214 A.3d 283
Pa. Super. Ct.2019Background
- On Nov. 30, 2009, Anthony Shaw and an accomplice forced entry into Alex Adebisi’s Darby apartment; Adebisi was assaulted and shot. Shaw was identified by Adebisi in separate photo arrays and at trial.
- A jury convicted Shaw of attempted murder, robbery, aggravated assault, burglary, firearms offenses, PIC, and conspiracy; sentence 15–30 years plus 5 years probation; direct appeal denied.
- Shaw filed a timely PCRA petition; counsel (Molineux) amended, litigated at a hearing, and the PCRA court denied relief. Shaw appealed.
- Shaw alleged trial counsel was ineffective for (1) failing to move pretrial to suppress the out‑of‑court/photo identifications and consequent in‑court ID, and (2) failing to request a Kloiber instruction; PCRA counsel was alleged ineffective for abandoning on appeal a related claim about trial counsel’s failure to amend an alibi notice.
- The Superior Court affirmed that suppression/Kloiber claims lacked arguable merit, but found layered ineffectiveness (trial counsel failed to amend an inaccurate alibi notice; PCRA/appellate counsel omitted preservation) meritorious, concluding prejudice and ordering a new trial.
Issues
| Issue | Plaintiff's Argument (Shaw) | Defendant's Argument (Commonwealth/trial counsel) | Held |
|---|---|---|---|
| 1. Whether trial counsel was ineffective for not filing pretrial motion to suppress pretrial photo ID and in‑court ID | Photo array and officer comments were unduly suggestive and tainted in‑court ID | Photo array was not impermissibly suggestive; discrepancies go to credibility, not admissibility | Claim lacked arguable merit; no relief on this point |
| 2. Whether trial counsel erred by not requesting a Kloiber instruction | Equivocation/identification concerns warranted special instruction | Victim had multiple clear viewings and never equivocated; Kloiber factors absent | No arguable merit; no relief on this point |
| 3. Whether trial counsel was ineffective for failing to amend an inaccurate alibi notice pretrial | Alibi notice falsely stated both alibi witnesses placed Shaw together; counsel never contacted one witness (Crowley) and did not amend notice, leading to impeachment of alibi witness Wynn | Counsel thought notice could not be used for impeachment and relied on appellant’s mother to secure witness; strategic | Merits found: no reasonable basis to fail to amend; prejudice shown because impeachment of lone alibi witness could have affected identity issue; trial counsel ineffective |
| 4. Whether PCRA/appellate counsel (Molineux) was ineffective for abandoning the alibi‑amendment claim on 1925(b) | Molineux litigated the claim at PCRA hearing but omitted it in 1925(b), causing waiver on appeal | Commonwealth argued claim waived/unreviewable because raised first on appeal | Court held omission was ineffective assistance (occurred post‑PCRA jurisdiction as appellate counsel); no reasonable basis to abandon; prejudice caused; grants new trial |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong standard for ineffective assistance: performance and prejudice)
- Commonwealth v. Pierce, 515 Pa. 153 (Pa. 1986) (three‑prong test for counsels' ineffectiveness in PA: arguable merit, no reasonable basis, prejudice)
- Commonwealth v. Dennis, 17 A.3d 297 (Pa. 2011) (restating ineffective assistance standards)
- Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954) (instructive charge when special identification concerns exist)
- Commonwealth v. Thomas, 575 A.2d 921 (Pa. Super. 1990) (alibi notice may be used for impeachment if not withdrawn/amended)
- Commonwealth v. Alicea, 449 A.2d 1381 (Pa. 1982) (withdrawn alibi notice cannot be used at sentencing as evidence of fabrication)
- Commonwealth v. Fulmore, 25 A.3d 340 (Pa. Super. 2011) (out‑of‑court ID admissibility judged by totality of circumstances; suggestiveness alone insufficient)
- Commonwealth v. Fowler, 352 A.2d 17 (Pa. 1976) (prosecution must show by clear and convincing evidence that a suggestive pretrial ID did not taint in‑court ID)
- Commonwealth v. Kyle, 533 A.2d 120 (Pa. Super. 1987) (discrepancies between description and photo array go to credibility, not necessarily suggestiveness)