Com. v. Wilmer, S.

J-S62039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN WILMER
Appellant No. 818 WDA 2015
Appeal from the PCRA Order April 24, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016482-2005
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 29, 2015
Appellant, Shawn Wilmer, appeals from the order entered in the
Allegheny County Court of Common Pleas, which denied his petition brought
pursuant to the Post Conviction Relief Act (“PCRA”).1 For the following
reasons, we affirm.
The relevant facts and procedural history of this case are as follows.
On December 9, 2005, the Commonwealth charged Appellant with criminal
homicide and criminal conspiracy, in connection with the March 16, 2005,
shooting death of Keith Watts (“Victim”). Appellant proceeded to a jury trial
on April 19, 2007. At trial, the Commonwealth presented the testimony of
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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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James Jones (“Mr. Jones”). Mr. Jones testified that Appellant had confessed
to Mr. Jones that Appellant had killed Victim. Mr. Jones also testified that
Appellant had complained to Mr. Jones that Appellant’s co-defendant was
trying to take credit for Victim’s death. In response to Mr. Jones’ testimony,
Appellant presented the testimony of David Tracey (“Mr. Tracey”). Mr.
Tracey testified he knew both Appellant and Mr. Jones from when they were
in jail together. Mr. Tracey stated Appellant stopped by Mr. Tracey’s cell in
October 2006, while Mr. Jones was in Mr. Tracey’s cell. Mr. Tracey further
testified that after Appellant left Mr. Tracey’s cell, Mr. Jones indicated to Mr.
Tracey that he planned to use Appellant to get out of jail. In rebuttal to Mr.
Tracey’s testimony, the Commonwealth presented the testimony of
Allegheny County Jail Internal Affairs Captain, Thomas Leicht (“Captain
Leicht”). Captain Leicht testified his review of past jail records revealed that
Mr. Jones was not in jail in October 2006, when Mr. Jones allegedly told Mr.
Tracey that Mr. Jones planned to use Appellant to get out of jail.
Specifically, Captain Leicht testified that Mr. Jones did not enter jail until
April 11, 2007.
On May 4, 2007, the jury found Appellant guilty of first-degree murder
and criminal conspiracy. The trial court deferred sentencing pending the
preparation of a pre-sentence investigation report. On November 5, 2007,
the trial court sentenced Appellant to life imprisonment for the first-degree
murder conviction, and a consecutive term of two-hundred and forty (240)
to four hundred and eighty (480) months’ imprisonment for the conspiracy
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conviction. On November 14, 2007, Appellant filed a post-sentence motion,
and Appellant filed an amended post-sentence motion on March 25, 2008.
Appellant attached jail records to his post-sentence motions, which
established that Mr. Tracey and Mr. Jones were both in jail in October 2006.
These jail records directly contradicted Captain Leicht’s testimony at trial. On
April 17, 2008, the trial court denied Appellant’s post-sentence motions.
Appellant timely filed a notice of appeal on May 16, 2008. This Court
affirmed Appellant’s judgment of sentence on May 11, 2009, and our
Supreme Court denied allowance of appeal on February 5, 2010. See
Commonwealth v. Wilmer, 976 A.2d 1218 (Pa.Super. 2009), appeal
denied, 605 Pa. 674, 989 A.2d 8 (2010).
On July 16, 2010, Appellant timely filed a pro se PCRA petition, and
the court appointed counsel on September 10, 2010. On November 19,
2010, appointed counsel filed an application to withdraw and a “no merit”
letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927
(1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc). On January 21, 2011, the PCRA court granted appointed counsel’s
application to withdraw and issued its notice of intent to dismiss Appellant’s
petition without a hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907 notice”).
On February 11, 2011, Appellant filed a pro se response to the PCRA court’s
Rule 907 notice, and Appellant filed an amended pro se response to the
PCRA court’s Rule 907 notice on April 20, 2011. The PCRA court denied
relief on June 15, 2011. Appellant filed a timely pro se appeal to this Court
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on June 28, 2011. On April 25, 2012, this Court determined appointed
counsel’s “no-merit” letter was deficient and remanded the case to the PCRA
court with directions to appoint new counsel.
On October 26, 2012, the PCRA court appointed new PCRA counsel to
represent Appellant. Appellant filed an amended PCRA petition on January
2, 2014, in which Appellant claimed trial counsel and appellate counsel were
ineffective. On March 9, 2015, the PCRA court issued Rule 907 notice as to
Appellant’s amended PCRA petition, and the PCRA court denied relief on April
24, 2015. Appellant timely filed a notice of appeal on May 22, 2015. The
PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant did
not file one.
Appellant raises the following issues for our review:
WHETHER THE PROSECUTOR INTRODUCED FALSE
EVIDENCE IN THE COMMONWEALTH’S REBUTTAL CASE
WHICH FALSELY PORTRAYED A KEY DEFENSE WITNESS AS
A LIAR AND SEVERELY PREJUDICED APPELLANT’S CASE?
WHETHER TRIAL COUNSEL GAVE INEFFECTIVE
ASSISTANCE FOR FAILING TO INVESTIGATE THE
COMMONWEALTH’S WITNESS, CONCERNING ISSUE I, SO
AS TO PROVE THAT THE COMMONWEALTH PRESENTED
FALSE EVIDENCE?
WHETHER APPELLATE COUNSEL GAVE INEFFECTIVE
ASSISTANCE FOR FAILING TO RAISE ISSUE I ON APPEAL?
WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL
BASED UPON THE INTEREST OF JUSTICE?
(Appellant’s Brief at 5).
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For purposes of disposition, we combine Appellant’s issues. Appellant
argues the only evidence of his involvement in the charged crimes consists
of statements made by Appellant to Mr. Jones, a self-interested witness.
Appellant contends Mr. Jones was a biased witness because he was likely to
receive favorable treatment from the Commonwealth with respect to
criminal charges pending against him, in exchange for his testimony against
Appellant. Appellant maintains Mr. Jones exhibited his bias through his
statement to Mr. Tracey, in which Mr. Jones stated he planned to use
Appellant to get out of jail. Appellant asserts the Commonwealth’s
presentation of Captain Leicht’s false testimony, which alleged Mr. Jones was
not in jail when Mr. Tracey heard Mr. Jones make the self-interested
statement, made both Appellant and Appellant’s trial counsel appear
fraudulent. Appellant further avers trial counsel was ineffective because
counsel failed to investigate the jail records and determine that Captain
Leicht’s testimony was false.
Appellant also argues appellate counsel improperly raised the issue of
Captain Leicht’s false testimony on appeal. Appellant states appellate
counsel raised an ineffective assistance of counsel claim against trial
counsel, instead of a presentation of false evidence claim against the
Commonwealth. Appellant contends appellate counsel’s failure to raise this
issue properly was prejudicial to Appellant, as there was a reasonable
probability this Court would have remanded Appellant’s case for a new trial
based on Captain Leicht’s false testimony. Appellant concludes both trial
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counsel and appellate counsel were ineffective, and this Court should grant
Appellant a new trial in the interest of justice. 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. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
612 Pa. 687, 29 A.3d 795 (2011). This Court 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). We give no such deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190, 1194 (Pa.Super. 2012). The PCRA court findings will not be
disturbed unless the certified record provides no support for the findings.
Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal
denied, 597 Pa. 715, 951 A.2d 1163 (2008). There is no right to a PCRA
hearing; a hearing is unnecessary where the PCRA court can determine from
the record that there are no genuine issues of material fact.
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008), appeal
denied, 598 Pa. 764, 956 A.2d 433 (2008).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, the petitioner is
required to demonstrate that: (1) the underlying claim is of arguable merit,
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(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).
The failure to satisfy any prong of the test for ineffectiveness will cause the
claim to fail. Williams, supra.
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The [appellant]
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. In [Kimball, supra], we held
that a “criminal [appellant] alleging prejudice must show
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.”
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Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
(2002) (some internal citations and quotation marks omitted).
The Pennsylvania Supreme Court set forth the framework for
consideration of layered ineffective assistance of counsel claims, as follows:
[A] petitioner must plead in his PCRA petition that his prior
counsel, whose alleged ineffectiveness is at issue, was
ineffective for failing to raise the claim that the counsel
who preceded him was ineffective in taking or omitting
some action. In addition, a petitioner must present
argument…on the three prongs of the [ineffectiveness] test
as to each relevant layer of representation.
Commonwealth v. McGill, 574 Pa. 574, 589, 832 A.2d 1014, 1023 (2003).
Thus, “[f]or the claim related to appellate counsel’s conduct to have
arguable merit, a petitioner must prove the underlying claim of trial counsel
ineffectiveness.” Commonwealth v. Jones, 583 Pa. 130, 138, 876 A.2d
380, 385 (2005). The inability of a petitioner to prove each prong of the
ineffective assistance of counsel test with respect to trial counsel’s purported
ineffectiveness will be fatal to his ineffective assistance of counsel claim
against appellate counsel on the same issue. Commonwealth v. Tedford,
598 Pa. 639, 660, 960 A.2d 1, 13 (2008).
“It is…an established constitutional principle that a conviction obtained
through the knowing use of materially false testimony may not stand; a
prosecuting attorney has an affirmative duty to correct the testimony of a
witness which he knows to be false.” Commonwealth v. Carpenter, 472
Pa. 510, 520, 372 A.2d 806, 810 (1977) (citing Giglio v. United States,
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405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), and Napue v. Illinois,
360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)). “Further, the
prosecutor’s office is an entity and knowledge of one member of the office
must be attributed to the office of the district attorney as an entity.”
Commonwealth v. Wallace, 500 Pa. 270, 276, 455 A.2d 1187, 1190
(1983). “[W]here the prosecution obtains a conviction through the use of
false or perjured testimony, a strict standard of materiality must be applied.”
Commonwealth v. Romansky, 702 A.2d 1064, 1068 (Pa.Super. 1997),
appeal denied, 555 Pa. 699, 723 A.2d 670 (1998). “[T]he false testimony is
considered material if it could in any reasonable likelihood have affected the
verdict.” Id. When making the materiality determination, “the state of
mind of the prosecutor is not material, but rather, the important issue is
whether the accused received a fair trial.” Id. The mere assertion of the
prosecutor’s complicity in the presentation of false evidence, uncorroborated
by competent evidence, does not entitle a defendant to a new trial.
Commonwealth v. Lipscomb, 409 A.2d 857, 859 (Pa.Super. 1979).
Instantly, with respect to Appellant’s assertions that Captain Leicht’s
false testimony severely prejudiced Appellant, and that trial counsel was
ineffective for failure to investigate jail records to determine the falsity of
Captain Leicht’s testimony, the PCRA court reasoned:
[Appellant] contends that Captain Leicht’s false testimony
was intentional and deprived him of a fair trial.
[Appellant] does not, allege, however, that the prosecutor
knew that the testimony was false when it was presented
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or at any time during the trial. Accordingly, there is no
material dispute of fact, and, based on the facts alleged by
[Appellant] in his [PCRA] [p]etition and which are
established in the record, this [c]ourt concludes that
[Appellant’s] claims are without merit as a matter of law…
In [Commonwealth v. Hallowell, 477 Pa. 232, 383 A.2d
909 (1978)], our Supreme Court awarded a new trial
because the prosecution failed to correct a Commonwealth
witness[’] false testimony that he was not promised
leniency in pending charges in exchange for his testimony.
[Our Supreme Court] held that it did not matter whether
the prosecutor trying the case was aware of the promises
made to the witness; that knowledge of the promises of
leniency would be attributed to the office of the District
Attorney as an entity. [Appellant’s] reliance on
[Hallowell, supra] is misplaced.
[Appellant] claims that in this case it does not matter
whether the trial prosecutor knew that [Captain] Leicht’s
testimony was false or erroneous; that the fact that such
testimony was offered is enough to warrant a new trial.
First, it is not clear from the record of the trial or from
anything [Appellant] offered with his PCRA [petition] that
Captain Leicht intentionally offered false testimony.
[Appellant’s] reference to a newspaper article that
reported that Captain Leicht had been fired due to
“inconsistencies and misrepresentations” found during an
investigation is woefully insufficient to establish that his
testimony in this matter was intentionally false. The
inconsistencies concern statements [Captain] Leicht made
about his background that were determined to be false.
He claimed in a federal court hearing that he had been
certified as a police officer when, in fact, he had not; and
that he was previously employed as a police officer, when,
in fact, he had only worked as a dispatcher. This
newspaper article, involving false statements made three
years after this trial, certainly did not establish that
Captain Leicht intentionally lied when he testified in this
matter.
More importantly, however, even if [Captain] Leicht
intentionally misled the jury, there is nothing to indicate
that the district attorney prosecuting this case had any
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reason to know that the information conveyed by Captain
Leicht was not accurate or that anyone else in the
Allegheny County District Attorney’s Office knew. This fact
distinguishes this case from those cited by [Appellant].
In [Hallowell, supra, our] Supreme Court held that
because another Assistant District Attorney knew of the
promises of leniency made to the witness, that knowledge
would be attributable to the office of the District Attorney,
regardless of what the assistant district attorney
prosecuting [the defendant] knew. Here, even if [Captain]
Leicht’s testimony was false and known by him to be false,
there is nothing establishing that anyone in the District
Attorney’s Office knew, or should have known of the
inaccuracy of the testimony.
Each of the other cases cited by [Appellant] in his [PCRA]
[p]etition similarly deal with the failure to disclose a
promise of leniency made by the prosecution to a
cooperating witness. In [Giglio v. United States, 405
U.S. 150, 92. S.Ct. 763, 31 L. Ed. 2d 104 (1972)], the
prosecutor failed to disclose an alleged promise made to
its key witness that he would not be prosecuted if he
testified for the government[,] and in [Napue v. Illinois,
360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)], the
prosecutor elicited testimony from a witness that falsely
claimed that he had not been offered a reduced sentence
in exchange for his testimony. The Supreme Court held in
these cases that a prosecuting office could not receive the
benefit of testimony secured with a promise of leniency
without disclosing that promise to the defendant.
Here, however, there is nothing in [Appellant’s PCRA]
[p]etition or in the record that establishes that the
prosecution had any involvement in eliciting testimony it
knew or suspected was false; nor is there any evidence
that anyone associated with the district attorney’s office
had any reason to question the truthfulness and accuracy
of the testimony from Captain Leicht. In the absence of
proof that the prosecution knew or should have known
about the false testimony, this claim must fail.
[Appellant’s] second claim is that trial counsel was
ineffective for failing to impeach Captain Leicht with the
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jail records that would have shown his testimony to be
false or in error. This [c]ourt addressed this very issue in
its September [23], 2008 [o]pinion addressing the claim
that [Appellant] raised in his [c]oncise [s]tatement.
Because the Superior Court declined to address the
ineffectiveness claims on appeal pursuant to
[Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726
(2002)], this claim cannot be considered previously
litigated. There is no reason, however, for this [c]ourt to
reanalyze this claim. This [c]ourt wrote:
…Regardless of whether [trial] counsel was
ineffective in not obtaining the [evidence to impeach
Captain Leicht] that [appellate] counsel did obtain,
[Appellant] was not prejudiced. First of all, nothing
in the materials submitted by [Appellant] with his
[a]mended [p]ost[-s]entence [m]otion supports the
claim that the Commonwealth intentionally
presented false testimony. At best, the witness was
mistaken.
More importantly, had the evidence showing that
[Mr.] Jones was, in fact, in jail with [Mr.] Tracey
been introduced, it would not have affected the
outcome of the trial. [Mr.] Tracey’s testimony did
not establish that anything that [Mr.] Jones said
about his conversations with [Appellant] was false.
All that [Mr.] Tracey reports [Mr.] Jones saying is
that he could use [Appellant] to get out of jail. [Mr.]
Tracey did not testify that [Mr.] Jones said he would
lie to do so or that anything he said about
[Appellant] was anything but the truth. In fact,
[Mr.] Jones testified on direct that, in essence, he
was using the information he had about [Appellant]
to try to get out of jail, or, at least, to lessen the
sentences he faced for his new charges.
[Appellant]’s trial counsel even asked [Mr.] Jones
whether he would be helping the police if he had
[not] been arrested in September 2006 and needed
their help and he said that he would not. All that
[Mr.] Tracey’s testimony did was corroborate what
the witness [Mr.] Jones himself admitted: that he
was cooperating only because he knew it would
benefit him in resolving his pending criminal charges.
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Because [Appellant] was not prejudiced by the
failure of trial counsel to impeach the
Commonwealth’s rebuttal witness, this claim must
fail. [(Trial Court Opinion, filed September 23, 2008,
at 20-21).]
In addition, [trial counsel] also presented testimony from
Charles White [“Mr. White”], another fellow inmate of [Mr.]
Jones, regarding [Mr.] Jones’ statements that he would
cooperate with the Commonwealth against [Appellant] to
secure a better deal for himself. [Mr.] White’s claim to
have been on the same pod as [Mr.] Jones was not
disputed by the Commonwealth. Accordingly, [Appellant]
did present a witness who was not impeached who put
before the jury the question of whether [Mr.] Jones’
testimony was influenced by a desire to secure better
treatment from the prosecution. Given [Mr.] Jones’
admission that he was testifying in order to secure better
treatment from the Commonwealth and the un-impeached
testimony of [Mr.] White that largely corroborated [Mr.]
Tracey’s testimony regarding [Mr.] Jones’ statements, it is
clear that [Appellant] suffered no prejudice from the failure
of counsel to secure and present the mail records proving
that Leicht’s testimony was false or inaccurate.
(PCRA Court Opinion, filed May 29, 2015, at 3-9) (emphasis in original)
(internal footnote omitted). The record supports the court’s sound
reasoning. See Chambers, supra.
Finally, Appellant’s ineffective assistance of counsel claim against
appellate counsel for failure to raise the issue of Captain Leicht’s false
testimony properly fails because Appellant failed to establish that trial
counsel’s treatment of that issue caused Appellant prejudice. Appellant
cannot argue a layered ineffective assistance of counsel claim against
appellate counsel successfully without first showing that trial counsel was
ineffective for mishandling the same issue. See Tedford, supra; Jones,
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supra. Therefore, Appellant’s issues on appeal have no merit. Accordingly,
we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2015
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