Com. v. Emarievebe, C.

J-S25025-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

CLIFFORD EMARIEVEBE : No. 2253 EDA 2022

Appeal from the PCRA Order Entered August 5, 2022

In the Court of Common Pleas of Delaware County

Criminal Division at CP-23-CR-0003424-2017

BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 12, 2023

The Commonwealth of Pennsylvania appeals from the order granting the

petition filed by Clifford Emarievebe (Mr. Emarievebe), pursuant to the Post

Conviction Relief Act (PCRA).1 After careful review, we affirm the order and

remand for retrial.

In April 2017, police charged Mr. Emarievebe with several crimes related

to alleged sexual assaults of his wife’s ten-year-old daughter. The facts are

not pertinent to this appeal.2

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.

2 This Court stated the facts in Mr. Emarievebe’s direct appeal.

Commonwealth v. Emarievebe, 222 A.3d 876 (Pa. Super. 2019)

(unpublished memorandum at 1-3).

J-S25025-23

During pretrial proceedings, Mr. Emarievebe was represented by

Assistant Public Defender Frank Zarrilli, Esquire (Attorney Zarrilli). The case

proceeded to a jury trial in June 2018. At trial, Mr. Emarievebe was

represented by retained counsel, Michael Lambert, Esquire (Attorney Lambert

or trial counsel). Thereafter, the jury convicted Mr. Emarievebe of two counts

of involuntary deviate sexual intercourse with a child,3 and one count each of

indecent assault of a person less than 13 years of age4 and endangering the

welfare of a child.5

On November 8, 2018, the trial court sentenced Mr. Emarievebe to an

aggregate 8 - 16 years in prison. The court also required him to register under

Tier 3 of the Sexual Offenses Reporting and Notification Act (SORNA).6 Both

parties filed motions for reconsideration of sentence, which the trial court

denied on December 28, 2018.

Mr. Emarievebe appealed, challenging the trial court’s admission at trial

of certain evidence in violation of the rule against hearsay. This Court

determined the admission of evidence constituted harmless error; we thus

affirmed the judgment of sentence. Emarievebe, 222 A.3d 876 (unpublished

____________________________________________

3 18 Pa.C.S.A. § 3124.1.

4 Id. § 3126(a)(7).

5 Id. § 4304(a)(1).

6 42 Pa.C.S.A. § 9799.10 et seq.

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memorandum at 12). The Pennsylvania Supreme Court denied allowance of

appeal. Commonwealth v. Emarievebe, 232 A.3d 560 (Pa. 2020).

On December 29, 2020, Mr. Emarievebe timely filed a first PCRA

petition. Mr. Emarievebe claimed his convictions were the result of trial

counsel’s ineffectiveness for failure to:

1) Call character witnesses;7

2) Meet with Mr. Emarievebe more than twice prior to trial;

3) Investigate potential biases of prosecution witnesses;

4) Interview potential defense witnesses;

5) Secure a defense expert before trial and file a timely motion for

funds; and

6) Object to the admission of purported Pa.R.E. 404(b) prior bad

act evidence.

PCRA Petition, 12/29/20, ¶ 6. The Commonwealth filed an answer on March

5, 2021.

Mr. Emarievebe’s counsel then filed an addendum to the PCRA petition,

raising additional claims of trial counsel’s ineffectiveness for: 1) Telling the

jury in opening argument that Mr. Emarievebe would testify, when Mr.

Emarievebe never testified; and 2) “Not asking the judge to charge the jury

____________________________________________

7 Mr. Emarievebe attached to his PCRA petition affidavits from three

individuals who stated (1) they would have been willing to testify at trial about

Mr. Emarievebe’s good reputation and other matters; and (2) trial counsel

never contacted the individuals. PCRA Petition, 12/29/20, ¶ 8 & Attachment

A.

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on character witnesses.” Addendum to PCRA Petition, 10/7/21, ¶¶ 6, 8. The

Commonwealth filed an answer to the addendum on November 12, 2021.

The PCRA court held an evidentiary hearing on March 17, 2022. The

PCRA court explained:

[Mr. Emarievebe] first presented the testimony of Attorney

[] Zarrilli. [Attorney] Zarrilli represented [Mr. Emarievebe] after

his preliminary hearing up until he was replaced by privately

retained counsel, [Attorney Lambert] []. Attorney Zarrilli testified

about what his defense of the case was and the many efforts he

took to gather evidence and witnesses for Mr. Emarievebe’s trial.

Attorney Zarrilli, in speaking with his client, intended to present a

partial alibi defense and, in support thereof, knew that he had to

reach out to [Mr. Emarievebe’s] employers for time-cards and

potential testimony. It was [] crucial to the defense to show that

Mr. Emarievebe was likely working during at least some of the

times the victim alleged she was assaulted. (Notes of Testimony,

“N.T.,” 3/17/22, at 23-24). When [Attorney] Lambert was

retained, [Attorney] Zarrilli gave him his entire file, aside from his

notes, and relayed his theory of the case to him.

[Attorney] Zarrilli shared his belief that there was a potential

partial alibi defense; that the victim’s mother, [Mr. Emarievebe’s]

wife, and [Mr. Emarievebe] had a contentious relationship which

included [Mr. Emarievebe’s] wife making a scene at Mr.

Emarievebe’s] place of employment while demanding money,

verbal threats to see [Mr. Emarievebe] incarcerated, and reports

that [Mr. Emarievebe’s] wife had made to local police that he was

dealing drugs. The implication sought to be established was that

[Mr. Emarievebe’s] wife harbored such animosity that influencing

her daughter was a distinct possibility. The impact would be to

the victim’s credibility. On June 22, 2018, [Attorney] Zarrilli even

emailed [Attorney] Lambert[,] listing all the items that he thought

would be helpful to procure prior to trial in support of the defense.

[Attorney] Lambert testified second at the PCRA hearing.

After taking the stand, [Attorney] Lambert barely got beyond

stating his name before he began to tell the court he did not recall

anything about this case. In fact, [Attorney] Lambert said “I do

not recall” over seventy times during his testimony. He explained

that he does not remember anything that occurred pre-trial or

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during trial. He explained he had a high-volume practice and

could not be expected to remember this case. (N.T., 3/17/22, at

99, 100). This court also had a high volume practice and would

not expect counsel to remember routine cases. This case was not,

however, routine. [Attorney Lambert, as trial counsel,] did not

recall whether or not he discussed an alibi defense with [Mr.

Emarievebe] (N.T., 3/17/22, at 103); whether or not he received

an email from [Attorney] Zarrilli regarding the defense theory

(N.T., 3/17/22, at 103); [Attorney Lambert] didn’t recall telling

the jury that [Mr. Emarievebe] would take the stand, even though

he did not (N.T., 3/17/22, at 113); and did not recall looking for

an expert witness only after trial began, who was paid for by the

court and then was not able to be qualified as an expert in the

field sought (N.T., 3/17/22, at 111-13). One thing [Attorney

Lambert] did recall was that he visited [Mr. Emarievebe] less than

five times in the year prior to trial [when Attorney Lambert]

represented [Mr. Emarievebe]. Furthermore, even though

[Attorney] Lambert was subpoenaed to attend the PCRA hearing

and bring his file with him, he did not bring his file and testified

that he could not find it. (N.T., 3/17/22, at 92). [Attorney]

Lambert’s testimony that he could not recall essentially anything

about this case, or that he could not find his file, was not credible.

Mr. Emarievebe was the last to testify at the PCRA hearing.

His testimony was credible, emotional, and clearly delivered. He

explained that when he retained [Attorney] Lambert, who was

paid for by his friends and colleagues (N.T., 3/17/22, at 142), he

told [Attorney Lambert] the defense theory that [Attorney] Zarrilli

had previously discussed. [Mr. Emarievebe] explained to

[Attorney] Lambert that his wife wanted him in jail because, after

having thrown him out of the house, [Mr. Emarievebe] refused her

requests to return. (N.T., 3/17/22, at 155). She vowed to ruin

his life because she had brought him to this country from Africa

and now he was not coming back home and was not giving her

$1,000 from his $1,300 paycheck, as he had previously been

doing. (N.T., 3/17/22, at 152-55). She had previously alleged

that [Mr. Emarievebe] had been sleeping with her twenty year old

daughter, which he denied. She also reported to Chester Police

that [Mr. Emarievebe] was a drug dealer. There was no criminal

case in that matter and, according to Mr. Emarievebe, the Chester

Police did not believe a man who had only been in this country for

six months was a drug dealer. (N.T., 3/17/22, at 159). She went

to Mr. Emarievebe’s place of employment[,] where she created a

scene arguing with him over money. [Mr. Emarievebe] told

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[Attorney] Lambert that he reported [the incident] to one of his

coworkers, who could testify in support of th[e incident,] and there

may even have been camera footage of the altercation. (N.T.,

3/17/22, at 154-55). [Mr. Emarievebe] told [Attorney] Lambert

how he had a partial alibi defense and that [Attorney] Lambert

could reach out to his two employers. He told [Attorney] Lambert

how he wanted to take the stand to testify and explain his wife’s

motivation for manipulating her daughter. According to Mr.

Emarievebe, [Attorney] Lambert did none of the things he asked

him to do to prepare for the case. He only visited Mr. Emarievebe

twice in jail, the second of which was one day before jury selection

began. At that time, he would not discuss the trial strategy with

[Mr. Emarievebe,] who was left to wonder what his fate was going

to be the next day. [Attorney] Lambert never discussed retaining

a medical expert to refute the Commonwealth expert in this case.

PCRA Court Opinion, 10/31/22, at 2-4 (some citations modified).

By order entered August 5, 2022, the PCRA court granted Mr.

Emarievebe’s PCRA petition and ordered a new trial.8 The Commonwealth

filed a motion for reconsideration, claiming “although trial counsel could not

recall much of his representation of [Mr. Emarievebe] at the evidentiary

____________________________________________

8 The August 5, 2022, order does not identify which of Mr. Emarievebe’s

numerous claims of trial counsel’s ineffectiveness merited relief. The PCRA

court clarified its ruling in its Pa.R.A.P. 1925(a) opinion, which states in part:

This court granted Mr. Emarievebe’s PCRA petition based on a finding

of ineffective assistance of counsel for 1) [Attorney] Lambert’s failure

to investigate and pursue an alibi defense and procure alibi

witnesses; 2) failing to timely recognize the need for an expert

witness and securing that witness; 3) not meeting with [Mr.

Emarievebe] more than twice before trial and failing to prepare [Mr.

Emarievebe] for testifying or not testifying; 4) not interviewing

potential defense witnesses and character witnesses; 5) telling the

jury [Mr. Emarievebe] would take the stand when he was unsure[,

and] he would [not] in fact take the stand.

PCRA Court Opinion, 10/31/22, at 6-7.

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hearing, [Mr. Emarievebe] nonetheless has not demonstrated the prejudice

required for a finding of ineffective assistance.” Motion for Reconsideration,

8/18/22, at 4. The PCRA court denied the Commonwealth’s motion on August

30, 2022. The Commonwealth filed this timely appeal.

On September 2, 2022, the PCRA court ordered the Commonwealth to

file a concise statement of errors pursuant to Pa.R.A.P. 1925(b).9 The

Commonwealth timely filed a concise statement, which reads, in its entirety:

Th[e PCRA c]ourt erred by granting Mr. Emarievebe’s PCRA

petition and ordering a new trial.1

1 The PCRA petition raised several claims of ineffective

assistance of counsel. The [PCRA] court’s order does not

specify on what basis relief was granted, and thus the

Commonwealth cannot be any more specific in its statement

of errors.

1925(b) Statement, 9/22/22, at 1 (footnote in original). The PCRA court

issued a Pa.R.A.P. 1925(a) opinion.

The Commonwealth presents six issues for review:

I. Did the PCRA court err by creating, and granting relief on, a

claim that [Mr. Emarievebe] did not raise, and was the claim

[Mr. Emarievebe] did raise regarding trial counsel’s opening

argument meritless where trial counsel had good reason to

believe when he made the argument that [Mr. Emarievebe]

would testify?

II. Did the PCRA court err in granting [Mr. Emarievebe] relief

based on trial counsel’s failure to investigate additional

character witnesses where [Mr. Emarievebe] chose not to

____________________________________________

9 The order cautioned: “Any issues not properly included in the Concise

Statement … pursuant to the provisions of Pa.R.A.P. 1925(b) shall be

waived[.]” Order, 9/2/22, ¶ 4.

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present those character witnesses at the evidentiary hearing

and their proposed testimony would have been merely

cumulative of the character evidence heard by the jury?

III. Did the PCRA court err in granting [Mr. Emarievebe] relief

based on trial counsel’s failure to investigate an alibi defense

where it is not reasonably probable that investigating [Mr.

Emarievebe’s] work schedule would have exonerated him as

the child victim was unable to provide specific dates for the

abuse, and [Mr. Emarievebe] admitted to being with the

victim during the one incident she could date?

IV. Did the PCRA court err in granting [Mr. Emarievebe] relief

based on trial counsel’s belated decision to seek funds for an

expert witness where [Mr. Emarievebe] offered no evidence

that a better expert was available and would have testified

favorably for the defense?

V. Did the PCRA court err in granting [Mr. Emarievebe] relief

based on trial counsel’s failure to meet with [Mr.

Emarievebe] more frequently before trial where it is not

reasonably probable that an additional meeting would have

changed trial counsel’s strategy?

VI. Did the PCRA court err in granting [Mr. Emarievebe] relief

based on trial counsel’s failure to investigate witnesses to

testify to the alleged biases of the victim’s mother where [Mr.

Emarievebe] offered no evidence that the witnesses were

available and willing to testify for the defense?

Commonwealth Brief at 4-5.

Before addressing the Commonwealth’s issues, we examine the

vagueness of its Rule 1925(b) concise statement. See Commonwealth v.

Parrish, 224 A.3d 682, 699 (Pa. 2020) (“We begin by addressing the

threshold question of whether the Rule 1925(b) statement filed by PCRA

counsel was so vague that appellate review of any issues related to the PCRA

court’s dismissal of [a]ppellant’s amended petitions was waived.”).

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Mr. Emarievebe argues that the Commonwealth waived all issues

because it failed to raise it claims of error with particularity. See Appellee’s

Brief at 11-16. Mr. Emarievebe cites this Court’s decision in Commonwealth

v. Dowling, 778 A.2d 683 (Pa. Super. 2001), where we stated, “a concise

statement which is too vague to allow the court to identify the issues raised

on appeal is the functional equivalent of no concise statement at all.” Id. at

686-87 (some capitalization modified); see also Appellee’s Brief at 11. Mr.

Emarievebe argues, in the alternative, that even if the Commonwealth did not

waive its claims under Rule 1925(b), “this Court should still affirm the PCRA

court because the PCRA court did not err in granting [Mr. Emarievebe’s] PCRA

petition on his ineffective assistance of counsel claim.” Appellee’s Brief at 16

(bold omitted).

The Commonwealth counters in its reply brief that waiver is

inappropriate, despite its vague Rule 1925(b) statement, because the law is

settled law that

under the[] limited circumstances where the appellant is unable

to ascertain the trial court’s rationale for the ruling under appeal,

it is not appropriate to find waiver or to dismiss the appeal based

on a vague Rule 1925(b) statement.

Hess v. Fox Rothschild, LLP, 925 A.2d 798, 804 (Pa. Super. 2007); see

also Commonwealth’s Reply Brief at 3.

It is axiomatic that “any issue not raised in a Rule 1925(b) statement

will be deemed waived for appellate review.” Commonwealth v. Bonnett,

239 A.3d 1096, 1106 (Pa. Super. 2020) (citing Commonwealth v. Lord, 719

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A.2d 306, 309 (Pa. 1998)). Rule 1925(b) mandates that the “Statement shall

concisely identify each error that the appellant intends to assert with

sufficient detail to identify the issue to be raised for the judge.” Pa.R.A.P.

1925(b)(4)(ii) (emphasis added).

However, this Court also has recognized:

If the reasons for the ruling of the [c]ourt are vague, then an

appellant is forced to file an incomplete Rule 1925(b) statement

and there is no violation of Rule 1925(b). Just as the trial judge

cannot be made to guess what an appellant is complaining of on

appeal, an appellant cannot be made to guess what the trial judge

is thinking in his or her ruling.

Commonwealth v. Zheng, 908 A.2d 285, 288 (Pa. Super 2006) (italics in

original); Hess, supra (same); see also Commonwealth’s Reply Brief at 3-4

(citing Zheng and related precedent). Upon review, we agree with the

Commonwealth that, under the circumstances, waiver is not appropriate. We

therefore consider the Commonwealth’s claims.

“This Court’s standard of review regarding a PCRA court’s order is

whether the determination of the PCRA court is supported by the evidence of

record and is free of legal error.” Commonwealth v. Carter, 21 A.3d 680,

682 (Pa. Super. 2011).

Our scope of review is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most favorable to

the prevailing party at the PCRA court level. The PCRA court’s

credibility determinations, when supported by the record,

are binding on this Court.

Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014) (en banc)

(emphasis added; citations, quotation marks, and brackets omitted); see

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also Carter, 21 A.3d at 682 (“Great deference is granted to the findings of

the PCRA court, and these findings will not be disturbed unless they have no

support in the certified record.” (citation omitted)). “It is an appellant’s

burden to persuade us that the PCRA court erred and that relief is due.”

Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa. Super. 2019)

(citation omitted).

The PCRA court, in its 17-page opinion, addressed and agreed with

several of Mr. Emarievebe’s claims of trial counsel’s ineffectiveness. See PCRA

Court Opinion, 10/31/22, at 9-10 (finding trial counsel ineffective for failing

to investigate Mr. Emarievebe’s requested alibi defense, which had no

reasonable basis and caused Mr. Emarievebe “extreme prejudice”); id. at 10-

13 (determining, “trial counsel’s failure to put any preparation or investigation

into retaining a medical expert was a ‘complete abdication of the minimum

performance required of defense counsel.’” (citation omitted)); id. at 13-15

(holding trial counsel was ineffective for failing to consult sufficiently with Mr.

Emarievebe prior to trial, and “trial counsel’s failure to prepare amounted to

an abdication of the minimum performance required of defense counsel and

essentially left [Mr. Emarievebe] in a position equivalent to no having counsel

at all.”), and id. at 16-17 (“[Attorney] Lambert’s advice to [Mr. Emarievebe]

not to testify in this case was ineffective.”).

This Court may affirm on any basis. Commonwealth v. Katona, 191

A.3d 8, 16 (Pa. Super. 2018) (“we may affirm if there is any basis on the

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record to support the trial court’s action, even if we rely on a different basis.”).

Thus, in the interest of judicial economy, we address the Commonwealth’s

issue pertaining to trial counsel’s failure to investigate Mr. Emarievebe’s alibi

defense (identified in the Commonwealth’s statement of questions as issue

III).

The Commonwealth challenges the PCRA court’s finding of

ineffectiveness based on Attorney Lambert’s failure to investigate and present

a partial alibi defense as Mr. Emarievebe requested. See Commonwealth’s

Brief at 15, 30-36. According to the Commonwealth, trial counsel was not

ineffective because

there is no evidence that an alibi defense actually existed. Given

that the victim alleged ongoing sexual abuse, without specific

dates, it is not reasonably probable that investigating [Mr.

Emarievebe’s] work schedule would have exonerated him.

Indeed, during the only incident that the victim could date, [Mr.

Emarievebe] admitted that he was with the victim. The PCRA

court’s order granting relief on this claim should therefore be

reversed.

Id. at 31. The Commonwealth further states that at the PCRA hearing, “[Mr.

Emarievebe], tellingly, did not present any of the alleged alibi evidence that

he faulted trial counsel for not presenting. No alibi witnesses testified at the

PCRA hearing.” Id. at 35.

We review claims of counsel’s ineffectiveness under the following

standard:

[A] PCRA petitioner will be granted relief only when he proves, by

a preponderance of the evidence, that his conviction or sentence

resulted from the ineffective assistance of counsel which, in the

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circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or

innocence could have taken place. 42 Pa.C.S. § 9543(a)(2)(ii).

Counsel is presumed effective, and to rebut that presumption, the

PCRA petitioner must demonstrate that counsel’s performance

was deficient and that such deficiency prejudiced him. … [T]o

prove counsel ineffective, the petitioner must show that: (1) his

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

reasonable basis for his action or inaction; and (3) the petitioner

suffered actual prejudice as a result. If a petitioner fails to prove

any of these prongs, his claim fails. Generally, counsel’s

assistance is deemed constitutionally effective if he chose a

particular course of conduct that had some reasonable basis

designed to effectuate his client’s interests. Where matters of

strategy and tactics are concerned, a finding that a chosen

strategy lacked a reasonable basis is not warranted unless it can

be concluded that an alternative not chosen offered a potential for

success substantially greater than the course actually pursued. To

demonstrate prejudice, the petitioner must show that there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedings would have been different. A

reasonable probability is a probability that is sufficient to

undermine confidence in the outcome of the proceeding.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations, quotation

marks and brackets omitted).

The Pennsylvania Supreme Court has explained:

Counsel has a general duty to undertake reasonable investigations

or make reasonable decisions that render particular investigations

unnecessary. Commonwealth v. Basemore, 744 A.2d 717, 735

(Pa. 2000) (citing Strickland [v. Washington], 466 U.S. [668,]

691 [(1984)]). Counsel’s unreasonable failure to prepare for trial

is “an abdication of the minimum performance required of defense

counsel.” Commonwealth v. Brooks, 839 A.2d 245, 248 (Pa.

2003) (quoting Commonwealth v. Perry, 644 A.2d 705, 709

(Pa. 1994)). The duty to investigate, of course, may include a

duty to interview certain potential witnesses; and a prejudicial

failure to fulfill this duty, unless pursuant to a reasonable strategic

decision, may lead to a finding of ineffective assistance.

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Commonwealth v. Johnson, 966 A.2d 523, 535-36 (Pa. 2009) (citations

modified).

Ineffectiveness claims can be premised upon a failure to

adequately investigate and review the materials provided to the

defense. Thus, the onus is on counsel to review all materials to

which he has access. See Commonwealth v. Stewart, 84 A.3d

701, 712 (Pa. Super. 2013) (en banc) (noting that it can be per

se unreasonable for defense attorney to conduct no investigation

into known witnesses); Hill v. Lockhart, 474 U.S. 52, 59, 106 S.

Ct. 366, 88 L. Ed. 2d 203 (1985) (discussing prejudice inquiry

“where the alleged error of counsel is a failure to investigate or

discover potentially exculpatory evidence”).

Commonwealth v. Maldonodo, 173 A.3d 769, 783 (Pa. Super. 2017) (en

banc).

Instantly, the PCRA court opined it did not err in finding trial counsel

ineffective, because

trial counsel’s inactions in the instant case amounted to an

“abdication of the minimum performance required of defense

counsel.” [Brooks, supra.] This court found Mr. Emarievebe

credible when he testified that [Attorney] Lambert only met with

him twice prior to trial, one of which was the day before jury

selection. (N.T., 3/17/22, p. 147). [Attorney Lambert, as trial

c]ounsel[,] never discussed his trial strategy with [Mr.

Emarievebe], who entered his jury trial without a clue as to what

the defense was going to be. (N.T., 3/17/22, p. 155). [Mr.

Emarievebe] credibly explained to the [PCRA] court that he

told [Attorney] Lambert about his partial alibi; that he

worked two jobs and could prove he was unable to be around the

victim during at least some of the alleged incidents because he

was working. (N.T., 3/17/22, p. 146). [Mr. Emarievebe] gave

the names of his employers to [Attorney] Lambert and explained

that he had to punch in and out of work so there would be time-

cards proving when he was at work. (N.T., 3/17/22, p. 152). Mr.

Emarievebe’s supervisor at work expressed his desire to be at the

trial, but [Attorney] Lambert never reached out to him about it.

(N.T., 3/17/22, p. 149). There was no attempt at an investigation

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in this case to prove an alibi defense. As such, there is arguable

merit to [Mr. Emarievebe’s] claim.

[At the PCRA hearing, Attorney] Lambert offered absolutely

no reason for his failure to pursue the alibi defense. In fact,

[Attorney] Lambert offered no substantive testimony at all

other than to allege he had no memory of this case, an

argument that this court finds lacking in credibility. In a

case where there was no physical evidence of assault against the

victim, the jury had no option but to rely on the testimony of the

witnesses. [Trial c]ounsel’s failure to make any effort to

pursue [Mr. Emarievebe’s] claimed alibi, which would have

contradicted at least a portion of the victim’s testimony[,]

is unsupported by any rational strategy. The case rose and

fell on the credibility of the victim and her mother. Accordingly,

pursuing any opportunity to assail that credibility was the only

reasonable strategy and essential to changing the outcome. Mr.

Emarievebe suffered extreme prejudice due to [Attorney]

Lambert’s failure to investigate his alibi defense.

PCRA Court Opinion, 10/31/22, at 9-10 (emphasis added). The record and

law support the PCRA court’s reasoning.

As noted, this Court must give “great deference” to a PCRA court’s

credibility findings. See Medina, supra; Carter, supra. Moreover:

Where issues of credibility and weight of the evidence are

concerned, it is not the function of the appellate court to

substitute its judgment based on a cold record for that of

the [PCRA] court. The weight to be accorded conflicting

evidence is exclusively for the fact finder, whose findings will not

be disturbed on appeal if they are supported by the record.

Commonwealth v. Sanchez, 262 A.3d 1283, 1288-89 (Pa. Super. 2021)

(citations omitted). Furthermore, we must view the evidence in the light most

favorable to Mr. Emarievebe as the prevailing party. See Medina, supra.

Contrary to the Commonwealth’s claim, Mr. Emarievebe established all prongs

of the ineffective assistance test detailed in Spotz, supra. We therefore

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conclude the Commonwealth failed to meet its burden of proving the PCRA

court erred or abused its discretion in granting Mr. Emarievebe a new trial.

See Stansbury, supra.

Order affirmed. Case remanded for retrial. Jurisdiction relinquished.

Judge Nichols and Judge McCaffery concur in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/12/2023

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