J-S61008-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRIAN WALTERS

Appellant No. 109 EDA 2017

Appeal from the PCRA Order November 30, 2016

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0000912-2012

BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 12, 2017

Brian Walters appeals from the order, entered in the Court of Common 

Pleas of Montgomery County, denying his petition under the Post-Conviction 

Relief Act (“PCRA”).1 After review, we affirm.

The relevant factual and procedural history is as follows. In the early 

morning hours of December 17, 2011, two masked men committed an armed 

robbery at the residence of Ed and Rebecca Holland. Rebecca was awakened 

by her dog growling. When she opened the door from the bedroom to the 

hallway, she was startled to discover two masked men. One of the men wore 

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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a ski mask, and the other had an improvised cloth bandana tied around his 

face. Both men brandished handguns. The men pushed Rebecca back into 

the bedroom and a struggle ensued when Rebecca tried to call 911 on her cell 

phone. The robbery was interrupted when Ed Holland woke up, retrieved his 

own gun, and chased the men from the house.

Immediately after the robbers fled, Rebecca called 911 and identified 

Walters as one of the perpetrators. Walters’ wife, Aisha Harris, had worked 

as a housekeeper at the Holland residence prior to the robbery, and the 

Hollands were acquainted with both Walters and Harris. In the weeks before 

the robbery, Walters had assisted Ed Holland with several jobs around the 

Holland residence, including cleaning the garage and assisting Ed with laying 

tile. Rebecca had met Walters on several occasions as well, and the two had 

spoken at length. Based primarily on Rebecca’s eyewitness identification, 

Walters was arrested on the night of the incident and charged with robbery,2

burglary,3 and person not to possess a firearm.4

At various times during the investigation and at trial, Rebecca stated 

that she recognized Walters by his distinctive eyes, by his voice, and by his 

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2 18 Pa.C.S. §3701(a)(1)(ii).

3 18 Pa.C.S. §3502(a).

4 18 Pa.C.S. §6105(a)(1). In 2009, Walters pled guilty to a charge of 

possession with intent to distribute, thus making him ineligible for firearm 

ownership.
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body shape. Further, one of the assailants addressed Ed Holland by name 

during the robbery, telling him not to retrieve his gun. The robbers also 

appeared to have some knowledge of the Holland residence; they entered the 

home through the only door that lacked an alarm, and they skillfully navigated 

the home while fleeing. These facts, combined with the Hollands’ familiarity 

with Walters, allowed the Hollands to identify Walters as the perpetrator.

At trial, the Commonwealth relied extensively on Rebecca’s eyewitness 

identification, along with other circumstantial evidence. In his defense, 

Walters relied primarily on the alibi testimony of Harris. Harris testified that 

she and Walters had been asleep in bed on the night of the robbery, and that 

Walters therefore could not have been involved. To attack this alibi, the 

Commonwealth introduced phone records which revealed that calls may have 

been placed to and from Harris’ phone during the relevant periods.

Ultimately, the jury convicted Walters of all three counts on February 7, 

2013. He received an aggregate sentence of ten to twenty years’ 

imprisonment on December 18, 2013. Walters then filed a direct appeal to 

this Court; we affirmed his judgment of sentence on April 24, 2015. See 

Commonwealth v. Walters, 1377 EDA 2014 (Pa. Super. 4/24/15) 

(unpublished memorandum decision). Walters filed a timely pro se PCRA 

petition on April 21, 2016. The PCRA court appointed present counsel, who 

filed an amended PCRA petition on June 24, 2016. On October 19, 2016, the 
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PCRA court held a hearing and denied Walters’ petition on its merits. Walters 

now appeals that decision.

Walters’ claims on appeal relate to the phone records and to the timing 

of the phone calls placed to and from Harris’ phone. Specifically, Walters 

alleges that: (1) counsel failed to definitively establish that Harris called an 

attorney after—and not before—speaking to the police about Walters; (2) 

counsel failed to review the phone records and failed to cross-examine 

Commonwealth witnesses regarding those records, which ultimately led to the 

jury improperly discrediting Harris’ alibi testimony; (3) the PCRA court erred 

in stating that it was “undisputed” that Harris spoke to Sergeant Fenerty of 

the Norristown Police Department prior to Harris contacting an attorney 

acquaintance; and (4) the PCRA court erred by concluding, in light of the 

above, that counsel’s review of phone records was “irrelevant” to the outcome 

of the trial.

To be entitled to relief for ineffective assistance of counsel, a PCRA 

petitioner must establish that: (1) the underlying claim has merit; (2) there 

was no reasonable basis for counsel’s action or failure to act; and (3) but for 

counsel’s course of conduct, there is a “reasonable probability the result of the 

proceeding would have been different.” Commonwealth v. Treiber, 121 

A.3d 435, 444 (Pa. 2015). Failure to satisfy any of the three prongs is fatal 

to a claim of ineffective assistance of counsel. Commonwealth v. Pond, 846 

A.2d 669 (Pa. Super. 2004). Counsel is presumed to provide effective 
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assistance, and it is solely the petitioner’s burden to prove ineffectiveness. 

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).

Walters first alleges that his trial counsel, Michael Walker, Esquire, was 

ineffective for failing to establish that Harris called an attorney after she was 

contacted by the police. In a closely related argument, he claims that Attorney 

Walker failed to investigate the phone records and failed to cross-examine 

Commonwealth witnesses regarding the accuracy of the phone records. 

Walters is entitled to no relief on his ineffectiveness claims.

“Our evaluation of counsel’s performance is . . . highly deferential, and 

the reasonableness of counsel’s decisions cannot be based upon the distorting 

effects of hindsight.” Commonwealth v. Mason, 130 A.3d 601, 647 (Pa. 

2015) (internal citation omitted). Further, “the mere fact that [a] trial 

strategy ultimately proved unsuccessful does not render it unreasonable.” 

Commonwealth v. Spotz, 896 A.2d 1191, 1238 (Pa. 2006) (internal citation 

omitted). In short, we will not utilize the benefit of hindsight to find counsel 

ineffective for failing to pursue an alternative course of action when the 

attorney acted with diligence in the first instance. Id.

To begin, Attorney Walker did not fail to review the phone records, as 

alleged by Walters. To the contrary, Attorney Walker acted with diligence in 

exploring the phone records and assessing their strategic impact on the case. 

As Attorney Walker testified during the PCRA hearing, he was concerned that 

the records may have undermined Harris’ testimony by revealing that her 
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phone had changed locations during the night. N.T. PCRA Hearing, 10/19/16, 

at 39-40. As a result of this assessment, Attorney Walker successfully moved 

to have the records excluded from evidence.5 Id. at 30. In so doing, he made 

a reasonable strategic decision, thus defeating the second prong of the test 

for ineffective assistance of counsel.

Prejudice also cannot be established. Harris first testified that the police 

arrived around 3 a.m. N.T. Trial, 2/6/13, at 58. The Commonwealth then 

introduced the phone record showing that Harris had called an attorney at 

2:29 a.m. Id. at 70-71. Harris next stated that the police must have arrived 

an hour earlier than she had thought. Id. at 71. Later, Attorney Walker asked 

Harris, “Could you be mistaken about the times of when the officer got there 

when you made the phone calls?” Id. at 81. Harris answered in the 

affirmative, “Yes, I could have made a mistake.” Id. at 81.

Harris went on to testify that she called the attorney after the police 

arrived because she knew that Walters was being interrogated in relation to a 

shooting. Id. at 81. This testimony is entirely consistent with the alibi 

defense, and counsel’s failure to further question the specific timing of the 

calls is not prejudicial error. Attorney Walker’s impeachment of the records 

would have further confused the issue of timing, but it would not have served 

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5 The telephone records only became an issue at trial after Harris opened the 

door on cross-examination. The testimony of a witness on cross-examination 

is, of course, beyond the control of counsel.
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to rehabilitate the essential facts of Harris’ alibi defense. In short, the issue 

of timing does not provide a “reasonable probability the result of the 

proceeding would have been different.” Treiber, supra.

Walters’ next claims involve allegations of error by the PCRA court. 

Specifically, Walters takes issue with the court’s statement that it was 

“undisputed at trial that Sergeant Fenerty spoke with Ms. Harris prior to Ms. 

Harris contacting an attorney.” PCRA Opinion, 11/30/16, at 7. This claim 

warrants no relief. Rather, we agree that the PCRA court’s “arguably inartful 

phrasing” does not amount to an actionable error. Rule 1925(b) Opinion, 

1/31/2017, at 10. As discussed supra, we agree with the trial court’s 

conclusion that Walker failed to establish that counsel was ineffective. 

Accordingly, the PCRA court’s misstatement of a single fact does not render 

its ultimate determination erroneous. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/2017