Appeal from the PCRA Order July 8, 2013, Court of Common Pleas, Allegheny County, Criminal Division at No. CP-02-CR-0012794-2007
Joseph D. Seletyn, Esq.
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and PLATT, JJ. [*]
Appellant, Scott Clark ("Clark"), appeals from the order dated July 8, 2013, dismissing his petition for relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46 ("PCRA"), following his convictions for murder in the first degree, 18 Pa.C.S.A. § 2502(a), and carrying a firearm without a license, 18 Pa.C.S.A. § 6106. Clark contends that trial counsel was ineffective for failing to call two witnesses at his non-jury trial. For the reasons that follow, we affirm .
On February 6, 2009, the trial court, per the Honorable Judge John Reilly, found Clark guilty of the above-reference crimes. On April 30, 2009, Judge Reilly sentenced Clark to a term of life imprisonment on the first-degree murder conviction and a concurrent three to six year term of imprisonment on the firearm s conviction. I n a written opinion, Judge Reilly sum marized the evidence at trial as follows:
At trial Raymond Gray testified that he and [ Clark] were driving around and ended up on Perrysville Avenue. He stated that they had seen three men that [ Clark] had stated he had a problem with. [ Clark] then asked the driver, Gray, to turn onto an oncoming street and asked the driver to let him out. As [ Clark] exits the vehicle, Gray observes him pulling out something, which he believes to be a silky hat or mask, and also notices the handle of a gun protruding from [ Clark's] pocket. He sees three individuals running with [ Clark] running behind them. Shortly thereafter there are various gunshots heard. [ Clark] returns to the vehicle and is out of breath, and as he enters the car he says 'go-go'. Subsequently, [ Clark] stated 'that's how it's supposed to be done, ' referring to what had occurred. The court as fact finder further concluded that corroborative testimony of other eyewitnesses aided in dispelling any reasonable doubt that it was [ Clark] who was the shooter in this incident. The eyewitnesses to the shooting testified that after the victim had been initially shot the shooter stood over the victim and fired additional shots. As such, [ Clark] was found guilty of first-degree murder.
Trial Court Opinion, 10/ 26/ 2009, at 3.
On May 11, 2009, Clark filed two post-sentence motions, the first challenging the weight of the evidence and the second contending that trial counsel, Attorney Thom as N. Farrell ("Attorney Farrell"), was ineffective for failing to call two witnesses, Lonnie Bivins ("Bivins") and Kellin McBryde ("McBryde"), who would have testified that Clark was not the shooter on the night in question. On June 18, 2009, Judge Reilly conducted an evidentiary hearing, at which Attorney Farrell, Bivins, and McBryde, among others, testified. By a written opinion dated October 26, 2009, Judge Reilly denied relief on the post-trial motions.
On October 3, 2011, this Court affirmed Clark's judgment of sentence without prejudice to raise the ineffective assistance of counsel claim s at a later date. Clark then filed a pro se PCRA petition and counsel was appointed to represent him. Counsel then filed an amended PCRA petition, alleging Attorney Farrell's ineffectiveness for failing to call Bivins and McBryde to testify at trial. As a result of Judge Reilly's unfortunate death, the case was assigned to the Honorable Judge Donald E. Machen. Because Judge Reilly had already conducted an evidentiary hearing and made credibility determinations, Judge Machen relied upon Judge Reilly's factual findings in dismissing Clark's PCRA petition by order dated July 8, 2013.
On appeal, Clark raises two issues for our consideration and determination:
1. Whether the lower court erred in finding trial counsel effective when he failed to present testimony from two available witnesses who would have testified that [ Clark] was not the shooter?
2. Whether the trial court's credibility determinations were supported by the record when the testimony established counsel knew that Lonnie Bivins and Kellin McBryde were available and ...