Commonwealth v. Shaw

1

COMMONWEALTH OF PENNSYLVANIA v. ANTHONY SHAW Appellant

No. 371 EDA 2022

J-A28011-22

Superior Court of Pennsylvania

May 9, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered January 12, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s) CP-23-CR-0006238-2010

BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM

PANELLA, P.J.

Anthony Shaw brings this appeal from the order dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546 which was reviewed by the PCRA court following a remand from our Supreme Court. Upon careful review, we affirm.

The history of this case is long and tortuous. On November 30, 2009, Shaw and an accomplice participated in a home invasion of an apartment in Darby Borough. During the incident, the two men demanded money and assaulted Alex Adebisi. Shaw shot Adebisi in the thigh and chest before fleeing. Adebisi identified both Shaw and the accomplice in separate photo arrays that Adebisi viewed on different days.

Prior to trial, defense counsel filed an alibi notice on behalf of Shaw, which identified two alibi witnesses, April Wynn and Devon Crowley.^[1] However, at trial only Wynn testified, and she indicated that Crowley was not with Wynn and Shaw at the specific time of the incident. Wynn explained that she was with Shaw at a shopping mall in a different county at the time of the shooting. In his closing argument, trial counsel discussed the alibi notice and explained to the jury that Crowley was mentioned in the notice because Crowley would have discussed Shaw's whereabouts for the portion of the day before Shaw was with Wynn.

On September 14, 2011, a jury convicted Shaw of attempted murder, robbery, aggravated assault, burglary, firearms not to be possessed without a license, possession of an instrument of crime ("PIC"), and criminal conspiracy to commit the following crimes: aggravated assault, robbery, and burglary. On December 15, 2011, the trial court sentenced Shaw to serve an aggregate term of incarceration of fifteen to thirty years, followed by five years of probation. Shaw filed timely post-sentence motions, which the trial court eventually denied. On direct appeal this Court affirmed Shaw's judgment of sentence and our Supreme Court denied allowance of appeal. See Commonwealth v. Shaw, 2795 EDA 2013, 105 A.3d 794 (Pa. Super. filed July 17, 2014) (unpublished memorandum), appeal denied, 106 A.3d 726 (Pa. 2015).

On November 5, 2015, Shaw filed, pro se, the instant PCRA petition. The PCRA court appointed attorney Stephen Molineux to represent Shaw, and counsel filed an amended PCRA petition. Shaw included a claim that trial counsel was ineffective for failing to amend the alibi notice before trial to remove the reference to Crowley. The PCRA court held an evidentiary hearing and denied relief. Shaw took an appeal to this Court, and attorney Molineux did not present the issue of trial counsel's effective assistance concerning the alibi notice in Shaw's Pa.R.A.P. 1925(b) statement. Attorney Molineux withdrew, and Shaw retained new appellate counsel. New appellate counsel asserted attorney Molineux's ineffectiveness in failing to preserve the only issue litigated at the PCRA hearing. A panel of this Court agreed with Shaw's claims, reversing the PCRA court order, vacating the judgment of sentence, and remanding the case for a new trial. See Commonwealth v. Shaw, 214 A.3d 283 (Pa. Super. 2019), vacated on appeal, 247 A.3d 1008 (Pa. 2021).

The Commonwealth took an appeal, and our Supreme Court vacated this Court's order and remanded the matter to the PCRA court to afford Shaw the opportunity to create an evidentiary record to meet his burden of demonstrating ineffectiveness. See Commonwealth v. Shaw, 247 A.3d 1008, 1017 (Pa. 2021). On remand, the PCRA court held an evidentiary hearing on September 24, 2021. The PCRA court denied relief and this appeal followed.^[2]

Shaw now presents challenges to the PCRA court's determinations concerning the effective assistance of both trial and PCRA counsel. Shaw's claims addressing trial counsel's assistance stem from the handling of an alibi notice prepared and filed by trial counsel. The challenges to the assistance of PCRA counsel stem from counsel's presentation and preservation of the ineffective assistance claim against trial counsel.^[3] Our standard of review for an order denying PCRA relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. See Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. See id.

Shaw's issues present claims of ineffective assistance of counsel. Concerning ineffective assistance of counsel arguments, we presume counsel is effective, and Shaw bears the burden to prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012). To establish a right to relief, Shaw must demonstrate: (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different. See Commonwealth v. Solano, 129 A.3d 1156, 1162-1163 (Pa. 2015).

We observe that claims of ineffective assistance of counsel are not self-proving. See Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002). "[A] post-conviction petitioner must, at a minimum, present argumentation relative to each layer of ineffective assistance, on all three prongs of the ineffectiveness standard…." Commonwealth v. D'Amato, 856 A.2d 806, 812 (Pa. 2004) (citation omitted). "A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation omitted).

Under the first prong of the ineffectiveness test, an appellant is not entitled to relief if his underlying legal has no merit. See Commonwealth v. Ousley, 21 A.3d 1238, 1246 (Pa. Super. 2011). In short, counsel cannot be deemed ineffective for failing to pursue a meritless claim. See Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

Regarding the second prong, we have reiterated that counsel's approach must be "so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000) (citation omitted). Our Supreme Court explained our review of reasonableness as follows: "Our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record." Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (citation omitted).

Concerning the third prong, we are mindful that prejudice requires proof that there is a reasonable probability that but-for counsel's error, the outcome of the proceeding would have been different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). When an appellant has failed to meet the prejudice prong of an ineffective assistance of counsel claim, the claim may be disposed of on that basis alone, without a determination of whether the first two prongs have been met. See Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).

Here, Shaw first argues that his trial counsel was ineffective for failing to properly investigate Shaw's alibi, to file an accurate alibi notice, or to subsequently correct the alibi notice. See Appellant's Brief at 20-29. Shaw posits that trial counsel's failure to properly interview potential witnesses resulted in counsel filing the inaccurate alibi notice. Shaw contends that he suffered prejudice because the inaccurate alibi notice made it appear as though Shaw was lying about the existence of an alibi and his own innocence. See id. at 52-58. Essentially, he claims that, but for trial counsel's actions, the outcome of his trial would have been different.

Upon review of the record, we conclude Shaw failed to establish that he suffered prejudice from trial counsel's handling of the alibi notice. At trial, Wynn testified that she and Shaw were alone at the time of the shooting. See N.T., 9/14/11, at 149-55. On cross-examination, the prosecutor, after noting that an alibi notice was not prepared by Wynn but by trial counsel, asked Wynn if she would be surprised to learn the alibi notice indicated Shaw was with Wynn and also Crowley See id. at 174-77. The prosecutor's questioning of Wynn confirmed that Crowley, Shaw and Wynn were not together at the same time. See id. at 175-76. Thereafter, trial counsel questioned Wynn on redirect examination and reiterated the fact that trial counsel and not Wynn prepared the alibi notice. See id. at 182. Wynn further testified that Shaw "could have been" with Crowley earlier in the day. See id. at 185.

Further, during his closing argument, trial counsel reiterated his purpose for including Crowley in the alibi notice, reminding the jury that his purpose for including Crowley in the alibi notice was because Shaw had been with Crowley earlier in the day. N.T., 9/14/11, at 217-20. Regarding the implication that the alibi notice somehow negatively affected Wynn's credibility, trial counsel offered the following to the jury:

now mind you, [Wynn] never filed that alibi -- the witness, okay, she never saw it. [W

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