J-S75009-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONALD ALSTON :
:
Appellant : No. 363 EDA 2018
Appeal from the PCRA Order January 10, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0203312-2005
CP-51-CR-0204542-2005
CP-51-CR-0204551-2005
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J.: FILED JUNE 21, 2019
Ronald Alston appeals from the order dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Appellant challenges the denial of an evidentiary hearing, and asserts
various claims of ineffectiveness of trial counsel. We affirm on the basis of
the PCRA court opinion.
This case has a long and somewhat convoluted history. In its opinion,
the PCRA court sets forth the relevant facts and procedural history for this
appeal. See PCRA Court Opinion, 4/16/18.1 Therefore, we need not restate
them at length here.
____________________________________________
1Although filed on April 16, 2018, the PCRA opinion is dated March 30, 2018,
and is sometimes referred to as such in the briefs and the record.
J-S75009-18
Briefly summarized for purposes of this appeal and the convenience of
the reader, we note that after a bench trial, the court found Appellant guilty
of attempted murder and numerous related offenses. Appellant’s conviction
arose out of an incident on October 14, 2004, at approximately 7:45 p.m.
Appellant and at least six co-conspirators opened fire on Charles Wesley,
Wesley’s paramour, Sharee Norton, and their two children. It was the second
attempt on Wesley’s life that day.
The assailants fired at least fifty-seven gunshots from eight semi-
automatic pistols before fleeing. Two Philadelphia police detectives and two
police officers were already in the immediate area investigating the previous
shooting. At least two civilians also witnessed the gunmen open fire. One of
the police officers involved was Detective Ronald Dove, who testified at the
trial.
The police returned fire and, when the shooters fled, pursued them on
foot. Backup officers in a marked police car intercepted the gunmen and the
police arrested them. The arrestees, including Appellant, were placed in
holding cells at Central Detectives. While the arrestees were in holding, a
police detective overheard Appellant and several of his co-conspirators talking
and laughing about the shooting incident. The detective testified at trial about
the inculpatory statements.
Norton also testified at Appellant’s trial. She claimed that when Wesley
heard the assailants say, “There’s Charles,” he said, “Oh shit, that’s them, get
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out of here.” PCRA Court Opinion, at 21; see also Appellant’s Brief, at 23,
25. Norton was a reluctant witness who admitted she was scared to testify.
See Appellant’s Brief, at 23. Wesley did not cooperate with the police, and
did not testify. See id. at 23-24.
Before trial, Appellant got into a fee dispute with his original trial
counsel, Todd Henry, Esq. The court permitted Attorney Henry to withdraw.
Thomas Strange, Esq., was appointed as substitute trial counsel. Attorney
Strange was in the same firm as Mr. Henry.
On November 18, 2005, after a bench trial, the court convicted Appellant
of one count of attempted murder, eight counts of aggravated assault, and
one count each of carrying firearms without a license, and criminal
conspiracy.2 On September 18, 2006, the court sentenced Appellant to an
aggregate term of not less than twenty nor more than forty years of
incarceration in a state correctional institution. The court denied a motion for
reconsideration of sentence. On direct appeal, this Court affirmed the
judgment of sentence on July 23, 2008. See Commonwealth v. Alston,
959 A.2d 956 (Pa. Super. 2008) (unpublished memorandum). Appellant filed
a timely first PCRA petition. Our Supreme Court remanded for a hearing on
whether then-counsel had abandoned Appellant. See Commonwealth v.
Alston, 969 A.2d 1181 (Pa. 2009).
____________________________________________
2 Appellant’s six co-defendants were convicted of similar offenses.
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After a hearing, various appeals and petitions not at issue here, on
August 29, 2016, appointed counsel filed the instant amended PCRA petition.
In this petition, Appellant alleged, among other complaints, that he had “newly
discovered evidence” regarding one of the police detectives involved in this
case, Detective Dove. Appellant cited a newspaper account reporting that
years after the events at issue here, Dove helped his paramour, who had
murdered her ex-husband, flee from Pennsylvania. Appellant also asserted it
was improper for Dove to have testified as a witness in the same trial where
he had been one of the arresting officers.
On January 10, 2018, after proper notice, the PCRA court dismissed the
petition without a hearing. This appeal followed. Both Appellant and the PCRA
court complied with Pa.R.A.P. 1925.
Appellant presents seven issues−framed as two questions and six
subsidiary questions:
I. Whether the [c]ourt erred in not granted an evidentiary hearing
on the claims set forth in the Amended PCRA petition alleging
[c]ounsel was ineffective[?]
II. Whether the [c]ourt erred in not granting relief on the PCRA
petition alleging prior [c]ounsel was ineffective for the following
claims:
a. Counsel Henry was ineffective for failing to notify
Appellant of his intent to withdraw and Counsel Strange had
a conflict of interest[?]
b. Trial [c]ounsel was ineffective for failing to object
to hearsay evidence[?]
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c. Trial [c]ounsel was ineffective for failing to
investigate whether or not Charles Wesley had implicated
the Appellant[?]
d. Trial [c]ounsel was ineffective for failing to object
to Detective Dove’s conflicting interest during trial[?]
e. Newly discovered evidence regarding Detective
Dove’s firing and charges against him necessitate a new
trial[?]
f. Counsel was ineffective for failing to file post-trial
motions that the verdict was against the weight of the
evidence[?]
Appellant’s Brief, at 8.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the PCRA court, we conclude
that there is no merit to the issues Appellant has raised on appeal.
The PCRA court opinion properly disposes of the questions presented.
See PCRA Court Opinion, 4/16/18, at 12-39 (concluding: (1) Appellant failed
to present genuine issues of material fact, and PCRA court properly acted
within its discretion by declining to grant evidentiary hearing; (2) Appellant
failed to prove that Attorney Henry failed to give timely notice of withdrawal;
PCRA court properly granted petition to withdraw after fee dispute; and
Appellant failed to prove that substitute counsel, Attorney Strange, had
conflict of interest because he was from same firm as Attorney Henry; (3) trial
counsel was not ineffective for failure to object to purported hearsay where
Norton’s testimony was incidental, innocuous and did not prejudice Appellant;
(4) trial counsel was not ineffective for failing to investigate whether or not
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Wesley had implicated Appellant or to call Charles Wesley as a witness where
Appellant failed to prove: (a) Wesley was willing to testify; (b) was available;
(c) counsel knew or should have known of witness; (d) Wesley was prepared
to cooperate, and (e) lack of Wesley’s testimony prejudiced Appellant; (5) trial
counsel was not ineffective for choosing not to object to Detective Dove’s
testimony where evidence of his “dual role” as “victim” in shooting and
investigator of crime did not constitute conflict of interest, and Appellant
offered no authority to support his boilerplate claim or unusual theory to
contrary; Dove’s termination and criminal charges against him five years later
for helping his girlfriend flee from murder charge did not constitute previously
unavailable newly discovered facts for this case; Appellant failed to plead and
prove that evidence against Dove would not be used solely for impeachment,
or that evidence, if produced, at trial, would have altered outcome of case;
and (6) Appellant failed to develop or support his claim challenging weight of
the evidence, and evidence against him, including eyewitness bystander
testimony, police testimony, ballistics evidence, and Appellant’s holding cell
admissions, was overwhelming).
We agree with the PCRA court’s legal reasoning and adopt it as our own.
Accordingly, we affirm on the basis of the PCRA court’s opinion.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2019
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0031_Opinion
Circulated 05/30/2019 03:31 PM
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