Com. v. Smith, D.



                                            :           PENNSYLVANIA
                     v.                     :
DWAYNE SMITH,                               :          No. 2715 EDA 2019
                          Appellant         :

            Appeal from the PCRA Order Entered September 5, 2019,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0009240-2015



        Dwayne Smith appeals from the September 5, 2019 order, entered in

the Court of Common Pleas of Philadelphia County, denying his PCRA petition.1

After careful review, we affirm.

        The facts of this case, as found by the trial court, are as follows:

              [The victims,] Charles Marshall and his wife,
              Erica Townsend, . . . knew [appellant], who had lived
              with them in their apartment prior to the incident . . . .
              At some point, [appellant] was asked to leave over a
              dispute   involving     the   [victims’]    televisions.
              [Appellant] . . . did not return the keys, which
              included a “fob”, a device to gain access to the

              [The victims] were in the habit of going to withdraw
              money from a “MAC” machine in the early morning
              hours of the first of [the] month, which is when the
              funds from their social security checks became

1   42 Pa.C.S.A. §§ 9541-9546.
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            available. [Appellant] had driven them to do this on
            several occasions.

            Early in the morning hours of July 1, 2015, [the
            victims] went out to withdraw money, and then
            returned to their apartment. About one-half hour
            after returning home they heard a knock on the door.
            Thinking it was a friend [husband] had seen in the
            lobby[,] . . . he opened the door, whereupon he
            encountered [appellant and] an unknown male. The
            unknown male had a gun. He pushed [husband] into
            the corner and put the gun to his head. [Appellant]
            demanded money, stating that if [husband] didn’t
            give it up, he was going to shoot [husband]. They
            then entered the bedroom where the gun was aimed
            at [wife].    When [wife] fought for the money,
            [appellant] said to the unknown male that she must
            want to get shot. The male then put the gun to
            [wife]’s head and took $900 from her hands. [The
            victims] were warned that if they called the police they
            would be shot. [Appellant] and the male then left.

            Video of the apartment building showing [appellant]
            on the premises [was] shown to [wife] and introduced
            by stipulation.

            [Appellant] was stopped . . . at which time keys and
            the apartment entry device were found in his vehicle.
            The keys and device were identified by [the victims]
            as the same types of keys and device [appellant] had
            been given when living with them, but which [he] had
            not returned.

Trial court Rule 1925(a) opinion, 2/13/17 at 2-4 (citations to notes of

testimony omitted).

      After a bench trial on March 18, 2016, appellant was convicted of two

counts of robbery, conspiracy to commit robbery, one count of burglary, two

counts of terroristic threats, possessing an instrument of a crime, and various

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related offenses.”2 (Id. at 1.) Appellant was sentenced to an aggregate term

of 11½ to 25 years’ imprisonment, followed by 5 years’ probation.

        Appellant filed a pro se motion for modification of sentence on

August 12, 2016.3 A counseled appeal4 was filed on August 17, 2016. The

trial court ordered appellant to file a concise statement of errors complained

of on appeal, pursuant to Pa.R.A.P. 1925(b) on both September 26, 2016 and

November 16, 2016.5          Appellant filed his Rule 1925(b) statement on

December 7, 2016. A supplemental statement was filed on January 4, 2017.

The trial court filed its Rule 1925(a) opinion on February 13, 2017. This court

affirmed appellant’s judgment of sentence on March 14, 2018.                See

Commonwealth v. Smith, 

2018 WL 1311889

(Pa.Super. March 14, 2018)

(unpublished memorandum). Appellant did not file a petition for allowance of

appeal with our supreme court.

2 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 3502(a)(1)(i), 2706(a)(1), and 907,
respectively. As noted by the trial court: “[a]s to some of the charges of
which [appellant] was initially found guilty, the [trial c]ourt entered a
judgment of acquittal on August 1, 2016 The above-listed charges are only
the convictions upon which sentence was imposed.” (Trial court Rule 1925(a)
opinion, 2/13/17 at 1 n.1.)

3   The motion was denied by the trial court on August 29, 2016.

4 We note that appellant was represented by the Public Defender’s office at
trial and on appeal, albeit by different public defenders.

5   It is unclear from the record why the trial court entered the second order.

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        Appellant filed a timely pro se PCRA petition on August 3, 2018.

Counsel6 filed an amended PCRA petition on January 4, 2019. On June 25,

2019, the PCRA court filed notice of its intention to dismiss the petition

pursuant to Pa.R.C.P. 907. Appellant did not file a response. Appellant’s PCRA

petition was dismissed on August 1, 2019. On August 6, 2019, the PCRA court

granted appellant’s motion to vacate the dismissal of his PCRA petition.7 On

September 5, 2019, the PCRA court again dismissed appellant’s petition.

Appellant filed a timely appeal on September 17, 2019. The PCRA court did

not order appellant to file a Rule 1925(b) statement. On September 23, 2019,

the PCRA court advised this court that, pursuant to Pa.R.A.P. 1925(a)(1), the

findings applicable to this appeal appear in the footnote to its September 5,

2019 order.

        On appeal, appellant raises the following issues:

              I.    Whether the PCRA court erred in denying
                    [a]ppellant’s   PCRA   petition   without    an
                    evidentiary hearing on the issues raised in the
                    amended PCRA petition regarding trial counsel’s

              II.   Whether the PCRA court erred in not granting
                    relief on the PCRA petition alleging counsel was
                    ineffective for the following:

                    [a.]   Trial counsel was ineffective for his
                           unjustified failure to file an alibi

6 Although the record does not contain an order appointing counsel, it appears
that appellant’s PCRA counsel was court-appointed.

7   The motion does not appear of record.

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                   [b.]   Trial counsel was ineffective for
                          failing to raise the issue of video
                          surveillance evidence[?]

                   [c.]   Appellate counsel was ineffective
                          for failing to argue the denial of the
                          motion that the verdict was against
                          the weight of the evidence[?]

                   [d.]   Appellate counsel was ineffective
                          for failing to argue the denial of the
                          motion to reconsider sentence[?]

Appellant’s brief at 8.

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988

, 992 (Pa.Super. 2014) (citation omitted). “This Court grants

great deference to the findings of the PCRA court, and we will not disturb those

findings merely because the record could support a contrary holding.”

Commonwealth v. Hickman, 

799 A.2d 136

, 140 (Pa.Super. 2002) (citation

omitted). In order to be eligible for PCRA relief, a defendant must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

Further, these issues must be neither previously litigated nor waived. See

42 Pa.C.S.A. § 9543(a)(3).

      Appellant first contends the PCRA court erred in denying his PCRA

petition without a hearing. (See appellant’s brief at 6.) He argues that while

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the right to an evidentiary hearing is not absolute, “a [PCRA] court may not

summarily dismiss a PCRA petition when the facts alleged in the petition, if

proven, would entitle [a]ppellant to relief.” (Id. at 16.)

      Where a PCRA court has dismissed a petitioner’s petition without an

evidentiary hearing, as was the case here, we review the PCRA court’s decision

for an abuse of discretion. See Commonwealth v. Roney, 

79 A.3d 595

, 604

(Pa. 2013), certiorari denied, 

574 U.S. 829

(2014). Moreover,

              the right to an evidentiary hearing on a
              post-conviction petition is not absolute. It is within
              the PCRA court’s discretion to decline to hold a hearing
              if the petitioner’s claim is patently frivolous and has
              no support either in the record or other evidence. It
              is the responsibility of the reviewing court on appeal
              to examine each issue raised in the PCRA petition in
              light of the record certified before it in order to
              determine if the PCRA court erred in its determination
              that there were no genuine issues of material fact in
              controversy and in denying relief without conducting
              an evidentiary hearing.

Commonwealth v. Wah, 

42 A.3d 335

, 338 (Pa.Super. 2012) (citations

omitted). “[T]o obtain reversal of a PCRA court’s decision to dismiss a petition

without a hearing, an appellant must show that he raised a genuine issue of

fact which, if resolved in his favor, would have entitled him to relief, or that

the   court   otherwise    abused    its   discretion   in   denying   a   hearing.”

Commonwealth v. Johnson, 

139 A.3d 1257

, 1273 (Pa. 2016).                        We,

therefore, will proceed to address appellant’s four claims concerning the

ineffectiveness of his trial and/or appellate counsel.

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      To prevail on a claim of ineffective assistance of counsel under the PCRA,

a petitioner must establish the following three factors: “first[,] the underlying

claim has arguable merit; second, that counsel had no reasonable basis for

his action or     inaction; and third,      that [a]ppellant    was   prejudiced.”

Commonwealth v. Charleston, 

94 A.3d 1012

, 1020 (Pa.Super. 2014)

(citation omitted), appeal denied, 

104 A.3d 523

(Pa. 2014). “A claim of

ineffectiveness may be denied by a showing that the petitioner’s evidence fails

to meet any of these prongs.” Commonwealth v. Washington, 

927 A.2d 586

, 594 (Pa. 2007) (citations omitted).

      Furthermore,    “counsel    is   presumed    to   have   rendered   effective

assistance.   . . . [A] court is not required to analyze the elements of an

ineffectiveness claim in any particular order of priority; instead, if a claim fails

under any necessary element of the Strickland[8] test, the court may proceed

to that element first.”   Commonwealth v. Lesko, 

15 A.3d 345

, 374 (Pa.

2011) (citations omitted). “If it is clear that [a]ppellant has not demonstrated

that counsel’s act or omission adversely affected the outcome of the

proceedings, the claim may be dismissed on that basis alone and the court

need not first determine whether the first and second prongs have been met.”

Commonwealth v. Albrecht, 

720 A.2d 693

, 701 (Pa. 1998).

8 Strickland v. Washington, 

466 U.S. 668

(1984) (holding that to establish
ineffectiveness, appellant must show the underlying claim has arguable merit,
there was no reasonable basis for counsel’s actions or failure to act, and
appellant was prejudiced).

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      “[The] fact-based findings of a post-conviction court, which hears

evidence and passes on the credibility of witnesses, should be given great

deference, particularly where, as here, the PCRA court judge also served as

the trial court judge.”      Commonwealth v. Martin, 

5 A.3d 177

, 213 (Pa.

2010), certiorari denied, 

563 U.S. 1035

(2011). “[A]s multiple courts have

recognized, the trial court is in the best position to review claims related to

trial counsel’s error in the first instance as that is the court that observed

first hand counsel’s allegedly deficient performance.”       Commonwealth v.


813 A.2d 726

, 737 (Pa. 2002).

      Appellant’s first claim of ineffectiveness is that trial counsel was

ineffective for failing to file notice of an alibi defense. Appellant alleges that

the “[f]ailure to file an alibi defense is of arguable merit” and that he “suffered

actual prejudice” as a result, “[a]lthough it cannot be predicted with certainty

that the filing of an alibi notice would have changed the outcome of the trial.”

(Appellant’s brief at 19.)

       “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.


894 A.2d 716

, 717 (Pa. 2006) (citations and internal quotation

marks omitted). Our appellate courts have noted that a defendant may testify

about an alibi defense despite the fact that they did not file any written notice;

failure to file such notice only precludes the testimony of other witnesses who

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may corroborate a defendant’s testimony. See Commonwealth v. Nelson,

567 A.2d 673

, 677 (1989), appeal denied, 

592 A.2d 44

(Pa. 1990).

Pennsylvania Rule of Criminal Procedure 567(B)(1) specifically provides:

            If the defendant fails to file and serve the notice of
            alibi as required by this rule, the court may exclude
            entirely any evidence offered by the defendant for the
            purpose of proving the defense, except testimony
            by the defendant, may grant a continuance to
            enable the Commonwealth to investigate such
            evidence, or may make such other order as the
            interests of justice require.

Pa.R.Crim.P. 567(B)(1) (emphasis added).

      Here, on direct, appellant was asked whether he was in the apartment

building on July 1, 2015.

            [Appellant]: Nope, I was at Broad and Olney.[9]

            [Defense Counsel]: What were doing [sic] at Broad
            and Olney?

            [Appellant]: I’m a grinder.

            [Defense Counsel]: What is grinding?

            [Appellant]: I was hustling.

            [The Court]: Is there an alibi defense?

            [Defense Counsel]: No, [y]our [h]onor. We don’t
            have -- and with that I have no further questions.

9As found by a panel of this court, “[t]he intersection of Broad Street and
Olney Avenue is a busy commercial and transportation center about 1.2 miles
away from the 6600 block of Ogontz Avenue, the scene of the crime.”
Commonwealth v. Smith, 

2018 WL 1311889

*1 n.2 (Pa.Super. March 14,
2018) (memorandum opinion) (citation omitted).

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Notes of testimony, 3/18/16 at 108.

      On cross-examination, the following exchange occurred:

            [Commonwealth]: Do you have anybody in fact that
            can come into court to say that you were at Broad and
            Olney that night?

            [Appellant]: Ain’t no nobody [sic] here for me.

            [Defense Counsel]: Objection.

            [The Court]: Just as an alibi, is he claiming to have
            been some place [sic] else when this happened?

            [Defense Counsel]: Yes, [y]our [h]onor.

            [The Court]: Well when are you going to get into that?
            I am striking all of that. Was there notice to of [sic]
            any of that?

            [Commonwealth]: No, there was no notice.

            [The Court]: All right. So forget it. It didn’t happen.

            [Defense Counsel]: Yes, sir.

Id. at 108-109.

      Here, appellant has failed to set forth, in his PCRA petition or his

appellate brief, any alibi evidence that would have been subject to the notice

requirements of Pennsylvania Rule of Criminal Procedure 567(A). Moreover,

appellant has neither identified an alibi witness nor claimed:

            that (1) [a] witness existed; (2) [a] 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

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            witness was so prejudicial as to have denied the
            defendant a fair trial.

Commonwealth v. Johnson, 

966 A.2d 523

, 536 (Pa. 2009) (citation

omitted). Counsel cannot be found ineffective for failing to file an alibi notice

where one was not required. See Commonwealth v. Sneed, 

45 A.3d 1096


1115 (Pa. 2012) (“Counsel will not be deemed ineffective for failing to raise a

meritless claim.”).   Further, appellant suffered no prejudice10 because, as

noted by the PCRA court, “[appellant]’s claim of not being at the premises at

July 1, 2015, is belied by the video (and still images) showing appellant

entering the premises on July 1, 2015.” (PCRA court order, 9/5/19 at 1 n.1

¶ (1); Commonwealth Exhibits 3, 4, and 5.) The PCRA court did not abuse its

discretion in finding appellant’s first claim of ineffectiveness was without merit,

as there were no issues of material fact in controversy.

      Appellant’s second ineffectiveness claim is that “[t]rial counsel was

ineffective for failing to raise the issue of video surveillance evidence.”

(Appellant’s brief at 19.) At trial, appellant’s trial counsel stipulated to the

admissibility of the video, and that it was “a fair and accurate representation

of what the video captured that night in the apartment building.” (Notes of

testimony, 3/18/16 at 94-95.) Appellant argues that:

10If there was a Rule 567(B)(1) violation, appellant cannot establish prejudice
because there was overwhelming testimony from the victims that appellant
had lived with them for months, was one of the perpetrators of the crimes for
which he was convicted, and the victims informed the police that appellant
was the perpetrator. (See notes of testimony, 3/18/16 at 14, 19, 24, 26, 27,
32-34, 49, 57, 61, 68-71, 77-79, 81, and 89.)

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            [He] never saw the video himself and when he asked
            to see the video, he was only show [sic] two black and
            white still images. This video was not available to
            appellant during the discovery process. Failure to
            raise issue of this video evidence is of arguable merit.
            Additionally, there was no “reasonable basis” for
            [trial] counsel to fail to raise issue of the video
            evidence. Finally, [trial] counsel’s failure to raise
            issue of the evidence is of great prejudice to
            [a]ppellant as the introduction of this evidence
            impacted the witness identification.

Appellant’s brief at 19-20. Appellant, however, does not explain how the video

affected the victims’ identification testimony.

      Here, appellant fails to properly develop his claim and set forth

applicable case law, in violation of Pa.R.A.P. 2119(a). The issue is, therefore,

waived.    See Commonwealth v. Ellis, 

700 A.2d 948

, 957 960, 969

(Pa.Super. 1997) (finding issue waived where appellant fails to develop claim

or cite to legal authority in appellate brief), appeal denied, 

727 A.2d 127

(Pa. 1998); see also Commonwealth v. Brown, 

161 A.3d 960

, 969

(Pa.Super. 2017), appeal denied, 

176 A.3d 850

(Pa. 2017). Even if we were

to review this claim, no relief would be warranted.

      As found by the PCRA court, “[t]here is no basis for concluding that the

video and still photos were not provided before trial.” (PCRA court order,

9/5/19 at 1 n.1 ¶ (2).) “Assuming, arquendo, that the video and still photos

from the video were not provided pre-trial, [appellant] has not alleged or

demonstrated any prejudice he suffered from not having the video and still

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images available to him before trial.” (Id.) Further, appellant does proffer an

expert who would testify that the video and photos do not depict him. (Id.)

      The PCRA court’s findings are supported by the record. Further, in view

of the identification testimony of the victims, appellant cannot establish

prejudice.   Thus, appellant’s claim of the ineffectiveness of trial counsel,

vis-à-vis the admission of the video, lacked merit, and the PCRA court properly

dismissed it.

      The third claim of ineffectiveness raised by appellant is that his direct

appeal counsel failed to argue on appeal that the verdict was against the

weight of the evidence.11 Appellant contends that the victims contradicted

themselves “[o]n nearly every detail,” and that the Commonwealth “at trial

relied on no other evidence but the oral testimony of” the victims. (Appellant’s

brief at 21, 22.) Initially, appellant’s contention is belied by the record. As

found by the trial court, “the physical evidence in the form of the keys and fob

in [appellant]’s possession after the incident, along with the video placing him

in the lobby of the building at the time of the incident, corroborated the

victims’ testimony.    (See trial court Rule 1925(a) opinion, 2/13/17 at 7

(citations to exhibits omitted).)

11 Appellant’s trial counsel filed a motion for extraordinary relief on July 28,
2016, where appellant’s claim that the verdict was against the weight of the
evidence was addressed in detail. (See appellant’s motion for extraordinary
relief, 7/28/16 at unnumbered 1-3, ¶¶ 3-27.) On August 1, 2016, the trial
court granted a partial judgment of acquittal.

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      The appellate standard of review of a weight of the evidence claim is as


            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question
            of whether the verdict is against the weight of the
            evidence.     Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court’s determination
            that the verdict is against the weight of the evidence.
            One of the least assailable reasons for granting or
            denying a new trial is the lower court’s conviction that
            the verdict was or was not against the weight of the
            evidence and that a new trial should be granted in the
            interest of justice.

Commonwealth v. Clay, 

64 A.3d 1049

, 1055 (Pa. 2013) (citations and italics


      In its opinion, the PCRA court, which was also the trial court, found that

“[a] challenge to the weight of the evidence, even if raised by appellate

counsel, would have been meritless. It cannot be said that the verdict was so

contrary to the evidence as to shock one’s sense of justice.”      (PCRA court

order, 9/1/19 at 2 n.1 ¶ (3), citing Commonwealth v. Chamberlain,

30 A.3d 381

, 396 (Pa. 2011).)

      Appellant has not shown that there was any likelihood for the claim to

succeed on direct appeal. As discussed above, the evidence against appellant

was strong, and there was no basis to find that the PCRA court palpably

abused its discretion in dismissing appellant’s weight of the evidence claim.

Appellant has not demonstrated that but for direct appellate counsel’s failure

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to preserve his weight of the evidence claim, the result of his direct appeal

would have been different. Furthermore, appellant has raised no genuine

issues of material fact. Accordingly, we conclude the PCRA court did not abuse

its discretion in dismissing appellant’s claim that direct appellate counsel was

ineffective for failing to raise the issue on direct appeal because it is supported

by the record and free from legal error.

      Appellant’s final claim of ineffectiveness is that direct appeal counsel

failed to argue the denial of appellant’s motion for reconsideration of sentence

on direct appeal. (Appellant’s brief at 8.) Appellant contends “the [trial] court

did not give sufficient attention to factors such as [a]ppellant’s rough

childhood upbringing being in and out of group homes and lacking a proper

family structure.” (Id. at 23-24.) He further asserts that “the [trial] court

did not state on the record any of the relevant sentencing factors required of

a sentencing when imposing a sentence.” (Id. at 24.)

      Here, appellant’s brief does not cite to the sentencing transcript in

support of his contentions regarding sentencing.         See Pa.R.A.P. 2119(c)

(providing “[i]f reference is made to . . . any other matter appearing in the

record, the argument must set forth, in immediate connection therewith, or in

a footnote thereto, a reference to the place in the record where the matter

referred to appears”). “When an allegation is unsupported [by] any citation

to the record, such that this [c]ourt is prevented from assessing [the] issue

and determining whether error exists, the allegation is waived for purposes of

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appeal.” Commonwealth v. Williams, 

979 A.2d 387

, 393 (Pa.Super. 2009).

Thus, appellant’s final claim of ineffectiveness is waived.

      We further note, that in addressing appellant’s final claim, the PCRA

court found as follows:

            A challenge to the discretionary aspects of sentence,
            even if raised by appellate counsel, would have been
            meritless. The [trial c]ourt made a clear and complete
            record regarding the reasons for the sentence
            imposed. [Appellant] does not raise a substantial
            question that would have been a basis for appellate
            review of his sentence, let alone any showing that this
            [trial] court abused its discretion.

PCRA court order, 9/1/19 at 2 n.1 ¶ (4) (citation to record omitted). Thus,

even if appellant had properly preserved this issue, the PCRA court did not

abuse its discretion in denying appellant’s claim.

      Appellant has failed to show that “he raised a genuine issue of fact

which, if resolved in his favor, would have entitled him to relief, or that the

court otherwise abused its discretion in denying a hearing.” 

Johnson, 139 A.3d at 1273

.     As discussed, there was no merit to appellant’s underlying

ineffectiveness claims. Accordingly, we discern no error on the part of the

PCRA court in dismissing appellant’s petition without conducting an

evidentiary hearing.

      For the foregoing reasons, we affirm the September 5, 2019 order of

the PCRA court.

      Order affirmed.

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Judgment Entered.


Date: 12/28/2020

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