Appeal from the PCRA Order December 9, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0410601-2006
BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, PANELLA, DONOHUE, SHOGAN, LAZARUS, OLSON, and WECHT, JJ.
The Commonwealth appeals from the order granting Edward E. Stewart a new trial after he timely filed his first post-conviction relief petition pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S §§ 9541-9546. After careful review, we affirm.
Appellee and Alvin Hooper, Jr. operated a speakeasy in the basement of a row home in Philadelphia. According to Hooper, on April 7, 2006, both men and Kevin Bing were at the speakeasy, drinking, laughing, and discussing the military. During the course of the day, Hooper fell asleep, although he indicated that he was only slightly intoxicated and not drunk. He then heard a pop and looked up. Hooper, who said he was six to eight feet from Bing, stated that he saw Bing fall to the floor and Appellee with a gun pointed in Hooper's direction. Appellee asked Hooper whether Hooper intended to report Appellee. When Hooper responded in the negative, Appellee asked him to help him roll the body into a carpet. After Hooper declined, Appellee told him to go home and dispose of his clothing. Hooper left the speakeasy and telephoned Omar Taylor, a police officer and Hooper's friend. In contrast to his trial testimony, Hooper told Taylor that he saw Appellee grab a gun from underneath the bar and shoot the victim in the head over an argument about whether the Army or Marines were superior. Taylor instructed Hooper to report the incident to police.
Police Officer Raymond Hein encountered Hooper at the 39th police district at approximately 3:30 p.m. on April 7, 2006. Hooper had blood on his pants, shirt, and shoes as well as human tissue and what appeared to be brain matter. Testing of Hooper's clothing and boots established that the blood was human. Officer Hein indicated that Hooper was visibly upset and reported that he had observed, Spawn, which is Appellee's nickname, shoot a man with a rifle. Hooper then traveled with police to the row home, where police discovered Bing. Bing had died from a 12 gauge shotgun wound to his head. Hooper stated that a gun was kept on the shelf behind the bar, but acknowledged that he did not see Appellee with the shotgun in his hand before the shooting. At trial, Hooper admitted to two prior convictions for DUI and a conviction for possession with intent to deliver.
Police located two unfired shotgun shells and a fired .22 cartridge in the bar area. The unfired shotgun shells were not collected from the scene because they were in glass and covered in dust. A firearms expert received fifty-nine uncoated lead fragments, and a plastic shot cup wad that was for a 12-gauge shotgun. These items were recovered from the head wound of the victim. Police did not find the shotgun. The expert noted that the plastic shot cup was torn and distorted and had blood and tissue-like substances on it. He further opined that the plastic shot cup wad would not ordinarily penetrate skin unless fired from a distance of less than five or six feet, and that the shotgun in this matter was fired within two or three feet of the victim. The medical examiner also testified that the victim was shot from close range, between four and six feet. He added that the victim had cocaine metabolites and alcohol in his system.
Appellee's grandmother testified that Appellee did not reside at the home where the killing occurred, but rather that Appellee lived at 4819 Franklin Street in Philadelphia. However, she acknowledged that she had informed police earlier that Appellee lived at the home where the murder transpired. Appellee also testified in his own defense. He told the jury that he was at home at 4819 North Franklin Street with his fiancée and children. Appellee maintained that he did not learn of the shooting until approximately 5:00 or 6:00 p.m., when he checked the messages on his cellular phone. According to Appellee, there were messages from his grandmother and a detective indicating that homicide police were looking for him. After contacting an attorney and police, Appellee turned himself in.
Appellee also informed the court that his fiancée was available and willing to testify on his behalf. Trial counsel claimed that he only learned of the alibi witness the day before the trial. He added that the case had been scheduled for trial on a previous date and Appellee had not informed him of any alibi. Appellee told the trial court that he informed his attorney about the alibi "a while ago." N.T., 7/31/07, at 202. However, at jury selection for the original trial date, Appellee indicated that there were no witnesses he intended to call. Appellee did so after being admonished by the trial court for looking at his counsel when being questioned.
The Commonwealth called a surprise witness to rebut Appellee's alibi testimony. The witness, Barbara Boulware, was the victim's cousin. She testified that she did not know Appellee, but knew someone named Spawn. When asked if she saw Spawn in the courtroom, she replied, "His face looks familiar." N.T., 8/1/07, at 108. Ms. Boulware further provided that Spawn and the victim gave her a ride home from the bar in the early morning hours of the date of the murder. On cross-examination, the witness admitted that she had been consuming alcohol for twelve hours straight on the date of the murder.
During his summation, trial counsel argued that Appellee credibly testified as to his alibi and asserted that Hooper was the culprit. He pointed to the physical evidence of the location and manner in which the victim was shot and the blood and brain matter on Hooper's clothing as disproving Hooper's testimony. The jury, nonetheless, found Appellee guilty of first-degree murder and possession of an instrument of crime ("PIC"). The court sentenced Appellee, on August 6, 2007, to a mandatory term of life imprisonment for the murder count and a concurrent term of three months to five years for PIC. Appellee timely filed a post-sentence motion on August 13, 2007. The motion was dismissed by operation of law on December 11, 2007. Appellee timely appealed, and this Court affirmed his judgment of sentence on May 21, 2009. Commonwealth v. Stewart, 976 A.2d 1216 (Pa.Super. 2009) (unpublished memorandum).
Thereafter, on November 30, 2009, Appellee filed a timely pro se PCRA petition. The court appointed counsel, who filed an amended petition. Therein, Appellee maintained that trial counsel was ineffective for failing to interview and present his then-fiancée, Rasheda Grazier, at trial. The Commonwealth filed a response, requesting the court to dismiss Appellee's petition. Appellee filed a supplemental amended petition, and the court held evidentiary hearings on June 14 and June 17, 2011. Ms. Grazier testified at the evidentiary hearing. She provided that she was in the courtroom at his first scheduled trial and indicated that she telephoned Appellee's trial attorney and spoke to him about being an alibi witness before that time.
In addition, she was present in the courtroom and available to testify at Appellee's trial. According to Ms. Grazier, she would have testified consistently with Appellee's trial testimony. Appellee's grandmother also testified at the evidentiary hearing. She provided copies of two letters that Appellee sent to trial counsel before his trial, one of which explicitly referred to Ms. Grazier and set forth her phone number and address. Another letter referenced a female witness who spoke with counsel and would testify on his behalf. The court heard argument on July 8, 2011. The Commonwealth vigorously argued that neither Ms. Grazier nor Appellee was credible. Subsequently, on December 9, 2011, again after hearing argument, the PCRA court, who presided over Appellee's trial, granted Appellee a new trial.
The Commonwealth timely appealed. The PCRA court and the Commonwealth complied with Pa.R.A.P. 1925. In an unpublished memorandum, a divided panel of this Court reversed. Appellee sought re-argument and we granted en banc review. The matter is now ready for this Court's consideration. The Commonwealth raises two issues for our review.
1. Is counsel ineffective for not investigating a putative alibi witness—defendant's fiancée—where defendant, on the record, denied having witnesses; did not tell counsel that he had an alibi witness until the eve of his second trial; the fiancée never disclosed the putative alibi to counsel or anyone during the 16 months that defendant remained in jail; and counsel concluded that the last-minute witness would be easily discredited and would harm the defense?
2. Is defendant entitled to a new trial on a claim of ineffectiveness where he failed to establish prejudice, in that the impeachable alibi witness would ...