Com. v. Willis, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL WILLIS
Appellant No. 2766 EDA 2014
Appeal from the Order Entered August 22, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1000571-2005
BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED October 6, 2015
Michael Willis appeals the order entered August 22, 2014, in the
Philadelphia County Court of Common Pleas denying his first petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.
Willis seeks relief from the judgment of sentence of an aggregate 10 to 20
years’ imprisonment, imposed on March 16, 2007, following his jury
conviction of robbery and possession of an instrument of crime (“PIC”). 1 On
appeal, Willis argues the PCRA court erred in denying his claim of
ineffectiveness of counsel without first conducting an evidentiary hearing.
For the reasons that follow, we affirm.
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1
18 Pa.C.S. §§ 3701(a)(1) and 907(a), respectively.
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The relevant facts and procedural history were summarized by the
Pennsylvania Supreme Court in a prior appeal as follows:
At approximately 2:15 a.m. on April 29, 2005, David Thomas
was walking along 6th Street in Philadelphia when two men
approached him and pushed him. One of the men pulled a gun
from his pocket and pointed it at Thomas’ face, telling Thomas
“give us your money or we’ll blow your head off.” N.T. Trial,
10/31/06, at 46–47. Thomas gave the gunman approximately
$40, and his assailants then fled. Although it was dark at the
time of the incident, Thomas was able to see his assailants by
the light of the streetlamps. Id. at 45–46, 68.
Approximately one hour later, after returning home,
Thomas called the police to report what had happened. When
the police arrived at Thomas’ home, he initially told them he
would be unable to identify the men who robbed him because he
was nervous and overwhelmed. Eventually, however, he gave
police a description, describing the man with the gun as between
5′9″ and 6′ tall, with dark skin and a goatee, and wearing a
puffy black coat. Thomas described the other man as light-
skinned, clean-shaven, and wearing tan pants and a hockey
jersey. At approximately 4:15 am., Thomas accompanied the
officers to the police station, where he gave a formal statement
and description.
Nearly two weeks later, on May 12, 2005, police again
went to Thomas’ house and showed him a photo array of eight
individuals. From the photo array, Thomas identified Michael
Willis … as the gunman who had robbed him. Thereafter, Willis
and his accomplice, Richard Peoples, were arrested and charged
with robbery and [PIC]. On August 17, 2005, Thomas picked
Willis out of a line-up, again identifying Willis as one of his
attackers. Thomas also identified Willis as the gunman both at
his preliminary hearing on August 18, 2005, and at trial.
On November 1, 2006, Willis was convicted by a jury of
the aforementioned charges. Prior to sentencing, Willis filed a
motion challenging the verdict as against the weight and
sufficiency of the evidence. Willis also filed a motion for a new
trial on the basis of an alleged Brady violation by the
Commonwealth. Specifically, Willis alleged that Peoples had
made a deal with the Commonwealth prior to trial, whereby he
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agreed to plead guilty to certain unrelated charges in exchange
for the Commonwealth’s nolle pros of certain other charges,
including the robbery of Thomas. Willis averred that, in the
course of his discussions with police, Peoples indicated that he
committed the Thomas robbery with someone other than Willis,
namely, a man named Robert Richardson a/k/a Woodard
(hereinafter “Woodard”). The statement was inadvertently
omitted from documents produced by the Commonwealth prior
to trial, and was discovered by the prosecutor in her file
following trial. The statement was brought to the trial court’s
attention, and the court offered to allow the victim to view
another photo array containing a photo of Woodard, but Willis’
counsel refused.
Peoples was subpoenaed to testify at a hearing on Willis’
Brady claim, but was not transported from state prison to court
because, according to a statement made by the prosecutor to
the trial judge at the hearing, Peoples’ attorney told the
prosecutor that he would advise Peoples to invoke his Fifth
Amendment rights and refuse to testify regarding the robbery.
Willis’ counsel did not object to the prosecutor’s statement, nor
did she request that Peoples be brought to court to confirm on
the record that he would invoke the Fifth Amendment if asked to
testify about the robbery.
In his opinion for the trial court, the Honorable Glenn B.
Bronson acknowledged that Peoples’ statement, which identified
someone other than Willis as the person who robbed Thomas,
“plainly was exculpatory and should have been provided to the
defense.” Commonwealth v. Willis, CP–51–CR–1000571–
2005, unpublished memorandum at 5 (Phila. Cty. filed Sept. 4,
2007). Nevertheless, the trial court concluded that Peoples’
statement was not material within the meaning of Brady
because disclosure of the statement could not have affected the
outcome of the case. Specifically, the trial court reasoned that
Peoples’ out-of-court statement was inadmissible hearsay, and
that, based on the prosecutor’s statement that Peoples’ attorney
told her he would advise Peoples not to testify, Peoples’
statement would never have been introduced to the jury. In
addition, the trial court noted “the evidence at the hearing
established that Woodard did not resemble [Willis], thereby
making it improbable that the complaining witness confused
[Willis] for Woodard and made a misidentification.” Id. at 6.
Accordingly, on March 16, 2007, the trial court denied Willis’
motion for a new trial based on the Commonwealth's alleged
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Brady violation, and sentenced Willis to an aggregate term of 10
to 20 years incarceration.[2]
Following the denial of his post-trial motions, Willis
appealed his judgment of sentence to the Superior Court. On
May 14, 2008, the Superior Court vacated Willis’ judgment of
sentence and remanded for a new trial. Commonwealth v.
Willis, 1024 EDA 2007, unpublished memorandum, 954 A.2d 44
(Pa. Super. filed May 14, 2008). In doing so, the Superior Court
relied on [the Supreme] Court’s decision in Commonwealth v.
Green, [640 A.2d 1242 (Pa. 1994)], for the proposition that
Brady does not require an analysis of the admissibility of
evidence before such evidence can be deemed material.
Specifically, the Superior Court noted that Peoples’ statement
“goes directly to the potential innocence of Willis;” that there
was no proof that Peoples would have refused to testify; and
that, “even if the statement were not admissible, it is not the
Commonwealth’s role to determine how defense counsel shall
use such evidence.” Willis, 1024 EDA 2007, at 6.
Commonwealth v. Willis, 46 A.3d 648, 651-652 (Pa. 2012).
Thereafter, the Commonwealth petitioned the Pennsylvania Supreme
Court for review. The Court granted the appeal, and, on May 30, 2012, in a
plurality decision,3 reversed the decision of this Court and reinstated Willis’
judgment of sentence. Id. In the Opinion Announcing the Judgment of the
Court (“OAJC”), Justice Todd, joined by Justice Baer, held that “nondisclosed
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2
Because Willis’ robbery conviction was his second conviction of a crime of
violence, the trial court imposed a mandatory minimum sentence, pursuant
to 42 Pa.C.S. § 9714(a)(1), of 10 to 20 years’ imprisonment for the robbery
count, and a concurrent term of one and one-half to three years’ for the PIC
count. See N.T., 3/16/2007, at 13-14, 25-26. We note the mandatory
minimum sentencing provision at Section 9714 does not implicate the United
States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct.
2151, (U.S. 2013). See Commonwealth v. Reid, 117 A.3d 777, 785 (Pa.
Super. 2015).
3
All of the Justices agreed the decision of this Court was incorrect.
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favorable evidence which is inadmissible at trial may be considered material
for purposes of Brady, as long as there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Id. at 650. Further, Justice Todd emphasized
that to satisfy the “reasonable probability” standard, “a defendant
necessarily must identify specific evidence or information that would have
been uncovered, and explain how that evidence or information would have
changed the result of the proceeding.” Id. at 670. Nevertheless, because
Justice Todd concluded Willis failed to “establish there was a reasonable
probability that, had the evidence withheld by the Commonwealth been
disclosed, there would have been a different outcome at trial,” she reversed
the order of this Court and reinstated Willis’ judgment of sentence. Id.
In a Concurring Opinion, then Chief Justice Castille, joined by Justices
Eakin and McCaffery, agreed Willis failed to prove “the undisclosed evidence
at issue satisfied the materiality standard established by Brady v.
Maryland, 373 U.S. 83 (1963), and its progeny.” Id. at 674 (Castille J.,
Concurring). However, Justice Castille disagreed with the OAJC’s discussion
of and reliance on the Supreme Court’s prior decision in Green, supra.4
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4
In Green, the Supreme Court reversed the defendant’s death sentence for
the murder of a police officer and remanded for a new trial based upon a
Brady violation. Green, supra, 640 A.2d at 1243. Specifically, the Court
found the Commonwealth failed to disclose to the defense an exculpatory
statement by a witness who claimed that after the murder, Green’s co-
defendant told him she had killed a cop. Id. at 1244. The Court determined
(Footnote Continued Next Page)
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Similarly, in another concurring opinion, Justice Saylor joined in the OAJC,
except for its treatment of Green, supra, which he described as “too cryptic
to provide a useful platform for clarification.” Id. at 684-685 (Saylor, J.,
Concurring).
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(Footnote Continued)
the statement was relevant and material to the both the guilt and penalty
phases of the trial. Specifically, with regard to the guilt phase, the Court
opined:
First, [the witness’s] statements to the police in no way
implicated [Green] in the murder. Instead, they implicated only
[his co-defendant]. Moreover, knowledge of [the co-
defendant’s] statement to [the witness] certainly would have
opened another avenue of investigation for the defense that may
well have led to further exculpatory evidence. Had the defense
been aware of [the witness’s] statements, it may also have
altered its trial strategy, especially in regards to [Green’s]
decision not to testify since [the witness’s] statements were
consistent with [Green’s] own statements to the police.
Id. at 1245-1246. Further, the Court concluded that the United States
Supreme Court’s decision in Brady “in no way mandates that the
[undisclosed] evidence first be admissible before it can be deemed ‘material’
to the defense.” Id. at 1246.
In his Concurring Opinion in Willis, Chief Justice Castille took issue
with the Green Court’s holding that “[i]n determining the materiality of the
omitted evidence we must, therefore, consider any adverse effect that the
prosecutor’s failure to disclose might have had on not only the presentation
of the defense at trial, but the preparation of the defense as well.”
Willis, supra, 46 A.3d at 674 (Castille, C.J., Concurring) (emphasis in
original and citation omitted). Rather, the Chief Justice stated he would
overrule Green, and require “that the derivative, admissible evidence be
specifically identified, with an explanation of why it is difference-making
under the reasonable probability standard.” Id. at 684 (Castille, C.J.,
Concurring).
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Thereafter, on July 28, 2012, Willis filed a timely, pro se PCRA petition.
Counsel was appointed, and filed an amended petition on February 11,
2014, which (1) challenged the ineffective assistance of all prior counsel for
failing to properly preserve the issue of materiality with respect to his Brady
claim, and (2) requested permission “to subpoena Peoples to the Courtroom
so that the PCRA Court could determine, once and for all, whether Peoples is
a viable witness.” Amended Post Conviction Relief Act Petition, 2/11/2014,
at 9-10. In response, the Commonwealth filed a motion to dismiss the
petition.
On May 5, 2014, the PCRA court sent Willis notice, pursuant to
Pa.R.Crim.P. 907, of its intent to dismiss his petition without first conducting
an evidentiary hearing. Willis submitted a pro se response, and, on August
22, 2014, the court dismissed his PCRA petition. This timely appeal
followed.5
On appeal, Wilis focuses his claim on the PCRA court’s failure to grant
him an evidentiary hearing. Specifically, he asserts trial counsel was
ineffective when she declined the trial court’s offer to show a photo array to
the victim, which included a photo of Woodard, the “real” co-conspirator
according to Peoples’ police statement. Willis claims “that was the only way
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5
On September 23, 2014, the PCRA court ordered Willis to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Willis complied with the court’s directive and filed a concise statement on
October 15, 2014.
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to have demonstrated that the Brady exclusion was material.” Willis’ Brief
at 13. Rather, he argues, counsel “took a chance of winning on a procedural
right … where there was no real reason to believe that the right would be
vindicated.” Id. Further, Willis contends the PCRA court should have
granted him permission to subpoena Peoples. He states, “If the witness
Peoples would not be claiming a Fifth Amendment privilege, he would be
available to the defense.” Id. To that end, Willis also requested assistance
from the District Attorney’s Office to provide “at the very least, the last
known address for Peoples.” Id. at 14.
When reviewing an order dismissing a PCRA petition, we must
determine whether the PCRA court’s findings of fact are supported by the
record, and whether its legal conclusions are free from error.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “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.”
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation
omitted).
Where, as here, the claims raised on appeal challenge the
effectiveness of counsel, our review is well-settled:
We begin our analysis of ineffectiveness claims with the
presumption that counsel is effective. To prevail on his
ineffectiveness claims, Appellant must plead and prove, by a
preponderance of the evidence, three elements: (1) the
underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) Appellant
suffered prejudice because of counsel’s action or inaction. With
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regard to the second, i.e., the “reasonable basis” prong, we will
conclude that counsel’s chosen strategy lacked a reasonable
basis only if Appellant proves that “an alternative not chosen
offered a potential for success substantially greater than the
course actually pursued.” To establish the third, i.e., the
prejudice prong, Appellant must show that there is a reasonable
probability that the outcome of the proceedings would have been
different but for counsel’s action or inaction.
Commonwealth v. Spotz, 18 A.3d 254, 259-260 (Pa. 2011) (internal
citations omitted). “Failure to establish any prong of the test will defeat an
ineffectiveness claim.” Commonwealth v. Keaton, 45 A.3d 1050, 1061
(Pa. 2012) (citations omitted).
Further, with regard to a petitioner’s right to an evidentiary hearing, it
is well-settled that:
The PCRA court has the discretion to dismiss a petition without a
hearing when the court is satisfied “that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by further proceedings.” Commonwealth v.
Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011) (quoting
Pa.R.Crim.P. 909(B)(2)). “To obtain reversal of a PCRA court’s
decision to dismiss a petition without a hearing, an appellant
must show that he raised a genuine issue of fact which, if
resolved in his favor, would have entitled him to relief, or that
the court otherwise abused its discretion in denying a hearing.”
Id. (quoting Commonwealth v. D'Amato, 579 Pa. 490, 856
A.2d 806, 820 (2004)). We stress that an evidentiary
hearing “is not meant to function as a fishing expedition
for any possible evidence that may support some
speculative claim of ineffectiveness.” Commonwealth v.
Jones, 571 Pa. 112, 811 A.2d 994, 1003 n. 8 (2002) (citation
omitted). In Jones, we declined to remand for an evidentiary
hearing when the appellant merely asserted that counsel did not
have a reasonable basis for his lack of action but made no
proffer of evidence as to counsel’s lack of action.
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Commonwealth v. Roney, 79 A.3d 595, 604-605 (Pa. 2013) (emphasis
added), cert. denied, 135 S. Ct. 56 (U.S. 2014). Indeed, “if the court can
determine without an evidentiary hearing that one of the [ineffectiveness]
prongs cannot be met, then no purpose would be advanced by holding an
evidentiary hearing.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.
Super. 2008), appeal denied, 956 A.2d 433 (Pa. 2008).
Here, the PCRA court concluded that Willis failed to establish both the
reasonable basis and prejudice prongs of his ineffectiveness claim. First, the
court determined Willis failed to demonstrate trial counsel had no reasonable
basis for declining the trial court’s offer to show a second photo array to the
victim, which included a photo of Woodard. Rather, the PCRA court found
counsel had an “eminently reasonable strategy,” concluding it “would not
have been fair to [Willis] to allow the victim to view a photo array with [his]
photo in it” since the victim had already identified Willis “on a number of
occasions and was in his presence during court proceedings.” PCRA Court
Opinion, 12/11/2014, at 6. Instead, counsel chose to argue on appeal that
“the trial court incorrectly interpreted the law governing the materiality
requirement for Brady violations.” Id. The PCRA court emphasized this
strategy was at least initially successful, since the Superior Court granted
Willis a new trial. Id. Second, the PCRA court determined Willis failed to
demonstrate he was prejudiced by counsel’s actions. Specifically, the court
found Willis failed to establish that, had the victim been shown the photo
array with Woodard in it, he would have identified Woodard as the gunman.
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Id. The court also noted that evidence presented during the post-trial
hearing “established that Woodard did not resemble the defendant, thereby
making it improbable that the complaining witness confused the defendant
for Woodard and made a misidentification.” Id. at 7, citing N.T., 2/16/2007,
at 12.
We agree with the conclusion of the PCRA court that Willis failed to
demonstrate his right to relief. First, as noted by the PCRA court, trial
counsel had a reasonable strategic basis for her decision to forgo a second
photo array. The victim had already identified Willis on a number of
occasions both prior to and during trial, and a second photo array would be
superfluous. As such, counsel’s decision to focus on the trial court’s
purported error of law was reasonable. Moreover, we agree that Willis failed
to demonstrate he was prejudiced by counsel’s omission. Indeed, counsel’s
failure to accept the trial court’s offer to show the victim a second photo
array would be prejudicial only if the victim identified Woodard, rather than
Willis, as his attacker. Therefore, Willis’ failure to plead in his PCRA petition
that the victim would provide such testimony at a hearing defeats his claim.
Accordingly, we find no abuse of discretion on the part of the PCRA court in
denying Willis’ ineffectiveness claim without first conducting an evidentiary
hearing.
Willis also asserts the PCRA court should have conducted an
evidentiary hearing, and permitted him to subpoena Peoples “so that the
PCRA court could determine, once and for all, whether Peoples is a viable
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witness.” Willis’ Brief at 13. Willis does not aver, however, that Peoples
would provide any testimony helpful to his defense.6 See id. at 13-14 (“If
the witness Peoples would not be claiming a Fifth Amendment privilege, he
would be available to the defense”) (emphasis added). We remind Willis
“that an evidentiary hearing ‘is not meant to function as a fishing expedition
for any possible evidence that may support some speculative claim of
ineffectiveness.’” Roney, supra, 79 A.3d at 605 (citation omitted).
Therefore, Willis’ failure to establish that Peoples may be a viable witness
who could provide exculpatory testimony defeats his claim.
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6
We note that Section 9545(d) requires a petitioner requesting an
evidentiary hearing to include “a signed certification as to each intended
witness stating the witness's name, address, date of birth and substance of
testimony and shall include any documents material to that witness's
testimony.” 42 Pa.C.S. § 9545(d)(1). Although the failure to include a
certification is fatal to the claim, this Court has refused to “affirm a PCRA
court's decision on the sole basis of inadequate witness certifications where
the PCRA court did not provide notice of the alleged defect.”
Commonwealth v. Pander, 100 A.3d 626, 642 (Pa. Super. 2014), appeal
denied, 109 A.3d 679 (Pa. 2015). Further, when a PCRA court has not
provided a petitioner with the opportunity to amend his petition to comply
with section 9545(d)(1), and the petitioner’s claim “potentially has arguable
merit,” we have remanded the matter to provide the petitioner the
opportunity to comply with the statute and secure an evidentiary hearing.
Commonwealth v. Lippert, 85 A.3d 1095, 1101 (Pa. Super. 2014), appeal
denied, 95 A.3d 277 (Pa. 2014). We decline to remand the matter in the
present case because (1) it is evident Willis is only speculating that the
substance of Peoples’ proposed testimony, and (2) as noted supra, his claim
fails on the merits.
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Nevertheless, the PCRA court explained that even assuming Peoples
were available to testify, Willis failed to demonstrate Peoples’ testimony
“would have changed the outcome of the trial if it had been introduced.” 42
Pa.C.S. § 9543(a)(vi). The court opined:
Here, the evidence demonstrates clearly that Peoples[’]
testimony would, on balance, strengthen, rather than weaken,
the Commonwealth’s case. It is true, … that Peoples stated that
he committed the Thomas robbery with Woodard. However, if
Peoples were called as a witness for the defense, the remainder
of his statement would become admissible to impeach his
recollection of that robbery. In particular, Peoples stated that he
had committed too many robberies to count, that [Willis] was his
accomplice in at least four of these robberies, and that [Willis]
possessed the weapon that was used to threaten the robbery
victims on three of those four occasions. Peoples covered 17
specific robberies in his statement, all in the area where Peoples
lived. Given the extensive number of robberies committed by
Peoples, and the strength of Thomas’ repeated identification of
[Willis] as one of his assailants, it is extremely likely that the
jury would have concluded that Peoples was simply confusing
one robbery with another. Indeed, the Court cannot imagine
any reasonable factfinder, after hearing Peoples’ statement,
concluding that Thomas was in error, and it was merely a
coincidence that Thomas identified [Willis] as the robber when,
according to Peoples, [Willis] had committed four other armed
robberies with Peoples in the same general area. On balance,
the inculpatory effect of identifying [Willis] as the perpetrator of
four armed robberies in the area would outweigh the exculpatory
effect of Peoples thinking that Woodard was his accomplice on
the night Thomas was robbed.
PCRA Court Opinion, 12/11/2014, at 8-9. We find no reason to disagree.
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Accordingly, because we conclude Willis has failed to establish the
PCRA court abused its discretion in denying his petition without first
conducting an evidentiary hearing, we affirm the order on appeal.7
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2015
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7
To the extent Willis argues the court erred in granting relief “on the
papers,” we conclude that such claim is waived. Willis’ Brief at 14. Willis
asserts, in a three-sentence conclusory paragraph, (1) his first claim was
“properly briefed” in his “Amended Post Conviction Relief Act Brief[;]” (2) he
was entitled to relief “[o]n the papers[;]” and (3) the PCRA court “had no
good legal reason for the denial of such relief[.]” Id. Therefore, he claims
he is entitled to a new trial. This argument, which contains no analysis or
citation to authority, is insufficient to warrant relief. See Commonwealth
v. Spotz, 896 A.2d 1191, 1250 (Pa. 2006) (“[B]oilerplate, undeveloped
argument respecting the ineffectiveness of all prior counsel is insufficient to
establish an entitlement to post-conviction relief.”). Moreover, as we
explained with regard to the first claim, Willis has failed to demonstrate trial
counsel provided ineffective assistance.
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