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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HASSAN GRIMES
Appellant No. 2640 EDA 2014
Appeal from the PCRA Order August 21, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003104-2011
BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 16, 2015
Hassan Grimes appeals the order entered August 21, 2014, in the
Delaware County Court of Common Pleas, dismissing his first petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.
Grimes seeks relief from the judgment of sentence of an aggregate six
years, three months to 12 years, six months’ incarceration, followed by
seven years’ probation, imposed after a jury found him guilty of robbery,
theft, simple assault, unlawful restraint, forgery and access device fraud.1
On appeal, Grimes argues the PCRA court erred in denying his claim that
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1
18 Pa.C.S. §§ 3701(a)(1)(ii), 3921(a), 2701(a)(3), 2902(a)(1),
4101(a)(2), and 4106(a)(1)(ii), respectively.
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trial counsel was ineffective for failing to present an alibi witness. For the
reasons that follow, we affirm.
The PCRA court aptly summarized the facts underlying Grimes’
conviction as follows:
On May 5, 2011, Kimberly Shoup exited a Starbucks
with her one-year-old daughter. As she walked with her
child in her arms and opened the car door, someone
grabbed her from behind. The assailant pulled Ms. Shoup
back against him, told her not to turn around, and put a
gun against her face. The assailant told Ms. Shoup to give
him her rings and watch and asked where her purse was
located. Ms. Shoup told him it was on the front passenger
seat of her car. Because Ms. Shoup’s head was lowered,
she did not see the assailant take the purse. Ms. Shoup
heard the assailant move away, and she heard a car start.
Ms. Shoup then placed her child in the car seat, and drove
to the front of the Starbucks. She alerted a staff member,
who called 911. Ms. Shoup was able to provide the police
with a general description of the assailant, including skin
color, facial hair, height, and clothing. After giving her
statement to the police, Ms. Shoup learned that the credit
cards that were in her stolen purse had been used. She
then informed the police as to the stores where the credit
cards had been used.
The police were able to recover a video from one of
those stores. A copy of the video showing the person who
used the credit card played on the local news. [Grimes]
subsequently turned himself in to the police.
Commonwealth v. Hassan Grimes, [82 A.3d 457] 1279 EDA
2012 pp. 1-2 (filed June 7, 2013) [unpublished memorandum]
(citations omitted).
The robbery took place outside a Starbucks located on
Lancaster Avenue in Wayne, Delaware County just before 10:00
a.m. At trial the Commonwealth presented the testimony of
Megan Johnson. Ms. Johnson lived in Wayne on Midland Avenue,
a street that is adjacent to the Starbucks parking lot. Sometime
before 10:00 a.m., around the time of the robbery, Ms.
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Johnson’s dog began to bark. She went outside of her home to
investigate and saw someone trying to get through bushes on a
neighbor’s property. She yelled at the person and saw an
African-American man jump through the bushes and run to a
white Toyota that was parked on Midland Avenue near her
house. She was able to get the license plate number and she
reported her observations to the police. Sometime earlier,
around 9:25 a.m., another neighbor, Rebecca Wood, saw a white
Toyota occupied by a black male illegally parked on Midland
Avenue. She saw the man exit the white Toyota and look down
a driveway in the direction of the Starbucks. He re-entered the
Toyota and drove away. At about the time of the robbery a
Radnor Township police officer “chaulked” the tire of a white
[Toyota] parked on Midland Avenue when he was conducting a
routine patrol of the area to determine whether parked vehicles
were in compliance with a two-hour parking restriction in effect
on that street. He “chaulked” a few other vehicles on the street
and then saw the white Toyota turn in the middle of the street
and leave. He was dispatched to the Starbucks robbery at this
time.
At trial [Grimes] testified. He admitted that he used the
victim’s credit cards to “shop,” but claimed that he did not rob
her. He came to possess the cards through an acquaintance,
Antoine Twizzy, who he knew from playing basketball. [Grimes]
testified that while he was waiting for a bus at the Darby
Transportation Center, Twizzy drove up and told [Grimes] he had
“some work” and would split the proceeds of the work with
[Grimes]. [Grimes] and Twizzy went on a shopping spree with
Ms. Shoup’s credit cards and shared the items that [Grimes]
purchased.
PCRA Court Opinion, 12/2/2014, at 3-4 (record citations omitted).
Grimes was arrested and charged with a multitude of offenses.2 The
case proceeded to a jury trial. On January 13, 2012, the jury returned a
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2
Although Grimes was charged with 33 counts in all, the case proceeded to
the jury on only seven counts.
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verdict of guilty on the aforementioned charges.3 Grimes was sentenced on
March 1, 2012 to an aggregate term of six years, three months to 12 years,
six months’ incarceration, followed by seven years’ probation.4 A panel of
this Court affirmed his judgment of sentence on direct appeal. Grimes,
supra.
On February 18, 2014, Grimes filed a timely, counseled PCRA petition5
asserting trial counsel’s ineffectiveness for failing to present a purported alibi
witness, Nashira Harris. Grimes averred trial counsel knew Harris was a
potential witness, but failed to call her to testify. To support his claim, he
attached to his PCRA petition an affidavit, signed by Harris, in which she
attested: (1) she was at the Darby Transportation Center in Darby,
Pennsylvania, on the morning of May 5, 2011; (2) at 9:26 a.m., she saw
Grimes there and spoke with him for a few minutes; (3) a week after
Grimes’ arrest, she received a telephone message from his trial attorney
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3
Grimes was found not guilty of terroristic threats. See 18 Pa.C.S. §
2706(a)(1).
4
We note the trial court imposed a mandatory minimum five-year sentence
for Grimes’ conviction of robbery pursuant to 42 Pa.C.S. § 9712, a statute
that has been found to be constitutionally infirm in light of the United States
Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151
(U.S. 2013). See Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super
2014). Nevertheless, this Court has recently held that “Alleyne is not
entitled to retroactive effect in [a] PCRA setting.” Commonwealth v.
Riggle, ___ A.3d ___, 2015 PA Super 147, *6 (July 7, 2015).
5
PCRA counsel entered his appearance on July 22, 2013.
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asking her to call him; (4) she returned the call, leaving four or five
messages for Grimes’ attorney, but never spoke to him; and (5) she would
have been available to testify on Grimes’ behalf at trial. See Petition for
Post-Conviction Collateral Relief, 2/18/2014, at Exhibit A, Affidavit of Harris.
After the Commonwealth filed a response, the PCRA court scheduled an
evidentiary hearing for August 12, 2014.
Both Grimes and his trial attorney testified at the evidentiary hearing. 6
Although Harris attended the hearing, PCRA counsel did not present her as a
witness. Counsel provided the following explanation to the court:
I have interviewed and received an affidavit from a Nashira
Harris. The affidavit is of January the 15th, 2014, which was
attached to the Petition for Post-Conviction Relief. I have had an
opportunity to speak with Ms. Harris this morning, who is
present in the courtroom, she’s seated to your left in the first
row. Ms. Harris has indicated to me that she would not be able
to testify consistent with her affidavit. Based on that
representation to me, Judge, I am not calling her as a witness in
this.
N.T., 8/12/2014, at 54. Thereafter, on August 21, 2014, the PCRA court
denied Grimes’ petition for relief. This timely appeal follows.7
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6
Trial counsel testified that prior to trial, he had a discussion with Grimes
regarding a witness who Grimes told him could “testify as to seeing me at
the Darby Transportation Center.” N.T., 8/12/2014, at 44. However, they
both determined that “bringing that witness forward would have harmed Mr.
Grimes’ case.” Id. at 45. Counsel also denied leaving a telephone message
for Harris or receiving a message from her. Id. at 48.
7
On September 18, 2014, the PCRA court ordered Grimes to file a concise
statement of errors complained of on appeal. After requesting and receiving
(Footnote Continued Next Page)
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Our standard of review is well-established:
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination and
whether the PCRA court’s decision is free of legal error. The
PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014).
Here, Grimes’ sole issue on appeal involves the ineffective assistance
of trial counsel. Our review of an ineffectiveness claim is guided by the
following:
In order to obtain relief on a claim of counsel ineffectiveness, a
PCRA petitioner must satisfy the performance and prejudice test
set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). In Pennsylvania, we have applied
the Strickland test by requiring that a petitioner establish that
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s action or failure to act; and (3) the
petitioner suffered prejudice as a result of counsel's error, with
prejudice measured by whether there is a reasonable probability
that the result of the proceeding would have been different.
Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213
(2001). Counsel is presumed to have rendered effective
assistance, and, if a claim fails under any required element of
the Strickland test, the court may dismiss the claim on that
basis. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291
(2010).
Commonwealth v. Reid, 99 A.3d 470, 481 (Pa. 2014).
Furthermore, in order to establish that trial counsel provided
ineffective assistance in failing to call an alibi witness, Grimes must
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(Footnote Continued)
an extension of time, Grimes complied with the court’s directive, and filed a
concise statement on November 21, 2014.
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demonstrate: (1) the witness existed and was available; (2) trial counsel
was aware of, or should have been aware of, the existence of the witness;
(3) the witness was ready and willing to testify on Grimes’ behalf; and (4)
“the absence of the proposed testimony prejudiced him.” Commonwealth
v. Lopez, 739 A.2d 485, 496 (Pa. 1999) (citation omitted), cert. denied,
530 U.S. 1206 (2000).
Here, Grimes argues Harris’ signed affidavit, as well as her presence at
the PCRA hearing, was sufficient to satisfy his burden of proof. Although he
acknowledged PCRA counsel did not call Harris to testify at the hearing
because he claimed she would not testify consistent with her affidavit,
Grimes asserts “[t]hat does not mean she was unwilling to testify[,]” and
“[t]here is no way for the Court to examine the record and discern whether
Ms. Harris protested PCRA counsel’s decision.” Grimes’ Brief at 13.
Furthermore, Grimes contends trial counsel had no reasonable basis for
failing to call Harris as an alibi witness. He notes trial counsel feared Harris
could connect Grimes to the white Toyota used in the robbery. However,
Grimes “connected himself to the white Toyota when he testified that
[Twizzy] picked him up from the bus station after the robbery took place.”
Id. at 15 (emphasis in original). Therefore, he argues Harris’ testimony
would not have been harmful, and would have “bolstered [his] testimony
that he was at the bus station at the time of the robbery[.]” Id.
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The PCRA court concluded that Grimes’ “inability to present the
testimony of Ms. Harris is fatal to his claim.” PCRA Court Opinion,
12/2/2014, at 6. The court opined:
The affidavit attached to the PCRA petition demonstrated the
necessity of a PCRA hearing in this case but it is not evidence
through which [Grimes] can meet his burden of proof. In
Commonwealth v. Dennis, 950 A.2d 945, 964 (Pa. 2008)
where similarly the petitioner attached the affidavits of putative
alibi witnesses to his petition but failed to produce their
testimony to support his claim at an evidentiary hearing, the
Supreme Court found that the petitioner failed to prove “his
foundational claim of ineffective assistance of counsel.”
In the case sub judice Ms. Harris was subpoenaed and
appeared at the evidentiary hearing. Counsel represented that
she would not be called to testify because, “she would not be
able to testify consistent with [the] affidavit.” Without Ms.
Harris’s favorable testimony [Grimes’] burden of proof is not
met. Additionally, we note that [trial counsel’s] credible
testimony supports the finding that after consultation, he and
[Grimes] concluded that Ms. Harris’s testimony would not be
helpful to [Grimes’] defense, because although she was the
witness that [Grimes] “could have” [had] testify that she saw
him at the Darby Transportation Center she had also seen him in
a white Toyota before the robbery. This testimony would clearly
tie [Grimes] to the vehicle that three eyewitnesses saw near the
Starbucks in Wayne before the robbery and as it left the scene
and support the inference that [Grimes] was the man who
appeared to be conducting his own surveillance in the area
before he committed the robbery.
Id. at 7-8.
We agree with the well-reasoned analysis of the PCRA court. Grimes’
failure to present the testimony of Harris at the PCRA hearing necessarily
defeats his claim. As the Supreme Court held in Dennis, a PCRA petitioner
“cannot demonstrate prejudice sufficient to establish the ineffectiveness of
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trial counsel” by simply relying on affidavits attached to a PCRA petition.
Dennis, supra, 950 A.2d at 964. Rather, a petitioner has “failed to carry
his burden before the PCRA court by failing to take the requisite steps to
secure these witnesses’ testimony at the evidentiary hearing that was held
precisely for that purpose.” Id. The same is true here.
Moreover, we also agree with the PCRA court’s determination that
even if Grimes’ claim had arguable merit, which we conclude it did not, trial
counsel had a reasonable basis for failing to present Harris as an alibi
witness. First, trial counsel testified Grimes told him about the possibility of
Harris providing alibi testimony “just before trial.” N.T., 8/12/2014, at 44.
Moreover, after discussing her proposed testimony with Grimes, particularly
the fact that Harris had “seen him in a certain vehicle [i.e., the white
Toyota] before[,]” they both decided not to call her as a witness. 8 Id. at 43.
Although Grimes challenges this decision based on the fact he admitted he
was in a white Toyota with Twizzy after the robbery took place, trial
counsel’s testimony implied that Harris could place him in the car before the
robbery. See Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009)
(“A PCRA court passes on witness credibility at PCRA hearings, and its
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8
Trial counsel also testified he had conducted his own investigation, which
included visiting the Darby Transportation Center and viewing surveillance
videotape from a Dunkin’ Donuts store that Grimes said he been in the
morning of the robbery, but that counsel was unable to corroborate any
aspect of Grimes’ story. See id. at 46-47.
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credibility determinations should be provided great deference by reviewing
courts.”). Accordingly, we detect no error on the part of the PCRA court in
concluding trial counsel had a reasonable basis for his actions.
Therefore, because Grimes failed to establish at the evidentiary
hearing that trial counsel was ineffective for not calling Harris as an alibi
witness, we affirm the order of the PCRA court dismissing his petition for
collateral relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2015
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