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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DALPH D. KENNEDY-CHARLES :
:
Appellant : No. 1038 EDA 2017
Appeal from the PCRA Order March 24, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012807-2011
BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED AUGUST 22, 2018
Dalph D. Kennedy-Charles appeals from the order entered in the
Philadelphia County Court of Common Pleas, denying his first petition filed
pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
The relevant facts and procedural history of this case are as follows. On
June 24, 2011, Appellant approached the victim in broad daylight and shot
him in the back of the head. The victim died from his wounds shortly
thereafter. A witness observed the entire encounter, and was able to describe
the shooter to police. Another witness did not see the shooting occur or
glimpse Appellant’s face, but described seeing a man matching Appellant’s
description speaking to the victim moments before his death. Police
apprehended Appellant, whom the first eyewitness confirmed was the
gunman.
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A jury convicted Appellant of first-degree murder, possession of an
instrument of crime, and carrying a firearm without a license. The court
sentenced him to life imprisonment without parole. After an unsuccessful
direct appeal, Appellant timely filed a pro se PCRA petition on November 11,
2015. The court appointed counsel, who filed an amended petition. The court
later issued notice of its intent to dismiss Appellant’s petition without a
hearing, before ultimately dismissing it. Appellant’s appeal is now before us.
In his sole issue on appeal, Appellant challenges trial counsel’s failure
to investigate and present an alleged alibi witness at trial. Appellant claims
the PCRA court erred in dismissing his petition without an evidentiary hearing,
during which Appellant maintains he would have presented the witness’s
testimony.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of
law, our scope of review is de novo. See id.
Appellant’s sole issue on appeal asserts the ineffective assistance of trial
counsel. We presume counsel provided effective assistance, and Appellant
bears the burden of proving otherwise. See Commonwealth v. Pond, 846
A.2d 699, 708 (Pa. Super. 2004). “In order for [an a]ppellant to prevail on a
claim of ineffective assistance of counsel, he must show, by a preponderance
of the evidence, ineffective assistance of counsel which … so undermined the
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truth-determining process that no reliable adjudication of guilt or innocence
could have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281
(Pa. Super. 2005) (citation omitted). Further,
[an a]ppellant must plead and prove, by a preponderance of the
evidence, three elements: (1) the underlying legal claim has
arguable merit; (2) counsel had no reasonable basis for his action
or inaction; and (3) [a]ppellant suffered prejudice because of
counsel’s action or inaction.
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).
A failure to satisfy any prong of the test will require rejection of the entire
claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
“Arguable merit exists when the factual statements are accurate and
could establish cause for relief. Whether the facts rise to the level of arguable
merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,
540 (Pa. Super. 2015) (citations and internal quotation marks omitted).
When raising a claim of ineffectiveness for the failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the Strickland test by establishing
that: (1) the witness existed; (2) the 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 witness was so prejudicial as to have denied the defendant a
fair trial.
Commonwealth v. Sneed, 45 A.3d 1096, 1108-1109 (Pa. 2012) (citations
omitted). “To demonstrate prejudice where the allegation is the failure to
interview a witness, the petitioner must show that there is a reasonable
probability that the testimony the witness would have provided would have
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led to a different outcome at trial.” Commonwealth v. Pander, 100 A.3d
626, 639 (Pa. Super. 2014) (en banc) (citation omitted). See also
Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014) (“To be eligible for an
evidentiary hearing on a claim of ineffective assistance for failing to call a
witness a petitioner must include in his petition a signed certification as to
each intended witness stating the witness's name, address, date of birth and
substance of testimony.”) (internal quotation marks omitted).
Further, a claim that counsel was ineffective by failing to call alibi
witnesses lacks arguable merit where the trial court conducted a colloquy of
the defendant at trial, and the defendant agreed with counsel’s decision not
to present such witnesses. See Pander, 100 A.3d at 642. “[A] defendant who
makes a knowing, voluntary, and intelligent decision concerning trial strategy
will not later be heard to complain that trial counsel was ineffective on the
basis of that decision.” Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa.
2002) (citation omitted).
Here, Appellant’s amended PCRA petition avers his brother would have
testified that Appellant was home at the time of the murder. Appellant also
states he made counsel aware of his brother’s existence, yet counsel failed to
investigate his brother as a potential alibi witness. Aside from this bald
allegation, Appellant proffers absolutely no evidence to support this claim. For
instance, Appellant did not include a signed certification in his PCRA petition.
And, as the PCRA court notes in its opinion, the trial court conducted a
colloquy of Appellant at trial, at which point Appellant asserted that he agreed
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with trial counsel’s decision not to call any witnesses aside from Appellant’s
mother. In his appellate brief, he concedes that during the colloquy, he stated
his agreement with counsel’s decision not to call any other witnesses. See
Appellant’s Brief, at 15. Appellant does not claim his decision was unknowing,
involuntary, or unintelligently rendered. Appellant is due no relief on this
claim, and the PCRA court properly dismissed his petition as meritless.
Consequently, we affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/18
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