Com. v. Williamson, R. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROGER CHARLES WILLIAMSON :
:
Appellant : No. 1011 WDA 2021
Appeal from the PCRA Order Entered August 11, 2021
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002932-2007
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROGER CHARLES WILLIAMSON :
:
Appellant : No. 1012 WDA 2021
Appeal from the PCRA Order Entered August 10, 2021
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000155-2016
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: JUNE 14, 2022
Roger Charles Williamson (“Williamson”) appeals from the order
dismissing his petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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On November 24, 2014, emergency first responders in Erie received a
call directing them to a person who needed assistance. When they arrived at
the scene, they found Williamson lying on the sidewalk. He reeked of alcohol,
his speech was slurred, and he was having difficulty sitting up. Williamson
refused medical attention and attempted, unsuccessfully, to stagger away.
Police arrived, arrested Williamson for public intoxication, and drove him to
the police station. He resisted and had to be physically removed from the
patrol car. The officers held his wrists and walked him to a cell. Williamson
forcibly resisted entering it and lunged at Officer Gabriel Carducci. The officers
pinned him to the ground with Officer Carducci’s forearm around Williamson’s
head, near his mouth. Williamson bit Officer Carducci’s arm repeatedly,
drawing blood. N.T., 6/7/16, at 36-73.
The Commonwealth charged Williamson with aggravated assault,
resisting arrest or other law enforcement, public drunkenness, and other
offenses.2 At trial, the prosecutor played videos from three different cameras
of the police interaction with Williamson at the police station. N.T., 6/7/16,
at 54, 75, 78. Defense counsel replayed two of those videos during
Williamson’s testimony. Id. at 50, 60. In closing argument, defense counsel
asserted that the videos showed excessive police force and demonstrated
Williamson’s right to exercise self-defense. N.T., 6/8/16, at 100-02, 109. A
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2 See 18 Pa.C.S.A. §§ 2702, 5104, 5505.
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jury convicted Williamson of the above-listed charges, and the trial court
imposed an aggregate term of thirty-six to seventy-two months of
imprisonment.3
Williamson filed a direct appeal challenging the discretionary aspects of
his sentence. This Court affirmed the trial court’s denial of relief. See
Commonwealth v. Williamson, 2017 WL 838478 (Pa. Super. 2017)
(unpublished memorandum). The Pennsylvania Supreme Court denied
Williamson’s petition for allowance of appeal.
Williamson filed a timely pro se PCRA petition. The PCRA court
appointed William J. Hathaway, Esquire to represent Williamson. Attorney
Hathaway first filed a “no-merit” letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (1988) (en banc), but then filed an amended petition asserting, among
other claims, that the videos of the prison incident produced to the defense
were incomplete or the product of tampering. See Amended Petition,
11/27/18, 2.
On December 18, 2018, the PCRA court conducted a hearing on
Williamson’s amended PCRA petition. Williamson testified that he believed
sections of the videos were missing, his trial counsel had failed to procure
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3 The trial court imposed a consecutive term of imprisonment for a theft
conviction (docket 2932 of 2007), on which Williamson had been serving a
term of probation when he committed these new offenses. On appeal,
Williamson does not assert any issue relating to his theft conviction.
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them, and the videos shown at trial had been edited or manipulated. N.T.,
12/18/18, 6-11, 14-15. Trial counsel testified that she had emphasized to the
jury that the videos appeared to be “starting and stopping and jumpy,” as is
frequently the case with prison videos. Id. at 20-22, 25. Trial counsel also
testified that, had she believed that the videos had been altered, she would
have pursued that claim. Id. at 21, 25-26. However, she believed the videos
supported Williamson’s self-defense claim, and she therefore stipulated to its
admissibility. Id. at 23-24. The PCRA court denied relief. Id. at 29-30.
Williamson filed a timely Pa.R.A.P. 1925(b) statement, and a newly-appointed
PCRA court filed a Rule 1925(a) opinion.
Counsel for Williamson raised two issues in his appeal of the denial of
PCRA relief, but did so deficiently, resulting in the waiver of both claims. See
Commonwealth v. Williamson, 2019 WL 4865569 at *2-*3 (Pa. Super.
2019) (unpublished memorandum). This Court remanded the case to the
PCRA court for the appointment of counsel and, if deemed necessary, the filing
of a “cogent” appellate brief. Id. at *4.
On remand, the PCRA court appointed new PCRA counsel, James Miller,
Esquire. In response to Attorney Miller’s application, this Court vacated the
PCRA court’s dismissal of Williamson’s first amended PCRA petition and
remanded for Attorney Miller to file a second amended PCRA petition. When
he did not do so, the PCRA court appointed Michael Harmon, Esquire, who
filed an amended PCRA petition. The PCRA court found that petition defective
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and ordered Attorney Harmon to file another amended petition. Attorney
Harmon filed an amended petition asserting trial counsel’s ineffectiveness for
failing to: 1) investigate whether the prison videos had been subject to
tampering; 2) seek an expert on that issue; 3) cross-examine effectively
about gaps in the videos; and 4) argue to the jury that the videos had been
altered or that additional video existed. See Second Amended PCRA petition,
1/11/21, ¶ 21.
The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
the petition. It noted trial counsel’s prior testimony that she: 1) did not
believe the videos, although “jumpy,” had been altered; 2) would have
pursued the matter had she believed the videos had been altered, and 3)
believed that the videos played at trial supported Williamson’s claim of self-
defense. Rule 907 Notice, 4/8/21, at 10. It also noted that the prior PCRA
court had found Williamson’s testimony that additional videos existed not to
be credible. Id. at 4 (citing PCRA Court Order, 12/19/18). The PCRA court
concluded that Williamson had not proved that the video had been altered,
and that trial counsel had a reasonable basis not to pursue a claim of
tampering, in cross-examination or closing argument. The PCRA court
dismissed Williamson’s claim that trial counsel was ineffective for failing to
obtain an expert witness because Williamson failed to prove alteration or the
existence of additional video. See Rule 907 Notice, 4/8/21, at 9-11.
Williamson did not respond to the Rule 907 notice.
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On August 11, 2021, the PCRA court dismissed Williamson’s petition.
Williamson filed a timely notice of appeal. Both he and the PCRA court
complied with Pa.R.A.P. 1925.4
Williamson raises the following issue for our review:
Whether the PCRA [c] ourt erred in denying [Williamson’s] request
for relief when his trial counsel failed to investigate whether the
video used by the prosecution was tampered with, failed to seek
an expert in that regard, failed to effectively cross-examine
Commonwealth witnesses about the gap in the video or whether
any other video footage existed, and failed to argue in her closing
argument that the video had been tampered with or that any video
footage was missing.
Williamson’s Brief at 1.
This Court’s standard for reviewing the dismissal of PCRA relief is well-
settled:
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the record in the light most favorable to the
prevailing party in the PCRA court. We are bound by any
credibility determinations made by the PCRA court where they are
supported by the record. However, we review the PCRA court’s
legal conclusions de novo.
Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. Super. 2018) (citations
and quotations omitted).
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4 The PCRA court issued a Rule 1925(a) opinion incorporating by reference the
reasoning in its Rule 907 Notice.
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Williamson’s issue implicates the ineffective assistance of counsel. As
this Court has stated, to obtain relief on a claim of ineffective assistance of
counsel, a PCRA petitioner must establish that
(1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s action or failure to act; and
(3) the petitioner suffered prejudice as a result of counsel’s error,
with prejudice measured by whether there is a reasonable
probability that the result of the proceeding would have been
different. If a claim fails under any required element . . . the court
may dismiss on that basis. Counsel is presumed to be effective,
and the burden of demonstrating ineffectiveness rests on the
appellant.
Commonwealth v. Johnson, 236 A.3d 63, 68 (Pa. Super. 2020) (en banc)
(citations omitted).
A claim that counsel was ineffective for failing to investigate requires a
showing that evidence existed that counsel should have uncovered; absent
such evidence, the claim cannot establish ineffectiveness. See
Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981). A claim that
counsel was ineffective for failing to call an expert witness is facially defective
when a petitioner does not identify the witness or show that she was available
and willing to testify for the defense. See Commonwealth v. Selenski, 228
A.3d 8, 17 (Pa. Super. 2020).
A claim that trial counsel ineffectively cross-examined a witness lacks
arguable merit where the petitioner does nothing to establish that a different
manner of cross-examination would have caused the witness to alter his
testimony in any significant way. See Commonwealth v. Begley, 780 A.2d
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605, 632 (Pa. 2001). Counsel cannot be ineffective for failing to pursue a
meritless claim. Commonwealth v. Mullen, 267 A.3d 507, 512 (Pa. Super.
2021).
Williamson asserts that trial counsel should have cross-examined Officer
Carducci about whether additional videos of the incident existed, done more
to determine if there were any additional videos, sought an expert, and argued
in closing that the videos had been altered. Williamson’s Brief at 5-7.
The PCRA court found that Williamson had not proved that additional
videos existed, but offered only his unsubstantiated personal belief that it did.
See Rule 907 Notice, 4/8/21, at 10.5
We discern no error in the PCRA court’s ruling, although we do so on the
grounds that Williamson’s claims lack arguable merit. See Commonwealth
v. Wiley, 966 A.3d 1153, 1157 (Pa. Super. 2009) (this Court may affirm the
decision of a PCRA court if there is any basis on the record to support the
PCRA court’s action, even if we rely on a different basis in our decision to
affirm).6
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5The PCRA court stated that trial counsel had extensive experience with police
videos, and reasonably believed that the video had not been altered. Id. at
3, 10. It accordingly concluded that counsel had a reasonable basis not to
pursue Williamson’s assertion of tampering, or to raise that issue in cross-
examination or closing argument. Id. at 10.
6 The PCRA court’s reasonable basis finding is an additional, alternate basis
for its denial of Williamson’s claim. Johnson, 236 A.3d at 68.
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All of Williamson’s claims are premised on his assertion that the police
videos were altered or that additional videos of the incident exist. The PCRA
court stated that Williamson offered no evidence to support such “pure
speculation.” See Rule 907 Notice, 4/8/21, at 4. Absent any proof that
additional videos exist, Williamson’s claim that trial counsel was ineffective for
failing to investigate the existence of additional videos lacks arguable merit.
See Pettus, 424 A.2d at 1335.7 Williamson’s related assertion that counsel
failed to retain an expert to examine the video likewise lacks arguable merit
because he did not identify an expert, or assert any of the other elements of
a missing witness claim, including, most importantly, that the witness would
have provided favorable testimony. See Selenski, 228 A.3d at 17.
Williamson’s assertion that trial counsel ineffectively cross-examined
Officer Carducci lacks merit because he cannot show that different cross-
examination would establish that additional videos existed. See Begley, 780
A.2d at 632.
Finally, Williamson’s assertion that trial counsel was ineffective for not
arguing that the video had been tampered with lacks merit because there is
no proof of any tampering. Trial counsel was not ineffective for failing to
make such a baseless assertion. See Commonwealth v. Mullen, 267 A.3d
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7 As explained, the PCRA court’s reasonable basis finding is an additional,
alternate basis for its denial of Williamson’s claim. Johnson, 236 A.3d at 68.
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507, 512 (Pa Super. 2021) (counsel cannot be ineffective for not pursuing a
meritless claim. Because none of Williamson’s assertions has arguable merit,
his issue fails without further analysis. See Johnson, 236 A.3d at 68.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2022
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