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[U] Commonwealth v. Wiley

Superior Court of Pennsylvania

February 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
GARY CLIFFORD WILEY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order entered June 26, 2013, in the Court of Common Pleas of Crawford County, Criminal Division, at No(s): CP-20-CR-0000353-2010.

BEFORE: BOWES, ALLEN, and MUSMANNO, JJ.

MEMORANDUM

ALLEN, J.

Gary Clifford Wiley (" Appellant") appeals from the order denying his petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. sections 9541-46. We affirm .

The pertinent facts and procedural history have been summarized as follows:

The following facts were adduced at trial. On April 2, 2010, at approximately 4: 00 p.m., [ Appellant] robbed the Rite Aid Pharmacy in Linesville, Pennsylvania while six female employees were in the store. He was wearing a black ski mask with eyeholes cut out, a black and white checkered oversized flannel shirt, and gloves on his hands. When [ Appellant] entered the store, he demanded money and OxyContin, and told the women that somebody was going to get hurt. The store manager, Sharon Palm, gave [ Appellant] approximately $350 from the cash register after he demanded the money and made the threat.
The pharmacist, Lisa Sanderson, had to retrieve the OxyContin from a safe. While attempting to do so, she heard [ Appellant] counting down from ten while saying that someone was going to get hurt. As Ms. Sanderson was opening the safe, [ Appellant] approached her and demanded, "OxyContin now." She handed [ Appellant] four bottles of OxyContin, and he ran out the back door. [ Appellant] dropped one of the bottles while exiting the store.
Joshua and Estrella Allen were across the street from the Rite Aid when [ Appellant] walked toward the store. They identified him as the man who pulled a ski mask down over his face just before entering the Rite Aid, immediately prior to the robbery.
Rite Aid employee Cheryl Johnson was present during the April 2, 2010 robbery. She was also working at Rite Aid on April 10, 2010, when she saw [ Appellant] come into the store twice without the mask. She recognized [ Appellant] as the man who robbed the store on April 2, 2010.
[ Appellant] lived and operated a business 1.6 miles from the Rite Aid. At the time of the robbery he was using OcyContin on a regular basis, although he did not have a prescription. His wife testified that he would crush the pills to snort or smoke them in order to defeat the time-release feature of the drug. When smoking OxyContin, [ Appellant] would put in a piece of aluminum foil, heat it up underneath the lighter, and then inhale the smoke through a straw.
On April 15, 2010, police officers executed a search warrant at [ Appellant's] business, Gary's Auto Repair. During the search, the police found approximately 500 pieces of tin foil. [ Appellant] admitted to the police that his drug of choice was OxyContin and that the pieces of foil found it in his place of business were used to smoke OxyContin.
Following a three-day trial, a jury convicted [ Appellant] of robbery, theft by unlawful taking, and terroristic threats on January 21, 2011. The trial court sentenced [ Appellant] to [ 20] to [ 120] months' incarceration for the robbery conviction on April 28, 2011. [ The other convictions were found to merge with the robbery conviction for sentencing purposes.] [ Appellant] filed a motion to modify/ reconsider sentence on May 2, 2011, which the court denied the following day.

Commonwealth v. Wiley, 40 A.3d 196 (Pa.Super. 2011), unpublished memorandum at 1-3 (footnotes omitted).

Appellant filed a timely appeal to this Court. On December 16, 2011, we affirm ed Appellant's judgment of sentence. Wiley, supra. Appellant did not file a petition for allowance of appeal to our Supreme Court.

On September 4, 2012, Appellant filed a timely pro se PCRA petition. The PCRA court appointed counsel, and PCRA counsel filed an amended PCRA petition on November 16, 2012. Within this petition, Appellant claimed that trial counsel was ineffective because he: 1) "failed to investigate the case prior to trial by not interviewing Wendy Kemling, who could have provided [ Appellant] with an alibi; " and 2) "failed to obtain the recording of the 911 call that would have provided the exact time of the robbery and the witness, Rob Anderson, who made the original 911 call and provided statements inconsistent of the witnesses used by the Commonwealth to identify [ Appellant as the robber] ."

The PCRA court scheduled argument to determine whether an evidentiary hearing was required based on Appellant's claim s. After hearing argument on January 28, 2013, the PCRA court issued a memorandum and order affording Appellant Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition without a hearing. Within the memorandum, the PCRA court noted that Appellant's amended PCRA petition failed to include signed certifications of witnesses to be called at an evidentiary hearing. See 42 Pa.C.S.A. § 9545(d)(1). Nevertheless, the PCRA court concluded "[ t] here is no indication that anything [ trial counsel] had available to him would have suggested to him that Ms. Kemling was a potential alibi witness and there was no averment that [ Appellant] told trial counsel that Ms. Kemling was with him at the time the robbery occurred and therefore she should be interviewed as a potential alibi witness." Memorandum and Order, 2/ 8/ 13, at 3.

With regard to the 911 tape of Mr. Anderson, the PCRA court concluded that the information from the call was consistent with the testimony of trial witnesses with regard to when the robbery occurred. Moreover, the PCRA court concluded that, while there were slight inconsistencies with Mr. Anderson's description of the robber and testimony of trial witnesses, the information provided by Mr. Anderson's 911 call would not "have been critical to the extent it would have changed the outcome of the trial." Id. at 4.

On February 28, 2013, PCRA counsel filed a response to the PCRA court's Pa.R.Crim .P. 907 notice, in which he claim ed Appellant's claims created a factual issue which necessitated an evidentiary hearing. By order entered March 1, 2013, the PCRA court granted Appellant twenty days to file a second amended petition. On March 21, 2013, PCRA counsel filed a second amended PCRA petition in which he included the requisite witness certifications.

By order dated March 25, 2013, the PCRA court granted Appellant an evidentiary hearing limited to "whether Wendy Kemling was available to provide testimony creating an alibi for [ Appellant] and whether any time prior to trial, trial counsel was aware of or should have reasonably been aware of the possibility of an alibi being presented by Ms. Kemling." In addition, the PCRA court stated "[ n]othing in the Second Amended Petition changes the Court's conclusion with regard to the 911 tape and therefore no testimony will be allowed at the evidentiary hearing with regard to that issue."

The PCRA court held the evidentiary hearing on June 24, 2013. The witnesses included Ms. Kemling, Appellant, and trial counsel. Police officers who investigated the case, as well as a private investigator hired by trial counsel, also testified. By order entered June 26, 2013, the PCRA court denied Appellant post-conviction relief. This timely appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant raises the following issue:

Did the [ PCRA] court err in denying a new trial when trial counsel failed to produce a willing and able alibi witness and obtain available discovery?

Appellant's Brief at 4.

In reviewing the propriety of an order granting or denying PCRA relief, an appellate court is limited to ascertaining whether the record supports the determination of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great deference to the findings of the PCRA court, "but its legal determinations are subject to our plenary review." Id. Furthermore, to be entitled to relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence that the conviction or sentence arose from one or more of the errors enumerated in section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness of counsel.

To obtain relief under the PCRA premised on a claim that counsel was ineffective, a petitioner must establish by a preponderance of the evidence that counsel's ineffectiveness so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Id. " Generally, counsel's performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner." Id. This requires the petitioner to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice" requires the petitioner to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. In assessing a claim of ineffectiveness, when it is clear that appellant has failed to meet the prejudice prong, the court may dispose of the claim on that basis alone, without a determination of whether the first two prongs have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel cannot be deem ed ineffective for failing to pursue a meritless claim . Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.Super. 2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).

Appellant first asserts that trial counsel was ineffective for failing to investigate and/or present Ms. Kemling as an ...


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