Submitted: February 1, 2019
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.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
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.
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. 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.
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.
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)).
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. 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.
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
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).
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.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).
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
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).
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. 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.
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
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.
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.
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. 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.
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
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.
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.
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. 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.
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
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 ...