J-A26041-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

QUINZEL SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1649 EDA 2021

Appeal from the PCRA Order Entered July 21, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0008432-2014

COMMONWEALTH OF PENNSYLVANIA

v.

QUINZEL SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 167 EDA 2023

Appeal from the PCRA Order Entered July 21, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0003774-2014

BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.: FILED MARCH 23, 2023

Quinzel Smith appeals the July 21, 2021 order dismissing his petition 

pursuant to the Post-Conviction Relief Act (“PCRA”). We vacate and remand.

Appellant’s convictions concern two separate robberies that he was 

convicted of perpetrating in Philadelphia, Pennsylvania. At CP-51-CR-

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* Retired Senior Judge assigned to the Superior Court.
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0003774-2014 (“Case No. 3774”), Appellant robbed an individual named

David Engle at gunpoint with the assistance of two co-conspirators at the 

corner of 47th Street and Kingsessing Avenue. At CP-51-CR-0008432-2014 

(“Case No. 8432”), Appellant committed a similar “stick-up” robbery of a 

husband and wife, Dongjie Ji and Ran Liu, at the corner of 45th Street and 

Spruce Street with the help of one co-conspirator. These two incidents 

occurred within approximately one week of each other in March 2014.

Ultimately, Appellant was arrested and charged with similar offenses at 

both docket numbers, including robbery, criminal conspiracy, and possession 

of an instrument of crime (“PIC”). These cases were consolidated for a jury 

trial, which was held from February 10 through February 12, 2016. At Case 

No. 3774, Appellant was convicted of conspiracy to commit robbery. At Case 

No. 8432, Appellant was convicted of two counts of robbery and one count 

each of criminal conspiracy and PIC. Appellant was sentenced to an aggregate 

term of twenty to forty years of incarceration at all counts.1 

Appellant filed a consolidated direct appeal in both cases. This Court 

affirmed his judgments of sentence and our Supreme Court denied Appellant’s 

subsequent request for allowance of appeal on September 4, 2019. See 

Commonwealth v. Smith, 216 A.3d 433 (Pa.Super. 2019) (unpublished 

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1 Specifically, Appellant received concurrent terms of ten to twenty years of

imprisonment for each robbery count and a concurrent term of ten to twenty 

years of imprisonment for conspiracy at Case No. 8432. No further 

punishment was imposed. At Case No. 3774, Appellant was sentenced to a 

term of ten to twenty years of imprisonment with as to his robbery conviction. 

The sentences at each case were set to run consecutively to one another.
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memorandum at 1-7), appeal denied, 217 A.3d 799 (Pa. 2019). Appellant did 

not seek review in the United States Supreme Court and his time to do so 

expired on December 3, 2019. See U.S. Sup. Ct. Rule 13(1).

On June 13, 2020, Appellant filed a timely pro se PCRA petition listing

both above-captioned cases. PCRA counsel was duly appointed and an 

amended petition was filed on Appellant’s behalf raising a claim of ineffective 

assistance of trial counsel for failing to call an alibi witness named David 

Tingle, who was one of Appellant’s co-conspirators in the robbery at Case No. 

8432 and had provided information to police that inculpated Appellant in that 

crime. See Amended PCRA Petition, 2/5/21, at 1-7 (unpaginated); Smith, 

supra at 1-2. Thereafter, Appellant submitted a supplemental filing 

identifying a second such alibi witness named Monique Johnson, who is 

Appellant’s mother.

2

 See Supplemental Motion, 3/19/21, at 4-5

(unpaginated). Appellant also filed a certification pursuant to Pa.R.Crim.P. 

902(A)(15) providing contact information and a basic description of the 

testimony offered by each witness. Id. at 5. Overall, Appellant averred Mr. 

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2

 Appellant did not seek explicit approval prior to submitting his March 19, 

2021 supplemental PCRA filing. Generally, this is not permitted. See 

Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014) 

(“[P]etitioners may not automatically ‘amend’ their PCRA petitions via 

responsive pleadings.”). Nonetheless, the PCRA court in this matter permitted 

the filing and, thereafter, considered the substance of the allegations set forth 

in the supplemental PCRA submission. Accordingly, the PCRA court 

“effectively allowed Appellant to amend his petition to include those issues 

presented in the supplement.” Commonwealth v. Boyd, 835 A.2d 812, 816 

(Pa.Super. 2003). Thus, any relevant pleadings set forth in the supplemental 

PCRA petition were properly raised in both the PCRA court and this Court.
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Tingle and Mrs. Johnson were available and willing to testify that Appellant 

was with them at the time of these crimes, and that counsel was aware of, or 

should have discovered, their existence. See Amended PCRA Petition, 2/5/21, 

at 2-5; Supplemental Motion, 3/19/21, at 4-5.

On June 24, 2021, the PCRA court filed notice of its intent to dismiss 

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907(1) for lack 

of merit, which garnered no response. On July 21, 2021, the PCRA court 

dismissed Appellant’s petition at both cases. Appellant filed a timely notice of 

appeal listing only the docket number in Case No. 8432. See Notice of Appeal, 

8/12/21, at 1. Thereafter, the PCRA court directed Appellant to file a concise 

statement of errors pursuant to Pa.R.A.P. 1925(b). He timely complied and 

the PCRA court filed a responsive Rule 1925(a) opinion.

Despite only filing a notice of appeal listing Case No. 8432, this Court 

concluded that Appellant had manifested a clear intent to appeal the denial of 

his PCRA petition at both cases. See Commonwealth v. Smith, 1649 EDA 

2021 (Pa.Super. Nov. 29, 2022) (non-precedential decision at 5). 

Accordingly, we remanded to provide Appellant with an opportunity to correct 

this procedural error pursuant to Commonwealth v. Young, 265 A.3d 462, 

477-78 (Pa. 2021) (“[W]here a timely appeal is erroneously filed at only one 

docket, [Pa.R.A.P. 902] permits the appellate court, in its discretion, to allow 

correction of the error, where appropriate.”). On remand, Appellant filed a 

corrected notice of appeal and the PCRA court forwarded the record in Case 

No. 3774. Thus, this matter is now ripe for adjudication on the merits.
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Before this Court, Appellant asserts that the PCRA court erred by 

dismissing his PCRA petition without a hearing despite his allegations that his 

trial counsel rendered ineffective assistance of counsel by failing to call two 

alibi witnesses to testify in his defense. See Appellant’s brief at 2. The 

standard and scope of our review in this context is practically axiomatic:

When reviewing the denial of a PCRA petition, an appellate court 

must determine whether the PCRA court's order is supported by 

the record and free of legal error. Generally, a reviewing court is 

bound by a PCRA court's credibility determinations and its factfinding, so long as those conclusions are supported by the record. 

However, with regard to a court's legal conclusions, appellate 

courts apply a de novo standard.

Commonwealth v. Drummond, 285 A.3d 625, 633 (Pa. 2022) (cleaned up). 

Appellant’s arguments pertain to allegations of the ineffectiveness of 

trial counsel, our review of which are also well-defined in Pennsylvania law:

To prove that counsel was ineffective, the petitioner must 

demonstrate: (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. . . . Counsel is presumed to be effective; 

accordingly, to succeed on a claim of ineffectiveness the petitioner 

must adduce sufficient evidence to overcome this presumption.

Id.at 634. More specifically, Appellant’s claim concerns counsel’s alleged 

failure to present alibi witnesses on his behalf. Accordingly, he must 

demonstrate that: (1) the witness existed; (2) the witness was available to 

testify for the defense; (3) counsel knew or, 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 
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have denied the defendant a fair trial. See Commonwealth v. Sneed, 45 

A.3d 1096, 1109 (Pa. 2012). 

Finally, Appellant’s argument challenges the PCRA court’s decision to 

deny his ineffectiveness claim without a hearing. Pursuant to Pennsylvania 

Rule of Criminal Procedure 908(A)(2), courts are required to hold a hearing 

where a PCRA petition raises “material issues of fact.” Pa.R.Crim.P. 

908(A)(2). By contrast, Pennsylvania Rule of Criminal Procedure 909(B)(2)

permits the dismissal of PCRA petitions without a hearing if the court is 

satisfied that “there are no genuine issues concerning any material fact, the 

defendant is not entitled to post-conviction collateral relief, and no legitimate 

purpose would be served by any further proceedings.” Pa.R.Crim.P. 

909(B)(2). In order “to obtain reversal of a PCRA court’s decision to dismiss 

a petition without a hearing, [a petitioner] must show that he raised a genuine 

issue of material fact which, if resolved in his favor, would have entitled him 

to relief, or that the court otherwise abused its discretion in denying a 

hearing.” Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011). 

The PCRA court has related that its decision to deny Appellant’s petition

without a hearing was the result of its conclusion that the two alibi witnesses 

proffered by Appellant lacked any credibility. See Trial Court Opinion, 

1/12/22, at 8-14. Specifically, the PCRA court accurately asserts that Mr. 

Tingle “is the very same person who incriminated [Appellant] in the 

robberies.” Id. at 9. With respect to Mrs. Johnson, the PCRA court similarly
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suggests that her familial relationship with Appellant essentially precludes her 

from offering alibi testimony in this case.

3

 Id. at 14. Based upon this alleged 

lack of credibility, the PCRA court concludes that Appellant will be unable to 

satisfy the prejudice prong of the ineffectiveness test under Pennsylvania law

since the Commonwealth’s evidence at trial was “overwhelming” with respect 

to guilt. See id. at 13-14. We must disagree.

Both Mr. Tingle and Mrs. Johnson certainly have a personal relationship 

with Appellant that may serve to undercut or complicate the value of their 

testimony. However, we emphasize that no such testimony has yet been 

offered in this case. Rather, the PCRA court has based its credibility findings 

entirely upon its own assumptions concerning the witnesses’ character. 

However, a witness’s “demeanor and temperament” while testifying in court 

is a factor that we expect the trier of fact to consider when addressing that 

witness’s credibility. Commonwealth v. Thompson, 93 A.3d 478, 492 

(Pa.Super. 2014). The PCRA court has effectively subverted this expectation 

by rendering premature judgments concerning the credibility of Mr. Tingle and 

Mrs. Johnson. In the same way that it is improper for an appellate court to 

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3

 Specifically, the PCRA court has cited an unpublished memorandum of this 

Court that was filed prior to May 1, 2019, in support of its interpretation of 

Pennsylvania law. Pursuant to the Pennsylvania Rules of Appellate Procedure, 

this holding may not be cited for its persuasive value. See Pa.R.A.P. 

126(b)(1)-(2). Generally, such cases may not be cited by any court or party.

See Superior Court I.O.P. § 65.37(B) (“An unpublished memorandum decision 

filed prior to May 2, 2019, shall not be relied upon or cited by a Court or a 

party in any other action or proceeding[.]”).
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render credibility determinations “relying solely upon a cold record,” we find 

that it is equally improper for a PCRA court to do the same here. See, e.g., 

Commonwealth v. Farquharson, 354 A.2d 545, 550 (Pa. 1976) (noting that 

there is “legitimacy” in the credibility determinations of a trial court only to 

the extent that it has an opportunity to directly observe witnesses).

We also find the following passage to be instructive:

Many factors may affect the probative value of testimony, such as 

age [,] . . . intelligence, experience, occupation, demeanor, or 

temperament of the witness. A trial court or jury before whom 

witnesses appear is at least in a position to take note of such 

factors. An appellate court has no way of doing so. It cannot 

know whether a witness answered some questions forthrightly but 

evaded others. It may find an answer convincing and truthful in 

written form that may have sounded unreliable at the time it was 

given. A well[-]phrased sentence in the record may have seemed 

rehearsed at trial. A clumsy sentence in the record may not 

convey the ring of truth that attended it when the witness groped 

his way to its articulation.

Id. at 491 n.3 (emphasis added). Thus, while an appellate court is bound to 

rely upon “the mute record made below,” we concomitantly depend upon the 

trier of fact to render a fully informed decision regarding the credibility of 

witnesses. Id. No such adjudication took place in this case since the PCRA 

court failed to adduce an adequate basis to entirely malign the credibility of 

Mr. Tingle and Mrs. Johnson. We find that the credibility determinations of 

the PCRA court are not supported by the record and, consequently, we are not 

bound by them in this matter. See, e.g., Drummond, supra at 633. 

Due to the PCRA court’s decision to issue its ruling without holding an 

evidentiary hearing, we may only speculate as to the potential character of 
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these witnesses on the stand or the content of their putative averments. The 

specific circumstances of Appellant’s allegations of ineffectiveness remain

woefully underdeveloped without such testimony and, consequently, 

Appellant’s entitlement to relief, or lack thereof, is not clear from the available

record. However, we note that Appellant’s PCRA petitions aver the basic facts 

necessary to make out a claim of ineffectiveness for failure to call an alibi 

witness. Compare Amended PCRA Petition, 2/5/21, at 2-5; Supplemental 

Motion, 3/19/21, at 4-5 with Sneed, supra at 1109.

We recognize that “[i]t is within the PCRA court’s discretion to decline 

to hold a hearing if the petitioner’s claim is patently frivolous and has no 

support either in the record or other evidence.” Commonwealth v. 

Williams, 244 A.3d 1281, 1287 (Pa.Super. 2021) (cleaned up). While 

Appellant’s claims may not ultimately prove to be meritorious, we cannot 

conclude his arguments are entirely specious without the benefit of factfinding. Thus, his averments and the undisputed existence of these alibi 

witnesses creates a material issue of fact that requires resolution at a PCRA

hearing with testimony. See Commonwealth v. Hart, 199 A.3d 475, 482 

(Pa.Super. 2018) (vacating order denying PCRA relief and remanding for a 

hearing to address an unresolved material issue of fact).

Based on the foregoing, we conclude that the PCRA court abused its 

discretion in denying Appellant an evidentiary hearing based upon credibility 

determinations that were not supported by the record. Thus, we vacate the
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order denying Appellant’s PCRA petition and remand for further proceedings 

consistent with this memorandum.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/23/2023