J-S39023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HASSAN GRIMES

Appellant No. 2640 EDA 2014

Appeal from the PCRA Order August 21, 2014

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0003104-2011

BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED OCTOBER 16, 2015

Hassan Grimes appeals the order entered August 21, 2014, in the 

Delaware County Court of Common Pleas, dismissing his first petition filed 

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. 

Grimes seeks relief from the judgment of sentence of an aggregate six 

years, three months to 12 years, six months’ incarceration, followed by 

seven years’ probation, imposed after a jury found him guilty of robbery, 

theft, simple assault, unlawful restraint, forgery and access device fraud.1 

On appeal, Grimes argues the PCRA court erred in denying his claim that 

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1 18 Pa.C.S. §§ 3701(a)(1)(ii), 3921(a), 2701(a)(3), 2902(a)(1), 

4101(a)(2), and 4106(a)(1)(ii), respectively.
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trial counsel was ineffective for failing to present an alibi witness. For the 

reasons that follow, we affirm.

The PCRA court aptly summarized the facts underlying Grimes’ 

conviction as follows:

On May 5, 2011, Kimberly Shoup exited a Starbucks 

with her one-year-old daughter. As she walked with her 

child in her arms and opened the car door, someone 

grabbed her from behind. The assailant pulled Ms. Shoup 

back against him, told her not to turn around, and put a 

gun against her face. The assailant told Ms. Shoup to give 

him her rings and watch and asked where her purse was 

located. Ms. Shoup told him it was on the front passenger 

seat of her car. Because Ms. Shoup’s head was lowered, 

she did not see the assailant take the purse. Ms. Shoup 

heard the assailant move away, and she heard a car start. 

Ms. Shoup then placed her child in the car seat, and drove 

to the front of the Starbucks. She alerted a staff member, 

who called 911. Ms. Shoup was able to provide the police 

with a general description of the assailant, including skin 

color, facial hair, height, and clothing. After giving her 

statement to the police, Ms. Shoup learned that the credit 

cards that were in her stolen purse had been used. She 

then informed the police as to the stores where the credit 

cards had been used.

The police were able to recover a video from one of 

those stores. A copy of the video showing the person who 

used the credit card played on the local news. [Grimes] 

subsequently turned himself in to the police.

Commonwealth v. Hassan Grimes, [82 A.3d 457] 1279 EDA 

2012 pp. 1-2 (filed June 7, 2013) [unpublished memorandum] 

(citations omitted). 

The robbery took place outside a Starbucks located on 

Lancaster Avenue in Wayne, Delaware County just before 10:00 

a.m. At trial the Commonwealth presented the testimony of 

Megan Johnson. Ms. Johnson lived in Wayne on Midland Avenue, 

a street that is adjacent to the Starbucks parking lot. Sometime 

before 10:00 a.m., around the time of the robbery, Ms. 
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Johnson’s dog began to bark. She went outside of her home to 

investigate and saw someone trying to get through bushes on a 

neighbor’s property. She yelled at the person and saw an 

African-American man jump through the bushes and run to a 

white Toyota that was parked on Midland Avenue near her 

house. She was able to get the license plate number and she 

reported her observations to the police. Sometime earlier, 

around 9:25 a.m., another neighbor, Rebecca Wood, saw a white 

Toyota occupied by a black male illegally parked on Midland 

Avenue. She saw the man exit the white Toyota and look down 

a driveway in the direction of the Starbucks. He re-entered the 

Toyota and drove away. At about the time of the robbery a 

Radnor Township police officer “chaulked” the tire of a white 

[Toyota] parked on Midland Avenue when he was conducting a 

routine patrol of the area to determine whether parked vehicles 

were in compliance with a two-hour parking restriction in effect 

on that street. He “chaulked” a few other vehicles on the street 

and then saw the white Toyota turn in the middle of the street 

and leave. He was dispatched to the Starbucks robbery at this 

time. 

At trial [Grimes] testified. He admitted that he used the 

victim’s credit cards to “shop,” but claimed that he did not rob 

her. He came to possess the cards through an acquaintance, 

Antoine Twizzy, who he knew from playing basketball. [Grimes] 

testified that while he was waiting for a bus at the Darby 

Transportation Center, Twizzy drove up and told [Grimes] he had 

“some work” and would split the proceeds of the work with 

[Grimes]. [Grimes] and Twizzy went on a shopping spree with 

Ms. Shoup’s credit cards and shared the items that [Grimes] 

purchased.

PCRA Court Opinion, 12/2/2014, at 3-4 (record citations omitted).

Grimes was arrested and charged with a multitude of offenses.2 The 

case proceeded to a jury trial. On January 13, 2012, the jury returned a 

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2 Although Grimes was charged with 33 counts in all, the case proceeded to 

the jury on only seven counts.
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verdict of guilty on the aforementioned charges.3 Grimes was sentenced on 

March 1, 2012 to an aggregate term of six years, three months to 12 years, 

six months’ incarceration, followed by seven years’ probation.4 A panel of 

this Court affirmed his judgment of sentence on direct appeal. Grimes, 

supra.

On February 18, 2014, Grimes filed a timely, counseled PCRA petition5

asserting trial counsel’s ineffectiveness for failing to present a purported alibi 

witness, Nashira Harris. Grimes averred trial counsel knew Harris was a 

potential witness, but failed to call her to testify. To support his claim, he 

attached to his PCRA petition an affidavit, signed by Harris, in which she 

attested: (1) she was at the Darby Transportation Center in Darby, 

Pennsylvania, on the morning of May 5, 2011; (2) at 9:26 a.m., she saw 

Grimes there and spoke with him for a few minutes; (3) a week after 

Grimes’ arrest, she received a telephone message from his trial attorney 

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3 Grimes was found not guilty of terroristic threats. See 18 Pa.C.S. § 

2706(a)(1).

4 We note the trial court imposed a mandatory minimum five-year sentence 

for Grimes’ conviction of robbery pursuant to 42 Pa.C.S. § 9712, a statute 

that has been found to be constitutionally infirm in light of the United States 

Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 

(U.S. 2013). See Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super 

2014). Nevertheless, this Court has recently held that “Alleyne is not 

entitled to retroactive effect in [a] PCRA setting.” Commonwealth v. 

Riggle, ___ A.3d ___, 2015 PA Super 147, *6 (July 7, 2015).

5

PCRA counsel entered his appearance on July 22, 2013.
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asking her to call him; (4) she returned the call, leaving four or five 

messages for Grimes’ attorney, but never spoke to him; and (5) she would 

have been available to testify on Grimes’ behalf at trial. See Petition for 

Post-Conviction Collateral Relief, 2/18/2014, at Exhibit A, Affidavit of Harris. 

After the Commonwealth filed a response, the PCRA court scheduled an 

evidentiary hearing for August 12, 2014.

Both Grimes and his trial attorney testified at the evidentiary hearing.6 

Although Harris attended the hearing, PCRA counsel did not present her as a 

witness. Counsel provided the following explanation to the court:

I have interviewed and received an affidavit from a Nashira 

Harris. The affidavit is of January the 15th, 2014, which was 

attached to the Petition for Post-Conviction Relief. I have had an 

opportunity to speak with Ms. Harris this morning, who is 

present in the courtroom, she’s seated to your left in the first 

row. Ms. Harris has indicated to me that she would not be able 

to testify consistent with her affidavit. Based on that 

representation to me, Judge, I am not calling her as a witness in 

this.

N.T., 8/12/2014, at 54. Thereafter, on August 21, 2014, the PCRA court 

denied Grimes’ petition for relief. This timely appeal follows.7

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6 Trial counsel testified that prior to trial, he had a discussion with Grimes 

regarding a witness who Grimes told him could “testify as to seeing me at 

the Darby Transportation Center.” N.T., 8/12/2014, at 44. However, they 

both determined that “bringing that witness forward would have harmed Mr. 

Grimes’ case.” Id. at 45. Counsel also denied leaving a telephone message 

for Harris or receiving a message from her. Id. at 48. 

7 On September 18, 2014, the PCRA court ordered Grimes to file a concise 

statement of errors complained of on appeal. After requesting and receiving 

(Footnote Continued Next Page)
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Our standard of review is well-established: 

Our standard of review of an order denying PCRA relief is 

whether the record supports the PCRA court’s determination and 

whether the PCRA court’s decision is free of legal error. The 

PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record. 

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014). 

Here, Grimes’ sole issue on appeal involves the ineffective assistance 

of trial counsel. Our review of an ineffectiveness claim is guided by the 

following: 

In order to obtain relief on a claim of counsel ineffectiveness, a 

PCRA petitioner must satisfy the performance and prejudice test 

set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984). In Pennsylvania, we have applied 

the Strickland test by requiring that a petitioner establish that 

(1) the underlying claim has arguable merit; (2) no reasonable 

basis existed for counsel’s action or failure to act; and (3) the 

petitioner suffered prejudice as a result of counsel's error, with 

prejudice measured by whether there is a reasonable probability 

that the result of the proceeding would have been different. 

Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 

(2001). Counsel is presumed to have rendered effective 

assistance, and, if a claim fails under any required element of 

the Strickland test, the court may dismiss the claim on that 

basis. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291 

(2010).

Commonwealth v. Reid, 99 A.3d 470, 481 (Pa. 2014). 

Furthermore, in order to establish that trial counsel provided 

ineffective assistance in failing to call an alibi witness, Grimes must 

(Footnote Continued) _______________________

an extension of time, Grimes complied with the court’s directive, and filed a 

concise statement on November 21, 2014.
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demonstrate: (1) the witness existed and was available; (2) trial counsel 

was aware of, or should have been aware of, the existence of the witness; 

(3) the witness was ready and willing to testify on Grimes’ behalf; and (4) 

“the absence of the proposed testimony prejudiced him.” Commonwealth 

v. Lopez, 739 A.2d 485, 496 (Pa. 1999) (citation omitted), cert. denied, 

530 U.S. 1206 (2000).

Here, Grimes argues Harris’ signed affidavit, as well as her presence at 

the PCRA hearing, was sufficient to satisfy his burden of proof. Although he 

acknowledged PCRA counsel did not call Harris to testify at the hearing 

because he claimed she would not testify consistent with her affidavit, 

Grimes asserts “[t]hat does not mean she was unwilling to testify[,]” and 

“[t]here is no way for the Court to examine the record and discern whether 

Ms. Harris protested PCRA counsel’s decision.” Grimes’ Brief at 13. 

Furthermore, Grimes contends trial counsel had no reasonable basis for 

failing to call Harris as an alibi witness. He notes trial counsel feared Harris 

could connect Grimes to the white Toyota used in the robbery. However, 

Grimes “connected himself to the white Toyota when he testified that 

[Twizzy] picked him up from the bus station after the robbery took place.” 

Id. at 15 (emphasis in original). Therefore, he argues Harris’ testimony 

would not have been harmful, and would have “bolstered [his] testimony 

that he was at the bus station at the time of the robbery[.]” Id. 
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The PCRA court concluded that Grimes’ “inability to present the 

testimony of Ms. Harris is fatal to his claim.” PCRA Court Opinion, 

12/2/2014, at 6. The court opined:

The affidavit attached to the PCRA petition demonstrated the 

necessity of a PCRA hearing in this case but it is not evidence 

through which [Grimes] can meet his burden of proof. In 

Commonwealth v. Dennis, 950 A.2d 945, 964 (Pa. 2008) 

where similarly the petitioner attached the affidavits of putative 

alibi witnesses to his petition but failed to produce their 

testimony to support his claim at an evidentiary hearing, the 

Supreme Court found that the petitioner failed to prove “his 

foundational claim of ineffective assistance of counsel.”

In the case sub judice Ms. Harris was subpoenaed and 

appeared at the evidentiary hearing. Counsel represented that 

she would not be called to testify because, “she would not be 

able to testify consistent with [the] affidavit.” Without Ms. 

Harris’s favorable testimony [Grimes’] burden of proof is not 

met. Additionally, we note that [trial counsel’s] credible 

testimony supports the finding that after consultation, he and 

[Grimes] concluded that Ms. Harris’s testimony would not be 

helpful to [Grimes’] defense, because although she was the 

witness that [Grimes] “could have” [had] testify that she saw 

him at the Darby Transportation Center she had also seen him in 

a white Toyota before the robbery. This testimony would clearly 

tie [Grimes] to the vehicle that three eyewitnesses saw near the 

Starbucks in Wayne before the robbery and as it left the scene 

and support the inference that [Grimes] was the man who 

appeared to be conducting his own surveillance in the area 

before he committed the robbery. 

Id. at 7-8. 

We agree with the well-reasoned analysis of the PCRA court. Grimes’ 

failure to present the testimony of Harris at the PCRA hearing necessarily 

defeats his claim. As the Supreme Court held in Dennis, a PCRA petitioner 

“cannot demonstrate prejudice sufficient to establish the ineffectiveness of 
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trial counsel” by simply relying on affidavits attached to a PCRA petition. 

Dennis, supra, 950 A.2d at 964. Rather, a petitioner has “failed to carry 

his burden before the PCRA court by failing to take the requisite steps to 

secure these witnesses’ testimony at the evidentiary hearing that was held 

precisely for that purpose.” Id. The same is true here.

Moreover, we also agree with the PCRA court’s determination that 

even if Grimes’ claim had arguable merit, which we conclude it did not, trial 

counsel had a reasonable basis for failing to present Harris as an alibi 

witness. First, trial counsel testified Grimes told him about the possibility of 

Harris providing alibi testimony “just before trial.” N.T., 8/12/2014, at 44. 

Moreover, after discussing her proposed testimony with Grimes, particularly 

the fact that Harris had “seen him in a certain vehicle [i.e., the white 

Toyota] before[,]” they both decided not to call her as a witness.8 Id. at 43. 

Although Grimes challenges this decision based on the fact he admitted he 

was in a white Toyota with Twizzy after the robbery took place, trial 

counsel’s testimony implied that Harris could place him in the car before the 

robbery. See Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009) 

(“A PCRA court passes on witness credibility at PCRA hearings, and its 

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8 Trial counsel also testified he had conducted his own investigation, which 

included visiting the Darby Transportation Center and viewing surveillance 

videotape from a Dunkin’ Donuts store that Grimes said he been in the 

morning of the robbery, but that counsel was unable to corroborate any 

aspect of Grimes’ story. See id. at 46-47. 
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credibility determinations should be provided great deference by reviewing 

courts.”). Accordingly, we detect no error on the part of the PCRA court in 

concluding trial counsel had a reasonable basis for his actions.

Therefore, because Grimes failed to establish at the evidentiary 

hearing that trial counsel was ineffective for not calling Harris as an alibi 

witness, we affirm the order of the PCRA court dismissing his petition for 

collateral relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/16/2015