Commonwealth v. Rogers
| Decision Date | 27 March 2020 |
| Docket Number | No. 3149 EDA 2018,J-A27043-19,3149 EDA 2018 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. WILLIAM ROGERS, Appellant |
| Court | Superior Court of Pennsylvania |
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
William Rogers (Appellant) appeals from the September 26, 2018 order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.
By way of background, Appellant fatally shot Mark Aursby in a dispute over a bicycle on March 14, 2012. In June 2012, Appellant turned himself in1 and provided a statement to police claiming that he shot Aursby in self-defense because he "thought that [Aursby] was going to reach for a gun." Appellant's Statement to Police, 6/4/2012, at 4 (unnumbered). As such, Appellant's trial counsel (trial counsel) prepared for trial on a theory of self-defense. Thereafter, Appellant's mother (Mother) notified trial counsel that Appellant had an alibi: he was at a party at his great-aunt Marlena Parker'shouse at the time of the shooting. Trial counsel consulted with Appellant about this change in defense strategy and he had his investigator, Karim Shabazz, investigate the purported alibi. Trial counsel filed a notice of alibi listing Marlena,2 Mother, Michael, and Appellant's sister, Jasmine Rogers, as alibi witnesses. Notice of Alibi, 9/5/2013. Trial counsel additionally listed Shirley Lackey3 in the notices of alibi as an individual who saw the shooting and would testify that Appellant was not the shooter. Id., Amended Alibi Notice, 9/18/2013.
On September 23-27, 2017, Appellant proceeded to a jury trial. Trial counsel subpoenaed the alibi witnesses for trial and introduced his alibi defense strategy in his opening statement. The Commonwealth called, inter alia, Nyteisha Sanders and siblings Zahir Wiggins and Shanae Talley as eyewitnesses. All three had provided statements to police shortly after the shooting identifying Appellant as the shooter. Because they recanted to various degrees in their trial testimony, these statements were introduced as substantive evidence. Enrico Crispo also testified as an eyewitness but was unable to identify the shooter.
Mid-trial, when trial counsel went to speak with the alibi witnesses before calling them to the witness stand, he learned that they either couldnot testify as to Appellant's whereabouts at the time of the shooting or refused to come in to testify. Accordingly, after consultation with Appellant, trial counsel shifted gears back to the self-defense strategy. Appellant chose not to testify at trial, so trial counsel called Michael to testify about Appellant's statement to police. In his closing argument, trial counsel focused on establishing reasonable doubt in the Commonwealth's case by, inter alia, arguing that Appellant's statement was coerced, highlighting the eyewitnesses' inconsistencies, and calling attention to the fact that two different types of shell casings were found at the scene.
On September 27, 2013, the jury found Appellant guilty of first-degree murder, carrying a firearm without a license, and possession of an instrument of crime (PIC). Appellant was sentenced to life imprisonment for first-degree murder, with concurrent terms of three to six years of incarceration for carrying a firearm without a license and two to five years of incarceration for PIC.
This Court affirmed Appellant's judgment of sentence on direct appeal, and our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Rogers, 122 A.3d 1140 (Pa. Super. 2015) (unpublished memorandum), appeal denied, 128 A.3d 220 (Pa. 2015).
On November 9, 2016, Appellant pro se timely filed the instant PCRA petition. The PCRA court appointed Attorney David Rudenstein, who filed an amended PCRA petition on April 7, 2017. On May 8, 2017, Attorney MichaelWiseman entered his appearance on behalf of Appellant. On November 17, 2017, Attorney Wiseman filed an amended PCRA petition, replacing Attorney Rudenstein's prior amended PCRA petition and raising ten claims. Relevant to this appeal, Appellant raised the following claims: (1) constructive denial of Appellant's right to counsel; (2) four instances of ineffective assistance of trial counsel; (3) denial of Appellant's right to a public trial and counsel's ineffectiveness in pursuing this claim; (4) prosecutorial misconduct and counsel's ineffectiveness in pursuing this claim; (5) cumulative prejudice; and (6) actual innocence. See generally Amended PCRA Petition, 11/17/2017.
An evidentiary hearing was held on September 19 and 20, 2018. At the hearing, the PCRA court heard testimony from trial counsel, Shabazz, Mother, Yvonne, Marlena, Michael, Jasmine, and Dr. Gerald Cooke, an expert in forensic psychology. On September 26, 2018, the PCRA court dismissed Appellant's PCRA petition.
This timely-filed appeal followed. On appeal, Appellant claims that the PCRA court erred in dismissing nine of his PCRA claims. Appellant's Brief at 1-2. We begin with our standard of review.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).
We begin with Appellant's ineffective-assistance-of-trial-counsel claims. "To establish ineffectiveness of counsel, a PCRA petitioner must show the underlying claim has arguable merit, counsel's actions lacked any reasonable basis, and counsel's actions prejudiced the petitioner." Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citations omitted). "A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).
Appellant first argues that trial counsel was ineffective for failing to investigate and interview alibi witnesses, and for opening to the jury with an alibi defense but then failing to present any alibi witnesses or explain their absence to the jury. Appellant's Brief at 32.
This Court has recognized that trial counsel has a general duty to undertake reasonable investigations or make reasonable decisions[,] which render particular investigations unnecessary. The duty to investigate, of course, may include a duty to interview certain potential witnesses; and a prejudicial failure to fulfill this duty, unless pursuant to a reasonable strategicdecision, may lead to a finding of ineffective assistance.
Commonwealth v. Mitchell, 105 A.3d 1257, 1276 (Pa. 2014) (citations and quotation marks omitted).
A claim that trial counsel did not conduct an investigation or interview known witnesses presents an issue of arguable merit where the record demonstrates that counsel did not perform an investigation. It can be unreasonable per se to conduct no investigation into known witnesses. A showing of prejudice, however, is still required.
Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013) (citations omitted).
To prevail on a claim of trial counsel's ineffectiveness for failure to call a witness, an appellant must show: (1) the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or should have known of the witness's existence; (4) the witness was prepared to cooperate and would have testified on appellant's behalf; and (5) the absence of the testimony prejudiced appellant.
Commonwealth v. Cousar, 154 A.3d 287, 312 (Pa. 2017) (citation omitted).
At the PCRA hearing, trial counsel testified that he tasked his investigator, Shabazz, with investigating the alibi witnesses, and he relied on Shabazz's oral reports that he had spoken with the alibi witnesses. Additionally, trial counsel testified that he sent a copy of the filed alibi notice to Appellant to ensure that the names, as written, were correct. N.T., 9/19/2018, at 86-87, 89-90, 96, 103-04, 132, 160. Trial counsel subpoenaed those witnesses, but when he went to speak with the witnesses before putting them on the witness stand, he learned that they either couldnot testify that Appellant was with them or refused to come in to testify. Accordingly, trial counsel switched his defense strategy back to self-defense with Appellant's approval. Id. at 99-100, 102, 134-35, 156-59.
Mother testified that Shabazz cancelled the first two appointments to discuss Appellant's case. She ultimately met Shabazz at the third appointment, but the other alibi witnesses were not present. Id. at 13-15. Shabazz testified that he met with Mother regarding the alibi, and was told a number of names for people who could testify that Appellant was at Marlena's party at the time of the murder. This list of names included Mother. Id. at 43-45. Shabazz remained in contact with Mother and her family throughout Appellant's trial. Id. at 49-50. Mother told Shabazz about Yvonne's proposed testimony, and Shabazz interviewed the Lackey family. Id. at 15, 45-48.
In dismissing Appellant's claim, the PCRA court credited trial counsel's testimony about his...
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