J-A08023-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT MAYS : : Appellant : No. 2918 EDA 2023
Appeal from the PCRA Order Entered October 13, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002270-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT MAYS : : Appellant : No. 2919 EDA 2023
Appeal from the PCRA Order Entered October 13, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002271-2017
BEFORE: LAZARUS, P.J., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 22, 2025
Robert Mays appeals from the order dismissing his Post Conviction Relief
Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. He maintains that he
is entitled to relief because his trial counsel was ineffective for failing to
request an alibi instruction. We vacate the order and remand for an
evidentiary hearing. J-A08023-25
After a jury trial, Mays was found guilty of various sexual offenses
against two minors, S.T. and M.T.M. This appeal only concerns Mays’ case with
respect to S.T., who is the niece of Mays’ paramour. S.T. testified at trial that
she lived with her aunt and Mays in the summer of 2015 after her school year
ended on June 21, 2015 and stayed there until school began in August 2015.
S.T. said that the crimes against her occurred during this period. Prior to trial,
Mays filed a notice of alibi defense averring that he was incarcerated from
June 6, 2015 to November 18, 2015. At trial, Mays presented the custodian
of records from the Philadelphia Department of Prisons who confirmed that
the prison records indicated that Mays was in prison from June 6, 2015 to
November 18, 2015. N.T., 2/13/19, at 162-67. In closing arguments, defense
counsel argued that Mays was in prison when the crimes against S.T. were
alleged to have occurred. N.T., 2/14/19, at 19-22. However, counsel did not
request an alibi instruction to the jury.
Mays was found guilty of unlawful contact with a minor, corrupting the
morals of a minor, and indecent assault without consent. Mays appealed from
the judgment of sentence, and this Court affirmed. Commonwealth v. Mays,
256 A.3d 30, 2021 WL 1929297 at *1 (Pa.Super. filed May 13, 2021)
(unpublished mem.). The Pennsylvania Supreme Court denied Mays’ petition
for allowance of appeal on December 30, 2021.
Mays filed the instant, timely PCRA petition in September 2022. The
PCRA court appointed counsel, who filed an amended petition, on March 29,
2023. On September 1, 2023, the PCRA court issued notice of its intent to
-2- J-A08023-25
dismiss the petition pursuant to Pa.R.Crim.P. 907. The court dismissed the
petition on October 13, 2023. This appeal followed.
Mays raises a single issue: “[W]hether trial counsel, having given timely
alibi notice, was ineffective for failing to request an alibi instruction to the
jury.” Mays’ Br. at 6.
The PCRA court asks us to remand this matter for an evidentiary hearing
to assess whether trial counsel had a reasonable basis for not requesting an
alibi instruction. The PCRA court explained:
The issue presented is whether trial counsel, having given timely alibi notice, was ineffective for failing to request an alibi instruction to the jury. The question turns on whether the conduct against S.T. for which [Mays] was convicted was alleged to have occurred between June 6, 2015 and November 18, 2015, when [Mays] was unquestionably incarcerated.
In dismissing [Mays’] Petition, we concluded that the testimony, in the light most favorable to the Commonwealth as the verdict winner, left the possibility that the conduct as to S.T. could have occurred as early as May of 2015 or as late as September of 2016, as alleged in the amended Information, and therefore the failure to request and [sic] alibi instruction where the alibi did not cover the entire period during which the offenses occurred did not constitute ineffectiveness by trial counsel. See, September 1, 2023, Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907. In reviewing the record in the course of preparing this memorandum opinion, we have come to the conclusion that we were in error in this regard, and that there should have been a hearing on trial counsel’s failure to request an instruction on the alibi he argued to the jury.
PCRA Court Opinion, filed May 20, 2024, at 2. We agree that remand is
necessary.
-3- J-A08023-25
“An alibi is a defense that places a defendant at the relevant time at a
different place than the crime scene and sufficiently removed from that
location such that it was impossible for him to be the perpetrator.”
Commonwealth v. Sileo, 32 A.3d 753, 767 (Pa.Super. 2011) (en banc).
“Where [alibi] evidence has been introduced, a defendant is entitled to an alibi
instruction to alleviate the danger that the jurors might impermissibly view a
failure to prove the defense as a sign of the defendant’s guilt.”
Commonwealth v. Bryant, 855 A.2d 726, 741 (Pa. 2004) (citation omitted).
When reviewing the absence of an alibi instruction in the context of a
claim of ineffective assistance of counsel, counsel’s failure to request an alibi
instruction does not establish prejudice per se. Commonwealth v. Hawkins,
894 A.2d 716, 729 (Pa. 2006). Rather, a petitioner must satisfy the three-
pronged test for ineffectiveness of counsel: (1) the underlying claim has
arguable merit; (2) counsel had no reasonable basis for the action or inaction;
and (3) the petitioner suffered actual prejudice as a result. Id. at 721, 729;
see also Sileo, 32 A.3d at 758 (stating “all three aspects of the
ineffectiveness test [must] be satisfied before a new trial can be awarded on
the ground that trial counsel was ineffective for failing to request an alibi
instruction”).
In Hawkins, our Supreme Court found that a petitioner’s claim that trial
counsel was ineffective for failing to request an alibi instruction had arguable
merit, satisfying the first prong of the ineffectiveness test. 894 A.2d at 729.
However, the Court found that trial counsel had a reasonable basis for
-4- J-A08023-25
declining to seek an alibi instruction and thus, was not constitutionally
ineffective. The Court explained:
Distinguishing this case from those cases interpreted by the lower court is the detailed record in the instant case of trial counsel’s rationale for consciously declining to seek the instruction . . . [C]ounsel explained that in his twenty years of experience he had come to the conclusion that where alibi testimony is weak, or is predicated on the defendant’s testimony alone, calling attention to that testimony explicitly as alibi evidence disserves the defendant’s interests. Notably, he did not suggest that such testimony itself serves no purpose, nor did he suggest that counsel should not highlight alibi evidence for the jury in closing.
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J-A08023-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT MAYS : : Appellant : No. 2918 EDA 2023
Appeal from the PCRA Order Entered October 13, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002270-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT MAYS : : Appellant : No. 2919 EDA 2023
Appeal from the PCRA Order Entered October 13, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002271-2017
BEFORE: LAZARUS, P.J., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 22, 2025
Robert Mays appeals from the order dismissing his Post Conviction Relief
Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. He maintains that he
is entitled to relief because his trial counsel was ineffective for failing to
request an alibi instruction. We vacate the order and remand for an
evidentiary hearing. J-A08023-25
After a jury trial, Mays was found guilty of various sexual offenses
against two minors, S.T. and M.T.M. This appeal only concerns Mays’ case with
respect to S.T., who is the niece of Mays’ paramour. S.T. testified at trial that
she lived with her aunt and Mays in the summer of 2015 after her school year
ended on June 21, 2015 and stayed there until school began in August 2015.
S.T. said that the crimes against her occurred during this period. Prior to trial,
Mays filed a notice of alibi defense averring that he was incarcerated from
June 6, 2015 to November 18, 2015. At trial, Mays presented the custodian
of records from the Philadelphia Department of Prisons who confirmed that
the prison records indicated that Mays was in prison from June 6, 2015 to
November 18, 2015. N.T., 2/13/19, at 162-67. In closing arguments, defense
counsel argued that Mays was in prison when the crimes against S.T. were
alleged to have occurred. N.T., 2/14/19, at 19-22. However, counsel did not
request an alibi instruction to the jury.
Mays was found guilty of unlawful contact with a minor, corrupting the
morals of a minor, and indecent assault without consent. Mays appealed from
the judgment of sentence, and this Court affirmed. Commonwealth v. Mays,
256 A.3d 30, 2021 WL 1929297 at *1 (Pa.Super. filed May 13, 2021)
(unpublished mem.). The Pennsylvania Supreme Court denied Mays’ petition
for allowance of appeal on December 30, 2021.
Mays filed the instant, timely PCRA petition in September 2022. The
PCRA court appointed counsel, who filed an amended petition, on March 29,
2023. On September 1, 2023, the PCRA court issued notice of its intent to
-2- J-A08023-25
dismiss the petition pursuant to Pa.R.Crim.P. 907. The court dismissed the
petition on October 13, 2023. This appeal followed.
Mays raises a single issue: “[W]hether trial counsel, having given timely
alibi notice, was ineffective for failing to request an alibi instruction to the
jury.” Mays’ Br. at 6.
The PCRA court asks us to remand this matter for an evidentiary hearing
to assess whether trial counsel had a reasonable basis for not requesting an
alibi instruction. The PCRA court explained:
The issue presented is whether trial counsel, having given timely alibi notice, was ineffective for failing to request an alibi instruction to the jury. The question turns on whether the conduct against S.T. for which [Mays] was convicted was alleged to have occurred between June 6, 2015 and November 18, 2015, when [Mays] was unquestionably incarcerated.
In dismissing [Mays’] Petition, we concluded that the testimony, in the light most favorable to the Commonwealth as the verdict winner, left the possibility that the conduct as to S.T. could have occurred as early as May of 2015 or as late as September of 2016, as alleged in the amended Information, and therefore the failure to request and [sic] alibi instruction where the alibi did not cover the entire period during which the offenses occurred did not constitute ineffectiveness by trial counsel. See, September 1, 2023, Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907. In reviewing the record in the course of preparing this memorandum opinion, we have come to the conclusion that we were in error in this regard, and that there should have been a hearing on trial counsel’s failure to request an instruction on the alibi he argued to the jury.
PCRA Court Opinion, filed May 20, 2024, at 2. We agree that remand is
necessary.
-3- J-A08023-25
“An alibi is a defense that places a defendant at the relevant time at a
different place than the crime scene and sufficiently removed from that
location such that it was impossible for him to be the perpetrator.”
Commonwealth v. Sileo, 32 A.3d 753, 767 (Pa.Super. 2011) (en banc).
“Where [alibi] evidence has been introduced, a defendant is entitled to an alibi
instruction to alleviate the danger that the jurors might impermissibly view a
failure to prove the defense as a sign of the defendant’s guilt.”
Commonwealth v. Bryant, 855 A.2d 726, 741 (Pa. 2004) (citation omitted).
When reviewing the absence of an alibi instruction in the context of a
claim of ineffective assistance of counsel, counsel’s failure to request an alibi
instruction does not establish prejudice per se. Commonwealth v. Hawkins,
894 A.2d 716, 729 (Pa. 2006). Rather, a petitioner must satisfy the three-
pronged test for ineffectiveness of counsel: (1) the underlying claim has
arguable merit; (2) counsel had no reasonable basis for the action or inaction;
and (3) the petitioner suffered actual prejudice as a result. Id. at 721, 729;
see also Sileo, 32 A.3d at 758 (stating “all three aspects of the
ineffectiveness test [must] be satisfied before a new trial can be awarded on
the ground that trial counsel was ineffective for failing to request an alibi
instruction”).
In Hawkins, our Supreme Court found that a petitioner’s claim that trial
counsel was ineffective for failing to request an alibi instruction had arguable
merit, satisfying the first prong of the ineffectiveness test. 894 A.2d at 729.
However, the Court found that trial counsel had a reasonable basis for
-4- J-A08023-25
declining to seek an alibi instruction and thus, was not constitutionally
ineffective. The Court explained:
Distinguishing this case from those cases interpreted by the lower court is the detailed record in the instant case of trial counsel’s rationale for consciously declining to seek the instruction . . . [C]ounsel explained that in his twenty years of experience he had come to the conclusion that where alibi testimony is weak, or is predicated on the defendant’s testimony alone, calling attention to that testimony explicitly as alibi evidence disserves the defendant’s interests. Notably, he did not suggest that such testimony itself serves no purpose, nor did he suggest that counsel should not highlight alibi evidence for the jury in closing. He simply expressed his discomfort, under the circumstances at bar, with the expectations a specific alibi instruction might raise in the minds of the venire, and explained that it was his practice to avoid disappointing such expectations where possible. We would be hard-pressed to find a better exemplum of counsel expressing a reasonable basis for declining, as a tactical matter, to avail himself of a particular jury instruction to which his client unequivocally was entitled.
Id. at 730.
Here, since the PCRA court did not hold an evidentiary hearing, the
record is devoid of an explanation of the reason why trial counsel did not
request an alibi instruction. Our Supreme Court “has expressed a preference
for an evidentiary hearing on counsel’s strategy before determining counsel
lacked a reasonable basis for his or her actions or inactions.” Commonwealth
v. Cousar, 154 A.3d 287, 299 (Pa. 2017). Indeed, “[t]he reasonableness of
an attorney’s strategic or tactical decisionmaking [sic] is a matter that we
usually consider only where evidence has been taken on that point.”
-5- J-A08023-25
Commonwealth v. Perez, 103 A.3d 344, 351 (Pa.Super. 2014) (citation
omitted). On this record, we are unable to determine whether trial counsel’s
actions were reasonable. We therefore remand the case for an evidentiary
hearing limited to the basis of trial counsel’s decision not to request an alibi
instruction.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Date: 7/22/2025
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