Appeal from the PCRA Order of April 26, 2007 in the Court of Common Pleas of Philadelphia County, Criminal, Nos. CP-51-CR-0707741-2000, CP-51-CR-0707751-2000.
The opinion of the court was delivered by: Klein, J.
BEFORE: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, LALLY-GREEN, KLEIN, BOWES, PANELLA, DONOHUE and SHOGAN, JJ.
¶ 1 Lamont Bookard appeals from an order denying his request for post-conviction relief on the ground that his trial counsel, attorney Susan Burt-Collins, was ineffective for failing to ask for a charge on alibi. We find that counsel articulated a reasonable strategic basis for failing to request such a charge; she had an alternate theory of defense and did not want to cloud the issue by focusing on an alibi defense. Since it was questionable as to whether it was impossible for Bookard to be present to commit the crime, and counsel did not want the jury distracted by that issue, we believe that strategy was reasonable and therefore we affirm the denial of post-conviction relief.
¶ 2 Bookard was convicted of an armed robbery of men playing a dice game on Reno Street in the Mantua section of Philadelphia. The robbery took place on March 23, 2000. A 911 call was placed at 4:19 p.m., and the time of the robbery was between 4:00 p.m. and 4:19 p.m.
¶ 3 According to the Commonwealth, Bookard and John Rosser arrived at the game in Rosser's car, and, after the robbery, Rosser was shot and killed while the two were fleeing in Rosser's car. The car crashed within two blocks of the robbery. The Commonwealth alleged that Bookard shot Rosser as the two were fleeing in Rosser's car, that the shooting caused Rosser to crash his car within two blocks of the site of the robbery, and that after the shooting and crash, Bookard fled on foot.
¶ 4 Bookard was charged with the murder, robbery, conspiracy and related offenses. Following a jury trial, he was acquitted of the homicide, but convicted of two counts of robbery and one count each of carrying a firearm on a public street and criminal conspiracy. Trial counsel was not totally successful but obviously was not totally unsuccessful, either.
¶ 5 Bookard later filed a pro se PCRA petition claiming trial counsel was ineffective for failing to request an alibi instruction. Ultimately counsel was appointed and there was an evidentiary hearing on the allegation of ineffectiveness. Trial counsel testified at the hearing and on April 26, 2007, the PCRA court entered an order denying post conviction relief.
¶ 6 In order to establish ineffective assistance of counsel, appellant must demonstrate that (1) his claims have arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) counsel's action or inaction prejudiced appellant. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). "The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that the trial counsel's decision had any reasonable basis." Commonwealth v. Hawkins, 894 A.2d 716, 730 (Pa. 2006).
¶ 7 At the hearing on Bookard's PCRA petition, trial counsel explained that based on her twenty-four years of experience handling hundreds of major felony cases as a defense attorney, she did not want to classify this case as an alibi case. Counsel instead wanted the jury to focus on the testimony of Marin McClain. Bookard and McClain both testified that Bookard had borrowed McClain's car and Bookard was to pick McClain up at 4:30 p.m. Bookard testified that he, along with his former girl friend, Latonya Coles, did pick McClain up at his job at a warehouse in South Philadelphia at 4:30 p.m. McClain testified that Bookard appeared calm and displayed nothing out of the ordinary when he picked him up. Trial counsel testified that she wanted to focus on Booker's demeanor and appearance when he picked McClain up at 4:35 p.m. She did not want to cloud that testimony.
¶ 8 McClain testified that he was picked up by Bookard at his work at 4:35 p.m., which would be somewhere from 20 to 35 minutes from the time of the crime. While McClain's job is about 8 1/2 miles from the scene of the crime, both the job site and the scene of the crime can easily be reached just off the Schuylkill Expressway in Philadelphia. It certainly was not impossible for Bookard to have traveled that distance in 30 or 35 minutes; in fact, notwithstanding traffic, construction, or accident delays, he could have driven that distance in sixteen minutes.*fn1 An alibi instruction is required only in cases where a defendant's explanation places him at the relevant time at a different place than the scene involved and so far away as to render it impossible for him to be the guilty party. Commonwealth v. Kolenda, 676 A. 2d 1187, 1190 (Pa. 1996). That was not the case here.
¶ 9 At the PCRA hearing, counsel explained:
Because I did not feel that he was close enough in terms of contemporaneousness with the time of the crime. . . . As I recall, I thought it was much farther away and there was some evidence that it was not very far away. That there was a way to get there that was a fairly quick way. You could get from 3800 Reno Street [the scene of the crime] to Lawrence Street [where Bookard worked and McClain picked him up]; and it wasn't going to be you know, a 10 mile drive, and that you wouldn't encounter tons of traffic at 4:30, I think it was a weekday. So I was concerned that because they weren't close enough in time 4, 4:15, 4:35, and the distance wasn't great enough that I was really going to miss the alibi. I wasn't going to make an alibi and by asking for an alibi instruction, I was going to call attention to the inadequacy of the time match up and draw attention away from the very adequate testimony of Mr. McClain, that Mr. Bookard, when he picked him up was perfectly calm, normal, not upset, not injured, was perfectly fine and didn't look like he had just been involved in a robbery in which somebody died. I thought that was a more valuable focus for the jury to have. I didn't really want to have to hang it on alibi. N.T. PCRA Hearing, 1/18/07, at 25-27 (emphasis added).
¶ 10 Additionally, counsel testified that the Commonwealth had informed her that it had evidence to rebut any alibi testimony. While counsel did not recall the exact evidence since the PCRA hearing was held six years after the trial, she stated that she remembered thinking the evidence would strain McClain's credibility in the eyes of the jury. Counsel testified that McClain's testimony as to Bookard's appearance and demeanor was critical to her case. This is what she wanted to emphasize. Further, because she ...