Com. v. Williams, J.

J-S43005-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSEPH WILLIAMS :
:
Appellant : No. 836 MDA 2018
Appeal from the PCRA Order February 28, 2018
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000695-2008
BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED: SEPTEMBER 20, 2019
Appellant, Joseph Williams, appeals from the order entered in the York
County Court of Common Pleas, which denied his first petition brought
pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
In its opinion, the PCRA court correctly set forth the relevant facts and
some of the procedural history of this case. Therefore, we have no need to
restate them. We add that this Court affirmed the judgment of sentence on
June 10, 2011. Appellant filed a timely petition for allowance of appeal with
our Supreme Court. While that petition was pending, on August 31, 2011,
Appellant filed a pro se PCRA petition, which the court held in abeyance until
Appellant’s direct appeal resolved. Our Supreme Court denied petition for
allowance of appeal on July 16, 2012. See Commonwealth v. Williams, 31
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* Former Justice specially assigned to the Superior Court.
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A.3d 741 (Pa.Super. 2011), appeal denied, 616 Pa. 646, 48 A.3d 1249 (2012).
Appellant filed a pro se PCRA petition on August 14, 2012. After several
appointed attorneys had conflicts and could not represent Appellant, the PCRA
court finally appointed counsel on December 1, 2016. On March 3, 2017,
counsel filed an amended PCRA petition. The PCRA court held evidentiary
hearings on June 28, 2017 and August 18, 2017, and denied relief on February
28, 2018.
On March 15, 2018, Appellant timely filed a pro se notice of appeal and
a voluntary concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). The clerk of courts docketed the notice of appeal and
forwarded it to counsel, pursuant to Pa.R.Crim.P. 576(A)(4). On March 22,
2018, counsel filed a petition to withdraw and to have new counsel appointed.
On April 12, 2018, the PCRA court held a hearing. During the hearing, counsel
moved to reinstate Appellant’s appeal rights nunc pro tunc, which the court
granted. Appellant timely filed a counseled notice of appeal on Monday, May
14, 2018. On May 17, 2018, the PCRA court ordered Appellant to file a Rule
1925(b) statement. The PCRA court held a Grazier1 hearing on May 30, 2018;
at the conclusion of the hearing, Appellant chose to be represented by counsel,
who filed a counseled Rule 1925(b) statement on Appellant’s behalf.
Appellant’s counsel did not file an appellate brief in this Court. On
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1 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
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January 18, 2019, this Court remanded the case, for the court to determine if
counsel had abandoned Appellant, and retained jurisdiction. The PCRA court
held a hearing on February 14, 2019, and determined that counsel had not
abandoned Appellant; however, the PCRA court removed counsel at
Appellant’s request and appointed current counsel for this appeal. Appellate
counsel filed a brief in this Court on May 13, 2019.
Appellant raises the following issues for our review:
WHETHER THE TRIAL COURT ERRED IN REFUSING TO
GRANT [APPELLANT’S] REQUEST FOR PCRA RELIEF ON THE
BASIS OF AFTER-DISCOVERED EVIDENCE[?]
WHETHER THE TRIAL COURT ERRED IN REFUSING TO
GRANT [APPELLANT’S] REQUEST FOR PCRA RELIEF ON THE
BASIS OF INEFFECTIVE ASSISTANCE OF [APPELLANT’S]
PRIOR COUNSEL, WHERE COUNSEL: (I) FAILED TO OBJECT
TO THE ABSENCE OF THE FINAL INSTRUCTION ON THE
SINGLE COUNT OF ROBBERY, (II) FAILED TO INVESTIGATE
CERTAIN WITNESSES, (III) FAILED TO REQUEST A JURY
INSTRUCTION REGARDING THE DEMONSTRATIVE PURPOSE
OF THE HANDGUN, AND (IV) FAILED TO REQUEST A JURY
INSTRUCTION SEEKING SEPARATE CONSIDERATION OF
THE EVIDENCE PRESENTED BY EACH DEFENDANT[?]
(Appellant’s Brief at 4).
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008).
“Jurisdictional time limits go to a court’s right or competency to adjudicate a
controversy.” Id. at 359, 956 A.2d at 983. A PCRA petition must be filed
within one year of the date the underlying judgment becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment is deemed final “at the conclusion of
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direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3). A PCRA petition filed
during the pendency of a direct appeal is premature, and the court lacks
jurisdiction to review it. Commonwealth v. Seay, 814 A.2d 1240, 1241
(Pa.Super. 2003) (reiterating PCRA cannot be invoked until judgment of
sentence is final; petition filed during pendency of direct appeal does not
constitute first PCRA petition). An appellant may choose to file a PCRA petition
or a notice of appeal during the appeal period, but an appellant cannot do
both. Commonwealth v. Zeigler, 148 A.3d 849, 852 (Pa.Super. 2016).
Instantly, Appellant filed a pro se PCRA petition on August 31, 2011,
while his petition for allowance of appeal was still pending before our Supreme
Court. This petition was premature when filed, and the PCRA court should
have dismissed it, instead of holding the petition in abeyance. See Seay,
supra. After our Supreme Court denied Appellant’s petition for allowance of
appeal on July 16, 2012, Appellant filed a pro se PCRA petition on August 14,
2012, before his judgment of sentence became final on or about October 14,
2012, upon expiration of the time for filing a petition for writ of certiorari with
the U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Because Appellant chose not
to pursue further direct review, his August 14, 2012 pro se PCRA related
forward to October 14, 2012, and was timely filed. Therefore, the PCRA court
had no jurisdictional impediments to its review.
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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, 109 (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, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d
74 (2007). We give no similar deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.
2012). Traditionally, credibility issues are resolved by the trier of fact who
had the opportunity to observe the witnesses’ demeanor. Commonwealth
v. Abu-Jamal, 553 Pa. 485, 527, 720 A.2d 79, 99 (1998), cert. denied, 528
U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). Where the record supports
the PCRA court’s credibility resolutions, they are binding on this Court. Id.“An appellate court must assess the jury instructions as a whole to
determine whether they are fair and impartial.” Commonwealth v. Collins,
546 Pa. 616, 620, 687 A.2d 1112, 1113 (1996).
The trial court has broad discretion in phrasing its
instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the
jury for its consideration.
* * *
We will not rigidly inspect a jury charge, finding reversible
error for every technical inaccuracy, but rather evaluate
whether the charge sufficiently and accurately apprises a lay
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jury of the law it must consider in rendering its decision.
Commonwealth v. Hannibal, 562 Pa. 132, 139-140, 753 A.2d 1265, 1269
(2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2002, 149 L.Ed.2d 1004 (2001)
(quoting Commonwealth v. Prosdocimo, 525 Pa. 147, 154, 578 A.2d 1273,
1276 (1990)).
[T]o prevail on a claim of ineffectiveness for failing to call a
witness, a [petitioner] must prove, in addition to meeting
the three Pierce[2] requirements, that: (1) the witness
existed; (2) the witness was available to testify for the
defense; (3) counsel knew or should have known of the
existence of the witness; (4) the witness was willing to
testify for the defense; and (5) the absence of the [witness’]
testimony was so prejudicial as to have denied him a fair
trial.
Commonwealth v. Wright, 599 Pa. 270, 331, 961 A.2d 119, 155 (2008).
To demonstrate…prejudice, a petitioner must show how the
uncalled [witness’] testimony would have been beneficial
under the circumstances of the case. Thus, counsel will not
be found ineffective for failing to call a witness unless the
petitioner can show that the [witness’] testimony would
have been helpful to the defense. A failure to call a witness
is not per se ineffective assistance of counsel for such
decision usually involves matters of trial strategy.
Commonwealth v. Sneed, 616 Pa. 1, 23, 45 A.3d 1096, 1109 (2012)
(internal citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Michael E.
Bortner, we conclude Appellant’s issues merit no relief. The PCRA court
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2 Commonwealth v. Pierce, 515 Pa. 153, 157-61, 527 A.2d 975-77 (1987).
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opinion comprehensively discusses and properly disposes of the questions
presented. (See PCRA Court Opinion, filed February 28, 2018, at 5-13)
(finding: (1) alleged after-discovered evidence is statement from trial witness
Joshua Griffith to Eugene Rainey, which could have been obtained prior to
trial; Mr. Griffith gave different accounts on whether he actually heard
shooting; inculpatory evidence against Appellant was strong, and alleged new
evidence showed Mr. Griffith was incredible; Appellant intended this evidence
to impeach or undermine credibility of police witnesses; nature and character
of alleged new evidence would not have changed verdict; (2) Appellant’s
claims of ineffective assistance of counsel either lack arguable merit or trial
counsel demonstrated decisions were based on reasonable defense strategy;
there is no reasonable probability that outcome of trial would have differed).
The record supports the PCRA court’s rationale. Accordingly, we affirm on the
basis of the PCRA court opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2019
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Received 5/13/2019 6: 15:�'aJ9tf
Filed 5/13/2019 6: 15:00 PM
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A2018
IN THE COURT OF COMMON PLEAS OF YOIU( COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEAL TII or PENNSYLVANIA
v. No. CP-67-CR-0000695-2008
JOSEPH L. WILLIAMS,
Defendant
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Renee Franchi, Esquire Thomas Kelley, Esquire co
Counsel for the Commonwealth Counsel for the Defendant
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OPINION IN SUPPORT OF ORDER
Defendant Joseph L. Wi1liams filed a Motion under the Post-Conviction Relief Act
(PCRA) on August 14, 2012 and an amended PCRA on September 28, 2015. A hearing was
held over the course of 2 days on June 28, 2017 and August 18, 2017. Parties were allowed
to file briefs in support of their positions but chose not to. After consideration of all relevant
testimony, evidence, and case law, this Court has DENIED Defendant's PCRA Motion. For
the reasons cited infra, we now issue this Opinion in Support of that Order.
Procedural Background
After a jury trial on that concluded on February 12, 2009, Defendant was found guilty
of one count of Third Degree Murder and one count of Robbery under 18 Pa.C.S.A. § 3701
(A)(l)(I). Defendant was sentenced on April 3, 2009 to serve 20-40 years imprisonment for
Third Degree Murder to- run consecutive to a term of 10-20 years imprisonment for Robbery.
Defendant was represented at trial and the sentencing by Dennis Boyle, Esquire.
In his PCRA petition, Defendant raised 8 issues for the relief of a new trial:
1) Newly Discovered Evidence; and
2) Ineffective Assistance of Counsel for:
a) failure to object to the absence of the Final Instruction on the single
charge of Robbery,
b) failure to object to sequester Commonwealth witnesses,
c) failure to request a severance of co-defendants,
d) failure to investigate witnesses,
e) failure to request a Jury Instruction concerning the demonstrative
purpose of firearm evidence,
f) failure to request a Jury Instruction limiting the jury to consider each
defendant's evidence separately, and
g) failure to appeal Defendant's sufficiency of the evidence as to
Robbery claim to the PA Supreme Court.
By joint stipulation, the parties agreed to dismiss 2 of the claims: failure to request a
severance of co-defendants; and failure to appeal Defendant's sufficiency of the evidence as
to Robbery claim to the PA Supreme Court,
Factual Background
At trial, Joshua Gri-ff';fh. testified that Defendant threatened him to empty out his
pockets. Transcript of Trial, 2/ 10/2009 at 150. Joshua G1-lffit!ti testified that he had heard two
shots before he left the scene in his car. Id. Joshua 659 A.2d 541, 545 (Pa. 1995) (citations omitted).
Furthermore, "the proposed new evidence must be producible and admissible."
Commonwealth v. Smith, 540 A.2d 246, 263 (Pa. 1988).
The second of the four elements requires "that the alleged after-discovered evidence
is not just corroborative or cumulative of the evidence already presented at trial."
Commonwealth v. Padillas, 997 A.2d 356, 364 (Pa. Super. 2010). Whether new evidence is
corroborative or cumulative" ... depends on the strength of the other evidence supporting the
conviction." Id.Alleged evidence used for the sole purpose of impeaching credibility fails the third
element. Commonwealth v. Randolph, 873 A.2d 1277, 1284 (Pa. 2005).
The allegedly newly discovered evidence derives indirectly from Joshua Gt:.�nl-i., who
testified at trial. This alleged evidence is a statement made by Joshua Gr:.tf;fl,i to Eugene
Rainey, who did not testify at trial. Defendant discovered this statement after trial because he
allegedly learned about it from Eugene Rainey, in prison, in 2011. The alleged evidence
could have been obtained prior to the end of the trial since the source of the alleged evidence
was already on the witness list to testify at trial. Because of this, Defendant fails to prove that
the first element is met.
Joshua s,..;rf;+�'s testimony revealed that he lied to police when he was first
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questioned on the stand. While on the stand, Joshua Gl';tf,{h provided different accounts as to
whether he actually heard the shooting. Sgt. Bankert testified that there were no reports by
the time of trial that anything else was shot. It is undisputed that Defendant pointed a gun at
others and told them to empty their pockets. The evidence which convicted Defendant is
strong while the alleged new evidence further shows that Joshua G14Mt--is not credible.
Because of this, the alleged new evidence is corroborative or cumulative of the evidence
presented at trial, and therefore, Defendant has failed to meet the second element.
Defendant intends to obtain relief with this alleged newly discovered statement, but
provides no other evidence to further show that Joshua Gd/;�·s car was shot. Defendant
intends to use this statement to undermine the credibility the police witnesses. Because
Defendant is using this statement as solely impeachment purposes, Defendant fails to prove
the third element.
The statement is of such nature and character to not likely change the verdict. Even if
the statement is accepted at face value that the co-Defendant was able to shoot in the
direction of Defendant, it does not show a preponderance of evidence that Defendant was
shooting in self-defense, Therefore, Defendant fails to prove the fourth element.
Because Defendant failed to prove all of the conjunctive elements, Defendant, thus is
unable to secure PCRA relief on the basis of after-discovered evidence.
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II. Ineffective Assistance of Counsel
Defendant's 5 remaining PCR.A claims arise under ineffective assistance of counsel
as a violation to his right to counsel. The standard for deciding ineffective assistance of
counsel is as follows:
Counsel will be found to be ineffective where (1) there is arguable merit to the
underlying claim; (2) the course chosen by counsel does not have a reasonable
strategic basis designed to advance the defendant's interests; and (3) the error of
counsel prejudiced the petitioner, i.e., there is a reasonable probability that, but for the
error of counsel, the outcome of the proceeding would have been different. Counsel
will not be deemed ineffective for failing to raise a baseless claim.
Commonwealth v. Henke, 851 A.2d 185, 187 (Pa. Super. 2004) (internal citations omitted).
Counsel's chosen strategy lacks a reasonable basis only if an appellant proves that
'"an alternative not chosen offered a potential for success substantially greater than the
course actually pursued."' Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011 ). ( citation
omitted). To establish the third prong, an appellant must show "that there is a reasonable
probability that the outcome of the proceedings would have been different but for counsel's
action or inaction." Id.The petitioner "bears the burden of proving counsel's ineffectiveness."
Commonwealth v. Childs, No. 928 WDA 2015, 2016 WL 2845073, at *3 (Pa. Super. 2016).
The weight of the evidence "is exclusively for the finder of fact who is free to believe all,
part, or none of the evidence and to determine the credibility of the witnesses."
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted).
8
Defendant's first claim is that Attorney Boyle did not object to the absence of the
single charge of robbery.
Under the first prong of the standard for ineffective assistance of counsel, there is no
arguable merit to Defendant's claim. Defendant argues that if there was a single charge of
robbery in the jury instrnctions, the verdict may have arrived more favorably toward
Defendant. Attorney Boyle testified that he did not want focus to be on the robbery aspect in
order to avoid a conviction for 2 d degree murder, which Defendant was found not guilty.
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Defendant fails in meeting his burden for the first prong.
Under the second prong, Attorney Boyle did not have a greater alternative option in
his defense strategy. Objecting to the jury instructions for a single charge of robbery would
not have had potential for success substantially greater than not objecting. Therefore,
Defendant fails in meeting his burden for the second prong.
Under the third prong, there is reasonable probability that the outcome would have
been worse for Defendant if Attorney Boyle did object. Defendant managed to evade 2
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d
Degree Murder with Attorney Boyle's strategy. Therefore, Defendant fails in meeting all 3
prongs, and thus, this first claim is unsubstantiated.
Defendant's second claim is that Attorney Boyle failed to sequester the
Commonwealth's witnesses during the trial. No evidence was submitted and no testimony
was heard on this claim at the PCRA hearing. Thus, this second claim is unsubstantiated.
9
Defendant's third claim is that Attorney Boyle failed to investigate witnesses.
Under the first prong, there is no arguable merit to Defendant's claim. Defendant
argues that Attorney Boyle failed to specifically investigate Joseph G-;tF,fh., as well as
commonwealth witnesses, and other potential witnesses. Defendant conceded that Attorney
Boyle did subpoena Joseph �;,tfitl,. to testify. Attorney Boyle stated that the Commonwealth
brought out the necessary criminal backgrounds of their own witnesses on trial. Furthermore,
Attorney Boyle testified that his investigator found no other potential witnesses. Defendant
argues that Attorney Boyle did not discover Eugene Rainey, but as stated above, the value of
Rainey's evidence comes from Joshua G'r�r+'·'"'· who did testify at trial. Therefore, Defendant
fails in meeting his burden for the first prong.
Under the second prong, Attorney Boyle was not faced with any alternative options.
Attorney Boyle subpoenaed Joseph Gr�f.frt(tl, who still didn't testify. The Commonwealth
brought out the criminal history of their witnesses on direct. Attorney Boyle's investigator
turned up nothing more than what Defendant is now able to show. Without any alternative
options, there was no greater potential for substantially greater success. Therefore, Defendant
fails the second prong.
Under the third prong, there is no reasonable probability that the outcome would have
been different if Attorney Boyle changed his tactics. Because Attorney Boyle was left out
other reasonable options, Defendant faiis the third prong. Thus, Defendant's third claim is
unsubstantiated.
10
Defendant's fourth claim is that Attorney Boyle failed to request a jury instruction for
demonstrative exhibit of a semi-automatic handgun.
Under the first prong, there is no arguable merit to Defendant's claim. Defendant
argues that the jury could have believed that the firearm shown at trial was the weapon used
at the shooting. Attorney Boyle testified that the handgun was brought out for a
demonstration on how semi-automatic handguns function, and that that purpose was made
clear to the jury. Therefore, Defendant fails in meeting his burden for the first prong.
Under the second prong, Attorney Boyle chose not to ask for an instruction reminding
the jury of the demonstrative purpose of the handgun. The failure to do so did not yield
potential for success substantially greater than had Attorney Boyle asked for another
instruction to specifically address what was already made clear to the jury. Therefore,
Defendant fails to prove his burden as to the second prong.
Under the third prong, there is no reasonable probability that the outcome would have
been different if Attorney Boyle asked the court for a specific jury instruction about the
purpose ofthat handgun. As stated above, Attorney Boyle testified that the jury was made
clear that the handgun was for a demonstration. Therefore, Defendant fails in meeting all 3
prongs, and thus, this fourth claim is unsubstantiated.
11
Defendant's final claim is that Attorney Boyle failed to request a jury instruction
limiting the jury to consider each defendant's evidence separately.
Under the first prong, there is no arguable merit to Defendant's claim. Defendant
argues that the jury needed to hear an additional instruction to consider evidence against
Defendant separately from co-Defendant. The jury instructions did instruct to separate
considerations of Defendant and co-Defendant. Attorney Boyle testified that it was clear to
the jury that Defendant was pitted in trial against co-Defendant as well as the
Commonwealth. Therefore, Defendant does not meet the first prong.
Under the second prong, Attorney Boyle chose not to ask for an instruction to further
remind the jury to separate their considerations of Defendant and co-Defendant. The failure
to do so did not yield potential for success substantially greater than had Attorney Boyle
asked for another instruction. Therefore, Defendant does not meet the second prong.
Under the third prong, there is no reasonable probability that the outcome would have
been different if Attorney Boyle asked the court for another jury instruction. Therefore,
Defendant does not meet the third prong and this fifth claim is unsubstantiated,
Thus, Attorney Boyle made no error that rose to the level of ineffective assistance of
counsel and that there was no violation of Defendant's right to counsel.
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Conclusion
Based upon the reasons stated above, the Court DENIES Defendant's motion for
Post-Conviction Relief.
BY THE COURT,
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DATED: February __,2018 /MICHAELE. BORTNER, JUDGE
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