J. S30026/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

MARK ANTHONY ENDRES, : No. 3045 EDA 2014

:

 Appellant :

Appeal from the PCRA Order, August 22, 2014

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0001356-2011

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 17, 2015

Mark Anthony Endres, appeals, pro se, from the order of August 22, 

2014, dismissing his Post Conviction Relief Act (“PCRA”) petition.1 We 

affirm.

The trial court has summarized the facts of this case as follows: 

On June 1, 2011, following the denial of his motion 

to compel the production of the confidential 

informant, Appellant was found guilty of Possession 

with Intent to Deliver and Possession of a Controlled 

Substance in the subsequent waiver trial before the 

court. The evidence at trial showed that, on 

November 4, 2010, between the hours of 2 P.M. and 

7 P.M., [a]ppellant sold heroin to a confidential 

informant (CI) inside the his [sic] barber shop (shop) 

located at 1022 S. 9th St. in Philadelphia. 

Philadelphia Police Officer Peggy McGrory, testified 

that she was alerted to drug sales occurring at 

[a]ppellant’s shop by the CI she used to make the 

 

1 See 42 Pa.C.S.A. §§ 9541-9546.
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buy on November 4, 2010. Before entering 

[a]ppellant’s barber shop, the CI was searched and 

no drugs were found. Officer McGrory then observed 

the CI engage in a drug transaction with [a]ppellant 

from her position on the sidewalk across the street 

as she looked into the window and door of the 

[a]ppellant’s shop. Her view was unobstructed and 

she was not using any optics to enhance her vision. 

Officer McGrory clearly observed the transaction 

between [a]ppellant and the CI which occurred 

towards the rear of the barber shop and lasted about 

five minutes. She described the seller as a white 

male between 5’ 8” and 5’ 11” with short hair and a 

mustache. Officer McGrory testified further that, at 

the time, there was an employee in the shop along 

with [a]ppellant, and that there may have been 

someone getting a haircut. Officer McGrory never 

lost sight of the CI while he or she was inside 

[a]ppellant’s shop. The CI returned to 

Officer McGrory with four packets of heroin. On 

November 6, 2010, a search warrant was obtained 

and the [a]ppellant’s shop was searched. Pursuant 

to the search warrant, approximately five grams of 

marijuana was found in a hat in a storage room at 

the back of the shop. Officer McGrory identified 

[a]ppellant as the person that engaged in the drug 

sale with the CI and [a]ppellant was arrested. At the 

time of his arrest, [a]ppellant had an Oxycodone pill 

and Clonazapam pills for which he had a 

prescription.

At trial, [a]ppellant testified that he was in and 

out of his shop on the day of the drug transaction. 

He also testified that he employed two women at his 

shop. Appellant stated that a lot of people were in 

the shop getting their hair cut on the day of the drug 

buy. A page from the [a]ppellant’s appointment 

book dated November 4, 2010 that contained names 

and times of appointments was presented at trial. 

Some of the names on the document were not 

complete. There was a reference to a “Jeff, German 

lawyer”[Footnote 2] and a “former BC/BS guy.” 

While that date in his appointment book appeared to 

be full, [a]ppellant insisted that he could still have 
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been in and out of his shop under those 

circumstances. None of the persons identified on the 

page of the appointment book testified at trial. 

Following presentation of all the evidence, appellant 

was found guilty. On July 19, 2011, following denial 

of his oral motion for reconsideration of sentence 

and the testimony of several character witnesses, 

[a]ppellant was sentenced to two and one half to five 

years[’] incarceration and made work release 

eligible. He did not file a direct appeal.

[Footnote 2] This individual was later 

identified as Jeff Adeli at the PCRA 

hearing.

On October 13, 2011, [a]ppellant timely filed a 

pro se PCRA petition and PCRA counsel was 

appointed. Subsequently, [a]ppellant retained 

private counsel who filed an amended petition 

alleging that trial counsel was ineffective for failing 

to investigate or call the witnesses identified in 

[a]ppellant’s appointment book and for failing to 

pursue an alibi defense as [a]ppellant allegedly 

requested him to do. The Commonwealth filed a 

motion to dismiss on August 27, 2013 to which 

[a]ppellant filed a response on August 28, 2013. 

After carefully reviewing all of the submissions and 

relevant law, the Court filed a notice to dismiss on 

September 20, 2013. Both [a]ppellant and counsel 

filed a response to the notice to dismiss. On 

November 1, 2013, the case was continued to permit 

PCRA counsel to conduct further investigation. 

Thereafter, on April 4, 2014, an evidentiary hearing 

was conducted on the issues raised in [a]ppellant’s 

petition. Appellant testified that he gave trial 

counsel a copy of the November 4, 2010 

appointment schedule from his appointment book. 

The appointment schedule did not contain the full 

names of all individuals and contained no contact 

information. Appellant said that he told trial counsel 

that the patrons listed would prove that he did not 

engage in a drug transaction in his shop on that 

date. Initially, he testified that he told trial counsel 

to contact the listed individuals. However, on 
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cross-examination [a]ppellant could not recall 

whether trial counsel instructed him to have the 

potential witnesses contact him, but stated that if 

counsel had instructed him to contact the patrons, 

he would have. He did not provide trial counsel with 

any contact information. Appellant further testified 

that trial counsel had discussed trial strategy with 

him and decided to pursue the defense theory of 

mistaken identity with which appellant agreed. In 

addition, [a]ppellant admitted that he modified the 

appointment schedule after his arrest by writing in 

that an individual arrived earlier than he was actually 

scheduled. There were also other notations written 

on the document post arrest. Both versions of the 

appointment schedule were presented during the 

hearing. The one given to trial counsel prior to trial 

and presented at trial did not include the 

modifications made by the [a]ppellant after his 

arrest.

Trial counsel also testified at the hearing 

stating that he met with [a]ppellant many times to 

prepare for trial including apprising [a]ppellant of 

what his defense strategy would be. Counsel 

testified that given the limited information contained 

in the appointment book it would have been difficult 

to contact the witnesses. He also stated that he 

instructed the [a]ppellant to give him contact 

information for the witnesses or have the witnesses 

contact him directly.

Appellant called three witnesses during the 

evidentiary hearing: Mr. James Porreca, Mr. Jeff 

Adeli and Mr. Joseph Stivala. Mr. Porreca testified 

that he arrived at the shop sometime between 2 P.M. 

to 3 P.M. and stayed in the shop for an hour to an 

hour and a half. He stated that the [a]ppellant never 

left the shop during the time he was there. He also 

testified that he did not witness a drug transaction 

while he was in the shop. On cross examination 

Mr. Porreca did not have an independent recollection 

of what date he was in the shop. He stated that he 

knew he was in the shop on the date of the crime 

because it was the date the [a]ppellant was arrested. 
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When presented with the fact that the [a]ppellant 

was arrested two days after the events in question, 

Mr. Porreca said he just knew he was present the 

day in question. He could not articulate how he 

came to know this except that he heard it from 

someone after the fact. He also stated that there 

were other people in the shop, but he did not know 

who they were. Mr. Porreca did not contact the 

[a]ppellant’s trial counsel and was under the 

impression that counsel would contact him. 

Additionally, he noted that the [a]ppellant had his 

phone number and that he knew [a]ppellant his 

whole life. Finally, Mr. Porreca testified that he had 

never witnessed a drug transaction in his life.

Mr. Adeli testified that he was in the shop from 

approximately 3 P.M. to 3:30 or 4 P.M. He stated 

that the [a]ppellant was with him the whole time and 

that he did not see a drug transaction. On cross 

examination, Mr. Adeli had no independent 

recollection of [the] date he was at the shop. He 

stated he knew he was there because the [a]ppellant 

told him he was in the shop on the date in question. 

He also said that there were other people in the

shop, but he did not know who they were. Mr. Adeli 

also never contacted trial counsel. He also testified 

that he had never seen a drug transaction in his life.

Mr. Stivala testified that he was at the shop 

from 4:30 P.M. to either 5:30 or 6 P.M. He stated 

that the [a]ppellant did not leave the area of the 

barber’s chair while he was in the shop. He further 

stated that he had never witnessed a drug 

transaction. On cross examination, Mr. Stivala had 

no independent recollection of the date he was in the 

shop. When pressed, he said he remembered the 

date because of its association with astrological 

signs. He later admitted that it was the [a]ppellant 

who told him he was in the shop on the date in 

question. He also testified that there was a 

customer seated in the barber chair when he entered 

the shop and that there was [sic] no other customers 

in the shop after he left. Mr. Stivala testified that he 

told the [a]ppellant that he was available for trial, 
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but did not contact counsel. He also stated that he 

had witnessed one or two narcotics transactions in 

his life.

Following the hearing, [a]ppellant submitted a 

post hearing brief on May 15, 2014 and the 

Commonwealth submitted their response on May 28, 

2014. On September 23, 2014, after carefully 

reviewing all of the submissions and the notes of 

testimony from the evidentiary hearing, the Court 

entered an order denying [a]ppellant’s petition for 

PCRA relief. This appeal followed.

Trial court opinion, 12/24/14 at 1-5 (footnote one omitted). 

The following issues have been presented for our review:

1. Did the [PCRA] Court err in failing to find that 

trial counsel was ineffective for failing to 

investigate known witnesses who were in 

[appellant’s] shop and would have testified 

that no drug transaction took place while they 

were there[?]

2. Did the [PCRA] Court err in failing to find that 

trial counsel was ineffective for failing to call 

known witnesses at trial who would have 

testified that they were in [appellant’s] shop 

and would have testified that no drug 

transaction took place while they were there[?]

3. Did the [PCRA] Court err in failing to find trial 

counsel ineffective for failing to follow 

[appellant’s] request for an “alibi” defense 

(customers were in the shop who would have 

testified that they did not observe a drug 

transaction) but instead limited the defense to 

challenging the identification by 

Officer McGrory?

Appellant’s brief at 4.
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Our standard of review for an order denying post-conviction relief is 

whether the record supports the PCRA court’s determination, and whether 

the PCRA court’s determination is free of legal error. Commonwealth v. 

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings 

will not be disturbed unless there is no support for the findings in the 

certified record. Id.

Moreover, as most of appellant’s issues on appeal are stated in terms 

of ineffective assistance of counsel, we also note that appellant is required to 

make the following showing in order to succeed with such a claim: (1) that 

the underlying claim is of arguable merit; (2) that counsel had no reasonable 

strategic basis for his or her action or inaction; and (3) that, but for the 

errors and omissions of counsel, there is a reasonable probability that the 

outcome of the proceedings would have been different. Commonwealth v. 

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any 

prong of this test will cause the entire claim to fail. Commonwealth v. 

Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed 

to be effective, and appellant has the burden of proving otherwise. 

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).

We find no error with the PCRA court’s holding. After a thorough 

review of the record, the briefs of the parties, the applicable law, and the 

well-reasoned opinion of the PCRA court, it is our determination that there is 

no merit to the questions raised on appeal. First, appellant argues that 
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counsel was ineffective for failing to present Porreca, Adeli, and Stivala as 

alibi witnesses. Appellant avers they were each in the barbershop and would 

have served as alibi witnesses. Here, counsel testified that the appointment 

book at the barbershop did not have proper contact information for the listed 

customers. For instance, there were entries in the appointment book for 

“Jeff the German Lawyer,” “Jerry from C and E,” and “Former BC/BS Guy.” 

(Notes of testimony, 4/4/14 at 88, 98.) Counsel told appellant that any 

potential witnesses could contact him and provide their potential testimony. 

(Id. at 99-100.) Appellant never supplied counsel with the necessary 

information. Porreca testified that appellant never provided him with trial 

counsel’s contact information. Adeli testified that appellant never asked him 

to speak with his attorney. (Id. at 44-45, 58-59.) Stivala testified that he 

never spoke with counsel and was not aware of appellant’s trial. (Id. at 76-

77.) 

Furthermore, at the PCRA hearing, none of the men demonstrated that 

they had independent memory of being in the barbershop on November 4, 

2010, to provide an alibi. On cross-examination, Porreca testified that he 

could not remember whom he spoke with while getting his hair cut; nor 

could he remember what time of day he was there -- only that he usually 

gets his hair cut in the afternoon. (Id. at 41.) Such testimony certainly 

could not have altered the outcome of the trial. Adeli initially testified that 

he was in the barbershop from about 3:00 p.m. to 4:00 p.m.; however, on 
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cross-examination he contradicted himself and conceded he had no 

independent recollection of November 4th and only testified he was in the 

barbershop because appellant told him that he had been there. (Id. at 

57-58.) The absence of this testimony cannot be said to be prejudicial. 

Similarly, Stivala testified that appellant did not “remind” him that he was in 

the barbershop but “told him” “do you realize that you were in there at that 

time.” (Id. at 73.) Appellant has not established prejudice and no relief is 

due. 

Appellant next claims that counsel was ineffective in failing to present 

an alibi defense in addition to the mistaken identity defense. (Appellant’s 

brief at 25.) However, as the trial court aptly notes, each of appellant’s 

witnesses presented at the evidentiary hearing placed appellant at the 

barbershop during the entire span of time each were there, which included 

the time when the CI made the buy. (Id. at 38, 49, 63-64.) An alibi 

defense, however, places the defendant in a different place than the scene 

involved to render it impossible for him to be the guilty party. 

Commonwealth v. Rainey, 928 A.2d 215, 234 (Pa. 2007). Thus, as the 

PCRA court notes, counsel provided a reasonable strategy as to why he did 

not pursue this defense but instead thought mistaken identity and

challenging the credibility of the officers were a stronger defense. (Id. at 

84-85.) There can be no finding of ineffectiveness here. If anything, 

counsel was very much acting in appellant’s best interest. 
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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015