Commonwealth v. Shaw

247 A.3d 1008

COMMONWEALTH of Pennsylvania, Appellant

v.Anthony SHAW, Appellee

No. 21 MAP 2020

Supreme Court of Pennsylvania.

Submitted: September 17, 2020

Decided: March 25, 2021

OPINION

CHIEF JUSTICE SAYLOR

In light of the statutory, one-year limitation on the time during which a petition for relief from a judgment of sentence may be filed under the Post Conviction Relief Act, difficult issues have arisen regarding the extent to which a petitioner's rule-based right to effective counsel in post-conviction matters may be vindicated. Presently, the Superior Court determined that certain redress may be afforded during post-conviction appeals, and the Commonwealth challenges this ruling.

I. Background

On November 30, 2009, apparently in the 7:00 p.m. to 7:20 p.m. timeframe, Appellee shot the victim, Alex Adebisi, at the victim's apartment in Darby Borough, which is near Philadelphia. Subsequently, Appellee was tried jointly with a co-perpetrator for attempted murder and other offenses. At the pretrial stage, Appellee's counsel filed a notice of alibi under Rule of Criminal Procedure 567(A). Under this rule, a defendant who intends to present an alibi defense at trial must file a notice containing:

specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses whom the defendant intends to call in support of the claims.

Pa.R.Crim.P. 567(A)(2).

The notice submitted by Appellee's counsel identified two alibi witnesses, April Wynn and Devon Crowley. Further, the notice provided:

The Defendant contends that all the time of the commission of the alleged crimes, he was with April Wynn, who resides at [a specific address in Philadelphia] and Devon [Crowley], who resides at [another specific address in Philadelphia].

* * *

The substance of the testimony of April Wynn and Devon [Crowley] will be that at the time of the commission of the alleged crimes, Defendant Anthony Shaw was with them and they were in Philadelphia and not in Darby at 127 North Front Street at the time of the alleged assault upon [the victim].

Notice of Alibi Defense dated Apr. 29, 2011, in Commonwealth v. Shaw , No. 6238-10 (C.P. Delaware), at 1-2 (emphasis added).

At trial, however, only Ms. Wynn was called by the defense to testify concerning the alibi. She stated that Appellee arrived at her house on November 30 in the 5:30 p.m. to 6:00 p.m. timeframe. See N.T., Sept. 14, 2011, at 154. Further, she attested that the pair rode in an unlicensed cab to Willow Grove Mall in Philadelphia's northern suburbs, arriving around 7:00 p.m. -- i.e. , as the crimes on the west side of Philadelphia in Darby were unfolding -- returning to her home after 11:00 p.m. See id. at 154-55.

During her cross-examination of Ms. Wynn, the prosecutor referred to the notice of alibi to impeach the veracity of Appellee's alibi. Trial counsel objected, as follows:

Your Honor, the Commonwealth apparently -- is attempting to impeach this witness with my alibi notice. It's not her statement. It's not -- and had the Commonwealth interviewed these people the -- I think what the Commonwealth's trying to show is that these two people were together and that's not what we're saying at all .

N.T., Sept. 14, 2011, at 170 (emphasis added).¹ The trial court overruled this objection.

The prosecutor then asked Ms. Wynn: "[W]ould it surprise you that this notice says that Anthony Shaw was with you and -- and Devon [Crowley] and that you all were in Philadelphia" at the time of the shooting. Id. at 175 (emphasis added). The witness replied that Ms. Crowley was not present with her and Appellee in the relevant time period. See id. at 175-76.

After the Commonwealth concluded the cross-examination, Appellee's counsel asked for a sidebar conference and moved for a mistrial, and the following interchange ensued:

[COUNSEL]: Your Honor, I just want to put on the record that the -- what was just done was improper. The Court's ruling was an egregious error and it results in a mistrial -- and -- and [I am] moving for a mistrial to this extent, Judge. Under the rules -- I complied with the rules. I gave the alibi notice. Now, had the Commonwealth done their job and sen[t] investigators out to talk to both of these people, it would be clear that they weren't all together at the same time . I prepared that. She didn't prepare it, okay. And she's not responsible for what it says, okay. Now, she gives her -- she was -- the reason her name is on there is so she could offer her portion of the testimony. ...

THE COURT: The testimony given by the witness would appear to be a contradiction of the alibi witness [notice] that you supplied; and to that extent the Commonwealth's attorney was entitled to explore it.

Id. at 178-79 (emphasis added).

In his closing remarks, trial counsel discussed the notice of alibi extensively, taking responsibility for having drafted and submitted it and explaining that, because witnesses had made statements indicating that the perpetrators were in Darby during the afternoon on November 30, he had identified Ms. Crowley to attest to Appellee's whereabouts at that time. In this vein, counsel advised the jurors:

So one part of the day we had one witness. The latter part we had a second witness, okay. And what the alibi notice doesn't say that we were altogether [sic]. ... [Ms. Wynn has] just testified as to where [Appellee] was from 5:30 to around 11:30, midnight, okay. If Ms. [Crowley] were called, again, we didn't have to call Ms. [Crowley] because they concentrated their portion of the case on the evening part of what happened, the shooting itself. But had they got into the other evidence and it was necessary, Ms. [Crowley] would have been available.

Id. at 218-219 (emphasis added).

For the prosecutor's part, she succinctly highlighted to the jury that:

There was no Devon [Crowley] with [Appellee and Ms. Wynn] at the time of the commission of the crime. And I would suggest to you that [Appellee] was not at the Willow Grove Mall or in some hack on his way to the Willow Grove Mall. He was in [the victim's] apartment, holding a gun[.]

Id. at 252.

After Appellee was convicted and an unsuccessful direct appeal was concluded, see Commonwealth v. Shaw , 105 A.3d 794 (Pa. Super. 2014) (per curiam ), appeal denied , 630 Pa. 736, 106 A.3d 726 (2015), he lodged a petition under the Post Conviction Relief Act. See 42 Pa.C.S. §§ 9541 - 9546 (the "PCRA"). In the proceedings before the post-conviction court, Appellee pursued a claim that his trial counsel was ineffective for failing to amend the alibi notice prior to trial to remove the reference to Ms. Crowley. Attorney Stephen Molineux served as post-conviction counsel at the original-jurisdiction stage.

During an evidentiary hearing limited to the alibi-related claim, trial counsel testified that he had been retained by Appellee's mother, Monique Shaw, who provided him with "a myriad of information" and assisted in coordinating with witnesses. N.T., April 5, 2018, at 30-31, 36 (depicting Mrs. Shaw as the "point person" in communicating with Ms. Wynn and Ms. Crowley). Counsel related that Appellee had said that he was with Ms. Crowley in the afternoon of November 30 from around 4:00 p.m. to 5:30 p.m. Consistent with his explanation to the jurors at trial, counsel explained that this was significant since Commonwealth witnesses placed the perpetrators in Darby during this time period. See id. at 32-33, 52, 55-56. Although counsel indicated that he met with Ms. Wynn several times prior to trial, he acknowledged that he had never met with Ms. Crowley. See id. at 35, 51. But, according to counsel, he always expected Ms. Crowley to testify, and again, was depending upon Monique Shaw to produce the witness. See id. at 37, 40-41, 52 ("I essentially relied on Mrs. Shaw -- okay."), 53 ("I mean she delivered April [Wynn] and I expected Mrs. [Crowley] to be produced.").

At some point, however, counsel remembered that "there may have been a conversation with Monique Shaw that Mrs. -- something to the effect that there may have been some issue concerning Mrs. Crowley -- her inability to get in touch with her[.]" Id. at 38; see also id. at 41 ("[I]t's coming back to me -- that [Mrs. Shaw] couldn't get in touch with Devon [Crowley]"). Counsel maintained, however, that he had never been told in advance of trial that Ms. Crowley wouldn't appear or cooperate. See id. at 51-52. Had counsel known in advance that Ms. Crowley would not be available to testify, he said that he would have advised Appellee of the option to amend the alibi notice or leave it as is and "see what happened." Id. at 39.

On cross-examination, Attorney Molineux engaged in the following dialogue with trial counsel:

Q Now, .. you would agree that your Notice of Alibi ... merely indicated that [Appellee] was with Devon [Crowley] and Ms. [Wynn]. Is that correct?

A Right. And somewhere in Philadelphia -- I mean it doesn't say that they were together at the same time, that he was with these women at the same time. It just says that he wasn't --

Q You would agree it says he was with them. Would that be accurate?

A He was with them. Right.

Q In Philadelphia at the time of the alleged commission of this crime?

A Let me just make sure. Yes. That -- it says that they -- that [Appellee] was with them and they were in Philadelphia and not in Darby at that address at the time of the alleged assault . Yes. That's what it says.

Id. at 49-50 (emphasis added). This is the first instance in which counsel seems to have apprehended the notice's clear import in depicting that Appellee, Ms. Wynn, and Ms. Crowley all were together at the time of the shooting.

Maintaining that there was no need to amend the alibi notice, trial counsel also reiterated that:

I thought it was error to permit the alibi notice to be used by the Commonwealth to impeach the witness, April [Wynn], where she would have to explain what I wrote. ... I didn't agree that I

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