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Commonwealth v. Jones

Supreme Court of Pennsylvania

July 17, 2019

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
WENDELL JONES, Appellant

          Submitted: February 1, 2019

          Appeal from the Order of the Superior Court entered 12/19/17 at No. 1781 WDA 2016, affirming the order of the Court of Common Pleas of Allegheny County entered 10/25/16, at No. CP-02-CR-0008512-2000

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          SAYLOR CHIEF JUSTICE.

         We allowed appeal in this post-conviction matter to consider whether Appellant is entitled to a new trial, because counsel failed to request that the jury receive an alibi instruction or object to the trial court's failure to give one.

         In the early morning hours of July 4, 2008, Appellant's former girlfriend, Sonsiarae Watts, and her boyfriend, Dahl Palm, were shot to death inside Ms. Watts' home in McKees Rocks, Allegheny County. After a grand jury investigation, Appellant was charged with two counts of first-degree murder, as well as burglary and a firearms offense. At his trial, Appellant testified he was at home alone watching television or sleeping on his couch when the crimes occurred.[1] His counsel did not request an alibi instruction and the court did not give one. The jury convicted Appellant on all charges. The court imposed consecutive life sentences for the murders, a consecutive term of incarceration on the burglary charge, and no further penalty for the firearms violation.

         After Appellant's judgment of sentence was affirmed on direct appeal, see Commonwealth v. Jones, No. 1870 WDA 2012, slip op. (Pa. Super. June 6, 2014), he filed a counseled Post Conviction Relief Act ("PCRA") petition asserting, inter alia, he was entitled to a new trial because of counsel's ineffectiveness in failing to request an alibi instruction or object to the trial court's failure to give one. At a hearing on the petition, trial counsel testified he did not request an alibi instruction because he believed one was unnecessary since he viewed Appellant's alibi as weak - as no other witness corroborated it - and he thought the better strategy was to argue another person had murdered the victims. See N.T., Aug. 24, 2016, at 17-19. Somewhat inconsistently, however, counsel also stated he lacked a reasonable basis for failing to ask the trial court to issue such an instruction. See id. at 9, 11. The PCRA court denied relief.

         The Superior Court affirmed. See Commonwealth v. Jones, No. 1781 WDA 2016, slip op., 2017 WL 6461845 (Pa. Super. Dec. 19, 2017). The court observed that trial counsel is presumed to have been effective, and a litigant challenging counsel's stewardship can only overcome that presumption by demonstrating: (1) the underlying claim has arguable merit; (2) counsel's act or omission lacked a reasonable basis designed to advance his client's interests; and (3) counsel's ineffectiveness resulted in prejudice - meaning that, but for counsel's error, there is a reasonable probability the outcome of the proceeding would have been different. See id. at *5-*6 (citing Commonwealth v. Pierce, 567 Pa. 186, 203, 786 A.2d 203, 213 (2001)). The court noted an ineffectiveness claim will fail if any of these prongs is not satisfied. See id. at *6 (quoting Commonwealth v. Daniels, 600 Pa. 1, 18, 963 A.2d 409, 419 (2009)).

         In reference to the claim based on counsel's failure to ask for an alibi instruction, the court explained that such an omission does not amount to per se prejudice. See id. at *7 (citing Commonwealth v. Hawkins, 586 Pa. 366, 389, 894 A.2d 716, 729 (2006)). It also agreed with trial counsel that the proffered alibi was weak, and concluded that counsel's PCRA testimony demonstrated a reasonable basis for his trial strategy - namely, that he "believed the better strategy was to establish that another individual committed the crime[s]." Id.[2] Finally, the intermediate court indicated there was extensive trial evidence of guilt. As such, the court continued, Appellant had not demonstrated a reasonable probability that, if an alibi instruction had been given, the outcome of the trial would have been different. See id. at *7-*9.

         We granted further review limited to whether the Superior Court erred in denying Appellant's claim that counsel was ineffective in failing to either request an alibi instruction or object to the trial court's failure to provide one in its final charge to the jury. See Commonwealth v. Jones, ___ Pa.___, 187 A.3d 906 (2018) (per curiam).

         "[A]n alibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party." Commonwealth v. Ali, 608 Pa. 71, 127, 10 A.3d 282, 316 (2010). Although an alibi may be stronger if accompanied by corroborative evidence, even absent such proofs a defendant's testimony that he was elsewhere when the crime occurred, standing alone, amounts to an alibi defense, and it is for the jury to decide how much weight to give such testimony. See Commonwealth v. Roxberry, 529 Pa. 160, 165-66, 602 A.2d 826, 828 (1992).

         Here, it is undisputed that Appellant's trial testimony constituted an alibi defense, as he could not have committed the burglary and murders if he was, consistent with his testimony, at his residence when those events transpired. See id. Consequently, Appellant was entitled to have the trial court charge the jury on how to assess his alibi evidence. See id. at 165, 602 A.2d at 828 (quoting Commonwealth v. Pounds, 490 Pa. 621, 631-32, 417 A.2d 597, 602 (1980)); Hawkins, 586 Pa. at 390-91, 894 A.2d at 730.[3]Appellant's underlying claim thus has arguable merit. Accordingly, we now evaluate the second and third elements of the Pierce test. See generally Hawkins, 586 Pa. at 389, 894 A.2d at 729 (recognizing that trial counsel's failure to request an alibi instruction to which the defendant was entitled does not automatically warrant a new trial, but rather, invokes the three-step Pierce standard for ineffective assistance of counsel).

         The second aspect of the Pierce analysis relates to whether trial counsel had a reasonable basis for his act or omission designed to further his client's interests. In terms of counsel's failure to request an alibi instruction when the defendant is entitled to one, Roxberry seemed to leave little room for the possibility that counsel may have had a reasonable basis, labeling counsel's failure along these lines "inexplicabl[e]." Roxberry, 529 Pa. at 166, 602 A.2d at 829. The Court in Hawkins, however, rejected the precept that Roxberry established a rule of per se ineffectiveness when counsel fails to ensure an alibi instruction is given. It clarified, instead, that it is possible for counsel to have a reasonable basis, and hence, evaluation of the second element of the Pierce standard must be made on a case-by-case basis. See Hawkins, 586 Pa. at 391, 894 A.2d at 731.[4] Accord Commonwealth v. Mikell, 556 Pa. 509, 516-17, 729 A.2d 566, 570 (1999) (reciting that a PCRA petitioner must satisfy all three Pierce factors to succeed on an ineffectiveness claim based on counsel's failure to request an alibi charge).

         As recounted above, trial counsel testified at Appellant's PCRA hearing that he viewed Appellant's alibi as weak since it was uncorroborated, and he thought a better strategy was to argue that another person was the perpetrator.[5] This explanation lacks substantial force. One of the main objectives of an alibi instruction is to explain that even a weak alibi can form a basis for acquittal so long as it raises a reasonable doubt in the minds of the jurors. See supra note 3; Mikell, 556 Pa. at 517-18, 729 A.2d at 570-71. Further, as counsel's third-party-perpetrator theory was consistent with the defense claim that Appellant was at home when the killings took place, it would not have been undermined by an alibi charge. Moreover, and as noted, counsel conceded during his PCRA testimony that he lacked a reasonable basis for failing to ask the trial court to provide the jury with an alibi instruction or object to its absence from the jury charge. We therefore conclude that Appellant has satisfied the second prong of the Pierce inquiry by demonstrating that counsel lacked a reasonable basis for his omission.

         In light of the above, resolution of this appeal turns on the final Pierce factor: whether counsel's omission resulted in prejudice. In the context of a post-conviction challenge to counsel's stewardship, prejudice is established where the truth-determining process was so undermined that "no reliable adjudication of guilt or innocence could have taken place," 42 Pa.C.S. §9543(a)(2)(ii), i.e., there is a reasonable probability that, but for counsel's error, the outcome of the trial would have been different. See Commonwealth v. Laird, 632 Pa. 332, 343, 119 A.3d 972, 978 (2015) (citing Commonwealth v. Harris, 578 Pa. 377, 387, 852 A.2d 1168, 1173 (2004)). This does not mean a different outcome would have been more likely than not; a reasonable probability is a probability "sufficient to undermine confidence in the outcome of the proceeding." Id. (citing Commonwealth v. King, 618 Pa. 405, 416, 57 A.3d 607, 613 (2012)). Still, a speculative or attenuated possibility of a different outcome is insufficient to undermine confidence in the outcome. See Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 792 (2011) ("The likelihood of a different result must be substantial, not just conceivable." (citation omitted)).[6]

         Appellant offers only a brief, one-paragraph argument that he established prejudice. He notes that the Commonwealth's case against him was entirely circumstantial, as no trial witness saw him commit the crimes. He observes, as well, that no physical evidence, such as DNA or fingerprint evidence, linked him to the crime scene. Appellant states that, due to the lack of an alibi instruction, the jury was never told that it should acquit him if his alibi testimony, though not completely believed, raised a reasonable doubt as to his guilt. From this, he concludes there is a reasonable probability the outcome of the trial would have been different if such an instruction had been given. See Brief for Appellant at 17-18.

         The Commonwealth responds by highlighting that Appellant bears the burden to prove prejudice, and suggesting he has not made a meaningful effort to do so here. See Brief for Appellee at 27-28. The Commonwealth also asserts Appellant was not prejudiced, and it reviews various aspects of the trial evidence which it construes as demonstrating that his alibi evidence could not have created reasonable doubt in the jurors' minds. Finally, the Commonwealth quotes the portion of the PCRA court's reasoning in which it concluded there was no prejudice because the jury charge properly instructed the jurors on how to consider all trial testimony, and Appellant's alibi lacked corroboration. See id. at 28-31.

         To evaluate whether Appellant has proven prejudice, we will review the evidence introduced at trial. See Strickland, 466 U.S. at 695, 104 S.Ct. at 2069 (stating that, in making a determination as to prejudice for purposes of an ineffectiveness claim, reviewing courts must consider "the totality of the evidence" presented at trial). As a brief, introductory synopsis, it is undisputed that the crimes occurred at approximately 4:30 a.m. on Friday, July 4, 2008, when the assailant entered Ms. Watts' residence, proceeded to her master bedroom on the first floor, and killed the victims by firing at them multiple times with a .40-caliber firearm, striking each victim with six or seven rounds.[7] Amber Durrett, a friend of Ms. Watts, was sleeping on the couch in the living room with her four-year-old daughter at the time. She awoke upon hearing the shots and Ms. Watts screaming, "No, no, stop!" Ms. Durrett could see gun-muzzle flashes coming from the master bedroom, but she was unable to see the shooter. She retreated with her daughter to another room and heard the perpetrator run down the hallway and leave the house by the back door. She then called the police.

         As noted, Sonsiarae Watts was Appellant's former girlfriend. Sometime after their relationship ended, Ms. Watts began dating Appellant's friend Dahl Palm, and the two had been in a relationship for several months at the time they were murdered. Mr. Palm, Ms. Watts, and Appellant were all members of the West End chapter of the Brothers of the Hammer Motorcycle Club, which met at Mr. Palm's automobile repair shop.[8]

         Mr. Palm's son Brandon testified his father was the president of the chapter and Appellant was the vice president. He also stated more generally that, as of May 2008, Appellant was a long-time friend of the Palm family and had been Mr. Palm's close friend for many years. Brandon recounted an altercation at his father's shop on May 31, 2008, about five weeks before the murders. According to Brandon, he, his father, Ms. Watts, and others were at the shop when Appellant arrived on his motorcycle. Appellant approached Ms. Watts to speak with her, but she refused and started walking away. Appellant then grabbed her hair and punched her several times in the face, breaking her nose. After Mr. Palm physically intervened, Appellant rode away and Mr. Palm took Ms. Watts to the hospital.

         Brandon's brother, Jordan Palm, testified he was living at Ms. Watts' residence along with his father during the relevant timeframe. His description of the altercation at his father's auto repair shop was consistent with Brandon's. Jordan added that, about a week after that incident, he was with his father (Mr. Palm), who received a call on his cell phone and mentioned to Jordan that it was from Appellant. According to Jordan, Mr. Palm then answered the call and put it on speaker phone. Jordan testified he recognized Appellant's voice on the other end, and that Appellant stated to Mr. Palm, "[Y]ou are not going to just ride off into the sunset. I'm going to kill you, her, and myself." N.T., July 19, 2011, at 232.

         On cross examination, Jordan noted that a homeless alcoholic named Sam had been sleeping on a couch on the front porch of Ms. Watts' home at the time.[9] According to Jordan, Sam was supposed to pay Ms. Watts for staying at the house, as well as using the shower and eating there. Mr. Palm told Sam several days before the killings that he had to leave because he had stopped paying Ms. Watts. More generally, Jordan mentioned that, in addition to Sam and Ms. Watts, several other persons had been living at the residence, including himself, his father, Ms. Watts' son Aaron Adams, as well as Amber Durrett and her young daughter. As far as Jordan knew, none of these individuals had a key to the home.

         Marquita Harris, Ms. Watts' sister, testified that: she had always spent a great deal of time with Ms. Watts and was in touch with her on a regular basis; Ms. Watts began dating Appellant in mid-2007 and terminated their relationship in December 2007; Ms. Watts began dating Mr. Palm in March or April of 2008; and on May 31, 2008, she (Ms. Harris) received a call informing her that Appellant had assaulted Ms. Watts, who was taken to the hospital. Ms. Harris then went to the hospital to assist Ms. Watts and, after Ms. Watts was discharged, drove her to the police station to file a report regarding the assault. Ms. Harris subsequently accompanied Ms. Watts to obtain a protection-from-abuse ("PFA") order against Appellant.

         After the May 31, 2008, incident, Ms. Watts stayed at Ms. Harris's residence for approximately two weeks and then moved back home. According to Ms. Harris, sometime in the first week of June 2008, while Ms. Watts was still staying with her, a text message from Appellant appeared on Ms. Watts' cell phone stating, "I'm going to shoot Dahl then I'm going to shoot you and go home and wake up and put a bullet in my head." Id. at 187. Ms. Harris accompanied Ms. Watts to the police station to report the text as part of the ongoing PFA proceedings. Notwithstanding these developments, Ms. Harris explained, Ms. Watts ultimately withdrew her PFA petition. Ms. Harris stated that this action was part of ...


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