Com. v. Williams, M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MARK L. WILLIAMS
Appellant No. 62 EDA 2016
Appeal from the PCRA Order January 4, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005614-2009
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY MOULTON, J.: FILED MARCH 01, 2017
Mark L. Williams appeals, pro se, from the January 4, 2016 order
denying his petition filed under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-45.1 We affirm.
On September 22, 2009, Williams was arrested and charged with the
murder of Isaiah McLendon, who was shot multiple times on the sidewalk at
20 North Third Street in Darby Borough. At Williams’ trial, Gregory Graham
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*
Former Justice specially assigned to the Superior Court.
1
On December 23, 2015, Williams prematurely filed a pro se notice of
appeal, before the PCRA court had entered an order disposing of his petition.
The PCRA court entered its order denying the petition on January 4, 2016.
Therefore, we will treat Williams’ appeal as timely filed from the date of that
order. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”).
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testified that Williams had murdered McClendon and that Graham had
participated in the murder.
[Graham] testified that he drove [Williams] to an alley
behind [the scene of the crime]. [Williams] exited the car
and told [Graham] to meet him at a Save-A-Lot store.
While parked at the nearby Save-A[-L]ot store, [Graham]
heard gunshots in the distance. Shortly after the shots
rang out, [Williams] appeared at the Save-A-Lot, got into
[Graham’s] car and said, “I shot that n[*****] and wonder
if he’s dead.” [Graham] then drove [Williams] to
Philadelphia. Later, [Williams] telephoned [Graham] and
solicited his assistance in disposing of the murder weapon.
Commonwealth v. Williams, No. 2728 EDA 2013, unpublished mem. at 5
n.2 (Pa.Super. filed Dec. 23, 2014) (quoting Commonwealth v. Graham,
No. 738 EDA 2011, unpublished mem. at 2 (Pa.Super. filed Feb. 8, 2012))
(some alterations in original).2
The PCRA court set forth additional facts relevant to this appeal as
follows:
At trial, defense counsel expressed his intention to call
two witnesses, James Shepard and Stefan Fenwick.
Shepard was available to testify, but his attorney, Stephen
Gilson, Esq., advised him not to do so. [Williams]
proposed to call Shepard to impugn the credibility of
Jeffrey Mason, the jailhouse snitch. [Williams] advised his
counsel that Shepard might be called to testify that he
witnessed Mason reviewing paperwork in [Williams’] cell.
If Shepard did, indeed, so testify, this evidence may have
raised the inference that Mason became familiar with
[Williams’] case by reading paperwork, not by hearing
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2
Graham was also charged in McLendon’s murder but entered a plea
agreement in which he agreed to testify for the Commonwealth at Williams’
trial. Graham pled guilty to third-degree murder and conspiracy to commit
aggravated assault.
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[Williams] actually admit to the crime. Stefan Fenwick
could be called to the stand to give evidence that may
have rebutted a portion of Gregory Graham’s account of
his whereabouts on the day and night of the shooting.
Both Shepard and Fenwick declined to testify.
On October 19, 2010, Timothy Possenti, Esq. was
appointed to represent these two reluctant witnesses.
After consultation, he advised that each invoke his
privilege against self-incrimination.
Opinion, 4/21/16, at 7 (“1925(a) Op.”) (citations omitted). Thereafter,
defense counsel stated that in light of their invocation of the privilege, he
would not call either Shepard or Fenwick to testify. N.T., 10/19/10, at 6, 11.
The trial court then dismissed both witnesses. Id. at 9, 11.
On October 20, 2010, the jury convicted Williams of first-degree
murder and carrying a firearm without a license.3 On December 7, 2010,
the trial court sentenced Williams to an aggregate term of life imprisonment
without the possibility of parole. Williams timely appealed to this Court,
which affirmed his judgment of sentence on October 11, 2011. The
Pennsylvania Supreme Court denied Williams’ petition for allowance of
appeal on April 30, 2012.
On September 24, 2012, Williams filed a timely pro se PCRA petition,
alleging several claims of trial counsel’s ineffectiveness. The PCRA court
appointed counsel, who filed a Turner/Finley4 “no-merit” letter and a
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3
18 Pa.C.S. §§ 2502(a) and 6106(a)(1), respectively.
4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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motion to withdraw from representation on May 6, 2013. Williams filed a
pro se response to the no-merit letter on May 28, 2013. On May 29, 2013,
the PCRA court issued notice of its intent to dismiss Williams’ petition, to
which Williams filed a pro se response. On September 17, 2013, the PCRA
court dismissed Williams’ PCRA petition and granted counsel’s motion to
withdraw.
Williams timely appealed to this Court. On December 23, 2014, this
Court vacated the PCRA court’s order and remanded for an evidentiary
hearing on two of Williams’ ineffectiveness claims: (1) whether trial counsel
was ineffective for failing to object to the trial court’s acceptance of
Shepard’s and Fenwick’s assertions of the Fifth Amendment privilege against
self-incrimination; and (2) whether trial counsel was ineffective for failing to
object to the trial court’s jury instruction regarding Graham’s statement that
he “knew the real reason” for McLendon’s murder. Williams, No. 2728 EDA
2013, unpublished mem. at 21.
Following remand and the appointment of new counsel, Williams filed
an amended PCRA petition. The PCRA court held a hearing on December 9,
2015, limited to the two issues identified in this Court’s prior memorandum.
At the conclusion of the hearing, Williams expressed his desire to waive
counsel and proceed pro se on appeal. The trial court conducted a Grazier5
colloquy and granted Williams’ request to proceed pro se. On January 4,
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5
Commonwealth v. Grazier, 713 A.2d 31 (Pa. 1998).
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2016, the PCRA court denied Williams’ petition, concluding that trial counsel
was not ineffective.
On appeal, Williams raises the following issues:
1. THE PCRA COURT COMMITTED REVERSIBLE ERROR OF
LAW, ABUSED ITS DISCRETION, AND DENIED [WILLIAMS]
HIS STATE AND FEDERAL CONSTITUTIONAL DUE PROCESS
RIGHTS UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS; SPECIFICALLY WHERE THE COURT: a)
ERRONEOUSLY DENIED [WILLIAMS’] [PCRA] CLAIM OF
TRIAL COUNSEL’S CONSTITUTIONALLY DEFICIENT AND
PREJUDICIAL INEFFECTIVE ASSISTANCE CONCERNING
COUNSEL’S FAILURE TO PURSUE COMPULSORY PROCESS
AT TRIAL; b) ERRONEOUSLY DENIED [WILLIAMS’] [PCRA]
CLAIM OF TRIAL COUNSEL’S CONSTITUTIONALLY
DEFICIENT AND PREJUDICIAL INEFFECTIVE ASSISTANCE
CONCERNING COUNSEL’S FAILURE TO OBJECT TO THE
COURT’S IMPROPER INSTRUCTION.
2. PCRA COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
VIOLATING [WILLIAMS’] STATE PROCEDURAL RIGHTS
AND [FEDERAL] CONSTITUTIONAL DUE PROCESS RIGHTS
UNDER THE FOURTEENTH AMENDMENT; SPECIFICALLY
WHERE COUNSEL; a) FAILED TO TIMEL[Y] RAISE AS
REQUESTED BY [WILLIAMS] FIVE (5) MERITORIOUS
CLAIMS FOR RELIEF IN HIS AMENDED PCRA PETITION
CAUSING APPELLANT’S CLAIMS TO BE PROCEDURALLY
DEFAULTED AND BARRING THOSE CLAIMS FROM HABEAS
CORPUS REVIEW.
Williams’ Br. at 4.
Our review of an order denying PCRA relief is limited to determining
“whether the decision of the PCRA court is supported by the evidence of
record and is free of legal error.” Commonwealth v. Melendez–Negron,
123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s
factual findings “unless there is no support for [those] findings in the
certified record.” Id.-5-
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To prevail on a claim of ineffective assistance of counsel, a PCRA
petitioner must show that: (1) the underlying claim has arguable merit; (2)
counsel had no reasonable, strategic basis for his or her act or omission; and
(3) but for counsel’s act or omission, there is a reasonable probability that
the outcome of the proceedings would have been different.
Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999). Counsel is
presumed to be effective, and the petitioner has the burden of proving each
of the three prongs by a preponderance of the evidence. Commonwealth
v. Steckley, 128 A.3d 826, 831 (Pa.Super. 2015), app. denied, 140 A.3d 13(Pa. 2016).
First, Williams asserts that trial counsel was ineffective for failing to
object when the trial court accepted both Fenwick’s and Shepard’s
invocations of the Fifth Amendment privilege against self-incrimination at
trial.
The Fifth Amendment to the United States Constitution affords
witnesses the privilege against answering official questions if they
reasonably believe the answers may incriminate them in subsequent
proceedings. Commonwealth v. Brown, 26 A.3d 485, 494 (Pa.Super.
2011). The trial court is in the best position to determine whether the Fifth
Amendment privilege applies. See Commonwealth v. Treat, 848 A.2d
147, 148 (Pa.Super. 2004).
Our Court has explained the standard for evaluating a witness’s
invocation of the Fifth Amendment privilege as follows:
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The relevant parameters of the privilege are clear. The
privilege extends not only to statements that by
themselves would be evidence that the declarant has
committed a crime, but also to assertions that would be “a
link in the chain” of evidence needed to convict. “An
individual who invokes the privilege must have a
reasonable basis for believing that the testimony to be
given will be incriminatory.”
Id. (citations omitted). “Unless the privilege clearly does not apply, the trial
court should not require the witness to answer.” Id. at 149. “[A]lthough
. . . there is no mandatory procedure for deciding whether the privilege
against self-incrimination should be allowed, one acceptable procedure is
[for the trial court] to hold an in camera review” of the witness’s proposed
testimony. Id. at 149-50.
On remand, the PCRA court conducted an in camera, on-the-record
inquiry to determine whether Fenwick’s assertion of the Fifth Amendment
privilege was justified. The PCRA court met with Williams’ PCRA counsel and
trial counsel, Fenwick, and Fenwick’s counsel. After the in camera hearing,
the PCRA court determined that Fenwick had a reasonable basis for believing
that his proposed testimony would be incriminatory:
[T]he evidence showed that Fenwick asserted his Fifth
Amendment privilege . . . because he was awaiting his own
trial on charges of criminal attempt to commit murder,
aggravated assault and related crimes arising out of
another shooting only a few feet from the spot at which
Isaiah McLendon was shot. Fenwick and Williams were
both members of a violent drug dealing gang known as the
“Third Street Boys” that operated out of Darby Borough.
According to a federal indictment entered into evidence,
the gang used the house located at 20 N. 3rd Street as a
stash house for cocaine and marijuana. If called to testify
on behalf of Williams, the prosecution might [have been]
able to elicit testimony from Fenwick on cross-examination
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concerning his distribution of drugs, his use of the stash
house, and his alleged shooting of another victim at the
location of Isaiah McLendon’s death. It is clear to this
Court that Fenwick had a very reasonable fear of self-
incrimination in other criminal proceedings pending against
him.
1925(a) Op. at 8. The record supports the PCRA court’s findings. Therefore,
we conclude that Williams’ ineffectiveness claim relating to Fenwick’s
assertion of the Fifth Amendment privilege lacks arguable merit.6
With regard to Shepard, the PCRA court was unable to determine
whether his invocation of the Fifth Amendment privilege was justified
because Shepard failed to appear at the PCRA hearing7 and Williams’ trial
counsel could not recall the substance of his conversations with Shepard at
the time of trial. Id.; see N.T., 12/9/15, at 49-54. However, even if
Williams could establish that the trial court erred in accepting Shepard’s
invocation of the Fifth Amendment privilege, he failed to prove that had
Shepard testified, there is a reasonable probability that the outcome of the
trial would have been different. As the PCRA court explained:
Even if this Court had ordered [Shepard] to take the
stand, the defense cannot show that the absence of [his]
testimony was so prejudicial that [Williams] was denied a
fair trial. Quite to the contrary, [Shepard’s] proposed
testimony did not directly contradict any aspect of the
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6
We need not analyze the remaining two ineffectiveness prongs
because counsel cannot be deemed ineffective for failing to raise a meritless
claim. See Commonwealth v. Bryant, 855 A.2d 726, 742 (Pa. 2004).
7
The record reflects that counsel for both Williams and the
Commonwealth were unable to locate Shepard at the time of the PCRA
hearing. N.T., 12/9/15, at 83-84.
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account given by Mason, [Williams’] cell-mate. Rather,
[Williams] proposed to call Shepard to raise questions
about Mason’s veracity. . . .
...
. . . The only question at trial was whether [Williams]
was [McLendon’s] shooter. Although [Williams] attempted
to establish an alibi defense, he made incriminating
statements to the police; to a cell mate, Jeffrey Mason; to
his godparents, Yolanda Wade and Dallas Andres, while
being recorded by the surveillance video and audio; and to
various other witnesses. The evidence of guilt was
overwhelming, so [Williams’] inability to call to the stand
two criminals who might have given testimony that
perhaps could have called into question some minor details
of the prosecution’s case [would not have] upset the
verdict.
1925(a) Op. at 9-10 (citations omitted). We conclude that the record
supports the PCRA court’s findings. Because Williams cannot establish
prejudice, his ineffectiveness claim relating to Shepard’s assertion of the
Fifth Amendment privilege fails.
Next, Williams asserts that trial counsel was ineffective for failing to
object to the trial court’s jury instruction regarding Graham’s prior
inconsistent statement given to police at the time of his arrest. At the
conclusion of Graham’s testimony, the trial court instructed the jury as
follows:
One of the things that you need to know about witnesses
is that one way of challenging their credibility is to
demonstrate that they gave what is called prior
inconsistent statements and in this case [defense counsel]
has given – asked about statements that this witness[,]
Mr. Graham[,] gave to Detective [Brian] Pitts. One of the
statements was did you tell Detective Pitts that the
decedent[,] Isaiah McLendon[,] was a drug dealer or was
involved in drugs and he may have said that to Detective
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Pitts and it was obviously inconsistent because he
knew the real reason why this homicide occurred.
There’s no evidence in this case that Isaiah McLendon was
involved in dealing drugs and I want to make that clear to
you. The reason for that testimony was not to indicate
that the decedent was involved in drug dealing, but to
show the inconsistent statements of the witness.
N.T., 10/15/10, at 145 (emphasis added). Williams claims that this
instruction – and particularly the trial judge’s comment that Graham “knew
the real reason” for the murder – was prejudicial because it encouraged the
jury to disbelieve Graham’s initial statement to police, in which he did not
implicate Williams in the murder, and to believe Graham’s trial testimony
that Williams was the shooter.
The trial court gave the limiting instruction to clarify that Williams was
using Graham’s prior inconsistent statement solely to impeach Graham, not
as character evidence concerning the victim. At the PCRA hearing, Williams’
trial counsel, Scott Galloway, Esquire, testified that he did not object to the
instruction or ask the trial court for clarification because he did not want to
open the door to character evidence concerning his client or draw further
attention to the trial judge’s remark. N.T., 12/9/15, at 63-66. Galloway
testified as follows:
I requested that something along the nature that the jury
instruction the Judge finally gave was given because the
purpose of my cross examination was to show a prior
inconsistent statement. . . . I chose not to object to that
[instruction] because I didn’t want to, quite frankly, have
the jury listen to the instruction again and think about it
again. . . . As far as the one comment by the Judge, I
chose not to object because I just didn’t want the jury to
hear it again, quite frankly.
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Id. at 64-65. The PCRA court credited Galloway’s testimony and concluded
that Galloway made a reasonable, strategic decision not to challenge the
trial court’s instruction because he did not want to highlight the evidence.
Where matters of strategy and tactics are concerned, counsel’s assistance is
deemed effective if the course chosen had some reasonable basis designed
to effectuate his or her client’s interests. Commonwealth v. Koehler, 36
A.3d 121, 132 (Pa. 2012). The record supports the PCRA court’s conclusion
that Galloway’s reason for refraining from objecting or asking the court for a
corrective instruction was “well within the bounds of reason.” 1925(a) Op.
at 12.8
Finally, Williams asserts that PCRA counsel was ineffective for failing to
raise five additional meritorious issues in his amended PCRA petition.
Williams identifies the five issues as follows:
1) Trial counsel provided ineffective assistance . . .
[s]pecifically where counsel: a) Failed to object at
sentencing, raise in post-sentence motion, or raise on
direct appeal the court erroneously imposing an illegal
sentence which is not pursuant to any statute authorizing
it. b) Failed to investigate witnesses Elonda Wade & Dallas
Andrews or present any evidence at [Williams’]
suppression hearing rendering the outcome a foregone
denial. c) Failed to request a continuance at trial, raise in
post-sentence motion, or raise on direct appeal the
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8
See Commonwealth v. Spotz, 870 A.2d 822, 832 (Pa. 2005)
(“Objections sometimes highlight the issue for the jury, and curative
instructions always do.”); Commonwealth v. LaCava, 666 A.2d 221, 230
(Pa. 1995) (noting that “an objection would have served only to highlight
this fleeting reference which otherwise cannot be reasonably be said to have
deprived appellant of a fair trial”).
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outrageous government misconduct regarding the
presentation of inadmissible cell phone evidence at
[Williams’] trial. d) [Williams] was denied due process by
the combined effect of the foregoing errors of [ineffective
assistance of counsel] which rendered [his] trial
fundamentally unfair. 2) Prior PCRA Counsel provided
ineffective assistance . . . [s]pecifically where counsel: a)
Failed to, after request from [Williams], raise the claim of
after-discovered evidence which is predicated upon the
affidavit of witness Gregory Graham recanting his prior
testimony given at [Williams’] trial.
Williams’ Br. at 22. Williams, however, fails to develop any of these claims
in the argument section of his brief. His only substantive argument with
respect to these claims is that each “provides a showing of merit and
prejudice that insued [sic] due to the error, [and] therefore, counsel had no
reasonable basis for failing to raise these claims and [Williams] was
prejudiced by counsel’s deficient performance.” Id. at 24.
We will not accept a petitioner’s boilerplate allegations of
ineffectiveness without any discussion of the three required prongs of an
ineffectiveness claim. See Commonwealth v. Paddy, 15 A.3d 431, 443
(Pa. 2011) (“[B]oilerplate allegations and bald assertions of no reasonable
basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove
that counsel was ineffective.”); Commonwealth v. Steele, 961 A.2d 786,
801-02 (Pa. 2008) (rejecting appellant’s undeveloped allegations of
ineffective assistance of counsel in his brief). Therefore, Williams has
waived these claims of PCRA counsel’s ineffectiveness.
Order affirmed.
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Judge Bowes joins in the memorandum.
PJE Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2017
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