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[U] Commonwealth v. Wiley

Superior Court of Pennsylvania

February 7, 2014



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.




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 alibi witness. According to Appellant:

[ He] was convicted, based in part on this robbery conviction, of the murder of two individuals. During the investigation by homicide counsel, it was found that Ms. Kemling was upset because she related to the police that she knew [ Appellant] did not commit the [ robbery] offense since she was with him at the time. When shown her statement from the police report, she stated that it was wrong in that it said she was unsure of the time as it related to the robbery. She told the officer that she knew that she was with [ Appellant] past 4: 00 p.m. on the day of the robbery.

Appellant's Brief at 9.[1] Thus, Appellant contends that Ms. Kemling could have offered him an alibi, and trial counsel was ineffective for failing to call her at his trial.

In order to establish that trial counsel was ineffective for failing to investigate and/ or call a witness at trial, a PCRA petitioner must demonstrate that:

(1) the witness existed; (2) the witness was available to testify for the defense; (3) [ trial] counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied [ the appellant] a fair trial.

Commonwealth v. Thomas, 44 A.3d 12, 23 (Pa. 2012) (citations omitted).

The PCRA court summarized the testimony presented at the evidentiary hearing as follows:

It was well established that the robbery of the [ Rite Aid] store in Linesville, Pennsylvania occurred almost exactly at 4: 00 p.m. on April 2, 2010.
Apparently after interviewing [ Appellant], who made reference to Wendy Kemling being at his place of business, suggesting that she may have been an alibi for him, Pennsylvania State Trooper Eric D. Mallory interviewed Ms. Kemling on April 14, 2010 at approximately 10: 30 p.m.
Trooper Mallory's police report with regard to that interview was provided to [ trial counsel] as part of discovery. The Trooper's report with regard to that interview indicated that Ms. Kemling went to [ Appellant's] garage between 2: 30 p.m. and 3: 00 p.m. on April 2, 2010 to have the oil changed in her car.
The report indicated that she stated that she remembered that there was some sort of garage auditor checking the garage and that she left before the garage auditor did.
She indicated that she thought she left between 3: 30 p.m . and 4: 00 p.m . but was not totally certain.
Trooper Mallory advised Ms. Kemling that [ Appellant] had said that she and [ Appellant] heard conversations through a police scanner that the robbery had taken place but Trooper Mallory's report indicated that Ms. Kemling said that was not true as she never heard or saw a scanner in [ Appellant's] garage at all.
Based on that police report, Ms. Kemling could [ not] have been at [ Appellant's] garage with him at 4: 00 p.m., when the robbery occurred.
However, [ trial counsel] took additional steps to try to establish whether Ms. Kemling could provide an alibi for [ Appellant] .
At [ trial counsel's] request, [ Appellant] was interviewed by a private investigator by the name of Matthew Psillas on August 10, 2010.
During that interview, [ Appellant] indicated that he was working on Wendy Kemling's car on April 2, 2010 and that he believed that she was with him listening to the scanner traffic regarding the occurrence of the [ Rite Aid] robbery.
However, [ Appellant] further indicated in that statement that based on what Wendy Kemling had told the police, she had left his business about the same time as [ Appellant's] wife left to go to the Country Fair store. That, according to [ Appellant], was apparently before the robbery occurred because when his wife came back from the Country Fair store, she indicated that the word at the Country Fair store was that someone had robbed the [ Rite Aid] and that there were police all through the town of Linesville.
At the time of the evidentiary hearing, [ trial counsel] testified that [ Appellant] never told him that Wendy Kemling was a potential alibi for him and once trial counsel read the police report and listened to the interview Mr. Psillas conducted with [ Appellant] on August 10, 2010, trial counsel concluded that Wendy Kemling was not a potential alibi witness for [ Appellant] .
Trial counsel further indicated that when he prepared the omnibus pretrial motion [ including] only [ Appellant's wife] as a potential alibi witness, that was reviewed with [ Appellant] and [ Appellant] did not indicate that he wanted Wendy Kemling listed as an alibi witness.
Further, during [ Appellant's] trial when we conducted a colloquy with him when he indicated that he did not wish to testify, we specifically asked [ Appellant] the following:
THE COURT: Any witnesses that you want called that you know may be witnesses that you talked about that you decided not to call but is there anyone you wanted them to call that they haven't called?
(Trial Transcript of January 18, 2011, pg. 369, lines 12-17)
Since [ Appellant's] trial was completed, Wendy Kemling has been interviewed and has made statements, some of which would suggest she could have provided an alibi for [ Appellant], although there have been inconsistencies in her various statements.
At the time of the evidentiary hearing, Ms. Kemling testified that she had a 3: 00 o'clock appointment at [ Appellant's] garage to have her oil changed and went there at 3: 00 p.m .
She stated that the inspection officer was there at the time and she did not know when [ Appellant] started working on her vehicle but that [ Appellant] was coming in and out of the office.
She testified that she did not remember telling Trooper Mallory that she arrived at [ Appellant's] garage between 2: 30 p.m. and 3: 00 p.m. but instead she testified she got there a little before 3: 00 p.m .
She also testified that she did not tell Trooper Mallory that she left before the inspection officer and she did not tell him she left between 3: 30 p.m. and 4: 00 p.m. She testified that she told him that she left after 4: 00 p.m . but no later than 4: 20 p.m .
Ms. Kemling testified that she believed the report from investigator Psillas was accurate and that she did tell him [ Appellant] could not have committed the [ Rite Aid] robbery because she was with him at his garage.
She further testified that she believed the Inspector [ sic] left the garage between 3: 50 p.m. and 3: 55 p.m. She also testified that she believed she may have left as early as 4: 10 p.m. but she thought it was around 4: 20 p.m.
Ms. Kemling testified that on January 28, 2013 she talked to District Attorney Francis Schultz and Assistant District Attorney Craig Howe in Mr. Schultz's office and that she told them that she did not believe that [ Appellant] had killed anybody because he was a nice guy.
She further testified that she told Mr. Schultz and Mr. Howe that she left [ Appellant's] garage after 4: 00 p.m . but she did not know how much after 4: 00 p.m.
She further testified that she was shown the police report version of the interview Trooper Mallory had conducted with her on April 14, 2010, and that she read it and when asked by Mr. Schultz indicated on two occasions that the report was accurate.
She then however went on to say that Mr. Schultz asked her to sign that report and that she said there was a couple of things that were not accurate so she would not sign it .
Matthew Psillas indicated that after [ Appellant's] robbery trial he was working with another attorney representing [ Appellant] on murder charges and during the course of his investigation indicated that he thought he should talk to Wendy Kemling.
He did so sometime close to November 3, 2011, and issued a report to both [ Appellant's] trial counsel in the murder case and to [ trial counsel] in the robbery case.
Mr. Psillas indicated that Ms. Kemling [ stated] that she knew she was with [ Appellant] at the garage when the robbery occurred and that she had gotten there at 3: 00 p.m. and the inspector was there.
She told Mr. Psillas that she was watching the time very closely and that she was still there when the inspector left.
She indicated that it was not until [ the inspector] left that her oil got changed.
She stated that she also had told the police that it was closer to 4: 30 p.m . when she left [ Appellant's] garage.
Mr. Psillas indicated that he went over the sequence of events with Ms. Kemling three times to be sure and apparently she indicated that she could have left [ Appellant's] garage as early as 4: 10 p.m . but that she believed it was closer to 4: 20 p.m .
Mr. Psillas also testified that he did in fact go out and interview [ Appellant] at the Crawford County Correctional Facility on August 10, 2010 and that [ Appellant] did not tell him that Wendy Kemling was present with him at his garage at the time of the robbery.
Mr. Psillas testified that based on documentation he was aware [ that] the inspection officer left [ Appellant's] garage at 3: 42 p.m. rather than 4: 00 p.m. which was what Ms. Kemling indicated to him.
At the evidentiary hearing [ Appellant] testified that he had told the Pennsylvania State Police that at the time of the robbery or at least a few minutes before the robbery he was with the inspection officer, his wife, Angela Wiley, and Wendy Kemling.
He testified further that at the time he was not sure when the inspection officer had left but that he would have worked on Ms. Kemling's [ car] after the officer left.
[ Appellant] further testified that he did not rem ember meeting with Matthew Psillas and did not remember the tape recorded interview Mr. Psillas conducted with him on August 8, 2010 [ sic] .
[ Appellant] testified that he brought up Wendy Kemling several times to [ trial counsel] .
He testified that he wanted [ trial counsel] to call Wendy Kemling and his attorney did not do so but [ Appellant] did not recall the colloquy with the Court with regard to any witnesses he wished for [ trial counsel] to call who were not being called.

PCRA Court Opinion, 6/ 26/ 13, at 2-6.

Based on this evidence, the PCRA court concluded that Appellant met his burden under Thomas, supra, except for the final factor, i.e., that the absence of Ms. Kemling's testimony was so prejudicial as to have denied Appellant a fair trial. While the PCRA court did not specifically determine Ms. Kemling's credibility, it did take note of the inconsistencies in her testimony.[2]Compare Commonwealth v. Stewart, 2013 Pa.Super. LEXIS 3196, * 28 n.4 (Pa.Super. 2013) (en banc) (citation omitted) (reiterating that when evaluating a claim of ineffectiveness the predicate question "on a collateral attack requires a judicial assessment of credibility in evaluating prejudice)."

Additionally, the PCRA court concluded that there was "strong evidence" that Appellant was the perpetrator of the Rite Aid robbery. Id. at 6. The PCRA court described this evidence as follows:

Joshua Allen who was in the park across from the [ Rite Aid] store saw the robber walk up to the store with a stocking cap on and pull it over his face as a mask before entering the store at about 4: 00 p.m . on April 2, 2010. Mr. Allen identified [ Appellant] as that person when shown a photo lineup.
His wife[, ] Estrella Allen, who was in that same location with him that day independently also identified [ Appellant] as the person who entered the [ Rite Aid] at the time when she was presented with a photo lineup.
Sharon Palm, the [ Rite Aid] store manager, testified that when [ Appellant] came into the [ Rite Aid] store on April 10, 2010, based on his eyebrows and his eyes and the way he was moving and walking, she identified him as the person who had robbed the store on April 2, 2010. She actually noted that he came in on two occasions on April 20, 2010 but that she did not call the police until the second occasion.
Cheryl Jordan, a cashier at the [ Rite Aid] store, testified that she was able through [ Appellant's] mask to see his eyebrows and that he had brownish hair. She also saw that he had blue eyes and that he had scratches and abrasions on the side of his neck that were very red.
She further testified that the same person who she identified as [ Appellant] came back in the store twice on April 10, 2010 without a mask.
Further, the pharmacist at the Linesville [ Rite Aid] store, Lisa Sanderson, testified that she gave [ Appellant] 15 milligram Oxycontin pills during the robbery and they were the most rare strength of Ocycontin pills prescribed.
[ Appellant's] wife, Angela Wiley, testified that he did not have a prescription for Oxycontin but that he would take the substance daily.
[ She] further testified that on April 4, 2010, she saw a small baggie of about ten Oxycontin pills in their bedroom which was more than [ Appellant] would normally have. Further, they were 15 milligram pills and she had never seen him before that date with that strength of pills.

PCRA Court Opinion, 6/ 26/ 13, at 6-7.

Our review of the PCRA hearing transcript supports the PCRA court's conclusion that Appellant did not meet his burden with regard to trial counsel's failure to call Ms. Kemling at trial. It is clear from the record that trial counsel was aware of Ms. Kemling's original statement to police that did not establish an alibi, that Appellant never told the private investigator that Ms. Kemling was a possible alibi witness, and at trial Appellant inform ed the court that there were no witnesses he wanted trial counsel to call in his defense. These circumstances, together with the overwhelming evidence of Appellant's guilt, supports the PCRA court's conclusion that Appellant is not entitled to relief.[3]

In the remainder of his argument, Appellant asserts that trial counsel was ineffective for not obtaining all of the 911 tapes that were received on the date of the robbery. According to Appellant, those tapes would have established statements made by the caller which were inconsistent with that witness's trial testimony. As an example, Appellant references Ms. Palm's 911 call in which she states that she could not identify the robber because he was wearing a mask. See Appellant's Brief at 9. As discussed supra, the only 911 tape at issue before the PCRA court was that of Mr. Anderson. Thus, to the extent Appellant references other 911 tapes, he inappropriately is raising the claim for the first time on appeal. See Pa.R.A.P. 903. Thus, we need not address Appellant's claim further.

In sum, because Appellant's claims of ineffectiveness are without merit, the PCRA court did not err in denying his PCRA petition. We therefore affirm the PCRA court's order denying post-conviction relief.

Order affirmed.

Judgment Entered.

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