J. S30026/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARK ANTHONY ENDRES, : No. 3045 EDA 2014
:
Appellant :
Appeal from the PCRA Order, August 22, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0001356-2011
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 17, 2015
Mark Anthony Endres, appeals, pro se, from the order of August 22,
2014, dismissing his Post Conviction Relief Act (“PCRA”) petition. 1 We
affirm.
The trial court has summarized the facts of this case as follows:
On June 1, 2011, following the denial of his motion
to compel the production of the confidential
informant, Appellant was found guilty of Possession
with Intent to Deliver and Possession of a Controlled
Substance in the subsequent waiver trial before the
court. The evidence at trial showed that, on
November 4, 2010, between the hours of 2 P.M. and
7 P.M., [a]ppellant sold heroin to a confidential
informant (CI) inside the his [sic] barber shop (shop)
located at 1022 S. 9th St. in Philadelphia.
Philadelphia Police Officer Peggy McGrory, testified
that she was alerted to drug sales occurring at
[a]ppellant’s shop by the CI she used to make the
1
See 42 Pa.C.S.A. §§ 9541-9546.
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buy on November 4, 2010. Before entering
[a]ppellant’s barber shop, the CI was searched and
no drugs were found. Officer McGrory then observed
the CI engage in a drug transaction with [a]ppellant
from her position on the sidewalk across the street
as she looked into the window and door of the
[a]ppellant’s shop. Her view was unobstructed and
she was not using any optics to enhance her vision.
Officer McGrory clearly observed the transaction
between [a]ppellant and the CI which occurred
towards the rear of the barber shop and lasted about
five minutes. She described the seller as a white
male between 5’ 8” and 5’ 11” with short hair and a
mustache. Officer McGrory testified further that, at
the time, there was an employee in the shop along
with [a]ppellant, and that there may have been
someone getting a haircut. Officer McGrory never
lost sight of the CI while he or she was inside
[a]ppellant’s shop. The CI returned to
Officer McGrory with four packets of heroin. On
November 6, 2010, a search warrant was obtained
and the [a]ppellant’s shop was searched. Pursuant
to the search warrant, approximately five grams of
marijuana was found in a hat in a storage room at
the back of the shop. Officer McGrory identified
[a]ppellant as the person that engaged in the drug
sale with the CI and [a]ppellant was arrested. At the
time of his arrest, [a]ppellant had an Oxycodone pill
and Clonazapam pills for which he had a
prescription.
At trial, [a]ppellant testified that he was in and
out of his shop on the day of the drug transaction.
He also testified that he employed two women at his
shop. Appellant stated that a lot of people were in
the shop getting their hair cut on the day of the drug
buy. A page from the [a]ppellant’s appointment
book dated November 4, 2010 that contained names
and times of appointments was presented at trial.
Some of the names on the document were not
complete. There was a reference to a “Jeff, German
lawyer”[Footnote 2] and a “former BC/BS guy.”
While that date in his appointment book appeared to
be full, [a]ppellant insisted that he could still have
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been in and out of his shop under those
circumstances. None of the persons identified on the
page of the appointment book testified at trial.
Following presentation of all the evidence, appellant
was found guilty. On July 19, 2011, following denial
of his oral motion for reconsideration of sentence
and the testimony of several character witnesses,
[a]ppellant was sentenced to two and one half to five
years[’] incarceration and made work release
eligible. He did not file a direct appeal.
[Footnote 2] This individual was later
identified as Jeff Adeli at the PCRA
hearing.
On October 13, 2011, [a]ppellant timely filed a
pro se PCRA petition and PCRA counsel was
appointed. Subsequently, [a]ppellant retained
private counsel who filed an amended petition
alleging that trial counsel was ineffective for failing
to investigate or call the witnesses identified in
[a]ppellant’s appointment book and for failing to
pursue an alibi defense as [a]ppellant allegedly
requested him to do. The Commonwealth filed a
motion to dismiss on August 27, 2013 to which
[a]ppellant filed a response on August 28, 2013.
After carefully reviewing all of the submissions and
relevant law, the Court filed a notice to dismiss on
September 20, 2013. Both [a]ppellant and counsel
filed a response to the notice to dismiss. On
November 1, 2013, the case was continued to permit
PCRA counsel to conduct further investigation.
Thereafter, on April 4, 2014, an evidentiary hearing
was conducted on the issues raised in [a]ppellant’s
petition. Appellant testified that he gave trial
counsel a copy of the November 4, 2010
appointment schedule from his appointment book.
The appointment schedule did not contain the full
names of all individuals and contained no contact
information. Appellant said that he told trial counsel
that the patrons listed would prove that he did not
engage in a drug transaction in his shop on that
date. Initially, he testified that he told trial counsel
to contact the listed individuals. However, on
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cross-examination [a]ppellant could not recall
whether trial counsel instructed him to have the
potential witnesses contact him, but stated that if
counsel had instructed him to contact the patrons,
he would have. He did not provide trial counsel with
any contact information. Appellant further testified
that trial counsel had discussed trial strategy with
him and decided to pursue the defense theory of
mistaken identity with which appellant agreed. In
addition, [a]ppellant admitted that he modified the
appointment schedule after his arrest by writing in
that an individual arrived earlier than he was actually
scheduled. There were also other notations written
on the document post arrest. Both versions of the
appointment schedule were presented during the
hearing. The one given to trial counsel prior to trial
and presented at trial did not include the
modifications made by the [a]ppellant after his
arrest.
Trial counsel also testified at the hearing
stating that he met with [a]ppellant many times to
prepare for trial including apprising [a]ppellant of
what his defense strategy would be. Counsel
testified that given the limited information contained
in the appointment book it would have been difficult
to contact the witnesses. He also stated that he
instructed the [a]ppellant to give him contact
information for the witnesses or have the witnesses
contact him directly.
Appellant called three witnesses during the
evidentiary hearing: Mr. James Porreca, Mr. Jeff
Adeli and Mr. Joseph Stivala. Mr. Porreca testified
that he arrived at the shop sometime between 2 P.M.
to 3 P.M. and stayed in the shop for an hour to an
hour and a half. He stated that the [a]ppellant never
left the shop during the time he was there. He also
testified that he did not witness a drug transaction
while he was in the shop. On cross examination
Mr. Porreca did not have an independent recollection
of what date he was in the shop. He stated that he
knew he was in the shop on the date of the crime
because it was the date the [a]ppellant was arrested.
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When presented with the fact that the [a]ppellant
was arrested two days after the events in question,
Mr. Porreca said he just knew he was present the
day in question. He could not articulate how he
came to know this except that he heard it from
someone after the fact. He also stated that there
were other people in the shop, but he did not know
who they were. Mr. Porreca did not contact the
[a]ppellant’s trial counsel and was under the
impression that counsel would contact him.
Additionally, he noted that the [a]ppellant had his
phone number and that he knew [a]ppellant his
whole life. Finally, Mr. Porreca testified that he had
never witnessed a drug transaction in his life.
Mr. Adeli testified that he was in the shop from
approximately 3 P.M. to 3:30 or 4 P.M. He stated
that the [a]ppellant was with him the whole time and
that he did not see a drug transaction. On cross
examination, Mr. Adeli had no independent
recollection of [the] date he was at the shop. He
stated he knew he was there because the [a]ppellant
told him he was in the shop on the date in question.
He also said that there were other people in the
shop, but he did not know who they were. Mr. Adeli
also never contacted trial counsel. He also testified
that he had never seen a drug transaction in his life.
Mr. Stivala testified that he was at the shop
from 4:30 P.M. to either 5:30 or 6 P.M. He stated
that the [a]ppellant did not leave the area of the
barber’s chair while he was in the shop. He further
stated that he had never witnessed a drug
transaction. On cross examination, Mr. Stivala had
no independent recollection of the date he was in the
shop. When pressed, he said he remembered the
date because of its association with astrological
signs. He later admitted that it was the [a]ppellant
who told him he was in the shop on the date in
question. He also testified that there was a
customer seated in the barber chair when he entered
the shop and that there was [sic] no other customers
in the shop after he left. Mr. Stivala testified that he
told the [a]ppellant that he was available for trial,
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but did not contact counsel. He also stated that he
had witnessed one or two narcotics transactions in
his life.
Following the hearing, [a]ppellant submitted a
post hearing brief on May 15, 2014 and the
Commonwealth submitted their response on May 28,
2014. On September 23, 2014, after carefully
reviewing all of the submissions and the notes of
testimony from the evidentiary hearing, the Court
entered an order denying [a]ppellant’s petition for
PCRA relief. This appeal followed.
Trial court opinion, 12/24/14 at 1-5 (footnote one omitted).
The following issues have been presented for our review:
1. Did the [PCRA] Court err in failing to find that
trial counsel was ineffective for failing to
investigate known witnesses who were in
[appellant’s] shop and would have testified
that no drug transaction took place while they
were there[?]
2. Did the [PCRA] Court err in failing to find that
trial counsel was ineffective for failing to call
known witnesses at trial who would have
testified that they were in [appellant’s] shop
and would have testified that no drug
transaction took place while they were there[?]
3. Did the [PCRA] Court err in failing to find trial
counsel ineffective for failing to follow
[appellant’s] request for an “alibi” defense
(customers were in the shop who would have
testified that they did not observe a drug
transaction) but instead limited the defense to
challenging the identification by
Officer McGrory?
Appellant’s brief at 4.
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Our standard of review for an order denying post-conviction relief is
whether the record supports the PCRA court’s determination, and whether
the PCRA court’s determination is free of legal error. Commonwealth v.
Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record. Id.
Moreover, as most of appellant’s issues on appeal are stated in terms
of ineffective assistance of counsel, we also note that appellant is required to
make the following showing in order to succeed with such a claim: (1) that
the underlying claim is of arguable merit; (2) that counsel had no reasonable
strategic basis for his or her action or inaction; and (3) that, but for the
errors and omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different. Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any
prong of this test will cause the entire claim to fail. Commonwealth v.
Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed
to be effective, and appellant has the burden of proving otherwise.
Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).
We find no error with the PCRA court’s holding. After a thorough
review of the record, the briefs of the parties, the applicable law, and the
well-reasoned opinion of the PCRA court, it is our determination that there is
no merit to the questions raised on appeal. First, appellant argues that
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counsel was ineffective for failing to present Porreca, Adeli, and Stivala as
alibi witnesses. Appellant avers they were each in the barbershop and would
have served as alibi witnesses. Here, counsel testified that the appointment
book at the barbershop did not have proper contact information for the listed
customers. For instance, there were entries in the appointment book for
“Jeff the German Lawyer,” “Jerry from C and E,” and “Former BC/BS Guy.”
(Notes of testimony, 4/4/14 at 88, 98.) Counsel told appellant that any
potential witnesses could contact him and provide their potential testimony.
(Id. at 99-100.) Appellant never supplied counsel with the necessary
information. Porreca testified that appellant never provided him with trial
counsel’s contact information. Adeli testified that appellant never asked him
to speak with his attorney. (Id. at 44-45, 58-59.) Stivala testified that he
never spoke with counsel and was not aware of appellant’s trial. (Id. at 76-
77.)
Furthermore, at the PCRA hearing, none of the men demonstrated that
they had independent memory of being in the barbershop on November 4,
2010, to provide an alibi. On cross-examination, Porreca testified that he
could not remember whom he spoke with while getting his hair cut; nor
could he remember what time of day he was there -- only that he usually
gets his hair cut in the afternoon. (Id. at 41.) Such testimony certainly
could not have altered the outcome of the trial. Adeli initially testified that
he was in the barbershop from about 3:00 p.m. to 4:00 p.m.; however, on
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cross-examination he contradicted himself and conceded he had no
independent recollection of November 4th and only testified he was in the
barbershop because appellant told him that he had been there. (Id. at
57-58.) The absence of this testimony cannot be said to be prejudicial.
Similarly, Stivala testified that appellant did not “remind” him that he was in
the barbershop but “told him” “do you realize that you were in there at that
time.” (Id. at 73.) Appellant has not established prejudice and no relief is
due.
Appellant next claims that counsel was ineffective in failing to present
an alibi defense in addition to the mistaken identity defense. (Appellant’s
brief at 25.) However, as the trial court aptly notes, each of appellant’s
witnesses presented at the evidentiary hearing placed appellant at the
barbershop during the entire span of time each were there, which included
the time when the CI made the buy. (Id. at 38, 49, 63-64.) An alibi
defense, however, places the defendant in a different place than the scene
involved to render it impossible for him to be the guilty party.
Commonwealth v. Rainey, 928 A.2d 215, 234 (Pa. 2007). Thus, as the
PCRA court notes, counsel provided a reasonable strategy as to why he did
not pursue this defense but instead thought mistaken identity and
challenging the credibility of the officers were a stronger defense. (Id. at
84-85.) There can be no finding of ineffectiveness here. If anything,
counsel was very much acting in appellant’s best interest.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2015
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