). In Commonwealth v. Howard, 553 Pa. 266, 280–281, 719
A.2d 233, 240 (1998), the Pennsylvania Supreme Court held that a petitioner
“is precluded from raising a claim of post-conviction review that was
previously and finally litigated on direct appeal....Further, an appellant cannot
obtain collateral review of previously litigated claims by alleging ineffective
assistance of prior counsel and presenting new theories of relief.”
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At trial in the present case, the Commonwealth impeached
Appellant’s witness, Natalie Sykes, for her conviction for hindering
apprehension and concealment in Commonwealth v. Natalie
Sykes, Case No. 1444 of 2006. Attorney Camson claimed he did
not object to the Commonwealth’s impeachment of Natalie Sykes,
because he was not familiar with the case used by the
Commonwealth to impeach Natalie Sykes, and he thought the
case sounded like crimen falsi. PCRA Hearing at 27.
In Case No. 1444 of 2006, Natalie Sykes merely pled
guilty to refusing to allow a Parle Officer into her home to take
custody of a wanted man. She did not admit to any attempt to
conceal the wanted man, any attempt to disguise the wanted man,
or to providing authorities with false information. Therefore,
Natalie Sykes[’] admission of guilt in Case No. 1444 of 2006 does
not constitute a crimen falsi offense. Attorney Camson’s failure to
object to the impeachment of Natalie Sykes prejudiced Appellant,
because Appellant intended to use Natalie Sykes as an alibi
witness, and the Commonwealth’s impeachment of her
truthfulness caused the jury not to believe her testimony.
Therefore, Attorney Camson was ineffective for failing to object to
the impeachment of Natalie Sykes.
Brief for Appellant at 13.
The PCRA court denied Appellant’s claim that trial counsel was
ineffective in this regard and in doing so cited to Ms. Sykes’ PCRA hearing
testimony at which time she informed the court that the “parole officer came
looking for [her] husband at [her] house […] and [she] said he wasn’t there.”
PCRA Court Opinion, filed 5/2/18, at 4 (citing N.T. PCRA Hearing, 3/15/17, at
5). Specifically, the PCRA court opined that:
[t]his false statement to the parole officer constituted behavior
sufficient for this [c]ourt to have concluded that the underlying
Hindering Apprehension conviction was crimen falsi in nature and
sufficient “concealment,” “disguise,” or “false” information to
implicate the ability of the Commonwealth to use the prior
conviction for impeachment purposes. Since this claim also lacks
arguable merit, [Appellant] is warranted no relief under the PCRA.
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PCRA Court Opinion, filed 5/2/18, at 4.
When reviewing a PCRA court's determination that a reasonable basis
existed for counsel's action or omission, we are mindful that:
[g]enerally, where matters of strategy and tactics are concerned,
counsel's assistance is deemed constitutionally effective if he
chose a particular course that had some reasonable basis
designed to effectuate his client's interests. A finding that a
chosen strategy lacked a reasonable basis is not warranted unless
it can be concluded that an alternative not chosen offered a
potential for success substantially greater than the course actually
pursued. To demonstrate prejudice, the petitioner must show that
there is a reasonable probability that, but for counsel's error or
omission, the result of the proceeding would have been different.
Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 887 (2010) (citations
and quotation marks omitted).
At the PCRA hearing, PCRA counsel questioned Ms. Sykes regarding the
facts that gave rise to her conviction of Hindering Apprehension or
Concealment on January 4, 2006. Ms. Sykes responded as follows:
Seven months pregnant and the parole office came looking for my
husband at my house and that’s why I got charged with it because
they came there looking for him and I said he wasn’t there.
N.T. PCRA Hearing, 3/15/17, at 5.
PCRA counsel asked Ms. Sykes to further explain the circumstances
surrounding her conviction at which time she stated she was unaware her
husband was at the house at the moment the parole officer arrived and
claimed she had given permission for the residence to be searched. Id. at 6.
She explained she pled guilty to the charge “[b]ecause at the time it was just
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finances, I had no money, you know what I mean? It was just easier for me
to plead guilty to the charge.” Id.
At this juncture, the PCRA court stated that it is “crucially relevant as
to what her plea was,” for if she pled guilty for the aforesaid reasons, the trial
court would not have accepted her plea. Id. at 8. The PCRA court provided
PCRA counsel with an opportunity to continue the hearing to supplement the
record with a transcript of the plea proceeding, because that “would show
intent versus no intent to deceive.” Id. at 9, 11. Upon further discussion with
PCRA counsel and the Commonwealth, the PCRA court expressed its concern
with Ms. Sykes possibly facing a perjury charge were she to continue to
dispute what she had sworn to earlier in court and explained that if she were
to change that testimony, her Fifth Amendment rights may be invoked. Id.
at 9. PCRA counsel indicated his intent to seek a continuance on the advice
of the PCRA court which stated it “[didn’t] know how you can proceed along
these lines putting her in possible jeopardy if she swore to something before
and she’s swearing to something differently now.” Id. at 12.
Thereafter, trial counsel testified at which time he agreed he had failed
to object to the Commonwealth’s impeachment of Ms. Sykes concerning her
prior conviction at trial. Counsel explained he did not object because, as a
defense attorney, he was familiar with the fact that one who had pled guilty
to a Hindering Apprehension charge would have harbored or concealed
another person. N.T. PCRA Hearing, 3/15/17, at 26-27. Counsel also
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indicated Ms. Sykes was not an “ironclad alibi,” for she had given police
different accounts of Appellant’s whereabouts, and he “did not want to draw
anymore [sic] attention to Ms. Sykes’ testimony.” Id. at 28. Counsel further
explained:
[w]e kind of focused the defense on, these people don’t know what
color this guy’s eyes are, they have a grudge against him, they’re
making it up, it was somebody else, and that was kind of the gist
of the defense theory and I wanted to keep it focused on the
Commonwealth’s burden, this is their case, they haven’t met that
and these people are making it up. So I didn’t want to draw
anymore [sic] attention to her.
Id.
In an Order entered on March 15, 2017, the PCRA court continued the
PCRA hearing to May 5, 2017.4 Ms. Sykes did not appear to testify at that
time; however, PCRA counsel indicated he had obtained the transcript from
Ms. Sykes’ guilty plea proceeding and would have had her read it into the
record. A copy of that transcript is not in the certified record herein; thus, we
are unable to review it. We remind Appellant “our law is unequivocal that the
responsibility rests upon the appellant to ensure that the record certified on
appeal is complete [and] contains all of the materials necessary for the
reviewing court to perform its duty.” See Commonwealth v. Bongiorno,
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4 Also on that date, the PCRA Court issued another Order directing Appellant
to submit a brief in support of his position within sixty (60) days, with the
Commonwealth having thirty (30) days thereafter in which to do the same.
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905 A.2d 998, 1000 (Pa. Super. 2006), appeal denied, 691 Pa. 688, 917 A.2d
844 (2007).
Having reviewed the record before us, the PCRA court's ruling, and
Appellant's arguments, we agree with the PCRA court's determination that this
claim lacks arguable merit. Initially, we note that Appellant’s reliance on
Harris is misplaced, for he fails to recognize that in Harris this Court engaged
in the analysis of the facts underlying the previous conviction because, based
solely on the statutory definition of the offense, we concluded a conviction for
hindering apprehension did not satisfy the crimen falsi requirement. However,
even if the definition itself does not include a crimen falsi element, an offense
might still be considered for purposes of impeachment under Pa.R.E. 609 if
the facts of its commission may render it such in a particular case. See
Commonwealth v. Coleman, 664 A.2d 1381, 1383–84 (Pa.Super. 1995),
appeal denied, 545 Pa. 675, 682 A.2d 306 (1995); see also Harris, supra.
Moreover, we find no basis in the record to conclude that Appellant
would have had a greater potential for success if trial counsel had objected to
the Commonwealth’s impeachment of Ms. Sykes. First, as stated previously,
we are unable to substantiate Appellant’s references to Case No. 1444 of 2006
pertaining to Ms. Sykes’ guilty plea for his failure to include the transcript for
our review herein. Notwithstanding, Ms. Sykes answered “yes” when asked
on cross-examination at trial if she had been convicted of Hindering
Apprehension or Concealment in November of 2006. N.T. Trial, 12/8-9/2014,
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at 96. This was the only reference to that conviction, as no additional
questions pertaining thereto were asked either on cross-examination or on
redirect examination.
In addition, Appellant’s bald claim that counsel’s “failure to object to the
impeachment of Natalie Sykes prejudiced Appellant, because Appellant
intended to use Natalie Sykes as an alibi witness, and the Commonwealth’s
impeachment of her truthfulness caused the jury not to believe her
testimony,” see Brief for Appellant at 13, is belied by the record, for Ms.
Sykes’ responses on cross-examination otherwise cast doubt on her veracity.
For example, Ms. Sykes admitted Appellant had left her home for a period of
time and that she told Trooper Pierce: “I’m not saying that he didn’t do it but
I thought he was here all night.” N.T. Trial 12/8-9/14, at 89-92, 96. Because
Appellant has not demonstrated that trial counsel lacked a reasonable basis
for not objecting to the Commonwealth’s impeachment of Ms. Sykes or that
this omission prejudiced him, this claim warrants no relief.
Appellant’s final two issues challenge trial counsel’s failure to object to
the jury charge. In reviewing the trial court’s instructions, we are mindful that
[a] jury charge will be deemed erroneous only if the charge as a
whole is inadequate, not clear or has a tendency to mislead or
confuse, rather than clarify, a material issue. A charge is
considered adequate unless the jury was palpably misled by what
the trial judge said or there is an omission which is tantamount to
fundamental error. Consequently, the trial court has wide
discretion in fashioning jury instructions. The trial court is not
required to give every charge that is requested by the parties and
its refusal to give a requested charge does not require reversal
unless the [defendant] was prejudiced by that refusal.
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Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013) (citation
omitted).
Appellant first claims defense counsel had been ineffective for failing to
object to the trial court’s jury charge pertaining to Ms. Sykes’ crimen falsi
conviction. Appellant’s entire argument on this point reads as follows:
In the present case, the [c]ourt’s definition of crimen falsi
confused the jury, which is evident by the jury having to question
the [c]ourt during its deliberations as to whether the jury could
base its verdict on one witness’s testimony. TT At 117. Attorney
Camson should have objected to the confusing charge concerning
crimen falsi, and his failure to do so resulted in the jury completely
dismissing the testimony of Natalie Sykes, because of the
Commonwealth’s impeachment of her testimony.
Brief for Appellant at 14.
Appellant's argument is undeveloped, and this conclusory and self-
serving analysis fails to satisfy the requirements of the test for ineffectiveness.
See Commonwealth v. Natividad, 595 Pa. 188, 209, 938 A.2d 310, 322
(2007) (“An undeveloped argument, which fails to meaningfully discuss and
apply the standard governing the review of ineffectiveness claims, simply does
not satisfy Appellant's burden of establishing that he is entitled to any relief.”)
(citations omitted). Nevertheless, the PCRA court properly instructed the jury
that the only purpose for which it may consider Ms. Sykes’ prior conviction in
deliberations was for the purpose of deciding whether to believe all or part of
her testimony. N.T. Trial, 12/8-9/14 at 104. As such, this bald claim that the
instruction was “confusing” fails.
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Finally, Appellant argues trial counsel was ineffective for failing to
request an alibi witness jury instruction. Appellant stresses that trial counsel
admitted at the PCRA hearing he had called Ms. Sykes as an alibi witness, but
failed to request an alibi jury instruction because he believed her testimony
was not “ironclad.” Brief for Appellant at 15. Appellant posits counsel’s view
is unsupported by the record which contains Ms. Sykes’ testimony that
Appellant was at her home at the time of the robbery and lacks positive
identification of Appellant from the Commonwealth’s witnesses. Id. at 16.
Appellant concludes counsel’s failure to request the instruction prejudiced him
“because it prevented the jury from considering Natalie Syke[s]’ exculpatory
testimony as an alibi defense, and it left jurors with the opinion that the
Defense’s failure to prove Natalie Sykes’ testimony was a sign of [ ] Appellant’s
guilt.” Id.
In analyzing this issue, we are mindful of the following:
An alibi is “a defense that places the defendant at the relevant
time in a different place than the scene involved and so removed
therefrom as to render it impossible for him to be the guilty party.”
[Commonwealth v. Roxberry], 529 Pa. 160[ ], 602 A.2d 826,
827 [ (Pa. 1992) (Roxberry II ) ] (quoting Commonwealth v.
Jones, 529 Pa. 149, 602 A.2d 820, 822 (1992)). In
Commonwealth v. Pounds, [ 490 Pa. 621, 417 A.2d 597 (Pa.
1980),] we held that a trial court, faced with alibi evidence,3
should instruct a jury generally that “it should acquit if defendant's
alibi evidence, even if not wholly believed, raises a reasonable
doubt of his presence at the scene of the crime at the time of its
commission and, thus, of his guilt.” [Pounds, 417 A.2d at 603].
The instruction,4 we held, is critically important to offset “the
danger that the failure to prove the defense will be taken by the
jury as a sign of the defendant's guilt.” Id. We explained that the
defendant bears no burden of proof in a criminal case, and that to
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infer guilt based upon a failure to establish an alibi “contravenes
the presumption of innocence and the Commonwealth's burden of
proving the offense beyond a reasonable doubt.” Id. at 603 n. 17.
Given these concerns, we have held unequivocally that “a
defendant is entitled to an alibi instruction when evidence of alibi
... has been introduced.” Id. at 602 (citing Commonwealth v.
Bonomo, 396 Pa. 222, 151 A.2d 441 (1959)). Further, we held
in Pounds that “general instructions on the Commonwealth's
burden of proving each element of the offense beyond a
reasonable doubt, the absence of a burden of proof on the
defendant, and assessing the credibility of witnesses do not
adequately protect against” the danger posed by the
misapprehensions a jury might indulge regarding the relevance
and effect of alibi evidence. Id. at 603.
Commonwealth v. Hawkins, 586 Pa. 366, 894 A.2d 716, 717–718 (2006)
(internal citations and footnote omitted).
The failure to request an alibi instruction does not constitute prejudice
per se. Hawkins, 586 Pa. at 389, 894 A.2d at 729. Thus, Appellant bears the
burden of establishing that counsel had no reasonable basis for his failure to
request the alibi instruction and that he was prejudiced as a result. Id.
In finding no merit to this claim, the PCRA court reasoned as follows:
Trial Counsel Joshua Camson, Esquire, was questioned at
the PCRA hearing and testified that his trial strategy concluded the
instruction would not have been beneficial to [Appellant’s] defense
because the alibi testimony of Natalie Sykes “didn’t go as well” as
he anticipated. N.T., PCRA Proceedings, 3/15/2017, at 28.
Attorney Camson told the [c]ourt, and as is supported by the trial
transcript, that Natalie Sykes “wasn’t an ironclad alibi by any
stretch of the imagination” and that at trial Sykes testified that
[Appellant] “left at some point.” Id.
Where matters of strategy and tactics are concerned, counsel’s
assistance is deemed constitutionally effective if he chose a
particular course that had some reasonable basis designed to
effectuate his client’s interest. Commonwealth v. Koehler, 36
A.3d 121 (Pa. 2012). Trial Counsel testified credibly that it was his
strategy not to highlight the alibi testimony as the alibi was not
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“ironclad.” His strategy will not be questioned by this [c]ourt as
he had a reasonable basis for not requesting the alibi instruction.
[Appellant] has failed to meet his burden of proving his [t]rial
[c]ounsel’s ineffective assistance, and accordingly, the Petitioner
is DENIED.
PCRA Court Opinion, filed 5/2/18, at 4-5. Following our review, we discern no
error of law in the PCRA court’s determination.
The notes of testimony reveal that counsel had a reasonable basis for
not pursuing an alibi defense. As stated previously, counsel stated he did not
want to call additional attention to Ms. Sykes’ questionable testimony.
Instead, counsel believed the better strategy was to center the defense around
shortcomings in the Commonwealth’s case. N.T. PCRA Hearing, 3/15/17 at
28-29. Moreover, a prior panel of this Court found the Commonwealth
presented ample testimonial and video surveillance evidence to establish that
Appellant had been the perpetrator of the crimes. Commonwealth v. Miller,
No. 238 WDA 2015, unpublished memorandum at 7-9 (Pa.Super. filed July
29, 2015). As a result, Appellant cannot prove that, had the instruction been
given, the result of the trial would have been different. Commonwealth v.
Becker, 192 A.3d 106, 13 (Pa.Super. 2018).
For all of the foregoing reasons, we affirm the PCRA court’s Order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2018
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