Appeal from the Order Entered May 17, 2013 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0000088-2009
BEFORE: ALLEN, J., LAZARUS, J., and FITZGERALD, J. [*]
Vinceint Lee Flemister appeals from the order of the Court of Common Pleas of Cumberland County dismissing his petition brought pursuant to the Post Conviction Relief Act ("PCRA"). After careful review, we affirm based on the opinion of the Honorable Albert H. Masland.
Judge Masland ably summarized the facts of this case as follows:
On the afternoon of December 29, 2008, [Flemister] and his codefendant, Andres Rodriguez ("Rodriguez"), conspired to rob Warren Dowling ("Dowling"), who resided at 316 North College Street in Carlisle, Pennsylvania. Dowling, a drug dealer, had marijuana inside of the home on the date in question. Also in the home at the time was Dowling's stepbrother, Bryan Newell ("Newell"), and Newell's fiancée, Jenna Keller ("Keller").
At around 2:30 p.m., Flemister entered the home via an unlocked rear door on the first floor. At that time, Rodriguez was already inside of the home, in a second floor bedroom with Dowling. Once inside, Flemister encountered Newell and Keller, demanded money, and asked them whether anyone else was in the house. Flemister then grabbed Keller by the neck, pointed a handgun to her head, and forced her toward a staircase. Newell intervened in Keller's defense. After a struggle, Flemister shot Newell in the neck, instantly paralyzing him from the chest down. Flemister and Rodriguez then fled the scene. Officers of the Carlisle Borough Police Department responded to the scene and Keller gave them a description of the shooter as being a tall, black male, who was wearing a black hooded sweatshirt and a red bandanna covering his face. The police also questioned Newell, who gave a similar description of the shooter. After an investigation, the police arrested Flemister the following day.
At trial, several eye witnesses identified [Flemister] as the shooter. Specifically, Keller, Newell, and perhaps most damning, [Flemister's] co-conspirator, Rodriguez, who also gave extensive testimony regarding the planning and execution of the crime. The testimony established that [Flemister] and Rodriguez left their place of employment a little before 2:00 p.m. and proceeded to drop off Rodriguez' wife and another co-worker before going to [Flemister's] residence. Defendant entered his residence and emerged five to ten minutes later dressed in black and armed with a pistol. He and Rodriguez then proceeded to 316 North College Street where the crime occurred shortly thereafter.
PCRA Court Opinion, 5/17/13, at 1-2.
On March 11, 2013, a jury convicted Flemister of two counts of robbery,  criminal conspiracy to robbery,  aggravated assault,  burglary,  criminal attempt to criminal homicide,  and criminal trespass. Following his conviction, the court sentenced Flemister to an aggregate sentence of twenty-one to forty-five years' imprisonment. Flemister's post-sentence motions were denied, except for a correction of time credit.
On July 23, 2010, Flemister appealed his judgment of sentence, which this Court upheld on December 28, 2011. On May 25, 2012, Flemister filed a pro se PCRA petition, and shortly thereafter the court appointed Dirk Berry, Esquire, as counsel. At a PCRA hearing on November 9, 2012, Flemister testified, as did three alleged defense alibi witnesses. None of the three alleged alibi witnesses was called to testify during trial. Trial counsel testified for the Commonwealth. On May 17, 2013, the PCRA court dismissed Flemister's petition. Flemister filed this timely appeal and met all Pa.R.A.P. 1925 requirements.
On appeal, Flemister asks this Court to review whether the PCRA court erred when it held that he was not entitled to relief based on his claim that trial counsel's failure to pursue an available alibi defense and request an alibi ...