Com. v. Williams, D. ( 2021 )

J-S12020-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONTAE WILLIAMS :
:
Appellant : No. 2929 EDA 2019
Appeal from the PCRA Order Entered September 9, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014802-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONTAE WILLIAMS :
:
Appellant : No. 2930 EDA 2019
Appeal from the PCRA Order Entered September 9, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014806-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONTAE WILLIAMS :
:
Appellant : No. 2931 EDA 2019
Appeal from the PCRA Order Entered September 9, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014807-2010
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
J-S12020-21
MEMORANDUM BY NICHOLS, J.: FILED JULY 9, 2021
In these consolidated appeals, Appellant Dontae Williams appeals from
the order denying his petition filed pursuant to the Post Conviction Relief Act, 1
(PCRA). Appellant raises one claim of ineffective assistance of counsel. After
review, we reverse the PCRA court’s order and vacate Appellant’s conviction
and judgment of sentence for conspiracy to commit murder.
In its opinion, the PCRA court provided the following factual summary:
On September 10, 2010, Appellant and an unknown male shot at
Mr. Angel Perez in the area of the 3300 block of F Street in
Philadelphia. Mr. Perez pulled out a gun, returned fire, and
suffered a gunshot wound. At the time, Ms. Lourdes Carcamo and
her three-year-old daughter were walking on the street near their
home. Errant gunfire struck Ms. Carcamo in her back and struck
the child in the head.
PCRA Ct. Op., 6/16/20, at 3 (citations omitted). The PCRA court set forth the
procedural history in this matter as follows:
At Docket No. CP-51-CR-0014802-2010, [Appellant] was charged
with attempted murder, aggravated assault, criminal conspiracy,
firearms not to be carried without a license, carrying firearms on
public streets in Philadelphia, possessing an instrument of crime,
and recklessly endangering another person.[fn1] At Docket No. CP-
51-CR-0014806-2010, Appellant was charged with attempted
murder, aggravated assault, and recklessly endangering another
person.[fn2] At Docket No. CP-51-CR-0014807-2010, Appellant
was charged with attempted murder, aggravated assault, and
recklessly endangering another person.[fn3]
Respectively, 18 Pa.C.S. §§ 901, 2702, 903, 6106,
[fn1]
6108, 907, and 2705.
[fn2] Respectively, 18 Pa.C.S. §§ 901, 2702, and 2705.
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1 42 Pa.C.S. §§ 9541-9546.
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[fn3] Respectively, 18 Pa.C.S. §§ 901, 2702, and 2705.
In December 2010, after his preliminary hearing, [Appellant’s trial
counsel (trial counsel)] filed a motion to quash, asserting
insufficient evidence to proceed to trial on any of the charges. In
February 2011, the Honorable Karen Shreeves-Johns quashed the
charge of criminal conspiracy.[2]
On January 17, 2012, Appellant’s jury trial commenced before the
Honorable Willis W. Berry.[3] On January 18, 2012, after the
parties gave opening statements, the following exchange took
place[:]
The Trial Court: So there is conspiracy against one guy?
Commonwealth: [Against Appellant], obviously based on
the testimony.
The Trial Court: I didn’t have that on there.
Counsel for [Perez]: I am still a little unclear on what the
Commonwealth is proceeding on if you want to talk about
that.
[Trial Counsel]: Everything.
The Trial Court: I’ve got Aggravated Assault.
Commonwealth: Attempted Murder.
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2 The pre-trial court’s order read as follows: “Conspiracy charge quashed
only—all other charges to remain.” Order, 2/3/11. We note that the only
conspiracy charge on the information was noted as having the criminal
objective of “robbery/assault.” Information, 12/10/10. The Information does
not indicate if the “assault” was simple assault or aggravated assault.
Although the only conspiracy charge was quashed, Appellant was convicted of
conspiracy with an unknown male to commit murder of co-defendant Perez in
addition to other charges as described herein.
3 Although Mr. Perez was a victim in the shooting, he was also charged as a
perpetrator. During the September 10, 2010 incident, Mr. Perez drew his own
gun and fired it at Appellant. N.T., 1/18/12, at 9. For their participation in
this “shootout,” Mr. Perez and Appellant were both charged and tried in a
single trial. Id.
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The Trial Court: Attempted murder, simple assault,
recklessly endangering another person.
Commonwealth: I probably won’t move[4] on the simple
assault on anybody.
The Trial Court: 6108 and PIC, and conspiracy . . . .
(Notes of Testimony (“N.T.”), 01/18/2012, at 28). [Trial] counsel
did not object to the inclusion of conspiracy. One week later, the
trial court instructed the jury on [the aforementioned charges
including] the charge of criminal conspiracy [to commit murder],
and, again, [Trial] counsel did not object. (N.T. 01/25/2012, at
135-37).
On January 26, 2012[,] the jury convicted Appellant of all charges.
Although Judge Shreeves-Johns quashed [the conspiracy charge],
the Commonwealth . . . proceeded to trial on conspiracy [to
commit murder]. On May 22, 2012, for the three attempted
murder convictions, the trial court sentenced Appellant to three
consecutive periods of incarceration of five years to ten years.
The court imposed no further penalty on conspiracy [to commit
murder] or the remaining charges. On April 29, 2016, the
Superior Court affirmed the judgment of sentence.
Commonwealth v. Williams, [1821 EDA 2012, 2016 WL
1729202 (Pa. Super. filed Apr. 29, 2016) (unpublished mem.)].
On August 10, 2016, the Supreme Court of Pennsylvania denied
Appellant’s Petition for Allowance of Appeal. [Commonwealth v.
Williams, 145 A.3d 727 (Pa. 2016).]
PCRA Ct. Op., 6/16/20, at 1-3 (footnote omitted and some formatting
altered).
Appellant filed a timely pro se PCRA petition on July 24, 2017, and on
October 2, 2017, the PCRA court appointed current counsel, David Barrish,
Esq., to represent Appellant. Attorney Barrish filed an amended PCRA petition
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4 Similarly, Appellant uses the term “moving” as a synonym for “prosecuting.”
Appellant’s Am. Brief at 26.
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on February 4, 2019. In the amended petition, Appellant alleged that trial
counsel was ineffective for failing to object to the Commonwealth proceeding
at trial as if the conspiracy charge had not been quashed and in failing to
object to the trial court instructing the jury on the offense of “conspiracy.”5
Am. PCRA Pet., 2/4/19, at 15. The PCRA court held a hearing in this matter
on August 5, 2019, and on August 7, 2019. On September 9, 2019, the PCRA
court denied Appellant PCRA relief in an order that included all three trial court
docket numbers.
On October 8, 2019, Appellant filed timely separate appeals at each trial
court docket. On October 31, 2019, the PCRA court directed Appellant to file
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b) on or before November 21, 2019. On November 20, 2019, at all
three dockets, Appellant filed a motion for extension of time in which to file
his Rule 1925(b) statement as the notes of testimony had not yet been
transcribed. The PCRA court did not rule on the motion; however, on
December 31, 2019, Appellant filed a Rule 1925(b) statement at each trial
court docket number. In the Rule 1925(b) statements, Appellant alleged that
the PCRA court erred in denying PCRA relief and contended that trial counsel
was ineffective. Additionally, Appellant asserted that the Rule 1925(b)
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5 In his brief, Appellant does not specify the crime underlying this conspiracy
conviction. However, as noted above, the record indicates that the
Commonwealth proceeded on, and the jury convicted Appellant of conspiracy
to commit murder by agreeing with an unknown male to shoot Mr. Perez.
N.T., 1/25/12, at 90, 126-35.
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statements were timely as they were filed within twenty-one days of
December 11, 2019, the date that the notes of testimony were transcribed.
On June 16, 2020, the PCRA court filed its Rule 1925(a) opinion.6
On July 28, 2020, Appellant filed a petition to consolidate the appeals in
our Court. On August 20, 2020, we granted the petition to consolidate. 7
On appeal, Appellant presents the following issue for our review:
Did the PCRA court err when it dismissed Appellant’s PCRA
petition after a hearing as . . . trial counsel was ineffective, for
failing to object to the Commonwealth moving, at trial, on the
criminal offense of criminal conspiracy and for failing to object to
the trial court instructing the jury on the criminal offense of
criminal conspiracy, as the criminal offense of criminal conspiracy
was quashed before trial by a judge of coequal jurisdiction,
therefore trial counsel’s actions were deficient and prejudiced
Appellant’s defense?
Appellant’s Am. Brief at 2 (formatting altered).
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6 As noted, the record does not indicate whether the trial court granted
Appellant’s request for an extension. However, this Court may address the
merits of a criminal appeal where the appellant files an untimely Rule 1925(b)
statement, if the trial court prepared an opinion addressing the issues raised
on appeal. See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super.
2009) (en banc) (explaining that where an appellant filed an untimely Rule
1925(b) statement, “this Court many decide the appeal on the merits if the
trial court had adequate opportunity to prepare an opinion addressing the
issues being raised on appeal”). Here, the trial court filed an opinion
addressing Appellant’s issues; accordingly, we need not find waiver based on
his untimely Rule 1925(b) statement. See id.7 Appellant first filed an appellate brief on November 12, 2020. On December
2, 2020, Appellant filed an application to strike the original brief due to clerical
errors and requested to file an amended brief. On December 21, 2020, we
granted Appellant’s application, and Appellant’s amended brief was filed that
day.
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Appellant contends that the only charge of criminal conspiracy was
quashed on February 3, 2011, prior to trial. Id. at 29. However, despite the
conspiracy charge being quashed, the Commonwealth prosecuted a charge of
conspiracy to commit murder at trial and trial counsel failed to object. Id.
Additionally, in its jury charge, the trial court provided an instruction on
conspiracy to commit murder of co-defendant Perez with an unknown male,
and trial counsel did not object. Id. at 31 (citing N.T. Trial, 1/25/12, at 135-
6, 139). Appellant asserts that he suffered prejudice as a result. Id.8
____________________________________________
8 On direct appeal, Appellant argued that the conspiracy charge had been
quashed and that the trial court erred in instructing the jury on that offense.
Williams, 2016 WL 1729202, at *2 (Pa. Super. 2016). This Court found the
issue was waived due to Appellant’s failure to object:
Appellant was aware, at the commencement of trial, that the
Commonwealth intended to pursue a conspiracy charge against
him. Thereafter, during closing arguments, [trial counsel]
specifically referenced the conspiracy charge. See N.T.,
01/25/2012, at 90–91. Moreover, the trial court instructed the
jury on the conspiracy charge without objection. Id. at 135–37.
At each of these critical points, Appellant failed to challenge the
Commonwealth’s right to proceed with a conspiracy charge.
Accordingly, we deem the issue waived. See, e.g.,
Commonwealth v. Robinson, 670 A.2d 616, 620 (Pa. 1995)
(collecting cases holding that failure to raise issue before the trial
court results in waiver); Pa.R.A.P. 302.
Id. Here, on appeal from the denial of PCRA relief, the issue is raised as a
claim of ineffective assistance of counsel for failing to object to the alleged
error. Accordingly, we do not conclude that the issue was previously litigated
or waived. See Commonwealth v. Collins, 888 A.2d 564, 570, 573 (Pa.
2005) (holding that the term “issue” as used in Sections 9543(a)(3) and
9544(a)(2) concerning previously litigated and waived claims under the PCRA
refers to the discrete legal ground that was asserted on direct appeal and
would have entitled the defendant to relief; ineffectiveness claims are distinct
(Footnote Continued Next Page)
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The Commonwealth counters that even if trial counsel had objected at
the start of the trial, it would have sought to amend the information pursuant
to Pa.R.Crim.P. 564 to include a charge of conspiracy to commit murder.
Commonwealth’s Brief at 10. The Commonwealth explains that at docket CP-
51-CR-0014802-2010, Appellant was initially charged with more than one
count of conspiracy; however, on the face of the criminal information, there
was only one count of conspiracy, and, as noted above, it stated that the
objective of the conspiracy was “robbery/assault.” Id. at 17.9 The
Commonwealth concedes that although there was no evidence of a conspiracy
to commit robbery, there was evidence of a conspiracy to commit murder. Id.
The Commonwealth argues that trial counsel was aware of the conspiracy to
commit murder charge, and Appellant suffered no unfair surprise. Id. at 18-
19. Additionally, the Commonwealth concludes that trial counsel’s failure to
object in no way impacted Appellant’s defense because Appellant’s defense
was based on misidentification. Id. at 20.
Our standard of review follows:
[O]ur standard of review from the denial of a PCRA petition is
limited to examining whether the PCRA court’s determination is
____________________________________________
from claims raised on direct appeal and must be treated as an independent
claim of error).
9 The record confirms that in the charges held for court on November 29,
2010, Appellant was charged with criminal conspiracy in addition to other
charges as discussed herein. However, as noted above, in the criminal
information, there was only a single count of conspiracy that listed the
objective and overt act as robbery/assault. Information, CP-51-CR-0014802-
2010, 12/10/10.
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supported by the evidence of record and whether it is free of legal
error. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions.
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. The burden is on the defendant
to prove all three of the following prongs: (1) the underlying claim
is of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her 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.
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success.
Counsel’s decisions will be considered reasonable if they
effectuated his client’s interests. We do not employ a hindsight
analysis in comparing trial counsel’s actions with other efforts he
may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
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Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered), appeal denied, 216 A.3d 1029 (Pa.
2019).
In its opinion, the PCRA court opined that Appellant was “in effect”
arguing that his counsel was ineffective for failing to object to an amendment
to the information. PCRA Ct. Op., 6/16/20, at 5. The PCRA court then
concluded that Appellant was not prejudiced by trial counsel’s failure to object
to the Commonwealth proceeding to trial on the charge of conspiracy to
commit murder. Id. at 7.
After review, we are constrained to conclude that the PCRA court’s
conclusion is erroneous as the information was not actually amended.
Moreover, the PCRA court does not address Appellant’s claim of
ineffectiveness relative to the jurisdictional issue that was created when the
Commonwealth prosecuted Appellant for a crime for which he was not
charged.
As noted, the Commonwealth prosecuted Appellant, and the trial court
instructed the jury on the crime of conspiracy to commit murder, even though
the only charge of conspiracy was quashed pre-trial. Information, 12/10/10;
Order, 2/3/11. However, “[t]he law is clear . . . that a court is without
jurisdiction to convict a defendant of a crime for which he was not charged,
and a challenge to a court’s subject matter jurisdiction is not waivable.”
Commonwealth v. Serrano, 61 A.3d 279, 287 (Pa. Super. 2013). In order
to establish subject matter jurisdiction, the Commonwealth must:
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Confront the defendant with a formal and specific accusation of
the crimes charged. This accusation enables the defendant to
prepare any defenses available to him, and to protect himself
against further prosecution for the same cause; it also enables the
trial court to pass on the sufficiency of the facts alleged in the
indictment or information to support a conviction. The right to
formal notice of charges, guaranteed by the Sixth Amendment to
the Federal Constitution and by Article I, Section 9 of the
Pennsylvania Constitution, is so basic to the fairness of
subsequent proceedings that it cannot be waived even if the
defendant voluntarily submits to the jurisdiction of the court.
Id. at 287 n.4 (some formatting altered, citation omitted).
“[A] criminal information satisfies the constitutional requirements,
under the Sixth Amendment to the United States Constitution and Article I,
Section 9 of the Pennsylvania Constitution, that a defendant be given formal,
specific notice of the charged crimes.” Commonwealth v. Nischan, 928
A.2d 349, 356 (Pa. Super. 2007). Further, the criminal information “sets the
stage for trial and what the Commonwealth intends to prove.”
Commonwealth v. King, 234 A.3d 549, 563 (Pa. 2020); see generally
Pa.R.Crim.P. 560 (setting forth the requirements for the contents of a criminal
information). Additionally, we are cognizant that a defendant may receive de
facto notice of charges through other means, such as factual summaries
included in the charging documents. King, 234 A.3d at 566.
Here, however, it is undisputed that the lone charge of conspiracy was
quashed. Therefore, at the start of Appellant’s trial, he was without actual or
even de facto notice that he would be prosecuted for conspiracy to commit
murder. The record reveals that first indication that Appellant received
regarding a charge of conspiracy to commit murder occurred after the jury
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was sworn and the trial began. N.T., 1/18/12, at 28. We conclude that
because Appellant had no notice of a charge of conspiracy to commit murder,
the trial court lacked subject matter jurisdiction to convict Appellant on this
charge. Serrano, 61 A.3d at 287. Moreover, while the Commonwealth
contends that if counsel had objected, it would have simply moved to amend
the information, it is clear that the Commonwealth did not in fact amend the
information.10 Indeed, the trial court lacked subject matter jurisdiction to
convict Appellant on the charge of conspiracy to commit murder. Id.; see
also Commonwealth v. Speller, 458 A.2d 198, 204 (Pa. Super. 1983)
(holding that the appellant could neither be tried for nor convicted of offenses
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10 In its brief, the Commonwealth asserts that “even if trial counsel had raised
the charging issue at the start of trial, the Commonwealth would merely have
been permitted to file an amended information setting forth the conspiracy
charge because it arose out of the same events and created no possibility of
unfair surprise to the defense.” Commonwealth’s Brief at 18. However, the
conspiracy charge was not brought to light until after the jury was sworn and
the trial began. Additionally, even if the Commonwealth would have moved
to amend the information after the trial began, we cannot conclude that the
amended would have been mechanically or perfunctorily granted. See
Commonwealth v. Sinclair, 897 A.2d 1218, 1221-23 (Pa. Super. 2006)
(setting forth the factors for the trial court to consider when determining if
amending the information is permissible); Pa.R.Crim. 564. The trial court
quashed the charge of conspiracy; however, the notes of testimony reflect
only that the trial court found “that there is no evidence [in] the notes of
testimony indicating the motion to quash should not be granted as to the
charge of conspiracy.” N.T., 2/3/12, at 5. Accordingly, we are without the
trial court’s rationale for quashing the conspiracy charge, and we will not
speculate on the outcome of a last minute motion to amend the information.
Indeed, the Commonwealth’s supposition regarding amending the information
does not impede our conclusion that if trial counsel objected, there is a
reasonable probability that the outcome of the proceeding would have been
different. Sandusky, 203 A.3d at 1043-44.
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not alleged in the information and vacating the judgment of sentence where
the appellant was convicted of a crime that was not included in the
information).
After review, we conclude that Appellant has satisfied the requirements
for establishing ineffective assistance of counsel. Sandusky, 203 A.3d at
1043-44. There is arguable merit to Appellant’s claim of ineffective assistance
of counsel, and trial counsel did not state a strategic basis for failing to object
to the prosecution of an offense that was quashed such that the trial court
lacked subject matter jurisdiction. Moreover, we find that there is a
reasonable probability that the outcome of the proceedings would have been
different if trial counsel had objected to the Commonwealth proceeding on the
conspiracy charge and objected to the trial court instructing the jury on that
charge. Indeed, we conclude that if counsel objected, there is a reasonable
probability Appellant would not have been convicted of conspiracy.11, 12
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11 Although we conclude that the trial court lacked subject matter jurisdiction
concerning the conspiracy to commit murder charge, the record included
overwhelming evidence supporting the charges presented to the jury that
convicted Appellant of shooting and injuring the victims. See N.T., 1/18/12,
at 45-46, 52-53, and 80 (eyewitness testimony of Steven Alston identifying
Appellant as the man holding a gun and shooting at people on the street);
see also N.T., 1/19/12, at 14-15 (eyewitness testimony of Tamika Dennis an
eyewitness and former schoolmate of Appellant who identified Appellant as
the shooter); 52-53 (testimony from one of the victim’s, Lourdes Carcamo,
who recounted the shooting and the injuries that she and her daughter
sustained).
12 While we conclude that counsel’s ineffectiveness necessitates the reversal
of the PCRA court’s order and requires us to vacate Appellant’s conviction and
(Footnote Continued Next Page)
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For the reasons set forth above, we conclude that Appellant has
established that his trial counsel was ineffective for failing to object to the
prosecution and jury instruction on the charge of conspiracy. Accordingly, we
reverse the PCRA court’s order, and we vacate Appellant’s conviction and
judgment of sentence for conspiracy.
Order reversed. Conviction and judgment of sentence for conspiracy
vacated. Jurisdiction relinquished.
Judge Lazarus joins the memorandum.
Judge Musmanno concurs in the result.
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judgment of sentence for conspiracy, our decision impacts only that conviction
and judgment of sentence. As discussed above, our conclusion is based on
the trial court’s lack of jurisdiction on the conspiracy charge. However, even
if trial counsel had objected to the prosecution and jury instruction relative to
conspiracy, we cannot conclude that the result of Appellant’s trial would have
been different with respect to the remaining charges. The charges of
attempted murder, aggravated assault, criminal conspiracy, firearms not to
be carried without a license, carrying firearms on public streets in Philadelphia,
possessing an instrument of crime, and recklessly endangering another
person, were properly set forth in the information, there is no question
concerning subject matter jurisdiction on those charges, and the evidence of
Appellant’s guilt on those counts was overwhelming. Accordingly, the
convictions and judgment of sentence for those crimes remain undisturbed.
Furthermore, we conclude that we need not remand for resentencing. The
record reflects that Appellant was sentenced to “no further penalty” on the
conspiracy conviction. N.T., 5/22/12, at 20. Accordingly, we conclude that
vacating the conviction and judgment of sentence on that count does not
disturb the trial court’s overall sentencing scheme. See Commonwealth v.
Carey, 249 A.3d 1217, 1229 (Pa. Super. 2021) (declining to remand for
resentencing where this Court’s ruling did not disturb the trial court’s
sentencing scheme).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/2021
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