Com. v. Thornton, T. ( 2023 )

J-S13030-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY THORNTON :
:
Appellant : No. 1681 EDA 2022
Appeal from the PCRA Order Entered June 1, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010214-2011
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED JULY 24, 2023
Appellant Troy Thornton appeals from the order denying his timely first
Post Conviction Relief Act1 (PCRA) petition. Appellant argues that trial counsel
was ineffective for failing to request a continuance, call potential alibi
witnesses, or file a post-sentence motion challenging the weight of the
evidence. We affirm.
The underlying facts of this matter are well known to the parties. See
Commonwealth v. Thornton, 792 EDA 2013, 2015 WL 7195495, at *1-3
(Pa. Super. filed May 11, 2015) (unpublished mem.). Briefly, Appellant was
arrested and charged with murder and related charges in connection with the
2011 shooting death of Charles Johnson. Appellant initially retained David S.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
J-S13030-23
Nenner, Esq. to represent him at trial. N.T. Hr’g, 5/3/22, at 5. However, after
Appellant failed to pay legal fees in accordance with the fee agreement,
Attorney Nenner assigned Appellant’s case to Patrick Link, Esq., who was of
counsel at Attorney Nenner’s firm. Id. at 54.
Ultimately, following a jury trial, Appellant was convicted of first-degree
murder and other offenses. On February 15, 2013, the trial court imposed
the mandatory sentence of life imprisonment without the possibility of parole.
This Court subsequently affirmed Appellant’s judgment of sentence on May
11, 2015. See Thornton, 2015 WL 7195495. Appellant did not file a petition
for allowance of appeal with our Supreme Court.
On April 22, 2016, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed counsel, who filed amended petitions on Appellant’s
behalf. On February 5, 2021, the PCRA court entered a Pa.R.Crim.P. 907
notice of intent to dismiss Appellant’s PCRA petition without a hearing. The
PCRA court subsequently dismissed Appellant’s petition on March 5, 2021.
On March 29, 2021, Appellant filed a motion to rescind the PCRA court’s
dismissal. Therein, Appellant claimed that he had received a statement from
Patrice Dantzler, who provided an alibi for Appellant at the time of the
underlying murder. Appellant’s Mot. to Rescind 907 Dismissal, 3/29/21, at 4.
On April 1, 2021, the PCRA court withdrew its March 5, 2021 order denying
Appellant’s PCRA petition and permitted Appellant to amend his PCRA petition.
Appellant filed a supplemental amended PCRA petition on April 9, 2021, and
the PCRA court held evidentiary hearings on March 7, 2022 and May 3, 2022.
-2-
J-S13030-23
Ultimately, on June 1, 2022, the PCRA court entered an order denying
Appellant’s PCRA petition.
Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. The PCRA court filed a Rule 1925(a) opinion addressing
Appellant’s claims.
On appeal, Appellant presents the following issues for our review:
1. Was trial counsel ineffective for failing to adequately prepare
for his first homicide trial and by failing to call alibi witnesses
that were known to his client and available at the time of trial?
2. Was trial counsel ineffective when he failed to file a post-
sentence motion?
Appellant’s Brief at 8.
In his first claim, Appellant argues that Attorney Link was ineffective for
failing to request a continuance. Id. at 18.2 Specifically, Appellant contends
that a continuance was necessary because “[A]ttorney Link was ill-prepared
for what was his first homicide trial” and “met with Appellant only twice in the
three weeks he had to prepare the case.” Id. at 19. Additionally, Appellant
asserts that prior to trial, he spoke with both Attorney Link and Attorney
Nenner about calling Celestine Jackson and Patrice Dantzler as alibi witnesses.
____________________________________________
2 Appellant also claims that Attorney Nenner “allowed a fee dispute to serve
as the reason to abandon his client three weeks prior to trial on murder
charges.” Id. However, Appellant does not develop any further argument to
support this assertion. Therefore, we will not address that issue on appeal.
See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007)
(stating that “[t]his Court will not act as counsel and will not develop
arguments on behalf of an appellant” (citation omitted)).
-3-
J-S13030-23
Id. However, Appellant claims that Attorney Link “told Appellant that he could
not give the Commonwealth enough notice of his intention to argue alibi.” Id.Appellant argues that, had Attorney Link requested a continuance, he “would
have had additional time to give notice [of an alibi defense] and could have
presented that evidence at trial.” Id. at 20. Appellant concludes that “[g]iven
the lack of evidence presented as to Appellant’s guilt, alibi testimony from
[Dantzler and Jackson], if presented, would have resulted in a different
verdict.” Id.
Our review of the denial of PCRA relief is limited to “whether the record
supports the PCRA court’s determination and whether the PCRA court’s
decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4
(Pa. Super. 2014) (citations omitted). “The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA court’s legal
conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014)
(citation omitted); see also Commonwealth v. G. Davis, 262 A.3d 589, 595
(Pa. Super. 2021) (stating that “[t]his Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings” (citation omitted)).
When reviewing a claim of ineffective assistance of counsel, we are
governed by the following standard:
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances of
-4-
J-S13030-23
the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken
place. The burden is on the defendant to prove all three of the
following prongs: (1) the underlying claim is of arguable merit;
(2) that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of the
proceedings would have been different.
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success.
Counsel’s decisions will be considered reasonable if they
effectuated his client’s interests. We do not employ a hindsight
analysis in comparing trial counsel’s actions with other efforts he
may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered).
This Court has explained:
When raising a claim of ineffectiveness for the failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the ineffective assistance of counsel
test by establishing 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.
-5-
J-S13030-23
Prejudice in this respect requires the petitioner to show how the
uncalled witnesses’ testimony would have been beneficial under
the circumstances of the case. Therefore, the petitioner’s burden
is to show that testimony provided by the uncalled witnesses
would have been helpful to the defense.
Commonwealth v. Selenski, 228 A.3d 8, 16 (Pa. Super. 2020) (citations
omitted and formatting altered).
Here, the PCRA court addressed Appellant’s claim as follows:
[Attorney] Link testified that he represented [Appellant] at trial.
[Attorney] Link was employed by [Attorney] Nenner, and after a
payment issue, [Attorney] Link was assigned the case about three
to six weeks before trial. He prepared thoroughly for the case, as
it was his first homicide trial. [Attorney] Link had been a criminal
trial attorney for nine years, worked previously as an assistant
district attorney and tried hundreds of jury trials. [Attorney] Link
did not recall being told there was an alibi defense but recalls
speaking with [Attorney] Nenner about strategy and preparing a
defense of misidentification and lack of opportunity to observe.
[Attorney] Link recalled preparing for the case “meticulously,” day
and night and stated that if alibi was mentioned, “we would have
hopped all over that and called an investigator.” [Attorney] Link
further testified “if someone got life [imprisonment] because I
didn’t call an alibi witness, I would remember it,” and “I would not
have ignored something that important.” [Attorney] Link recalled
that [Attorney] Nenner met with [Appellant] at least twice prior to
trial and that he met with [Appellant] twice.”
* * *
After hearing testimony from the purported alibi witnesses and
[Appellant], the [PCRA] court found that counsel was never told
there was an alibi defense because there was no alibi defense . .
. . The [PCRA] court noted that the alibi defense was not
mentioned until [Appellant’s] first PCRA [petition] was dismissed.
The [PCRA] court further found the alibi testimony to be
contradictory and incredible.
Trial Ct. Op. at 4, 7 (record citations omitted and some formatting altered).
-6-
J-S13030-23
Based on our review of the record, we agree with the PCRA court’s
conclusions. See Sandusky, 203 A.3d at 1043-44. The PCRA court
concluded that both Attorney Nenner and Attorney Link credibly testified that
Appellant did not mention an alibi defense, nor did Appellant identify any alibi
witnesses prior to trial. See PCRA Ct. Op. at 7. Because the PCRA court’s
credibility conclusions are supported by the record, they are binding on this
Court. See Mitchell, 105 A.3d at 1265. Accordingly, because Appellant failed
to establish that Attorney Link knew or should have known of the existence of
alibi witnesses, he is not entitled to relief. See Selenski, 228 A.3d at 16.3
In his second issue, Appellant argues that Attorney Link was ineffective
for failing to file a post-sentence motion challenging the weight of the
evidence. Appellant’s Brief at 20. Specifically, Appellant claims that he “was
undoubtedly prejudiced by [trial] counsel’s ineffective representation following
his sentence. This Court refused to consider his appeal to the weight of the
evidence, deeming it waived by counsel’s inaction.” Appellant’s Brief at 21-
22.
The Commonwealth responds that Appellant has waived this issue by
failing to include it in his Rule 1925(b) statement. Commonwealth’s Brief at
11.
____________________________________________
3 Even if Appellant had established that Attorney Nenner and Attorney Link
knew or had reason to know that Ms. Dantzler and Ms. Jackson were potential
alibi witnesses, Appellant would not be entitled to relief due to his failure to
include any supporting argument as to how the absence of testimony from
Ms. Dantzler and Ms. Jackson prejudiced Appellant to the point that he was
denied a fair trial. See Selenski, 228 A.3d at 16; Hardy, 918 A.2d at 771.
-7-
J-S13030-23
Initially, we note that Rule 1925(b)(4)(vii) of the Pennsylvania Rules of
Appellate Procedure states that any issue not included in a Rule 1925(b)
statement will be deemed waived on appeal. Pa.R.A.P. 1925(b)(4)(vii); see
also Commonwealth v. C. Davis, 273 A.3d 1228, 1239 n.5 (Pa. Super.
2022) (reiterating that an appellant’s failure to include an issue in a Rule
1925(b) statement results in waiver).
In the instant case, Appellant’s 1925(b) statement does not include a
claim that trial counsel was ineffective for failing to file a post-sentence
motion. See Appellant’s Rule 1925(b) Statement, 8/2/22. Accordingly, this
issue is waived for appellate review. See Pa.R.A.P. 1925(b)(4)(vii); C. Davis,
273 A.3d at 1239 n.5. Therefore, Appellant is not entitled to relief.
For the foregoing reasons, we affirm the PCRA court’s order denying
relief.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2023
-8-