J-S08010-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

STEVEN EDWARD SCALES

Appellant No. 332 WDA 2016

Appeal from the PCRA Order dated February 23, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0002213-2010

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY SOLANO, J.: FILED MAY 03, 2017

Appellant, Steven Edward Scales, appeals from the order denying his 

petition filed under the Post–Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 

9541–9546. We affirm.

This PCRA court summarized the factual background of this case as 

follows:

This matter arises out of [Appellant]’s conviction of third 

degree murder, attempted homicide, criminal solicitation, 

aggravated assault, persons not to possess a firearm, carrying a 

firearm without a license and criminal conspiracy as a result of a 

shooting that occurred on July 14, 2000 outside the Traveler’s 

Club in the Homewood/East Liberty area of the City of Pittsburgh 

which resulted in the death of Timothy Raines and the wounding 

of Kennya Simpson. Despite the fact that there were several 

witnesses in the area [at the] time of the shooting, the actor or 

actors were not identified at that time. In January 2009, 

detectives working on the case were contacted by an attorney 

for an alleged witness, Allen White, who was incarcerated at the 

time. The detectives subsequently interviewed White who 

informed them that he witnessed the shooting and saw Sean 
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Greene (nicknamed “Elbows”) shoot both Raines and Simpson. 

Shortly thereafter the detectives interviewed Simpson, who was 

serving a federal prison sentence in Loretto, Pennsylvania for 

drug trafficking. In a taped statement, Simpson told detectives 

that it was Sean Greene who shot him and Raines outside the 

Traveler’s Club. Simpson also indicated that only months before 

the shooting outside the Traveler’s Club, Greene, [Appellant] and 

[a] third person had also shot him while he stood outside Joe’s 

Bar in the East Liberty area of the City.

In August of 2009, [Appellant] who was then incarcerated 

on unrelated offenses, contacted law enforcement and indicated 

that he wanted to speak to detectives concerning the shooting. 

The detectives made arrangements to interview [Appellant] and 

during a taped interview on August 5, 2009, [Appellant] 

implicated himself in the Traveler’s Club shooting, which killed 

Raines and wounded Simpson. As a result of their investigation, 

including [Appellant’s] confession, [Appellant] and Greene were 

charged for their roles in Raines’ death and Simpson’s wounding. 

At trial the Commonwealth presented extensive evidence, 

including [Appellant]’s recorded confession.

In his defense, [Appellant] testified that when he gave the 

statement implicating himself in the Traveler’s Club shooting, he 

was serving a 21 year sentence for drug dealing. He contended 

that he learned some basic facts about the shooting from 

Simpson himself, when they were both incarcerated in Loretto, 

and that he decided to give a false statement to the detectives 

implicating Greene, and thus himself, in an ill-conceived and 

misguided attempt to appear to be cooperating with authorities. 

[Appellant] contended that he believed his cooperation could be 

used to negotiate an early release from prison. [Appellant] 

recanted his confession, contending it was a complete lie, and 

testified that he was never involved with Simpson, who was the 

apparent target of the shooting, and had no reason to want him 

killed.

[Appellant] also presented the testimony of an attorney 

who had represented him in other criminal charges, who testified 

that [Appellant] had attempted to obtain a sentence reduction 

during his earlier prosecution for drug charges by providing 

information about other drug dealers. (T., pp. 230-233). 

Although this had been unsuccessful, [Appellant] contended this 
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evidence demonstrated that he knew that providing incriminating 

evidence about others could be used to negotiate a reduced 

sentence.

Prior to trial, [Appellant] had filed a notice of alibi defense 

pursuant to Pa.R.Crim.P. 573 in which Qwenda Reed, who was 

his girlfriend at the time, was identified as an alibi witness. The 

notice indicated that Reed would testify that during the late night 

hours of July 13, 2000 through the early morning hours of July 

14, 2000, the time during which the Commonwealth contended 

[Appellant] was in the area of the Traveler’s Club, [Appellant] 

was with Reed at their apartment celebrating their one year 

anniversary. Although there were indications during the trial 

that [Appellant] would call Reed to testify, [Appellant] rested 

after his testimony, without Reed being called to testify. 

[Appellant] was found guilty as set forth above and his 

conviction was affirmed by the Superior Court on February 11, 

2013. 

PCRA Court Opinion, 7/18/16, at 2-4 (footnote omitted).

The jury convicted Appellant on January 13, 2011. On March 28, 

2011, the trial court sentenced him to an aggregate 424 to 848 months’ 

incarceration. As the trial court’s opinion notes, Appellant filed a direct 

appeal, and this Court affirmed the judgment of sentence on February 11, 

2013. Commonwealth v. Scales, 68 A.3d 359 (Pa. Super. 2013) 

(unpublished memorandum). Appellant petitioned for allowance of appeal, 

which the Supreme Court denied on October 30, 2013. Commonwealth v. 

Scales, 79 A.3d 1098 (Pa. 2013).
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On January 5, 2015, Appellant filed the PCRA petition that is now 

before us pro se.

1

 The PCRA court appointed counsel, who filed an amended 

petition on April 6, 2015. The essence of Appellant’s request for postconviction relief is that trial counsel was ineffective for failing to call Qwenda 

Reed as an alibi witness at trial. On July 8, 2015, the Commonwealth filed 

an answer, indicating that an evidentiary hearing was warranted for the 

introduction of testimony and to create a record. The PCRA court convened 

a hearing on February 22, 2016. On February 23, 2016, it entered an order 

denying Appellant’s petition. Appellant then filed this timely appeal, in which 

he presents the following three issues:

1. Did the PCRA court err or abuse its discretion in failing to 

grant Appellant a new trial based on a properly pled, 

preserved and supported IAC [ineffective assistance of 

counsel] claim involving trial counsel’s failure to call alibi 

witness Qwenda Reed, who was known to trial counsel, ready, 

willing and available to testify at trial and where the failure of 

trial counsel to call the alibi witness was prejudicial to 

Appellant entitling him to relief?

2. Did the PCRA court err or abuse its discretion in dismissing 

the Amended PCRA Petition where Qwenda Reed, an alibi 

witness, would have been able to provide credible testimony, 

____________________________________________

1 Appellant’s petition was timely because it was filed within one year of his 

sentence becoming final. 42 Pa.C.S. § 9545(b)(1). Appellant’s sentence 

became final on January 28, 2014, which was 90 days after the Pennsylvania 

Supreme Court’s denial of his petition for allowance of appeal (the period of 

time that he had to petition for a writ of certiorari with the United States 

Supreme Court). 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. Rule 13.
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supported by evidence of record, exculpatory in nature, that 

would exonerate Appellant in his involvement in the shooting 

outside of Traveler’s Club in the early morning hours of 

July 14, 2000, thereby creating an issue of material fact 

which warrants Appellant a new trial?

3. Did the PCRA court err or abuse its discretion in dismissing 

Appellant’s PCRA matter if the matter was dismissed as a 

result of the Court making a credibility determination 

regarding the alibi witness, Qwenda Reed, since Appellant has 

surmounted the prongs of a properly plead and supported IAC 

claim entitling him to a new trial where a jury would hear, 

weigh and assess the testimony and credibility of the 

available alibi witness?

Appellant’s Brief at 5.

Appellant’s three issues encompass one claim that trial counsel was 

ineffective for failing to call Qwenda Reed as an alibi witness at Appellant’s 

trial.2 Preliminarily, we note our standard of review:

We review an order dismissing a petition under the PCRA in the 

light most favorable to the prevailing party at the PCRA level. 

This review is limited to the findings of the PCRA court and the 

evidence of record. We will not disturb a PCRA court's ruling if it 

is supported by evidence of record and is free of legal error. 

This Court may affirm a PCRA court's decision on any grounds if 

the record supports it. We grant great deference to the factual 

findings of the PCRA court and will not disturb those findings 

unless they have no support in the record. However, we afford 

no such deference to its legal conclusions. Further, where the 

____________________________________________

2 At the PCRA hearing Appellant’s counsel stated, “There’s really one issue 

we have raised before the Court today involving an ineffectiveness of 

counsel claim. . . . It is an alibi witness. . . . It’s Qwenda Reed[.] That is the 

sole issue for today[.]” N.T., 2/22/16, at 3. 
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petitioner raises questions of law, our standard of review is de

novo and our scope of review is plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations 

omitted).

The law presumes trial counsel has rendered effective assistance. 

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The 

burden of demonstrating ineffectiveness rests on the petitioner. Id. To 

satisfy this burden, the petitioner must plead and prove by a preponderance 

of the evidence that: “(1) his underlying claim is of arguable merit; (2) the 

particular course of conduct pursued by counsel did not have some 

reasonable basis designed to effectuate his interests; and (3) but for 

counsel’s ineffectiveness, there is a reasonable probability that the outcome 

of the challenged proceedings would have been different.” Commonwealth 

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of 

this test will result in rejection of the petitioner’s ineffective assistance of 

counsel claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). 

When claiming counsel’s ineffectiveness for failure to call a potential 

witness, the PCRA petitioner must establish 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. 
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Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007). To 

demonstrate prejudice, the 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); 

see also Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) (“Trial 

counsel’s failure to call a particular witness does not constitute ineffective 

assistance without some showing that the absent witness’ testimony would 

have been beneficial or helpful in establishing the asserted defense”).

Instantly, three witnesses testified at the PCRA hearing: Kirsha 

Weyandt Trychta, who was Appellant’s trial counsel; Qwenda Reed; and 

Appellant. Ms. Trychta testified to learning of Ms. Reed as a potential alibi 

witness from an “initial meeting” with Appellant. N.T., 2/22/16, at 6-7. Ms. 

Trychta hired a private investigator to meet with Ms. Reed, and the 

investigator secured a written statement from Ms. Reed. Thereafter, Ms. 

Trychta spoke with Ms. Reed and filed a notice of alibi. She recalled that Ms. 

Reed was present “by and large” for Appellant’s trial and available to testify. 

Id. at 9, 12. Ms. Trychta stated that “[u]p until the very last minute, yes, 

we anticipated calling her.” Id. She recalled: 

[Ms. Reed] was going to state that at the time the defendant is 

alleged to have engaged with a co-defendant, Sean Greene, to 

set up the homicide, that he was actually with her at their home. 

I believe she was quite pregnant at the time and it was a 

complicated pregnancy and she wanted him to stay there and 

take care of her. . . . The Commonwealth presented that Mr. 

Scales, although not the shooter, had to be near the scene of the 
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crime at the time that the homicide occurred. She would have 

testified that he was home with her at that time. . . . Her 

testimony would have been that it was for the entire evening, 

yes.

N.T., 2/22/16, at 11.

Ms. Trychta explained that Appellant testified at his trial, and after his 

testimony, she and Appellant discussed Ms. Reed and whether she would be 

called to testify. N.T., 2/22/16, at 14. She specifically testified that 

Appellant was involved in the decision. Id. at 15. She explained:

My recollection is that something happened towards the very end 

of the trial out in the hallway. I can’t remember specifically 

what it was, but I believe she got cold feet or – Something 

happened, and Mr. Scales and she decided that would not be 

what they wanted to do anymore. . . . She went out in the hall. 

Her and I think [another potential alibi witness] was still here 

and maybe some family members of his as well, and then they 

came back in really flustered. . . . I don’t know what happened 

in the hall but they came back in. . . . They were all worked up. 

. . . And at that point, I don’t remember why, and then I 

remember something happened because I actually told the 

intern to then go stand in the hallway to just have someone 

there should future incidents occur. . . . And I believe once that 

happened, whatever it was at that point, either she refused to 

testify or Mr. Scales said, “Never mind. I don’t want her to 

testify.” There was some change in course of action at that 

point. 

Id. at 16-18.

On re-direct, Ms. Trychta opined that Ms. Reed’s testimony would have 

been helpful to Appellant. She also stated, “The jury’s verdict was so bizarre 

that I could see it changing the jury’s mind.” N.T., 2/22/16, at 19. She said 

that not calling Ms. Reed “would have been a mutual decision we made 
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together, to the best of my recollection” and she did not believe she would 

have instructed Appellant not to call Ms. Reed. Id. 

Qwenda Reed testified that she was willing to testify for Appellant at 

his trial in 2011 and is still willing to testify as an alibi witness. She 

expressly stated that on the night the offenses occurred, Appellant came 

home at 8 or 9 p.m. and was with her all night. N.T., 2/22/16, at 24-25, 31. 

Ms. Reed testified that the couple slept in the same room, and Appellant 

never left until the next morning. Id. at 24, 31. Ms. Reed attended 

Appellant’s trial, and expected to be called as a witness. Id. at 29. She 

conceded that there was “a discussion” in the hallway, but said that she 

wanted to testify, and nothing happened to change her mind. Id. at 30. 

Ms. Reed did not know why Ms. Trychta did not call her to testify, saying, 

“his lawyer, all she said was my statements could only hurt him, and I didn’t 

see how.” Id. at 38.

On cross-examination, Ms. Reed acknowledged testifying at Appellant’s 

sentencing hearing, and stating that she did not believe that Appellant was a 

murderer or committed the murder for which he was convicted. N.T., 

2/22/16, at 34-36. Ms. Reed said she did not mention that Appellant had an 

alibi and was with her on the night of the murder because she “just gave a 

statement of how I felt. So, no, I wasn’t a witness[.]” Id. at 36-37.

Appellant testified to living with Ms. Reed at the time of the murder. 

He estimated that on that night, he arrived home around 8:10 p.m. because 
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he worked until 8:00 p.m. at a nearby body shop. N.T., 2/22/16, at 43. He 

said he was there “all night long.” Id. at 44. He added that he told Ms. 

Trychta in the middle of the trial to present Ms. Reed as an alibi witness, and 

Ms. Trychta “said she would.” Id. Appellant denied that there was ever a 

discussion about not calling Ms. Reed. Id.

On cross-examination, Appellant conceded that he initiated contact 

with law enforcement regarding the murder and acknowledged that until he 

contacted law enforcement it was a “cold case.” N.T., 2/22/16, at 46. He 

admitted that by initiating contact with law enforcement and confessing to 

the murder he had put himself in a bad situation. Id. at 48.

After considering the above testimony, the PCRA court denied 

Appellant’s petition for post-conviction relief. The PCRA court referenced the 

three prong test for proving counsel’s ineffectiveness by a preponderance of 

the evidence, as well as the applicable five prong test for a claim that 

counsel was ineffective for failing to call a witness at trial. See Fulton, 830 

A.2d at 572; Washington, 927 at 599. The PCRA court then reasoned:

In the present case there is not dispute that the witness 

existed, the witness was available to testify during the course of 

the trial and that trial counsel knew of the existence of the 

witness. Trial counsel credibly testified that she expected Reed 

to testify but that as a result of some incident or “discussion” in 

the hallway just prior to her testimony, [Appellant] made the 

decision that Reed would not testify. Reed acknowledged that 

there was a “discussion” of some kind but offered no explanation 

to what occurred. She testified she remained willing to testify as 

an alibi witness at trial but that trial counsel did not call her, 

stating only that her testimony would hurt [Appellant]’s case. 
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Interestingly, [Appellant] gives even less explanation as to why 

Reed did not testify. [Appellant] contends that in the middle of 

the trial he told trial counsel to present Reed’s testimony and 

expected her to be called. [Appellant] denies that there was any 

discussion about not calling Reed to testify. However, 

[Appellant] offered absolutely no testimony as to what transpired 

between him and his trial counsel when he realized, during the 

trial, that Reed’s testimony was not being presented. Trial 

counsel testified that [Appellant] was active in the presentation 

of his case and [Appellant] understood the criminal trial system 

enough to believe that he could possibly negotiate a reduction in 

his existing sentence by cooperating with the Commonwealth in 

prosecuting a crime. In fact, accepting [Appellant]’s defense, he 

was willing to concoct a scheme to implicate himself in a crime 

that he did not commit in order to make it appear that he had 

information that would be helpful to the Commonwealth. Yet 

[Appellant] offers no testimony about what happened when he 

realized that counsel was not presenting Reed’s testimony. 

[Appellant] now simply asserts that when his trial counsel 

suddenly decided not to call what he believed to be a key alibi 

witness, there was no discussion with his counsel as to why the 

witness was not called. [Appellant]’s testimony at the PCRA 

hearing lacks credibility as it offers no explanation whatsoever as 

to what occurred between him and his counsel when Reed did 

not testify when she was in the courthouse and allegedly ready 

to testify. By comparison, trial counsel’s testimony is credible 

that after [Appellant]’s testimony she discussed with him 

whether or not to call Reed. While trial counsel was unable to 

specifically identify what occurred, she was certain that 

“something happened” and [Appellant] and Reed determined 

that she did not want to testify. Trial counsel credibly testified 

that she conferred with [Appellant] and [Appellant] ultimately 

told her, “Never mind. I don’t want her to testify.” Therefore, 

there is no evidence that the fact that Reed did not testify was 

the result of any ineffectiveness of trial counsel.

[Appellant] has also failed to establish that he was 

prejudiced by the fact that Reed did not testify. In order to be 

entitled to relief [Appellant] must establish that the absence of 

the testimony of the witness was so prejudicial as to have denied 

him a fair trial. [Appellant]’s recorded confession unequivocally 

implicated him in the shooting. It is highly unlikely that the 

presentation of his girlfriend’s testimony that he was with her on 
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the night of the murder, without other substantial corroborating 

evidence, would have affected the outcome of the trial. 

Therefore, [Appellant]’s PCRA petition was appropriately 

dismissed.

PCRA Court Opinion, 7/18/16, at 9-10.

Upon review, we find that the PCRA court’s denial of Appellant’s 

petition is supported by the record. It is well-settled that a PCRA court’s 

credibility determinations are binding upon an appellate court as long as 

they are supported by the record. Commonwealth v. Miller, 102 A.3d 

988, 992 (Pa. Super. 2014). Therefore, we are bound by the PCRA court’s 

determination that Ms. Trychta was credible and Ms. Reed and Appellant 

were not. Because Ms. Trychta testified that Appellant indicated to her 

toward the end of the trial that he did not want Ms. Reed to testify, we find 

from our de novo review that the record supports the legal conclusion that 

Appellant did not meet the first or second prongs of the tripartite test for 

ineffectiveness because Appellant’s claim was not of arguable merit and Ms. 

Trychta’s course of conduct in not calling Ms. Reed to testify evidenced a 

reasonable basis designed to effectuate Appellant’s interests. Fulton, 830 

A.2d at 572.

We recognize Ms. Trychta’s testimony that Ms. Reed’s alibi testimony 

would have been helpful to Appellant. N.T., 2/22/16, at 19. However, 

failure to satisfy any prong of the tripartite test will result in rejection of 

Appellant’s ineffective assistance of counsel claim. Jones, 811 A.2d at 
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1002. Therefore, because of our conclusion regarding the first and second 

prongs of the ineffectiveness test, the third prong of the test for 

ineffectiveness (prejudice) does not impact our disposition.

Based on the foregoing, we defer to the PCRA court’s credibility 

findings, particularly Ms. Trychta’s testimony that not calling Ms. Reed 

“would have been a mutual decision . . . made together” with Appellant, 

and her belief that she would not have advised Appellant not to call Ms. 

Reed as an alibi witness. N.T., 2/22/16, at 19. In doing so, we make the 

legal conclusion that Appellant failed to demonstrate trial counsel’s 

ineffectiveness by a preponderance of the evidence. Accordingly, we affirm 

the PCRA court’s denial of Appellant’s claim for post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/3/2017