The Pennsylvania Superior Court has decided the case of Commonwealth v. Shaw, holding that a defendant may be entitled to a new trial where the defense attorney provided the ineffective assistance of counsel by failing to properly investigate an alibi defense and by filing an erroneous notice of alibi which was later used to impeach the defendant’s testimony. This case is important because it emphasizes the defense attorney’s both to fully investigate potential alibi defenses and to take care to file an accurate notice of alibi where one is appropriate. It also allows for a defendant to be impeached through the use of the notice of alibi, which was filed by the defendant’s lawyer, in addition to any statements made by a defendant.

Commonwealth v. Shaw 

In Shaw, the prosecution alleged the following: on November 30, 2009, the complainant saw the defendant and his accomplice hanging around his apartment building. The complainant spoke with them. When the conversation concluded, the complainant went into his apartment where he was entertaining guests. The defendant and his accomplice came to the door and asked the complainant if he had change for a $100 bill. The complainant accommodated them and then returned to his guests, but he heard another knock a short time later. Assuming it was a food delivery, the complainant opened the door. However, it was the defendant and his accomplice and they forced their way into the complainant’s home. After they entered, they demanded money from the complainant. They then assaulted him and shot him in the chest and the thigh. The complainant’s guests, who were hiding in the bathroom, called 911.

Police and paramedics arrived a short time later. The complainant was taken to the hospital where he was treated for his injuries. While en route to the hospital, the complainant stated that one of the assailants was a small, dark-skinned, black man wearing a grey hoodie. He could not give a description of the other individual. 

After he recovered from his injuries, the police showed the complainant a photo array, and he identified the defendant and his accomplice. The complainant stated that the medication he was on in the hospital did not hamper his ability to make an identification and that he was positive the defendant was the one who shot him. The police were also able to locate multiple witnesses to this incident, including a neighbor who would later testify that he saw the defendant and his accomplice in the area earlier in the day. A female guest ultimately testified that she saw the defendant punch the victim.

Police arrested the defendant charged him with attempted murder, robbery, various charges under the Uniform Firearm Act, burglary, possession of an instrument of a crime, aggravated assault, and criminal conspiracy. Prior to his trial, his attorney did not file a motion to suppress the victim’s identification of him. However, his attorney did file an alibi notice. Specifically, the notice of alibi alleged that the defendant was with his girlfriend and another woman in Philadelphia on the day this robbery occurred. However, the defendant’s attorney only spoke to the girlfriend and only called her to testify at his trial. He never spoke with the other woman or called her as a witness. The Commonwealth then used the defendant’s alibi notice to impeach the witness during cross-examination. Based on the notice of alibi, the assistant district attorney asked why the defendant said he was with two women when his girlfriend did not testify to that. 

After a jury trial, the defendant was found guilty of all charges and received a 15-30 years sentence. The defendant then filed a timely appeal which was denied and a timely PCRA petition. In his PCRA petition, the defendant raised several arguments as to why his trial attorney was ineffective in representing him. Specifically, the defendant argued that his attorney was ineffective because he did not try to suppress the complainant’s identification of him, he did not request a Kloiber charge, and that he failed to amend his alibi notice prior to trial. He also alleged that the attorney who handled his PCRA claim was ineffective for not raising the issue on appeal. The PCRA court denied his petition, and then the defendant filed this timely appeal.

Can You Suppress a Witness’s Identification? 

Sometimes. A defense attorney may file a motion to suppress a witness’s identification if it was unduly suggestive. In other words, if a police officer’s actions during the identification are so egregious that it gives rise to a irreparably tainted misidentification, then a court may prevent that witness from making an in-court identification of the defendant or allowing the Commonwealth to present that pre-trial identification in its case-in-chief. 

For example, assume that a woman was robbed and an eyewitness saw the robbery. The police ask him for a description of the assailant and he describes the person as a 5’10, Hispanic male with a beard. The next day, the police provide a photo array and ask the witness if they see anyone they recognize in the photo array. The photo array has six pictures. Five of them are white men with no facial hair, and there is one picture of a Hispanic male with a beard. The eyewitness then identifies this Hispanic male as the person who committed the robbery. Assuming this man went to trial, he could have a strong argument for suppressing the eyewitness’s identification because the photo array was unduly suggestive. There was only one photo of a person who matched the description he gave to the police. The other five pictures were not even close to resembling the perpetrator of the robbery. Thus, it would be clear that the police were trying to make the eyewitness pick the defendant, thereby tainting the identification.

What is a Kloiber Charge? 

A Kloiber charge is a jury instruction that is given when the witness did not have the opportunity to clearly view the defendant, equivocated in his identification of the defendant, or had difficulty in making an identification in the past. In the instant case, the defendant argued that because of the complainant’s discrepancies in his initial claim, a Kloiber charge was warranted. The Superior Court rejected this claim. However, a Kloiber charge can be very helpful because it instructs the jury to give less weight to a questionable identification where appropriate.

Can the prosecutor impeach the defendant with the notice of alibi?

Yes. As shown in the instant case, a defendant may be impeached with his or her alibi notice. It was also of no consequence that the defendant did not testify. In other words, the Commonwealth can use the defendant’s alibi notice to impeach the alibi witness that the defense calls. However, and this is very important, if a defendant decides to withdraw his alibi notice prior to trial, the defective notice cannot be used against him or her. The Commonwealth also may not use a withdrawn notice of alibi as evidence of a defendant’s lack of truthfulness at sentencing. Therefore, it is extremely important that a defense attorney thoroughly investigate an alibi and only file a notice of alibi where the defense has merit and the notice will be accurate. If further investigation reveals defects in the notice of alibi, then it should be withdrawn prior to trial.

The Superior Court’s Decision 

The Superior Court held that the defendant’s trial attorney was not ineffective for failing to try to suppress the complainant’s out-of-court identification of him or for not requesting a Kloiber charge. The Court, however, also found that the defense attorney was ineffective for failing to amend the alibi notice to accurately reflect the witnesses he intended to call at trial. As the Superior Court stated, it is common knowledge that the Commonwealth can impeach a witness and use the defendant’s alibi notice against him or her if it is not accurate. In the defendant’s case, the trial attorney should have known this because he should have spoken with his witness and realized that the other witness was unlikely to appear for court, and he should have amended his alibi notice to reflect the witnesses he intended to call and what they would actually say. The attorney should have removed the name of the one witness he did not intend to call. If he had done this, the Commonwealth could not have impeached the witness with the erroneous alibi notice. The defense attorney, however, testified that he did not realize that the witness could be impeached with the alibi notice. Therefore, the Superior Court found that there was no reasonable strategy for failing to amend the notice.   

The Superior Court also found that the defendant was prejudiced by the attorney’s failure to amend the notice. Alhough the identifications of the defendant were not unconstitutional, they were not the most reliable. Additionally, there was no physical evidence that tended to corroborate these identifications. Consequently, because of this failure by his attorney to amend his alibi notice, the defendant will get a new trial. 

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