J-S62026-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES BACON,

Appellant No. 2742 EDA 2013

Appeal from the Order Entered September 20, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0802121-2006

BEFORE: ALLEN, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 16, 2014

Appellant, James Bacon, appeals from the order entered on September 

20, 2013 denying relief on his first petition pursuant to the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

The PCRA court set forth the applicable factual and procedural history 

of this case as follows:

On April 4, 2006, an arrest warrant was issued for 

[Appellant] in connection with a shooting on April 1, 2006 

(herein, the April 2006 shooting).

On April 19, 2006, Police Officer Jose Perez observed 

[Appellant] on 2600 Cecil B. Moore Avenue but was unable 

to arrest him. On May 7, 2006, Officer Perez observed 

[Appellant] in the same location while on patrol with Officer 

James Taylor. Officer Taylor exited the patrol vehicle and 

pursued [Appellant] on foot while Officer Perez proceeded to 

drive past [Appellant]. Once [Appellant] observed Officer 

Taylor pursuing him, [Appellant] began to run northbound 

on Bailey Street. While still running from Officer Taylor, 

[Appellant] retrieved a gun from his backpack. Officer 
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Perez radioed for backup and told the police dispatcher that 

he observed [Appellant] and that he was armed and 

dangerous. Officer Perez exited the patrol car to pursue 

[Appellant] on foot. [Appellant] then turned around and 

fired his gun while continuing to run. He then ran around 

the southeast corner of Bailey and Montgomery Avenue and 

waited. As Officer Perez turned the corner, [Appellant] fired 

a single shot that missed the officer. [Appellant’s] gun then 

jammed and he fled once again, eluding arrest (herein, the 

May 2006 shooting). [Appellant] then turned himself in the 

next day, May 8, 2006.

Attorney Emily Mirsky from the Defender[’s] Association 

of Philadelphia represented [Appellant] for the April 2006 

shooting and the May 2006 shooting[, which were tried 

separately]. [Appellant] was acquitted by a jury of the April 

2006 shooting. During [his subsequent] trial for the May 

2006 shooting, [Appellant] advanced a misidentification 

theory through the eyewitness testimony of his neighbor, 

Raymond Jackson. At trial, Jackson testified that the 

shooter was not [Appellant]. Jackson’s testimony was in 

direct conflict with the testimony of Officers Perez and 

Taylor, who both identified [Appellant] as the shooter. The 

jury for the May 2006 shooting found [Appellant] guilty of 

attempted murder, aggravated assault, and possession of 

an instrument of crime. [The trial court sentenced 

Appellant to an aggregated sentence of 15 to 30 years of 

incarceration. On appeal, this Court affirmed Appellant’s 

judgment of sentence in January 2010. The Pennsylvania 

Supreme Court denied further review on December 29, 

2010.]

[Appellant filed a timely pro se PCRA petition in March 

2010.] On January 24, 2012, [appointed counsel] filed an 

amended [p]etition pursuant to the [PCRA]. [Appellant] 

claimed that Emily Mirsky ([Appellant’s] trial counsel) was 

ineffective for failing to call [Appellant’s] mother, Mary Fair, 

as an alibi witness; and (2) failing to call Janice Shappelle 

as an alibi witness. The [PCRA] court granted an 

evidentiary hearing concerning [Appellant’s] two claims. 

The evidentiary hearing was held on April 12, 2013. 

[Appellant], Mary Fair, Janice Shappelle, and defense 

counsel testified at the hearing[.]
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PCRA Court Opinion, 4/4/2014, at 1-3 (record citations and headings 

omitted). By order entered on September 20, 2013, the PCRA court 

dismissed Appellant’s PCRA petition. This timely appeal resulted.1

On appeal, Appellant presents the following issues for our review:

1. Did the PCRA court err in determining that trial counsel 

was not ineffective for failing to call Janice [S]happelle2

as an alibi witness when Ms. [S]happelle was willing and 

available to testify?

2. Did the PCRA court err in concluding that trial counsel 

was not ineffective for failing to call a second alibi 

witness, Mary Fair?

Appellant’s Brief at 4.

Both of Appellant’s issues allege, under the PCRA, that trial counsel 

was ineffective for failing to call witnesses at trial. Our standard of review is 

well-settled:

We review an order of the PCRA court to determine 

whether the record supports the findings of the PCRA court 

and whether its rulings are free from legal error. To be 

eligible for PCRA relief, a petitioner must plead and prove, 

____________________________________________

1

 Appellant filed a notice of appeal on September 20, 2013. On September 

25, 2013, the PCRA court entered an order pursuant to Pa.R.A.P. 1925(b) 

directing Appellant to file a concise statement of errors complained of on 

appeal. Appellant complied timely on October 7, 2013. The PCRA court filed 

an opinion pursuant to Pa.R.A.P. 1925(a) on April 4, 2014.

2 Throughout his brief, Appellant refers to Ms. Shappelle as Ms. Chappelle. 

Upon review of the record, the witness confirmed that she spells her name 

“S-H-A-P-P-E-L-L-E.” N.T., 4/12/2013, at 28. Accordingly, for accuracy and 

consistency, we will refer to her as Ms. Shappelle throughout this 

memorandum. 
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by a preponderance of the evidence, that his conviction or 

sentence resulted from one or more of the reasons set forth 

in 42 Pa.C.S.A. § 9543(a)(2). In this case, Appellant alleges 

that his conviction and sentence resulted from ineffective 

assistance of counsel, as set forth at 42 Pa.C.S.A. 

§ 9543(a)(2)(ii).

In order to obtain relief under the PCRA premised upon 

a claim that counsel was ineffective, a petitioner must 

establish [by] a preponderance of the evidence that 

counsel's ineffectiveness so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place. When considering such a 

claim, courts presume that counsel was effective, and place 

upon the appellant the burden of proving otherwise. 

Counsel cannot be found ineffective for failure to assert a 

baseless claim.

To succeed on a claim that counsel was ineffective, 

Appellant must demonstrate that: (1) the claim is of 

arguable merit; (2) counsel had no reasonable strategic 

basis for his or her action or inaction; and (3) counsel's 

ineffectiveness prejudiced him. 

Furthermore:

to demonstrate prejudice, appellant must show there 

is a reasonable probability that, but for counsel's 

error, the outcome of the proceeding would have 

been different. When it is clear the party asserting 

an ineffectiveness claim has failed to meet the 

prejudice prong of the ineffectiveness test, the claim 

may be dismissed on that basis alone, without a 

determination of whether the first two prongs have 

been met. Failure to meet any prong of the test will 

defeat an ineffectiveness claim. Counsel is not 

ineffective for failing to raise meritless claims.

[...] Where an appellant claims that counsel was 

ineffective for failing to call a particular witness, we require 

proof of that witness's availability to testify, as well an 

adequate assertion that the substance of the purported 

testimony would make a difference in the case.
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With respect to such claims, our Court has explained 

that:

the appellant must show: (1) that the witness 

existed; (2) that the witness was available; (3) that 

counsel was informed of the existence of the witness 

or should have known of the witness's existence; (4) 

that the witness was prepared to cooperate and 

would have testified on appellant's behalf; and (5) 

that the absence of the testimony prejudiced 

appellant.

Thus, trial counsel will not be found ineffective for failing to 

investigate or call a witness unless there is some showing 

by the appellant that the witness's testimony would have 

been helpful to the defense. A failure to call a witness is 

not per se ineffective assistance of counsel for such decision 

usually involves matters of trial strategy. 

Commonwealth v. Michaud, 70 A.3d 862, 867-868 (Pa. Super. 2013) 

(citations, quotations, and brackets omitted).

In his first issue presented, Appellant claims that Janice Shappelle was 

available as an alibi witness at trial, would have testified that Appellant was 

with her during the May 2006 shooting, and was made known to trial 

counsel prior to trial. Appellant’s Brief at 8. He claims that the PCRA court 

erred in determining that the Defender’s Association mistakenly listed Janice 

Shapiro, rather than Janice Shappelle, as a potential witness. Id. at 9. 

Further, Appellant claims that the PCRA court mischaracterized defense 

counsel’s testimony that Ms. Shappelle was a potential witness in the April 

2006 shooting, but not the May 2006 shooting. Id. at 10. Appellant also 

claims “that someone at [defense counsel’s] office was told about Ms. 

Shappelle with regard to the matter presently at issue.” Id. at 11. 
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Appellant claims he was prejudiced because another eyewitness testified at 

trial that Appellant was not the shooter, Appellant was not stopped at the 

scene, and there was no physical evidence tying Appellant to the shooting. 

Id. at 11-12.

The PCRA court determined that the witness was not made known to 

counsel regarding this particular crime. The PCRA court credited defense 

counsel’s testimony that her trial notes indicated that the Defender’s 

Association was told about a woman named Janice Shapiro, not Janice 

Shappelle. Trial Court Opinion, 4/4/2014, at 7. Although, it is undisputed 

that “the two names represent the same person[,]” the PCRA court also 

determined that Ms. “Shappelle’s name came up as a potential alibi only in 

regards to the April 2006 shooting and not the May 2006 shooting[,]” the 

judgment of sentence that is the subject of this collateral challenge. Id. at 

6. Defense counsel testified that Appellant and his mother told her that Kia 

Reese, another woman, was with Appellant at the time of the May 2006 

shooting. Id. at 7. Thus, the PCRA court “found that there was no 

competent evidence that [Ms.] Shappelle was available and willing to testify 

at the trial for the May 2006 shooting, notwithstanding [Ms.] Shappelle’s 

testimony that she would have been available to testify at trial but was 

waiting for a subpoena.” Id. Moreover, the PCRA court found that Appellant 

was not prejudiced because there was overwhelming evidence to support his 

convictions, specifically “[t]he officers identified [Appellant] at the scene and 

were previously familiar with [Appellant’s] appearance[;] Officer Perez [] 
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identified [Appellant] by name when calling police dispatch.” Id. (record 

citations omitted).

Viewing the evidence in the light most favorable to the 

Commonwealth, as our standard of review requires, we discern no abuse of 

discretion or error of law in denying relief under the PCRA. Upon review of 

the notes of testimony from the PCRA hearing, defense counsel testified that 

“Janice Shapiro or Shappelle was linked only to the first case[- the April 

2006 shooting,]” but not the criminal matter at issue. N.T., 4/12/2013 at 

55, 61. Defense counsel testified that either Appellant or his mother told her 

that another woman, named Kia Reese, was with Appellant at the time of 

the May 2006 shooting. Id. at 47. Defense counsel testified that “Kia was a 

constant name that was coming up” and counsel believed that she “talked to 

her multiple times.” Id. at 50. Based upon all of the foregoing, we agree 

that Appellant failed to produce evidence that trial counsel knew of the 

existence of Ms. Shappelle in relation to the May 2006 shooting. Thus, we 

discern no abuse of discretion or error of law in dismissing Appellant’s PCRA 

petition on this basis.

With regard to Appellant’s second claim, he argues that counsel was 

ineffective for failing to call Mary Fair, his mother, at trial. Id. at 12. 

“Appellant’s mother would have testified that she was on the telephone with 

her son when she saw the man who had shot at the police fleeing the 

scene.” Id. Appellant claims that Ms. Fair was an available witness at trial. 

Id. Appellant asserts that trial counsel had no reasonable basis not to call 
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Ms. Fair at trial and he was prejudiced. Id. More specifically, Appellant 

avers that defense counsel conceded that “Ms. Fair was a witness for 

Appellant at a first attempted murder trial when Appellant was found not 

guilty and that Ms. Fair was a good witness.” Id. at 13 (internal quotation 

omitted). Appellant argues it was an unreasonable strategy not to call Ms. 

Fair at trial because counsel “was afraid that Ms. Fair would mention that 

Appellant had an arrest warrant[].” Id. Appellant claims that he was 

prejudiced because had Ms. Fair testified, her testimony, plus the 

eyewitness’ testimony as presented at trial, as well as Ms. Shappelle’s 

proposed trial testimony, would have changed the outcome at trial. Id. at 

15.

The PCRA court found that trial counsel had a reasonable strategy for 

not calling Ms. Fair and that there was otherwise no prejudice to Appellant. 

PCRA Court Opinion, 4/4/2014, at 8-9. Defense counsel chose not to use 

Appellant’s mother as an alibi “because she regarded [that] alibi witness[] as 

weak or not solid enough[;]” “the best defense for the May 2006 shooting 

was based upon a misidentification theory, which was supported at trial by 

[eyewitness] testimony[;]” Ms. Fair’s credibility was in question because of 

“previous failures to provide any information regarding [Appellant’s] location 

to police when they had previously come to her home[;]” and, “defense 

counsel expressed her professional opinion that family members and 

girlfriends do not make good alibi witnesses because they are easily 

impeached due to their relationship with [Appellant].” Id. Moreover, the 
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PCRA court concluded that “[Appellant] was not prejudiced by the failure to 

call [Ms.] Fair as a witness due to the overwhelming evidence in support of 

[Appellant’s] convictions.” Id. at 9.

The certified record supports the PCRA court’s finding. At the PCRA 

hearing, defense counsel testified that she was concerned about calling Ms. 

Fair as an alibi witness because:

If [the jury] heard that [Appellant] was wanted for another 

attempted murder, that would have been a devastating 

piece of information. [...] So [counsel] was worried that 

because of [Ms. Fair] wanting to be helpful and her talkative 

nature, that she would, that somehow she would open the 

door and somehow more than the [arrest] warrant would 

come out: the fact that [Appellant] was on the run for 

several weeks, that she knew where he was. There was a 

lot of damaging material. And again, it was a strategic 

decision.

N.T., 4/12/2013, at 60. Defense counsel also testified that the alibi 

witnesses that she spoke with gave statements that did not match up with 

the statements given by the eyewitness. Id. at 52. Thus, counsel 

strategized to “go with [her] witness” on a theory of misidentification, rather 

than an alibi defense. Id. Defense counsel testified that she believed “that 

alibi witnesses who are mothers” are “easier to impeach [] because they 

have connections to the defendant.” Id. After careful review, we agree that 

trial counsel had a reasonable strategy in not calling Ms. Fair at trial.

Moreover, based upon our review of the evidence presented at trial, 

Officer Perez testified that he knew Appellant from patrolling the 
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neighborhood, that he was specifically looking for Appellant for a prior crime, 

and that he had photographs of Appellant in his possession when he saw 

Appellant. N.T., 11/5/2007, at 73-74. Officer Perez “recognized [Appellant] 

as soon as he saw the pictures.” Id. at 75. Officer Perez first saw Appellant 

on a street corner on April 19, 2006 from a distance of 40-50 feet, but 

Appellant fled. Id. at 78-79. Officer Perez saw Appellant again on May 7, 

2006, walking down the street. Id. at 80. Officer Perez still had the 

photographs of Appellant in his possession when he made eye contact with 

Appellant. Id. at 82. Officer Perez testified, without qualification, that he 

“knew it was him” because he had seen Appellant in person and he had seen 

the photographs. Id. at 83. Officer Perez and his partner, Officer Taylor, 

chased Appellant. Id. at 84-88. Officer Perez testified that Appellant took a 

firearm out of his backpack and “looked in [the officer’s] direction, smiled at 

[him], and [] took a shot[.]” Id. at 89. Officer Perez testified that he was 

sure the shooter was Appellant. Id. at 105; N.T., 11/6/2007, at 22 

(“[Appellant is] the person I chased. He’s the person that shot at me.”). 

Officer Taylor testified similarly, stating that he had a picture of Appellant in 

his hand when the officers first saw Appellant. N.T., 11/6/2007, at 33. 

Officer Taylor testified that Appellant was approximately 50 feet away when 

he saw Appellant shoot at Officer Perez. Id. at 37. Based on this positive 

identification evidence, we conclude that Appellant has not demonstrated 
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prejudice to support his ineffective assistance of counsel claims for failing to 

call witnesses.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2014