NON-PRECEDENTIAL DECISION — SEE SUPERIOR COURT I.O.P. 65.37

MEMORANDUM BY JENKINS, J.

Appellant Christopher L. Ortiz appeals from the order denying his first petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46, without an evidentiary hearing. After careful review, we conclude Appellant's PCRA petition was facially sufficient to warrant an evidentiary hearing. We therefore reverse and remand for an evidentiary hearing consistent with this Memorandum.

The relevant facts and procedural history of the case are as follows. Following a bench trial, the Honorable Ellen Ceisler convicted Appellant of two counts each of Robbery and Simple Assault and one count each of Criminal Conspiracy, Terroristic Threats, Theft by Unlawful Taking, and Receiving Stolen Property on June 22, 2010.1 On January 31, 2011, Judge Ceisler sentenced Appellant to two to eight years' incarceration. On February 9, 2011, Appellant filed a Motion for Post-Sentence Relief, alleging trial counsel was ineffective for failing to subpoena video surveillance of the parking lot where the robbery took place and failing to investigate an alibi defense. The Motion was denied by operation of law on June 10, 2011.

Appellant filed a timely PCRA petition pro se on November 7, 2011, which was amended after the appointment of counsel. On June 8, 2015, Judge Ceisler, sitting as the PCRA court, dismissed the PCRA petition without an evidentiary hearing.2, 3

Appellant timely appealed to this Court. Appellant raises one issue on appeal:

Appellant's Brief at 2.

There is no absolute right to an evidentiary hearing, and a PCRA court has discretion to deny a PCRA petition without a hearing "if the PCRA court determines that the petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence." Commonwealth v. Hart, 911 A.2d 939, 941 (Pa.Super.2006) (citation omitted). "Our standard of review in PCRA appeals is limited to determining whether the findings of the PCRA court are supported by the record and free from legal error." Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.2009) (citation omitted). When the PCRA court denies a petition without an evidentiary hearing, we "examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing." Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa.Super.2004) (citing Commonwealth v. Hardcastle, 701 A.2d 541, 542-43 (Pa.1997)).

In his amended PCRA petition, Appellant alleges that trial counsel was ineffective for failing to call at trial two alibi witnesses, Kaleem Stevenson ("Stevenson") and Michael Ripka ("Ripka"). Both men worked with Appellant, and allegedly would have testified at trial that Appellant was at work on the day of the incident.4

It is well settled that a PCRA petitioner cannot prevail on a claim of trial counsel's ineffectiveness for failure to call a witness unless the petitioner shows that: "(1) the witness existed; (2) the witness was available to testify for the defense; (3) 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 defendant a fair trial." Commonwealth v. Washington, 927 A.2d 586, 599 (Pa.2007). To satisfy the prejudice prong of this analysis, a PCRA petitioner "must show how the uncalled witnesses' testimony would have been beneficial under the circumstances of the case." Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa.2008) (citations omitted).

As our Supreme Court has made clear, we must remand for an evidentiary hearing "in cases where the PCRA court declined to hold a hearing, and where an assessment of witness testimony was essential to a petitioner's ineffectiveness claims . . . ." Johnson, 966 A.2d at 540. This is so that the PCRA court can observe the witness and make credibility determinations based upon the live testimony of these witnesses. Id. at 539 (noting "one of the primary reasons PCRA hearings are held in the first place is so that credibility determinations can be made; otherwise, issues of material fact could be decided on pleadings and affidavits alone.").

The PCRA court erred in finding "no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing." Commonwealth v. Khalifah, 852 A.2d at 1240 (citation omitted).

Our finding is controlled by Khalifah, a case in which this Court remanded for an evidentiary hearing under factually indistinguishable circumstances. In both cases, the appellants were convicted at bench trials and later brought PCRA petitions claiming trial counsel was ineffective for failing to call alibi witnesses. 852 A.2d at 1239-40; PCRA Court Opinion, dated 11/2/15 at 3-4. In both cases, the PCRA courts denied the petitions without a hearing after determining that the alibi witnesses "lacked credibility in comparison to the facts that were established at trial." See Khalifah, 852 A.2d at 1240. See also PCRA Court Opinion, dated 11/2/15 at 6-9. The Khalifah Court held such credibility determinations are improper absent an evidentiary hearing, stating:

Khalifah, 852 A.2d at 1240.

In the instant case, the certification reviewed and signed by Stevenson states he was working with Appellant on the date of the alleged robbery, that trial counsel interviewed him but did not subpoena him to testify, that Stevenson was present at the trial and available to testify, that Stevenson does not know why trial counsel did not call him to testify, and that Stevenson remains willing and available to testify on behalf of Appellant.

The certification submitted in support of Ripka's testimony states that Appellant was working on the day of the incident and that Appellant used a work tow truck, not a personal vehicle, while at work. Memorandum of Law In Support of Amended Petition Under the Post Conviction Relief Act, at Exh.B. It further states that counsel did not contact Ripka before trial. Id. On the day of trial, Appellant called him, but, because Ripka had relocated to Florida, he could not appear as a trial witness that same day. Id. The narrative states that Ripka is able and willing to testify on Appellant's behalf at this time, even though he still resided in Florida when he spoke with the investigator. Id.5

The PCRA court found that Appellant failed to establish that he had been prejudiced by trial counsel's failure to call Stevenson and Ripka at trial. The PCRA court's determination that Appellant was not prejudiced turns on a credibility determination that is improperly predicated on "pleadings and affidavits alone" rather than evidence adduced at an evidentiary hearing. Johnson, 966 A.2d at 539.

If credible, Stevenson's and Ripka's testimony would contradict the victim and sole witness who identified Appellant as a participant in the robbery. Likewise, if credible, the testimony of Stevenson and Ripka may well have affected the outcome of Appellant's trial. Without the trial court making this essential credibility determination before us, we are constrained to remand this case for an evidentiary hearing.

Upon remand and after hearing Appellant's evidence, the PCRA court may determine that the testimony provided by Stevenson and Ripka is not credible and deny the petition.

Therefore, we reverse the PCRA court's order and remand this matter for an evidentiary hearing.

Order reversed. Case remanded. Jurisdiction relinquished.

Judge Ott joins in the Memorandum.

Judge Dubow files a Concurring/Dissenting Memorandum.

CONCURRING AND DISSENTING MEMORANDUM BY DUBOW, J.

I agree with the majority that remand is necessary for a hearing on Appellant's ineffective assistance of counsel claim for failing to present the testimony of Kaleem Stevenson at trial. However, unlike the majority, I conclude that the PCRA court did not abuse its discretion in finding that Appellant was not entitled to an evidentiary hearing on his claim that trial counsel was ineffective for failing to call Ripka as an alibi witness.

The statement of the investigator who interviewed Ripka indicates that Appellant called Ripka on the day of trial to see if Ripka was able to testify on his behalf, but that Ripka was unable to testify because he had moved to Florida. The statement does not make even a prima facie claim that Ripka was available at trial, or would have been available but for counsel's ineffectiveness. Therefore, on the face of Appellant's claim, the trial court properly concluded Appellant had failed to make the necessary showing that Ripka was available to testify at trial. Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007) (reiterating that a PCRA petitioner cannot prevail on a claim of trial counsel's ineffectiveness for failure to call a witness unless the petitioner shows that: "(1) the witness existed; (2) the witness was available to testify for the defense; (3) 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 defendant a fair trial").

Therefore, I concur in the order to remand for an evidentiary hearing as to Appellant's ineffective assistance of counsel claims for failure to call Mr. Stevensen, but respectfully dissent from the decision to grant an evidentiary hearing as to Appellant's ineffective assistance of counsel claims for failing to call Mr. Ripka. I disagree with the majority because the certification should explicitly state that the alibi witness was available to testify; it is not sufficient for the trial court to infer this from the statements in the certification.

Accordingly, I would remand for a hearing only on Appellant's ineffectiveness claim as it pertains to Mr. Stevenson.