Com. v. Mays

• Decision Date: 22 April 1996
• Parties: COMMONWEALTH of Pennsylvania v. Ronald MAYS, Appellant.
• Court: Pennsylvania Superior Court

Page 724

675 A.2d 724

450 Pa.Super. 188

COMMONWEALTH of Pennsylvania v. Ronald MAYS, Appellant.

Superior Court of Pennsylvania.

Submitted March 11, 1996.

Filed April 22, 1996.

Daniel Silverman, Philadelphia, for appellant.

Peter J. Gardner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before CIRILLO, President Judge Emeritus, and DEL SOLE and HOFFMAN, JJ.

CIRILLO, President Judge Emeritus:

Ronald Mays appeals from an order of the Court of Common Pleas of Philadelphia County denying his petition under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. [PCRA]. We affirm.

On October 18, 1984, a jury found Mays guilty of second-degree murder, robbery, and criminal conspiracy. Post-verdict motions were filed and denied. Mays was subsequently sentenced to life imprisonment for murder, with a concurrent term of two and one half to five years in prison for the charge of conspiracy. ¹ Mays filed an appeal and a prior panel of this court affirmed his judgment of sentence. ² Our supreme court denied Mays' petition for allowance to appeal. ³ On July 31, 1991, Mays filed a PCRA petition which the court denied without an evidentiary hearing. ⁴ He now appeals from the denial of this petition.

Our court aptly stated the facts as follows:

On February 17, 1984, appellants [Mays and codefendant, Jeffrey Bland], entered the decedent's apartment in Philadelphia and demanded that the victim "give up the stuff." Mays kicked him in the chest while Bland, holding a gun, threatened to kill the victim if he moved. After a continued struggle, Bland kicked the victim and Mays directed Bland to "just kill him." Bland then shot the victim and both men fled.

Commonwealth v. Mays, 361 Pa.Super. 554, 557, 523 A.2d 357, 358 (1987).

Mays raises the following issues for our review:

(1) Did the trial court err in dismissing appellant's P.C.R.A. petition without an evidentiary hearing where counsel on direct appeal failed to raise the meritorious issue that trial counsel was ineffective for failing to request an alibi instruction when the primary defense at trial was one of alibi; and

(2) Did the trial court err in dismissing appellant's P.C.R.A. petition without an evidentiary hearing where counsel on direct appeal failed to raise the meritorious issue that trial counsel was ineffective for failing to request a jury instruction that if appellant only intended to recover goods or property which he believed belonged to him, as the evidence at trial suggested, that would not constitute a robbery since the required "felonious intent" would be absent?

On appeal from the denial of PCRA relief, this court must determine whether the post-conviction court's findings were supported by the record and whether the court's order is otherwise free of legal error. Commonwealth v. Blackwell, 436 Pa.Super. 294, 647 A.2d 915 (1994), allocatur denied, 540 Pa. 576, 655 A.2d 509 (1995). The findings of the post-conviction court will not be disturbed unless they have no support in the record. Id.

Mays first contends that because he presented an alibi witness at trial to corroborate his alibi defense, trial counsel was ineffective in not requesting an alibi instruction for the jury. We disagree.

Our standard of review when evaluating a claim of ineffective assistance of counsel is well settled. We presume that trial counsel is effective and place on the defendant the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990). We are first required to determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). If the claim is without merit, our inquiry ends because counsel will not be deemed ineffective for failing to pursue an issue which is without basis. Id. Even if the underlying claim has merit, the appellant still must establish that the course of action chosen by his counsel had no reasonable basis designed to effectuate the client's interests and, finally, that the ineffectiveness prejudiced his right to a fair trial. Id.; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). ⁵

Significantly, in the recent case of Commonwealth v. Buehl, 540 Pa. 493, 658 A.2d 771 (1995), the Pennsylvania Supreme Court announced that

where a claim of ineffective assistance is advanced on collateral attack, the PCRA renders more stringent the prejudice requirement which must be satisfied before relief can be granted. Specifically, Section 9543 requires a defendant to prove that counsel's ineffectiveness "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place."

Id. at 505, 658 A.2d at 777 (citing 42 Pa.C.S.A. § 9543(a)(2)(ii)). Additionally, "[p]rior decisions of our Supreme Court have held or acknowledged that ineffectiveness of all prior counsel constitutes extraordinary circumstances which, when raised, preserves the issues for consideration." Commonwealth v. Reese, 382 Pa.Super. 564, 568, 555 A.2d 1344, 1346 (1989), allocatur denied, 522 Pa. 624, 564 A.2d 916 (1989) (citations omitted). Accordingly, we find that the claims of trial and appellate counsels' ineffectiveness, for failing to instruct on the existence of an alibi and lack of felonious intent, are properly before us for disposition.

This court, in Commonwealth v. Poindexter, 435 Pa.Super. 509, 646 A.2d 1211 (1994), allocatur denied, 540 Pa. 580, 655 A.2d 512 (1995), summarized case law regarding alibi instructions:

An alibi instruction is required if the defendant presents evidence which covers the time period when the crime was committed and which puts him at a different location than that of the crime scene. Commonwealth v. Repaci, 419 Pa.Super. 591, 594-95, 615 A.2d 796, 798 (1992). It is not necessary for an alibi defense to be corroborated in order to constitute an alibi. See [Com. v.] Roxberry, 529 Pa. at 165, 602 A.2d at 828 [ (1992) ]; Commonwealth v. Saunders, 529 Pa. 140, 602 A.2d 816 (1991); Commonwealth v. Willis, 520 Pa. 289, 553 A.2d 959 (1989) (all requiring an alibi instruction when the alibi defense had been presented solely by the unsupported testimony of the defendant). There is no minimum or threshold quantum of physical separation necessary for a defense to constitute an alibi, so long as the separation makes it impossible for the defendant to have committed the crime. Id.

Id. at 524-25, 646 A.2d at 1218 (emphasis added). Furthermore, our supreme court has stated that an alibi "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. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963) (emphasis added).

At trial, Mays presented one alibi witness, William Mangum, who testified to the following: he was with Mays from 3:00-4:00 p.m. on the afternoon of the murder; he and Mays had decided to buy marijuana, drove to the home of the decedent and while Mangum remained in the car around the corner from the victim's home, Mays went into the decedent's residence and later returned to the car with a five dollar bag of marijuana; he drove Mays back to his home; and he heard no shots fired while Mays was in the decedent's home. After returning to Mays' home, Mangum stated that he and Mays sat outside smoking "joints." Mangum said that while they smoked marijuana, they talked about going to Reading to visit Mangum's girlfriend. The two then left for Reading, but were stopped by a police officer at a Pennsylvania Turnpike toll booth, at 8:20 p.m., for an expired inspection sticker. After the officer issued a ticket to Mangum, the two continued on their way to Reading where they went to Mangum's girlfriend's residence. After a short time at the girlfriend's house, Mays apparently left with another girl, while Mangum remained.

The testimony at trial revealed that the victim was murdered at approximately 6:00 p.m., on the evening of February 17, 1984. While there was evidence presented by defense witness Mangum that Mays was with him on the day of the murder between 3 and 4 o'clock p.m. and then later in the evening around 8:00 p.m., the record reveals no testimony, either elicited by Mays or any other witness, including Mangum, that placed Mays at a place other than the victim's home at the "relevant time " of the murder--6:00 p.m. See Commonwealth v. Fanase, 446 Pa.Super. 654, 667 A.2d 1166 (1995) (when defendant's wife was uncertain as to important facts on the night of the alleged crime and was less than certain that the defendant was home "at the exact time the crime occurred," trial counsel was not ineffective for failing to request alibi instruction); Commonwealth v. Repaci, 419 Pa.Super. 591, 615 A.2d 796 (1992), allocatur denied, 535 Pa. 633, 631 A.2d 1006 (1993) (speculative testimony of alibi witnesses did not provide defendant with alibi, thus not requiring that alibi instruction be given; witness stated that he could not "say definitely" if defendant had been in another place at the exact time of the crime; other witness stated that defendant had not been gone from his home for "very long" on the night of the crime). Cf. Commonwealth v. Roxberry, 529 Pa. 160, 602 A.2d 826 (1992) (when victim claimed that alleged crimes occurred between 11:00 p.m. and 1:00 a.m. of succeeding days, defendant's testimony that he was drinking in a bar from 8:00 p.m. until 1:00 a.m. was sufficient alibi defense warranting alibi instruction); Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985) (when Commonwealth witness claimed that she and the defendant committed burglary "around noontime," testimony by alibi witness that defendant was with her at an ice cream parlor between noon and 12:30 p.m. was sufficient alibi defense requiring counsel to request alibi instruction).

We conclude that it was not "impossible for Mays to have committed...