In this month's podcast episode, Corrie interviews fellow appellate attorney Teri B. Himebaugh to discuss Commonwealth v. Shaw, in which SCOPA held that petitioners pursuant to the PCRA may assert claims of ineffective assistance of their appellate counsel for the first time on appeal.

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Please find a copy of the episode transcript below:

Intro  0:00  
The Supreme Court of Pennsylvania is the highest court in the Commonwealth and the oldest appellate court in the nation, an institution that shapes our practice our laws and our lives. This is a podcast by attorneys and for attorneys who argue before Pennsylvania's court of final appeal. Welcome to The Standard of Review by SCOPAblog.

Corrie Woods  0:26  
Hi, and welcome to The Standard of Review by SCOPAblog. I'm your host Corrie Woods, and I recently sat down with attorney Teri Himebaugh, a Philadelphia solo practitioner who won a favorable decision in the Court's case of Commonwealth vs. Shaw. In Shaw, the Court held that criminal defendants and actions under Pennsylvania's Post-Conviction Relief Act, or PCRA, can challenge their appellate counsel's ineffectiveness for the first time on appeal. Shaw marks the limitation of the Court's earlier cases holding essentially that although defendants have a right to effective PCRA counsel, they have no mechanism to enforce it. What's more, its reasoning might crack the door for future petitioners, to roll back those cases and provide a broader mechanism going forward. Let's listen. 

Our guest today is Teri Himebaugh, a solo practitioner located in Philadelphia. Attorney Himebaugh is a litigator and focuses her practice on Criminal Appeals, Post-Conviction actions and civil rights actions in federal and Pennsylvania courts alike. She is also an adjunct professor at Montgomery County Community College, where she has taught criminal law, criminal procedure, evidence, and juvenile law. Attorney Himebaugh has served as a board member for numerous charitable, civic, educational, and legal organizations, and has given innumerable lectures and media appearances regarding her areas of practice, and other areas of interest. Attorney Himebaugh, welcome to The Standard of Review.

Teri B. Himbaugh  1:47  
Thank you so much. Thank you for having me.

Corrie Woods  1:49  
Before we get into Shaw proper, can you tell me just a little bit about how and why you became an attorney and settled on your practice?

Teri B. Himbaugh  1:56  
Certainly, I got a law degree from New England School of Law and then went to American University Washington College of Law to get a legal master's degree in international human rights law. However, I recognize the fact that there was really no effective way to have a financial basis for practice doing just international human rights law. And while I was working with Amnesty International, I made a prison visit for a death row inmate. And this is the first time I had ever been in a prison. I had never even seen a prisoner had never had any experience from that. I'm from Colorado, very rural upbringing. And as I was being walked through the prison yard, the correctional officer was busy telling me about what they did to the inmates and how that they were testing chemicals on the inmates, and that the inmates had not given informed consent, but they had bargained away various misconducts that they would have received in exchange for their being guinea pigs. And I thought to myself, well, this is the United States, how can that happen? And it immediately made me interested in prisoner civil rights work. I started doing prisoner civil rights work when I moved up to Philadelphia, and we moved to Philadelphia primarily because at that time in the early 90s, if you wanted to do civil rights work, it was either here or LA where the hot areas were. And Philadelphia was was more with in tune with the way I wanted to live, moved to Philadelphia and started doing police misconduct and prisoner rights work, primarily police misconduct work was what was the firm paying clients, the prisoner civil rights work was done more on a pro bono basis, because there really was not a lot of- there were not a lot of attorneys who did work in that area. As I started doing the prisoner civil rights work more and more and more, my name got better well known in the prisons. And in order to fund my pro bono work during the prisoner civil rights work, I started taking on criminal appeals. I didn't limit myself to homicides, but it kind of that turned out to be what I ended up doing. And so I have been doing predominantly homicide appeals for the last 25 years or so.

Corrie Woods  4:22  
So really, at the sort of the tip top of the criminal practice area on not only the appeals in the post conviction area, but the ensuing civil rights violations that are pretty pretty wild in Pennsylvania, in some instances.

Teri B. Himbaugh  4:33  
Correct. Correct. And one side is you know, the civil rights work is just the flip side of the criminal appellate work, the same constitutional provisions- the Sixth Amendment, Fifth Amendment, Fourth Amendment, 14th amendment- those things still are, you know, applicable in both settings. The procedural requirements and how you work your way through them is different, but the concepts are the same.

Corrie Woods  4:56  
So let's get into Shaw. What are the essential facts of the case? Since this was a post conviction case, after all, where did initial counsel sort of falter?

Teri B. Himbaugh  5:05  
Okay this is procedurally- this is important, because it fills in a gap. Basically what happened here is that Mr. Shaw, went to trial and his trial attorney filed a notice of alibi. And the notice of alibi is supposed to give the Commonwealth information about who the alibi witnesses are, and what the actual alibi is, during the relevant time periods. The trial attorney had himself written the notice of alibi, but had not actually interviewed the client or the alibi witnesses prior to writing and filing that notice. And as a result, the notice was inaccurate, according to the notice, it had to have the the petitioner Mr. Shaw, in the presence of both- two of the the alibi witnesses, both alibi witnesses, at the same time, when in fact, he was with one in the morning and one in the afternoon. This wasn't caught until trial. At the trial stage, they put one of the witnesses of the alibi witnesses on the stand. And the prosecutor cross examined her with the notice of alibi, indicating that it's not in fact, isn't it, in fact, true that you were not present with this other person and Mr. Shaw, all at the same time. And because this is the way that the notice was written by counsel, it was incorrect. And it wasn't based on what the witness would testify to. Counsel objected to the prosecutors trying to impeach the veracity of the alibi witness. The trial court overruled the objection. And then the prosecutor went on to ask more questions about impeaching that particular witness about her not being present and how the entire alibi fell apart, essentially, because of the assertion that both of the alibi witnesses were there with Mr. Shaw, at the same time. Counsel objected. He had a sidebar conference, he moved for a mistrial. The judge basically told him, Well, that's too bad, and that it's already in and she's allowed to the prosecutor is allowed to use this. And the prosecutor used it for purposes of the closing argument, to highlight to the jury, that you couldn't believe that this guy really wasn't involved because his alibi was so incredible. And this was an identification or misidentification case. There wasn't physical evidence. There weren't extensive eye witnesses, there wasn't videotape, there wasn't a lot of forensic evidence, it really relied on a credibility determination. So what ended up happening is that he was found guilty, and he went on his direct appeal. And then he filed for PCRA, his first timely PCRA. And during the PCRA proceedings, there were a variety of claims that were raised, including a claim related to the alibi notice. The court- the PCRA Court- granted an evidentiary hearing on just the alibi notice claim and halfway through the PCRA proceedings, the court allowed PCRA counsel to essentially amend his PCRA to readjust the claim of trial counsel and effectiveness for failing to amend the alibi notice prior to trial, removing reference to the one individual who wasn't present at that time. That hearing went on trial counsel gave testimony elicited by PCRA counsel, that essentially he was unaware of the law. He thought the law didn't allow for this, and he didn't indicate that he had any tactical reason for not having corrected the defective alibi notice. After the PCRA hearing was over, I was retained and I was retained after the 1925 b notice was filed. When an appeal is filed from a PCRA you have the notice of appeal, and then the PCRA Court will usually ask for a 1925 b statement of matters complained of on appeal. PCRA counsel have completed the 1925 b notice of statements complained of an appeal and only included two of the claims and did not include the claim that he had amended in to the PCRA hearing about the alibi notice. When I got it, it was post having done the 1925 B and I filed a brief with the Superior Court arguing that because of the fact that this PCRA counsel didn't include this claim in the 1925 b that he should be found ineffective for failing to preserve the claim of trial counsel and ineffectiveness. It was a serial ineffectiveness claim.

Corrie Woods  10:18  
And just to give a little bit of background, the Supreme Court of Pennsylvania and the Superior Court's decisions in this area, they certainly at least suggest that litigants in that position are, I mean, they're essentially out of luck, right? I mean, before this case?

Teri B. Himbaugh  10:31  
Yes, well, actually, they're out of luck, for there's no constitutional right and no statutory rights in Pennsylvania, to effective PCRA counsel. I know it sounds crazy, but it's true. And because of that the federal courts have come up with kind of a quick fix when PCRA counsel is ineffective, mostly when they abandon claims, but when they're ineffective as well. And that's through Martinez v. Ryan. And Martinez v. Ryan allows the federal court to look at claims that PCRA counsel either abandoned or was ineffective on. However, Martinez v. Ryan specifically indicates, and this progeny, specifically indicates that it does not apply to appellate PCRA counsel. In other words, the attorney who is representing the client post-PCRA, to the Superior Court. Now the PCRA attorney in Mr. Shaw's case remained as appellate PCRA counsel for purposes of the 1925 B. And therefore, Martinez v. Ryan would not even apply to the claim that that was not raised because he was acting as appellate PCRA counsel at the time. So while the federal court kind of fixed this niche where the state is lacking to ensure effective PCRA counsel, there was a complete gap where there was no review by either state or federal appellate PCRA counsel. So this filled that gap and required that even appellate PCRA counsel must be effective.

Corrie Woods  12:12  
And after you file the brief with the Superior Court, essentially saying, "Hey, there is a gap here. Let's fill it by creating a remedy." What does the Superior Court say?

Teri B. Himbaugh  12:21  
Well, the Superior Court actually kind of jumped the gun a bit and made the ultimate determination that PCRA counsel was ineffective, as well as trial counsel was ineffective. They were in a position to have judged whether trial counsel was ineffective, because they had the PCRA hearing where trial counsel testified about his lack of tactical basis for this, but they did not have any evidence at that point as to PCRA counsel or his at the time appellate PCRA counsel's in effectiveness. So the Superior Court had gotten ahead of itself a bit. It was appealed to the Supreme Court, the Supreme Court said yes, we agree. There is a lack in the law that the appellate PCRA counsel should have a means to review to ensure that they're effective, but they're going to send it back down to the PCRA Court for a hearing on whether or not appellate PCRA counsel was effective.

Corrie Woods  13:18  
So and I just want to talk a little bit about the differences in the the court itself, I guess, in the pre-Martinez cases, right? Where the court says, "Well, on the one hand, we have this rule based right to effective assistance of counsel. But the PCRA is so concerned with finality and certainty as to the case must end that we're just going to eviscerate that right by saying there's no way to vindicate it at all." And then change in the composition of the court- the people who sort of dissented from that- the justices who dissented from that point of view, pre-Martinez- are, frankly, they're the authors of the majority opinion in this case, where they seem to be saying, "Well, the right is there, and maybe it's better to enforce it than not." 

Teri B. Himbaugh  14:02  
Yeah, I think that they erred- I argued fundamental fairness. That if you couldn't get review in state court, and you couldn't get review in federal court, then you couldn't ensure effective assistance of appellate PCRA counsel. The pre- cases that- the Henkel cases and the others- that were relied on by the Commonwealth in arguing against this basically said that, you know, well, PCRA counsel, you don't have to have any special statute or any special, you know, rules that they're effective because PCRA- the judges will look over the PCRA attorneys work and ensure that they're acting effectively.

Corrie Woods  14:40  
Is there any indication that that's actually occurring? 

That's- that's really really rare. I mean, the only time I ever see the the judges on PCRA do anything in order to evaluate PCRA counsel effectiveness is in the court appointed Finley letter area to determine whether or not a Finley has been properly- properly filed. But other than that it's not feasible for PCRA judges to be able to determine, for example, in this case, whether or not a claim should have been raised or not. They're not in a position to know that only counsel would be in a position to know that.

And it's kind of a perversion of the role, too, right? I mean, it's very difficult to be a third party neutral, and an advocate, you know, identifying and advancing claims at the same time. 

Teri B. Himbaugh  15:27  
Exactly. 

Corrie Woods  15:28  
Yeah. So the other thing I kind of wanted to talk about is those Henkel and sort of pre- Henkel cases that really emphasized finality. I think I remember one of the justices citing a poem about sort of recursion theory and how if we allowed ineffectiveness claims against PCRA counsel, generally, it would just lead to never ending litigation. I don't know if you were practicing when the PCHA was in practice, but is there reason to think that these cases just go on forever without this kind of a bar? And does that even matter? Because we're headed in the federal court in that event anyway?

Teri B. Himbaugh  16:02  
Well, I think that the the PCRA finality of the the jurisdictional requirement that of one year from the date the judgment is sentence becomes final to file your PCRA really has really limited the serial PCRAs. Now, of course, if you file a second or successive PCRA, it has to be based on one of the three exceptions to the timeliness rules. And those are very strictly enforced. So I don't think anyone's getting away with filing multiple PCRAs claiming ineffective assistance of counsel. You get your one stab at it, and then you get in state court and you get another stab at it essentially in federal court. But the federal review is such that it's very hard to get relief if you're not- if you don't have good basis in state court. So- I don't think that there's the kind of abuse that was prior PCHA-that was PCHA prior to PCRA. At that time, when you could file as many PCRAs as you wanted to claiming as many ineffective assistance of counsel claims. I think litigation did go on forever and ever and ever. There was no finality. But the way that is it's set out now. There is distinct finality.

Corrie Woods  17:19  
And one other thing I kind of wanted to touch on from the opinion I thought was really interesting- Chief Justice Saylor wrote the opinion and he is sometimes sphynx-like in his in his work for the court. There was a passage where he talked about the state courts having an interest in adjudicating the issue, at least, where there's no federal overlay, right, from Martinez. And I wonder to what degree each of those components of that sentence are carrying weight there, are we suggesting that there is- that Pennsylvania has an interest in adjudicating these things such that maybe we need to open up some of these earlier cases, these pre-Ryan cases, pre-Henkel cases, or are we saying "Well, hey, if there's a gap here, we'll fill it. But we're not going to go back and, you know, open up the previous case."

Teri B. Himbaugh  18:03  
I think is what you're saying the latter that they're not going to reopen that they're willing to look at this particular gap. And I got the distinct feeling from the reading of it that they they really understood the fundamental fairness aspect of this, that they're not concerned. And I also think that they also were sending a message to the state legislature that hey, if you want to put protections in to require PCRA and appellate counsel, PCRA counsel effectiveness, you should have put this in and because you have not this is why we must do this.

Corrie Woods  18:39  
What happens to Mr. Shaw at this point?

Teri B. Himbaugh  18:41  
Well, we have a hearing that is scheduled in a couple of months, where we will be bringing appellate PCRA counsel in to testify on the very narrow subject of whether or not he had a reasonably objective tactical basis for not including the alibi notice claim in the 1925 b statement. The Supreme Court also directed us to argue the ultimate issue of whether or not trial counsel's error prejudiced the case. So it's going to be a hearing for evidentiary purposes in some part and argument in some part.

Corrie Woods  19:18  
One of the interesting features I thought was, although it wasn't really the issue before it, the court did talk a little bit about this kind of bizarre practice of impeaching a witness based on the attorney's mistaken characterization of what the testimony would be. I wonder if you have any thoughts about that?

Teri B. Himbaugh  19:34  
From just a- a lay person's perspective, if I was just looking at this as an average Joe, I would say well, if the attorney wrote it, how can it be held against anyone but the attorney? And that makes kind of logical sense, but the law is not necessarily as logical as the the average person and basically, what the law is, says that well, in a case with an alibi, if If the defendant does not testify, and he wants to rescind that alibi, they can't use the notice against him. But if you have an alibi and you do testify it's fair game. And again, that goes kind of against- contrary to intuition. That you know it's one thing if you had the client verify or sign the alibi notice, but here it's just the attorney. And oftentimes, because of the timing that the alibi notice must be filed. Oftentimes, the attorneys have not really done all of the prep that they need to do. They've been told by the client, oh, this is early on, usually in the in the representation, oh, I've got this alibi. And they, they get kind of a summary of what they think that the alibi is. They don't talk to the alibi witnesses before they write the notice. And they wait until just before the trial to talk to the alibi witnesses and find out Ooh, that's not exactly accurate. And that is one of the dilemma that occurs when you don't talk to your witnesses, and do pre trial preparation early on, when you've got alibis.

Corrie Woods  21:12  
So Attorney Himebaugh, you've got something of a prolific set of board memberships, lectures, and so on, is there anything you'd like to promote today?

Teri B. Himbaugh  21:18  
Well, actually, I would. Over COVID, we decided to put together what will become and is in the process of becoming a nonprofit- it's called the Police Transparency Project. It is a database on a website that is designed to provide public access to information about misconduct by police officers. And in particular, we started this because about seven or eight years ago, I started noticing doing all of the Philadelphia homicides that I do a pattern of practice among the homicide detectives. That is unconstitutional interrogation practices. And I started keeping names of cases and of detectives and started out as a list that grew to a Word document that grew to an Excel spreadsheet that ultimately became the Police Transparency Project. We now have it accessible so that attorneys, defendants, family members can access the database and can get information that they would not previously have been able to obtain easily because majority of it is nonpublic, and it's not accessible about for example, suspensions, or other behavior on the part of detectives or police officers, that made them be placed on the Do Not Call list or makes them incredible and that they should not have been called. There's a good number of cases that are currently being reviewed by the conviction integrity unit of the Philadelphia DA's office that involve application of the facts of- that are set forth in the pattern of practice- it's a seven or eight part list of behaviors that is consistent. So we're- we put this together, my daughter has a master's degree in social work administration. And so this is right up her alley. And so she is the managing director. And we are currently in the process of doing- trying to get more information from attorneys and defendants and family members and updating the database. This is something that has become- the database and keeping this sort of information- has become very critical. And cities throughout the country, because as we face the need for police transparency, we need to know not only what is in these police officer's backgrounds that makes them in- should make them inaccessible or not to be called as witnesses. But also because we want to gain trust in our criminal justice system. And if we don't know about what's going on, and why these- these individuals- things that they've done in their past that they've been found responsible for doing and violating people's constitutional rights. If we don't know about that, we are going to end up having them continue to do the same practice for years and years and years to come.

Corrie Woods  24:26  
And that's I mean that's critical, especially given that police work and police departments and records are often pretty pretty darn balkanized when you- when you look at it. 

Teri B. Himbaugh  24:34  
Exactly. 

Corrie Woods  24:34  
Where can folks access that?

Teri B. Himbaugh  24:36  
People can find that on the database, which is at www.thepolicetransparencyproject.com. We also have a Facebook, Instagram, Twitter and we have a GoFundMe, which we are trying to fund so that we can hire a full time database person to be able to input all of the information that we are continuing to get. This is a project where we initially started with about 30 to 40 entries, and we are well over several hundred entries at this point. This is also something that has been covered in part by the Philadelphia Inquirer in a series of articles in May that outline a lot of what we're doing with the with the database and the need for the database.

Corrie Woods  24:42  
Excellent. Attorney Himebaugh- thank you for your your work in general, in Shaw, on this project. And thank you for joining us today on The Standard of Review. 

Teri B. Himbaugh  25:35  
Thank you very much for having me. 

Corrie Woods  25:37  
That's all for this episode of The Standard of Review. If you like what you've heard, and you want to hear more, you can subscribe for new episodes in your pod catcher of choice. If you'd like to reach out with a topic or a guest for a new episode, you can find us on the web at WoodsLawOffices.com or just search for Woods Law Offices on Facebook, Twitter, or LinkedIn. Thanks so much for listening, and we'll see you next time on The Standard of Review.

Outro  26:02  
Thanks for listening to The Standard of Review by SCOPAblog. This episode has been brought to you by Woods Law Offices, Raising the Bar for Pennsylvania Appeals. Check them out at www.WoodsLawOffices.com.