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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ERIC DONTE WILLIAMSON-TOWERY
Appellant No. 2105 MDA 2015
Appeal from the PCRA Order November 4, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003028-2012
CP-22-CR-0003047-2012
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 10, 2017
Appellant, Eric Donte Williamson-Towery, appeals pro se from the
order entered on November 4, 2015, which dismissed his petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
This Court previously summarized the facts surrounding Appellant’s
convictions for one count of possession with the intent to deliver a controlled
substance, two counts of possession of drug paraphernalia, and one count of
persons not to possess a firearm.1 We explained:
____________________________________________
1
35 P.S. § 780-113(a)(30) and (32) and 42 Pa.C.S.A. § 6105(a)(1),
respectively.
*Retired Senior Judge assigned to the Superior Court.
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Officer Timothy Wells, of the Highspire Borough Police
Department, testified that on the date in question (January
10, 2012), he was working for the Steelton Police
Department and became involved in an investigation
involving a two-car motor vehicle accident. Officer Wells
witnessed the accident, which he described as “minor,”
while at the corner of Cameron and Market Streets in
Harrisburg. He activated his emergency lights and
proceeded to where the vehicles were located to advise the
drivers to get off of the roadway. A tan Chrysler Sedan had
struck a blue Chevrolet Lumina. Officer Wells knocked on
the driver's side door of the Chrysler to advise him to pull
off the road. The driver indicated that he was going to pull
over, but then accelerated at a high rate of speed down
Cameron Street. The officer told the occupants of the other
vehicle to pull off the road and stay put, and Officer Wells
then proceeded to follow the Chrysler, which had continued
on at a very high rate of speed. By the time Officer Wells
got to Cameron and Berryhill Streets, he noticed that the
vehicle had crashed into several parked cars in Bik's parking
lot, damaged a fence and a sign, and was resting on top of
another parked vehicle. Officer Wells identified Appellant as
the driver of the Chrysler. Appellant fled from the car by
the time that Officer Wells reached it, but the officer found
him behind a car wash and placed him under arrest. A
search of Appellant's person revealed a cell phone, a
business card, and a small vial filled with an unknown liquid.
While in the police car, Appellant told Officer Wells that he
ran because he did not have a driver's license and was on
state parole.
When the Harrisburg police officer arrived, Officer Wells
turned Appellant over to Corporal Lyda and Officer Eric
Carter, along with the items found on Appellant. Based on
the information received from Officer Wells, Officer Carter
placed Appellant under arrest. Officer Carter testified that
he climbed onto one of the vehicles to reach the Chrysler,
and managed to obtain the registration slip out of the glove
box, which indicated that the vehicle was registered to
Sasha Hall. Due to the condition of the vehicle, the officer
was not able to access the rest of the car, and the vehicle
was towed. Appellant did not have a valid driver's license
and was unable to produce any type of identification to
Officer Carter at the scene. Based on the fact that the
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officers observed Appellant striking an occupied vehicle,
fleeing the scene, causing extensive damage, attempting to
run on foot from the vehicle, and not being able to provide
identification, Appellant was taken into custody and taken to
Harrisburg City Booking.
Jill Hoover, a state parole agent, testified that on January
10, 2012, Harrisburg City Booking alerted Pennsylvania
State Parole that Appellant was at the booking center for
new criminal charges. Appellant was on parole supervision
for drug charges, firearms, and escape. Agent Hoover was
told that Appellant was being released on citations, so her
supervisor, Peter Hans, told her to go immediately to the
booking center and bring Appellant back to the parole office
for a conference. As Agent Hoover was transporting
Appellant, she learned that the wrecked vehicle driven by
Appellant was never searched, and called her supervisor to
advise him of this. Supervisor Hans told Agent Hoover to
go search the vehicle. At that point, Agent Hoover drove to
Don's Towing. She asked Appellant if she would find
anything in the car, to which he replied no. On the driver's
side floor of the Chrysler driven by Appellant, Agent Hoover
found a plastic bag with marijuana in it, along with a scale;
she immediately called Detective Heffner of the Harrisburg
City Police and took Appellant back to booking. After
dropping off Appellant, Agent Hoover went back to talk to
her supervisor, who told her to search Appellant's
room/residence at 805 North 18th Street in Harrisburg.
Later that day, Agent Hoover went to Appellant's residence
and encountered Appellant's grandmother at the house,
who told her it was fine to search Appellant's bedroom. In a
wardrobe closet, Agent Hoover found a 9–millimeter
handgun; she also found a scale on the bed. She
immediately called both Supervisor Hans and Harrisburg
City Police. In his testimony, Supervisor Hans confirmed
Agent Hoover's account of the events of January 10, 2012.
Appellant filed a motion to suppress the evidence obtained.
The trial court held a hearing on the motion on February 7,
2013, and then ultimately denied relief. . . .
[Prior to Appellant’s September 11, 2013 bench trial,
Appellant moved for the dismissal of all charges against him
on the basis that the Commonwealth had violated
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Pennsylvania Rule of Criminal Procedure 600. Following a
hearing on Appellant’s Rule 600 motion, the trial court
denied the motion. N.T. Trial, 10/11/13, at 11]. On
September 11, 2013, the trial court held a bench trial and
convicted Appellant of [one count of possession with the
intent to deliver a controlled substance, two counts of
possession of drug paraphernalia, and one count of persons
not to possess a firearm]. On the same day, the trial court
sentenced Appellant to an aggregate term of four to eight
years of imprisonment.
Commonwealth v. Williamson-Towery, 105 A.3d 49 (Pa. Super. 2014)
(unpublished memorandum) at 1-4 (internal quotations, citations,
corrections, and footnotes omitted), appeal denied, 104 A.3d 525 (Pa.
2014).
On June 30, 2014, this Court affirmed Appellant’s judgment of
sentence and, on December 10, 2014, the Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal. Id.
On April 23, 2015, Appellant filed a timely, pro se PCRA petition.
Appellant raised one claim in his PCRA petition:
Direct appeal counsel was ineffective for failing to raise a
challenge to the trial judge’s refusal to grant [Appellant’s]
Rule 600/speedy trial motion to dismiss . . . where[:] (1)
the judge erred in crediting the time from 10-1-12 to 11-5-
12 (i.e., 35 days) against [Appellant] because a public
defender requested a continuance on [Appellant’s] behalf;
(2) the judge erred in crediting the time from 1-24-13 to 7-
1-13 (i.e., 158 days) against [Appellant] because
[Appellant’s] pre-trial motion to suppress was pending; and
(3) the judge erred in crediting the time from 7-16-13 to 8-
5-13 (i.e., 20 days) against [Appellant] because after the
suppression motion was denied the first available trial date
was on 8-5-13; as such, [Appellant’s] state and federal
constitutional rights to fundamental fairness, equal
protection, due process, and effective assistance of counsel
were violated.
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Appellant’s Pro Se PCRA Petition, 4/23/15, at 4 (some internal capitalization
omitted).
The PCRA court appointed counsel to represent Appellant in the
proceedings. PCRA Court Order, 6/1/15, at 1. However, on June 22, 2015,
appointed counsel filed a no-merit letter and a request to withdraw as
counsel, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
After reviewing counsel’s no-merit letter, the PCRA court granted counsel’s
petition to withdraw and issued Appellant notice, pursuant to Pennsylvania
Rule of Criminal Procedure 907, of its intent to dismiss Appellant’s petition in
20 days, without holding a hearing. PCRA Court Order, 8/4/15, at 1.
On September 24, 2015, Appellant filed a response to the dismissal
notice. Within Appellant’s response, Appellant repeated some of the claims
he raised in his earlier, pro se PCRA petition. See Appellant’s Response,
10/24/15, at 4-8. However, Appellant also claimed that appointed counsel
“overlooked” certain meritorious issues. These issues were, first, that “there
was no judge present at [Appellant’s] formal arraignment.” Id. at 3.
According to Appellant, since there was no judge present at his formal
arraignment, Appellant did not have an opportunity to waive his right to
appointed counsel. Appellant claimed that he was not granted this
opportunity to waive his right to counsel and, as a result of counsel’s
appearance, counsel moved for a continuance that Appellant did not want,
and this continuance “possibly waiv[ed] [Appellant’s] Rule 600 rights for the
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time of 10/1/12 [to] 11/5/12.” Id. at 3-4. Second, Appellant claimed that
“[d]irect appeal counsel was ineffective for failing to raise trial counsel’s
ineffectiveness at the first opportunity.” Id. at 8. According to Appellant,
counsel on direct appeal should have claimed that trial counsel was
ineffective for: “fail[ing] to call [] key witness Sasha Hall on [Appellant’s
behalf during the suppression hearing,] to challenge the illega[l] search that
was performed on Sasha Hall’s vehicle” and for failing to “properly argue the
issues pertaining to [Appellant’s R]ule 600 [motion] that he wished to
address to the courts.” Id. at 8-10.
On November 4, 2015, the PCRA court dismissed Appellant’s PCRA
petition. Appellant filed a timely notice of appeal and Appellant now raises
the following claims to this Court:
[1.] Did the PCRA court [commit] an error of law and fact
when it held, trial counsel was not ineffective for failing to
raise a “Structural Error” issue due to no judge being
present at Appellant’s formal arraignment, and where it held
direct appeal counsel was not ineffective for failing to raise
this [issue], and where it held PCRA counsel was not
[ineffective] for failing to raise trial and direct appeal
counsel’s ineffectiveness for failing to raise this issue and,
where the PCRA court held this issue was waived?
[2.] Did the PCRA court [commit] an error of law and fact
when it held, trial counsel was not ineffective for failing to
raise a “Structural Error” issue due to [] Appellant being
denied the assistance of counsel at a critical stage of the
formal arraignment[,] and where it held direct appeal
counsel was not ineffective for failing to raise [this] issue,
and where it held PCRA counsel was not ineffective for
failing to raise trial counsel and direct appeal counsel
ineffectiveness for failing to raise this issue; or where it held
. . . this issue was waived?
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[3.] Did the PCRA court [commit] an error of law and fact
when it held, trial counsel was not ineffective for failing to
raise a “Structural Error” issue due to [] Appellant being
denied the right to self representation[,] and where it held
direct appeal counsel was not ineffective for failing to raise
[this] issue; and where it held PCRA counsel was not
ineffective for failing to raise trial and direct appeal
counsel’s ineffectiveness for failing to raise this issue; or
where the PCRA court held this issue was waived?
[4.] Did the PCRA court [commit] an error of law and fact
when it held trial counsel was not ineffective for taking a
limited role at Appellant’s [R]ule 600/speedy trial hearing;
and where it held direct appeal counsel was not ineffective
for failing to raise this issue; and where it held PCRA
counsel was not ineffective for failing to raise trial and direct
appeal counsel’s ineffectiveness for failing to raise this
issue?
[5.] Did the PCRA court [commit] an error of law and fact
when it held, the time from 10/1/12 [to] 11/5/12 was
properly excluded from the calculation of [] Appellant’s
[R]ule 600/speedy trial violation due to an illegal waiver of
[] Appellant’s [R]ule 600/speedy trial rights?
[6.] Did the PCRA court [commit] an error of law and fact
when it held[] the time from 1/24/13 [to] 7/1/13 was
properly excluded from the calculation of [] Appellant’s
[R]ule 600/speedy trial violation due to the outcome of []
Appellant’s suppression motion?
[7.] Did the PCRA court [commit] an error of law and fact
when it held[] the time from 7/16/13 [to] 8/5/13 was
properly excluded from the calculation of [] Appellant’s
[R]ule 600/speedy trial violation due to the courts not being
able to effectuate a trial date?
[8.] Did the PCRA court [commit] an error of law and fact
when it held[] the Commonwealth showed due diligence in
bringing [] Appellant to trial within 365 [days] under the
U.S. 6th Amendment to the Constitution?
Appellant’s Brief at 6 (some internal capitalization omitted).
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As we have stated:
[t]his Court’s standard of review regarding an order
dismissing a petition under the PCRA is whether the
determination of the PCRA court is supported by evidence of
record and is free of legal error. In evaluating a PCRA
court’s decision, our scope of review is limited to the
findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at
the trial level. We may affirm a PCRA court’s decision on
any grounds if it is supported by the record.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal
citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffectiveness 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is, however, presumed to be effective and “the burden of
demonstrating ineffectiveness rests on [A]ppellant.” Rivera, 10 A.3d at
1279. To satisfy this burden, Appellant must plead and prove by a
preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not
have some reasonable basis designed to effectuate his
interests; and, (3) but for counsel’s ineffectiveness, there is
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a reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to
satisfy any prong of the test for ineffectiveness will require rejection of the
claim.” Id.
To establish the reasonable basis prong, we must look to see whether
trial counsel’s strategy was “so unreasonable that no competent lawyer
would have chosen that course of conduct.” Commonwealth v. Williams,
640 A.2d 1251, 1265 (Pa. 1994). An attorney’s trial strategy “will not be
found to have lacked a reasonable basis unless it is proven that an
alternative not chosen offered a potential for success substantially greater
than the course actually pursued.” Commonwealth v. Howard, 719 A.2d
233, 237 (Pa. 1998). Further, if an appellant has clearly not met the
prejudice prong, a court may dismiss the claim on that basis alone and need
not determine whether the other two prongs have been met.
Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).
For Appellant’s first and second claims on appeal, Appellant contends
that his trial counsel was ineffective for failing to raise any issue relating to
there being no judge at the formal arraignment and Appellant being “denied”
the assistance of counsel at the formal arraignment. These claims fail
because they are factually baseless. To be sure, the record reflects that
Appellant was formally arraigned on August 16, 2012, at 8:30 a.m., in the
jury assembly room of the Court of Common Pleas of Dauphin County and,
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at the time of Appellant’s formal arraignment, Appellant was represented by
Jerry Joseph Russo, Esquire. See Court of Common Pleas Docket Sheet, at
1-15; Magisterial District Judge 12-1-04 Criminal Docket Sheet, at 1-5; see
also N.T. Preliminary Hearing, 6/25/12, at 1-24 (Attorney Russo
represented Appellant during the June 25, 2012 preliminary hearing and did
not thereafter file a motion to withdraw his representation; therefore,
Attorney Russo was Appellant’s attorney at the time of the formal
arraignment); see also Pa.R.Crim.P. 571(B) (“[i]n the discretion of the
court, the arraignment of the defendant may be conducted by using two-way
simultaneous audio-visual communication”). Therefore, Appellant’s first and
second claims on appeal fail.
Next, Appellant claims that trial counsel was ineffective for failing to
raise the claim that Appellant was denied the right to self-representation at
“the Miscellaneous court date on 10/1/12.” Appellant’s Brief at 27. This
claim fails because it was Appellant’s responsibility to invoke his right to self-
representation – and, in this case, Appellant never petitioned the trial court
for the right to proceed pro se. Commonwealth v. Davido, 868 A.2d 431
(Pa. 2005) (“when a defendant desire[s] to represent himself, he must
petition the court and the court must follow the appropriate legal
procedure for securing a valid waiver of counsel”) (internal quotations and
citations omitted) (emphasis added). Therefore, Appellant’s third claim fails.
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Fourth, Appellant claims that his trial counsel was ineffective for
“taking a limited role at Appellant’s Rule 600/speedy trial hearing.”
Appellant’s Brief at 30. This claim fails because Appellant nowhere specifies
what, precisely, his trial counsel should have done differently at the hearing
or how his trial counsel’s alleged failings caused him any prejudice. See id.
at 30-34.
For Appellant’s remaining claims on appeal, Appellant contends that
the trial court erred in concluding that certain specific time periods were
excludable “from the calculation of [] Appellant’s Rule 600/speedy trial” date
and in concluding that the Commonwealth “exercised due diligence in
bringing [] Appellant to trial [within] the [requisite] 365 days.” Id. at 35-
55. None of these substantive Rule 600 claims are cognizable under the
PCRA. See 42 Pa.C.S.A. § 9543(a)(2). Further, since Appellant’s Rule
1925(b) statement and Rule 2116(f) “statement of questions involved” limit
Appellant’s remaining claims to substantive Rule 600 claims, Appellant’s
remaining claims necessarily fail. See Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues
not included in the [Rule 1925(b) s]tatement . . . are waived”); Pa.R.A.P.
2116(a) (“[n]o question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby”).
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/2017
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