Com. v. Watson, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMES WATSON
Appellant No. 216 MDA 2015
Appeal from the PCRA Order December 31, 2014
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000449-2001
BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 15, 2016
Appellant, James Watson, appeals from the order entered in the
Bradford County Court of Common Pleas, which denied his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
This Court previously set forth the relevant facts and procedural
history of this case as follows:
Generally, the evidence at trial, consisting of eyewitness
testimony, established that in the afternoon of April 17,
2001, an argument developed between Jason Ryans
[(“Victim”)] and the Watson brothers [(Kenny Watson and
Appellant)] at Kenny Watson’s home in Wilkes-Barre,
Pennsylvania. The Watsons believed that [Victim] had
stolen a handgun and a safe containing marijuana and
money. During the argument, Kenny Watson punched
[Victim]. In an ensuing struggle, Appellant grabbed a
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1
42 Pa.C.S.A. §§ 9541-9546.
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*Retired Senior Judge assigned to the Superior Court.
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knife and inflicted multiple wounds to [Victim’s] hands and
arms. [Victim] was also punched and kicked repeatedly by
the Watsons. The Watsons then bound the wrists of
[Victim], either for the purpose of stopping his bleeding or
to prevent his escape, or both. [Victim] was then placed in
a vehicle and transported to a rural area near the Village
of Camptown in Bradford County. There, [Victim] was
taken from the vehicle and shot twice in the back of the
head by Appellant. [Victim] apparently died immediately.
The evidence against Appellant and Kenny Watson
diverged with respect to their criminal culpability following
the altercation in Wilkes-Barre. After [Victim] was bound,
the Watsons then informed others at the house that they
would be taking [Victim] to a hospital, but would seek a
rural hospital. The evidence revealed that Appellant was in
fact simply looking for a secluded place to murder [Victim],
but the evidence also suggested that Kenny Watson,
among others, was duped into accompanying Appellant to
Bradford County. The jury at least had a reasonable doubt
as to Kenny Watson’s complicity in any plan to kill
[Victim], for it acquitted him of all charges of homicide and
conspiracy to commit homicide. Kenny Watson’s counsel
admitted to the jury that his client was guilty of assault,
but denied his involvement in any action or plan intended
to kill [Victim].
Procedurally, the jury reached a verdict on September 12,
2002, convicting Appellant of first-degree murder,
conspiracy to commit homicide, kidnapping, conspiracy to
commit kidnapping, and other related offenses. The court
sentenced Appellant on that day to life imprisonment for
his murder conviction, but deferred sentencing on the
remaining convictions. On November 22, 2002, the court
imposed an aggregate sentence of forty-six (46) to ninety-
two (92) years’ imprisonment for Appellant’s remaining
convictions, consecutive to Appellant’s life sentence.
This Court affirmed the judgment of sentence on August
20, 2004, and our Supreme Court subsequently denied
allowance of appeal on April 18, 2005. See
Commonwealth v. Watson, 860 A.2d 1136 (Pa.Super.
2004), appeal denied, 582 Pa. 717, 872 A.2d 1199 (2005).
On May 18, 2005, Appellant timely filed a pro se PCRA
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petition. The court appointed counsel, who filed an
amended PCRA petition on April 9, 2008. The court held
hearings on the petitions on April 7, 2008, April 9, 2008,
and January 6, 2010. The court denied PCRA relief on
January 4, 2011.[2] On January 26, 2011, Appellant timely
filed a notice of appeal.
2
The court determined it had improperly imposed
separate sentences for each of Appellant’s conspiracy
convictions; consequently, the court granted PCRA
relief in that respect only.
Commonwealth v. Watson, No. 202 MDA 2011, unpublished
memorandum at 1-2 (Pa.Super. filed June 1, 2012) (some internal citations
omitted). On appeal, this Court affirmed in part and remanded the case for
the PCRA court to make additional findings with regard to two of Appellant’s
issues. See id. Following remand, the PCRA court again denied relief on
January 2, 2015. Appellant filed a timely notice of appeal on January 30,
2015. The court ordered Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). After the court
granted an extension, Appellant timely complied.
Appellant raises the following issues for our review:
DID THE PCRA COURT COMMIT ERROR REGARDING THE
PRATO-BARR CONVERSATION WHEN, MAKING A
CREDIBILITY DETERMINATION THAT PRATO’S TESTIMONY
DID NOT NECESSITATE PCRA RELIEF FOR [APPELLANT],
THE COURT FOUND THAT [APPELLANT] FIRST FAILED TO
ESTABLISH THAT HIS TRIAL ATTORNEY KNEW OR SHOULD
HAVE KNOWN OF THE PRATO-BARR CONVERSATION AND
HAD PRATO TESTIFY AT TRIAL, AND SECOND, THAT
[APPELLANT] FAILED TO ESTABLISHED PREJUDICE
BECAUSE THE ABSENCE OF PRATO TESTIMONY AT
TRIAL[?]
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DID THE COURT COMMIT ERROR REGARDING THE
PRESERVATION OF [APPELLANT’S] APPELLATE RIGHTS IN
FIRST NOT FINDING THAT [APPELLANT’S] APPELLATE
RIGHTS WERE NOT PRESERVED NOT EMPLOYING A “PER
SE” PREJUDICE STATEMENT IN THIS CASE, AND SECOND
NOT REACHING REAL CREDIBILITY DETERMINATIONS[?]
(Appellant’s Brief at 4).
In his first issue, Appellant argues that his former girlfriend, Jennifer
Barr, had a conversation with Janelle Prato shortly after the incident (“Prato-
Barr conversation”), in which Ms. Barr indicated someone had been killed
but Appellant was not the killer. Appellant contends the Prato-Barr
conversation is evidence of Appellant’s innocence and contradicts Ms. Barr’s
testimony at trial identifying Appellant as the person who killed Victim.
Appellant claims the PCRA court failed to follow this Court’s remand
instructions to make credibility determinations regarding the PCRA hearing
testimony of Ms. Prato and defense counsel on the issue of whether defense
counsel was aware of the Prato-Barr conversation. Appellant asserts Ms.
Prato credibly testified that she relayed the conversation to counsel’s private
investigator. Appellant concludes defense counsel’s failure to call Ms. Prato
as a witness at Appellant’s trial constituted ineffective assistance. We
disagree.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Jones, 932 A.2d 179 (Pa.Super. 2007). This Court
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grants great deference to the findings of the PCRA court if the record
contains any support for those findings. Commonwealth v. Boyd, 923
A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74(2007). If the record supports a post-conviction court’s credibility
determination, it is binding on the appellate court. Commonwealth v.
Knighten, 742 A.2d 679 (Pa.Super. 1999), appeal denied, 563 Pa. 659, 759
A.2d 383 (2000).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),
appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). When asserting a claim
of ineffective assistance of counsel, the petitioner is required to make the
following showing: (1) the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his action or inaction; and, (3) but for
the errors and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).
Because claims of ineffective assistance of counsel are not self-proving, the
petitioner must develop each prong of the test in a meaningful fashion.
Commonwealth. v. Spotz, 587 Pa. 1, 896 A.2d 1191 (2006). Boilerplate,
undeveloped argument regarding counsel’s assistance is not sufficient to
warrant PCRA relief. Id. See also Commonwealth v. Reaves, 592 Pa.
134, 148, 923 A.2d 1119, 1128 (2007) (explaining specifically that collateral
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attack under guise of ineffective assistance of counsel in collateral
proceeding regarding alleged defaulted claims on appeal requires showing of
actual prejudice). The failure to satisfy any prong of the test for
ineffectiveness of counsel will cause the claim to fail. Gonzalez, supra.
To establish counsel’s ineffectiveness for failure to call a witness, a
petitioner must demonstrate:
(1) the witness existed; (2) the witness was available; (3)
counsel was informed of the existence of the witness or
counsel should otherwise have known of [her]; (4) the
witness was prepared to cooperate and testify for
Appellant at trial; and (5) the absence of the testimony
prejudiced Appellant so as to deny him a fair trial. A
defendant must establish prejudice by demonstrating that
he was denied a fair trial because of the absence of the
testimony of the proposed witness. Further,
ineffectiveness for failing to call a witness will not be found
where a defendant fails to provide affidavits from the
alleged witnesses indicating availability and willingness to
cooperate with the defense.
Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal
denied, 580 Pa. 696, 860 A.2d 123 (2004) (citations omitted).
Instantly, the PCRA court reasoned as follows:
[Appellant] failed to prove that defense counsel knew or
should have known about [the Prato-Barr conversation].
[Ms.] Prato herself testified that she provided her
information to counsel’s private investigator, but there is
no evidence that the investigator relayed [Ms.] Prato’s
statements to counsel, and counsel denied having been
told about the testimony [Ms.] Prato might have offered.
The only evidence that defense counsel was informed prior
to trial of [Ms.] Prato’s testimony came from [Appellant]
himself, who claims that he asked defense counsel about
calling [Ms.] Prato to testify. [Appellant’s] testimony was
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not credible.
When first questioned by the police, [Appellant] gave a
detailed account of how he had been involved in the
beating, kidnapping, and execution of [Victim], an account
that was wholly consistent with the facts related by
[Rodney] Watson, who was present at all times, and by
[Ms.] Barr, who was present for the kidnapping and
murder[;] however, while testifying during the PCRA
hearing, [Appellant] radically changed his story. He now
claims that he was present when [Victim] was beaten, but
then went home and remained home while [Victim] was
kidnapped and killed.
Because [Appellant’s] PCRA hearing testimony is not
reliable, the court finds that [Appellant] has not
established by a preponderance of the evidence that
defense counsel knew or should have known that [Ms.]
Prato could testify about [Ms.] Barr’s prior inconsistent
statement. Further, there is no evidence that defense
counsel was derelict in his selection of a private
investigator, nor in relying on the investigator to provide
him with any and all exculpatory evidence.
The court also finds that [Appellant] has failed to satisfy
the fifth element of a claim of ineffectiveness for failure to
call a witness: The absence of [Ms.] Prato’s testimony was
not so prejudicial to [Appellant] as to have denied him a
fair trial.
The evidence against [Appellant] at trial included the
testimony of [Appellant’s] mother that [Appellant] has
confessed to her that he had killed [Victim] because he
believed that after [Victim] was beaten he represented a
threat to Kenny Watson and his family. Rodney Watson
testified that he personally witnessed [Appellant] shoot
[Victim]. Numerous witnesses supplied testimony that
[Appellant] orchestrated the kidnapping and the killing,
and commanded the after-the-fact cover-up. [Ms.] Barr’s
testimony was corroborated, often in fine detail, by Rodney
Watson and, except for [Appellant’s] claim that Kenny
Watson was the shooter, [Appellant’s] own statement to
the police. The remarkable consistency of the statements
of those involved leading to the moment of the execution
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imbues [Ms.] Barr’s testimony with an authenticity that her
prior inconsistent statement lacks. Moreover, [Ms.] Prato’s
testimony about [Ms.] Barr’s inconsistent statement refers
to a time before [Appellant’s] arrest and before [Ms.] Barr
changed her initial statement to the police that Kenny
Watson was the shooter. At the trial, [Ms.] Barr
acknowledged that she had previously exculpated
[Appellant], but explained that she did so because she was
in fear of [Appellant]. Thus, [Ms.] Prato’s testimony was
cumulative of an inconsistency that [Ms.] Barr readily
acknowledged. The testimony of [Ms.] Prato would have
carried little weight, if any.
(PCRA Court Opinion, filed January 2, 2015, at 3-4). The record supports
the PCRA court’s analysis. The court explicitly discredited Appellant’s PCRA
hearing testimony. The court’s observation that defense counsel denied any
awareness of the Prato-Barr conversation, when read in the context of the
court’s conclusion that no evidence showed the Prato-Barr conversation was
relayed to defense counsel, makes clear the court credited counsel’s
testimony. Thus, Appellant failed to satisfy his burden to show defense
counsel knew or should have known of Ms. Prato and her potential
testimony. See Knighten, supra; O’Bidos, supra. Further, Appellant
failed to satisfy the prejudice prong, particularly where Ms. Barr’s alleged
statement to Ms. Prato was cumulative of her prior inconsistent statement to
the police, which was introduced at trial, and Ms. Barr testified as to why she
had initially attempted to exculpate Appellant. See id. Therefore, defense
counsel was not ineffective for failing to call Ms. Prato as a witness.
In his second issue, Appellant argues defense counsel, who also
represented Appellant on direct appeal, did not discuss with him the matter
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of a direct appeal, including the strengths and weaknesses of potential
claims and the consequences of failing to raise a particular issue. Appellant
concedes counsel informed him of the one issue that would be raised on
direct appeal, i.e., the trial court’s denial of Appellant’s motion for a mistrial.
Nevertheless, Appellant disputes counsel’s testimony that they had
discussed other possible appellate claims. Appellant contends the PCRA
court again failed to make a specific credibility determination regarding the
conflicting testimony of Appellant and defense counsel on this issue.
Appellant concludes counsel rendered ineffective assistance when he failed
to discuss potential appealable issues with Appellant. We cannot agree relief
is warranted.
Pennsylvania law makes clear:
[A]n accused who is deprived entirely of his right of direct
appeal by counsel’s failure to perfect an appeal is per se
without the effective assistance of counsel, and is entitled
to reinstatement of his direct appellate rights. In those
extreme circumstances, where counsel has effectively
abandoned his or her client and cannot possibly be acting
in the client’s best interests, our Supreme Court has held
that the risk should fall on counsel, and not his client.
However, it is also well-settled that the reinstatement of
direct appeal rights is not the proper remedy when
appellate counsel perfected a direct appeal but simply
failed to raise certain claims. Where a petitioner was not
entirely denied his right to a direct appeal and only some
of the issues the petitioner wished to pursue were waived,
the reinstatement of the petitioner’s direct appeal rights is
not a proper remedy. In such circumstances, the appellant
must proceed under the auspices of the PCRA, and the
PCRA court should apply the traditional three-prong test
for determining whether appellate counsel was ineffective.
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Commonwealth v. Grosella, 902 A.2d 1290, 1293-94 (Pa.Super. 2006)
(internal citations and quotation marks omitted) (emphasis in original).
Instantly, defense counsel filed a timely direct appeal on Appellant’s
behalf following imposition of sentence. This Court disposed of Appellant’s
single issue on the merits and affirmed the judgment of sentence.
Therefore, Appellant was not entirely denied his right to a direct appeal.
Consequently, Appellant must satisfy the traditional three-prong ineffective
assistance test to determine whether counsel was ineffective for failing to
raise certain issues on appeal. See Reaves, supra; Spotz, supra;Grosella, supra. Appellant, however, did not specify any additional issue
he thought counsel should have raised on direct appeal. Moreover,
Appellant presented no argument on any of the three prongs of the
ineffective assistance of counsel standard. See id. Therefore, Appellant’s
ineffective assistance claim fails.2 See Kimball, supra. Accordingly, we
affirm.
Order affirmed.
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2
Appellant’s claim merits no relief even in the absence of a specific
credibility finding. Here, Appellant had the benefit of a direct appeal decided
on the merits. In any event, Appellant has not identified what additional
issues he thought counsel should have raised on direct appeal. Additionally,
in Appellant’s prior collateral appeal, this Court disposed of Appellant’s
various other claims of ineffectiveness with respect to issues that
conceivably could have been raised on direct appeal. See Commonwealth
v. Watson, No. 202 MDA 2011 (Pa.Super. filed June 1, 2012) (unpublished
memorandum). Therefore, his current claim merits no further attention.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/2016
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