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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RAFIQ DIXON, : : Appellant. : No. 4046 EDA 2017
Appeal from the PCRA Order, November 17, 2017, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0011476-2011.
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 29, 2019
Rafiq Dixon appeals from the order dismissing without a hearing his first
petition for relief filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A.
§§9541-46. After careful review, we vacate and remand for an evidentiary
hearing.
On April 27, 2011, at approximately eight o’clock p.m., Devon Collins
and Shaquil Gressom were walking past a local convenience store located at
the intersection of 51st Street and Race Street in Philadelphia, Pennsylvania.
Joseph Pickney, the victim, approached the two men and asked if they wanted
to purchase pills. During the exchange, a man with a shirt wrapped around
the lower half of his face appeared, brandishing a gun. Pickney, Collins, and
Gressom all fled from the gunman. The convenience store had a security
camera that recorded the incident up until the men ran from the assailant. J-S02019-19
Ultimately, Pickney sustained seven gunshot wounds and died from his
injuries.
Following a police investigation, Dixon was charged with first degree
murder and related offenses. At the conclusion of trial, Dixon was found guilty
and ultimately sentenced to life imprisonment on July 25, 2012. On direct
appeal, this Court affirmed Dixon’s conviction and sentence, holding that the
jury’s determination that Dixon deliberately killed Pickney was supported by
sufficient evidence. Our Supreme Court denied allocatur.
Dixon filed this timely pro se PCRA petition, after which Dixon’s privately
retained counsel filed several amended PCRA petitions. Ultimately, the PCRA
court sent a Pa.R.Crim.P. 907 notice of intent to dismiss, and formally
dismissed Dixon’s petition without an evidentiary hearing on November 17,
2017. This timely appeal followed.
Dixon raises five issues for our review:
1. Trial counsel was ineffective for not presenting the mother of Dixon’s children, Ima Francis, as an alibi witness, even though Dixon told trial counsel before trial he was with Ima Francis at the time of the shooting.
2. Trial counsel was ineffective for not presenting Dixon’s mother, Sonya Dixon, as a defense witness to rebut Zelenia Lomax’s testimony and the Commonwealth’s claim that Dixon fled, when Dixon informed trial counsel to such prior to trial.
3. Trial counsel was ineffective for advising Dixon not to testify by informing him the Commonwealth could impeach him for Dixon’s prior possession with intent to deliver conviction, when PWID is not a crimen falsi.
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4. The cumulative prejudice from trial counsel’s multiple unreasonable acts or omissions rendered Dixon’s trial fundamentally unfair.
5. The PCRA court erred when it refused to grant Dixon an evidentiary hearing where Dixon, trial counsel, Ima Francis, and Sonya Dixon could have testified.
See Dixon’s Brief at 3-4.
“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. The PCRA court’s factual determinations are entitled to
deference, but its legal determinations are subject to our plenary review.”
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (citations and
quotations omitted).
Generally, “[t]he PCRA court may dismiss a petition without a hearing
when the court is satisfied that there are no genuine issues concerning any
material fact, the defendant is not entitled to post conviction relief, and no
legitimate purpose would be served by any further proceedings.”
Commonwealth v. Johnson, 139 A.3d 1257, 1273 (Pa. 2016). We will
reverse the PCRA court’s decision to dismiss the petition without a hearing if
the petitioner demonstrates a genuine issue of material fact, which if resolved
in his favor, would entitle him to relief, or that the court otherwise abused its
discretion in denying a hearing.” Commonwealth v. D’Amato, 856 A.2d
806, 820 (Pa. 2004).
In his PCRA petition, Dixon asserted several claims related to ineffective
assistance of counsel. To prevail on an ineffectiveness assistance of counsel
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claim, a PCRA petitioner must demonstrate by a preponderance of the
evidence: (1) that the underlying claim has arguable merit; (2) that no
reasonable basis existed for counsel’s actions or failure to act; and (3) that
the petitioner suffered prejudice as a result of counsel’s error.
Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012) (citation
omitted). To prove that counsel’s chosen strategy lacked a reasonable basis,
a petitioner must prove that “an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.”
Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009) (citation omitted).
As for the prejudice prong, the petitioner must show that there is a reasonable
probability that the outcome of the case would have been different but for
counsel’s action or inaction. Commonwealth v. Dennis, 950 A.2d 945, 954
(Pa. 2008). Because counsel is presumed effective, a petitioner must present
sufficient evidence to overcome this presumption to succeed on a claim of
ineffectiveness. Sepulveda, 55 A.3d at 1117.
To establish that counsel was ineffective for failing to call a witness,
Dixon must demonstrate 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. Failure to call a witness is not per se ineffective assistance of counsel, for such a decision implicates matters of trial strategy. It is [the appellant’s] burden to demonstrate that trial counsel had no reasonable basis for declining to call [the witness].
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Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007) (citations
omitted).
Dixon claims his trial counsel was ineffective for failure to call Ima
Francis to testify. Dixon asserts her testimony would have created a
reasonable probability for his acquittal. See Dixon’s Brief at 43. Dixon claims
that he informed trial counsel he did not murder Pickney and that during the
time of the shooting, he was with Francis and their children at their home.
According to Dixon, he instructed trial counsel to contact Francis and to
present her as an alibi witness, but counsel never interviewed or attempted
to interview Francis. Francis provided a signed certification as required by §
9545(d)(1). It is clear from Francis’ certified statement that she was available
and willing to testify for Dixon if trial counsel had called her as a witnesses.
Regarding prejudice, Dixon claims the lack of Francis’ testimony deprived him
of a fair trial. Francis would have testified that, on the day in question, Dixon
was at home with her and their two sons the entire day and night. Id. at 40-
41.
The PCRA court concluded Dixon could not show that the absence of
Francis’ testimony prejudiced him based on the cold record. See N.T.,
9/29/17, at 7. In reaching its decision not to hold an evidentiary hearing on
Dixon’s claim, the PCRA court relied heavily on the eyewitness testimony from
Collins and Gressom, and found the evidence of record was “overwhelming”
in establishing Dixon’s guilt. Our review of the record indicates otherwise.
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At the preliminary hearing and at trial, the Commonwealth presented
Collins and Gressom to identify Dixon. However, the testimony from Collins
and Gressom was riddled with inconsistencies and contradictions, and both
witnesses were impeached by the prosecutor and trial counsel at the
preliminary hearing and at trial. For instance, during police questioning,
Collins provided a typed statement where he claimed he recognized the
shooter as “Feek,” which is Dixon’s nickname. Collins stated that he knew of
Feek from the neighborhood. He made no mention that the shooter was
wearing a shirt around his face. Additionally, Collins identified Dixon as the
gunman from a photo array.
At the preliminary hearing, however, Collins stated that the gunman had
been wearing a shirt around his face, and that he ran as soon as he saw the
gun. Collins repeatedly testified that he did not see where the shooter came
from. On cross examination, when asked how he could identify the shooter
with a shirt wrapped around his face, Collins stated that he glimpsed the
shooter’s face because the shirt was falling down.
At trial, Collins testimony altered again. Collins stated that he witnessed
the gunman’s shirt fall down around his face when he saw the gunman turn
the corner. On cross-examination, trial counsel impeached Collins with his
preliminary hearing testimony, where Collins repeatedly stated he did not see
where the gunman had come from. Defense counsel then played the security
footage showing that the shooter’s shirt did not fall down. After the footage
played, Collins admitted he could not see the gunman’s face.
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Gressom’s testimony is equally inconsistent. During the police
investigation, Gresssom said that he did not know the gunman. Like Collins,
Gressom initially identified Dixon from a photo array and did not mention that
the shooter had a shirt wrapped around his face.
At the preliminary hearing, Gressom admitted the shooter had a shirt
around his face, and all he could see was the shooter’s eyes. The prosecutor
asked if Gressom could identify the shooter in court to which Gressom said,
“not really.” N.T., 10/5/11, at 13. After the prosecutor impeached Gressom
with his statement to police, Gressom made an in-court identification of Dixon.
Gressom additionally stated he had smoked marijuana shortly before the
shooting and was high during the incident. Further, on cross examination,
Gressom stated that he only signed the police statement because he wanted
to go home and police told him if he did not sign the statement he would be
kept at homicide. Gressom further testified that he did not pick Dixon’s photo
from the photo array; instead the police picked it out for him.
At trial, Gressom provided inconsistent statements as to whether the
gunman’s face was covered, and whether he actually saw the shooter’s face.
In addition to this eyewitness testimony, the PCRA court also relied on
video footage of the incident that captured the shooter. Notably, however,
the court itself observed that this surveillance footage was not “absolutely
clear and it didn’t identify [Dixon] necessarily…” See N.T., 9/29/17, at 9. In
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fact, the testimony was such that the trial court believed a cautionary Kloiber
1 instruction was warranted.
Other than the blurry video, the Commonwealth presented no physical
evidence linking Dixon to the shooting or the crime scene (i.e. a weapon,
fingerprints, clothing etc.).
Moreover, the jury deliberated for four days, submitted eleven
questions to the court during that time, and was also temporarily
deadlocked.
Based on the questionable evidence linking Dixon to this crime, and the
jury’s struggle in deliberations, if the jury found the alibi witness credible,
Dixon could have been acquitted. Hence, we cannot agree with the PCRA
court’s conclusion that the evidence of record was so overwhelming that Dixon
suffered no prejudice from the absence of an alibi witness. Dixon’s proffer of
Francis created a genuine issue of material fact about whether counsel knew
about the witness and whether he was reasonable in not calling her to testify.
Thus, we believe a hearing is necessary to determine whether counsel was
ineffective for failing to call Francis as an alibi witness.
We next turn to Dixon’s second claim where he contends trial counsel
was ineffective for failing to call Sonya Dixon, his mother, as a witness. Dixon
claims his mother’s testimony would have rebutted the testimony provided by
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1 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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the Commonwealth’s motive witness, Zelenia Lomax.2 His mother also signed
a certification as required by § 9545(d)(1), which stated she was available
and willing to testify, and provided the substance of her proffered testimony.
In dismissing this claim, the trial court furnished the same brief reasoning as
it did regarding the failure to call Dixon’s alibi witness – that the evidence of
record was “overwhelming,” and as such, Dixon could not establish prejudice
for counsel’s failure to call his mother as a witness.
At Dixon’s criminal trial, the Commonwealth called Lomax, an
acquaintance of Dixon’s, to testify that Dixon had a motive to kill Pickney.
Lomax testified that Pickney sold Dixon a defective cell phone, and as a result
Dixon and his friends “jumped” Pickney. According to Lomax, Dixon told her
that Pickney “pulled a gun on my mom” and indicated he was going to kill
Pickney. N.T., 7/18/12, at 16. During this alleged conversation, Lomax
claimed she tried to defuse the situation, by offering Dixon $100 to replace
the cell phone, but he refused. Id.
Dixon wanted his mother to rebut Lomax’s testimony. He claims his
mother would have testified that the alleged confrontation where Pickney
pulled a gun on her never occurred, and that she did not even know of an
individual by the name of Joseph Pickney. She also would have testified that
2 We note that Dixon alleges that he informed trial counsel that Lomax’s testimony was entirely false. Like the situation with Francis, he contends that he instructed trial counsel to interview or attempt to interview his mother, and trial counsel failed to do so. Dixon’s Brief at 48.
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prior to Dixon’s arrest, she was not on speaking terms with him for six months.
As such, she did not have a conversation with him about Pickney.
The Commonwealth contends that testimony from Dixon’s mother would
have been irrelevant because it “would not have directly contradicted
[Lomax’s] testimony” and therefore, the PCRA court did not err in refusing to
conduct an evidentiary hearing. Commonwealth’s Brief at 10 (emphasis in
original). The Commonwealth points out that according to Lomax, Dixon told
her that Pickney pulled a gun on his mother. In other words, even if his
mother testified that no confrontation between her and Pickney ever occurred,
that does not rebut Dixon’s telling Lomax that such a confrontation did occur.
A PCRA petitioner cannot succeed on a claim of ineffectiveness for failure
to call a witness if the proposed witnesses’ testimony would not have
materially aided him. See Commonwealth v. Baumhammers, 92 A.3d
708, 725 (Pa. 2014). However, there is no requirement that the proposed
testimony directly contradict other previous testimony in order to be
materially helpful.
Here, Dixon claims his mother’s testimony would have benefited him
because it casts doubt on whether Dixon had a motive to shoot Pickney. If
the jury believed his mother’s testimony, it may have weighed the credibility
of all the witnesses and other evidence differently, especially since it appears
the jury struggled to reach its verdict. Dixon’s proffer of this witness creates
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a question of fact regarding counsel’s ineffectiveness. As such, an evidentiary
hearing is warranted on this claim.3
Next, Dixon claims his trial counsel was ineffective for advising him not
to testify.
The decision of whether or not to testify on one's own behalf is ultimately to be made by the defendant after full consultation with counsel. In order to sustain a claim that counsel was ineffective for failing to advise the appellant of his rights in this regard, the appellant must demonstrate either that counsel interfered with his right to testify, or that counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision to testify on his own behalf.
Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (citations
Dixon asserts that he did not testify because trial counsel advised him
that he could be impeached because of a past possession with intent to deliver
conviction (“PWID”). Dixon argues that this advice was unreasonable because
3 Whether trial counsel knew or should have known about Ima Francis and Sonya Dixon, and why counsel failed to call them as witnesses, are issues that the PCRA court, in the first instance, must confront after it holds an evidentiary hearing. See Commonwealth v. Hughes, 865 A.2d 761, 799 (Pa. 2004) (holding that without an evidentiary hearing “we cannot discern whether a reasonable basis existed for counsel’s omission. In such circumstances, this Court has declined to divine, in the first instance on appellate review, whether counsel’s actions were reasonably based”). Here, the PCRA court abstained from concluding whether trial counsel knew about the alibi and fact witnesses. The court stated that it did not know whether trial counsel had been informed of the testimony Ima Francis and Sonya Dixon were willing to provide. Instead, the PCRA court disposed of Dixon’s petition because it concluded Dixon was not prejudiced by the absence of the witnesses’ testimony.
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this was his sole conviction and it was not crimen falsi (i.e. a crime involving
his honesty).
Both the PCRA court and the Commonwealth state that Dixon was fully
colloquied as to whether he wanted to testify. The issue, however, is not
whether Dixon was colloquied. The issue is whether Dixon knowingly and
intelligently waived his right to testify when this colloquy took place. He claims
such waiver was not knowing and intelligent because he believed that he could
be impeached for a prior PWID conviction, based on trial counsel’s advice.
The PCRA court supported its dismissal of this claim by assuming facts
about trial counsel. The court stated that trial counsel had been trying cases
for “probably over forty years.” N.T., 9/29/17, at 12. Therefore, it concluded,
that because of counsel’s experience, “it strains credulity to ask this [c]ourt
to believe that [trial counsel] would ever have said a PWID conviction can be
used against [Dixon] because . . . [trial counsel] is a seasoned attorney.” Id.
at 12-13. This conclusion is not grounded in any fact finding process or
supported by the record. While we must accord the PCRA deference for its
finding of fact, we are under no obligation to accord it deference to scenarios
it only assumes to be true.
The Commonwealth contends that, even assuming the advice was given,
trial counsel was reasonable in advising Dixon not to testify. The
Commonwealth argues that a defendant may be impeached with prior records
that do not involve crimes of fraud or dishonesty in certain circumstances.
See Commonwealth v. Murphy, 182 A.3d 1002, 1007-09 (Pa. Super. 2018)
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(prosecutor could cross-examine defendant regarding his prior drug
possession convictions, even though they were not crimen falsi, where he
“opened the door” to the evidence by testifying he had never used drugs).
The Commonwealth claims that it was likely that trial counsel feared “that
[Dixon] might say something on the stand that would open the door to his
being impeached with his prior drug-dealing conviction.” Commonwealth’s
Brief at 23. While such a scenario is possible, it is also nothing more than
speculation. Nothing in the record supports this theory. As such, an
evidentiary hearing is necessary to determine whether trial counsel instructed
Dixon as alleged, and if so, whether this advice was reasonable.
In his fourth issue, Dixon argues that he is entitled to relief based upon
that cumulative prejudicial effect of all of his allegations of error. However,
“no number of failed claims may collectively warrant relief if they fail to do so
individually.” Johnson, 139 A.3d at 1287. Here, we have not determined
that trial counsel was ineffective. Accordingly, Dixon is not entitled to a
cumulative assessment of prejudice at this time. See id. at 1288.
In his final argument, Dixon requests an evidentiary hearing on his
claims of ineffectiveness. As we explained above, an evidentiary hearing is
necessary to determine whether any of Dixon’s claims have merit. Therefore,
we vacate the order below and remand to the PCRA court for proceedings
consistent with this opinion.
Order vacated. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/29/19
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