J-S84012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MYRON WATSON,
Appellant No. 1017 EDA 2016
Appeal from the PCRA Order of March 10, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002273-2005
BEFORE: OLSON, SOLANO and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 31, 2017
Appellant, Myron Watson, appeals from the order entered on March
10, 2016, dismissing his first petition filed pursuant to the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The factual background and procedural history of this case are as
follows. On October 26, 2004, the 16-year-old female victim was
babysitting Laquandra Toodles’ (“Toodles”) children at Toddles’ residence.
Appellant entered the residence and discovered that drugs he stored at
Toodles’ residence were missing. Eventually, Appellant and two other
individuals forced the victim into a vehicle and drove her to Philadelphia.
She was taken to a basement where Appellant interrogated her about his
missing drugs. During this interrogation, Appellant struck the victim with a
* Retired Justice specially assigned to the Superior Court
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handgun and threatened to kill her if she did not reveal the location of his
drugs. After this questioning, Appellant took the victim back to Toodles’
residence and handcuffed her to a banister. Eventually, Toodles’ daughter
gave the victim a telephone so that she could call 911.
On August 31, 2005, Appellant was convicted of simple assault, 1
conspiracy to commit simple assault,2 recklessly endangering another
person,3 conspiracy to commit recklessly endangering another person,4
making terroristic threats,5 conspiracy to commit making terroristic threats,6
kidnapping,7 conspiracy to commit kidnapping,8 unlawful restraint,9
conspiracy to commit unlawful restraint,10 false imprisonment,11 and
1
18 Pa.C.S.A. § 2701(a).
2
18 Pa.C.S.A. §§ 903, 2701(a).
3
18 Pa.C.S.A. § 2705.
4
18 Pa.C.S.A. §§ 903, 2705.
5
18 Pa.C.S.A. § 2706(a)(1).
6
18 Pa.C.S.A. §§ 903, 2706(a)(1).
7
18 Pa.C.S.A. § 2901(a)(1).
8
18 Pa.C.S.A. §§ 903, 2901(a)(1).
9
18 Pa.C.S.A. § 2902(a)(1).
10
18 Pa.C.S.A. §§ 903, 2902(a)(1).
11
18 Pa.C.S.A. § 2903(a).
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conspiracy to commit false imprisonment.12 On December 6, 2005, the trial
court sentenced Appellant to an aggregate term of 20 to 40 years’
imprisonment.
On direct appeal, this Court affirmed Appellant’s judgment of sentence
and our Supreme Court denied allowance of appeal. Commonwealth v.
Watson, 105 A.3d 27, 2014 Pa. Super. Unpub. Lexis 764 (2014), appeal
denied, 106 A.3d 726 (Pa. 2015).13 Thereafter, Appellant filed a timely pro
se PCRA petition and counsel was appointed. On January 22, 2016, PCRA
counsel filed a petition to withdraw as counsel along with a no-merit letter
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On
January 25, 2016, the PCRA court granted counsel’s petition to withdraw and
12
18 Pa.C.S.A. §§ 903, 2903(a).
13
The direct appeal proceedings before this Court were protracted. They
included over one dozen extensions of time to file various documents and
one remand to the trial court. Moreover, as this Court explained:
The evidentiary hearing with regard to Appellant’s post-sentence
motions, at which trial counsel testified, was held approximately
seven years prior to our Supreme Court’s [] decision in
Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). At the
time of the hearing, [our Supreme C]ourt’s decision in
Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), permitted
ineffective assistance of counsel claims to be addressed on
[direct] appeal when a proper evidentiary record had been
created.
Watson, 2014 Pa. Super. Unpub. Lexis 764 at *10 n.3. Thus, this Court
disposed of Appellant’s ineffective assistance of counsel claims on the
merits.
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issued notice of its intent to dismiss the petition without an evidentiary
hearing. See Pa.R.Crim.P. 907(A). Appellant did not file a response to the
Rule 907 notice.14 On March 10, 2016, the trial court dismissed Appellant’s
PCRA petition. This timely appeal followed.15
Appellant presents seven issues for our review:
1. Whether trial counsel provided ineffective assistance by failing
to call a key witness?
2. Whether trial counsel provided ineffective assistance by failing
to request a corrupt source instruction?
3. Whether direct appeal counsel provided ineffective assistance
by failing to raise the trial court’s abuse of discretion when it
reversed its pre-trial ruling which denied the Commonwealth’s
motion in limine without any new evidence being presented?
4. Whether the trial court imposed an illegal sentence?
5. Whether Appellant is entitled to [p]ost-[c]onviction [r]elief in
the form of a new trial as a result of [after]-discovered
evidence?
6. Whether PCRA counsel provided ineffective assistance by
filing a no-merit letter when the preceding claims possessed
merit?
Appellant’s Brief at 3.
In his first and second issues, Appellant argues that trial counsel was
ineffective. “[T]he Sixth Amendment to the United States Constitution and
14
Appellant avers that he filed a response to the Rule 907 notice; however,
the certified record reflects that Appellant only requested a copy of the
docket from the clerk of courts. He did not file a substantive response.
15
The PCRA court did not order Appellant to file a concise statement of
errors complained of on appeal.
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Article I, [Section] 9 of the Pennsylvania Constitution, [entitle a defendant]
to effective counsel. This right is violated where counsel’s performance so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” Commonwealth v. Simpson,
112 A.3d 1194, 1197 (Pa. 2015) (internal quotation marks and citation
omitted). “[T]rial counsel is presumed to be effective.” Commonwealth
v. Patterson, 143 A.3d 394, 398 (Pa. Super. 2016) (citation omitted). To
prevail on an ineffective assistance of counsel claim, a “petitioner must plead
and prove (1) the legal claim underlying the ineffectiveness claim has
arguable merit; (2) counsel's action or inaction lacked any reasonable basis
designed to effectuate petitioner's interest; and (3) counsel’s action or
inaction resulted in prejudice to petitioner.” Commonwealth v. Mason,
130 A.3d 601, 618 (Pa. 2015) (citation omitted). Where it is clear that a
petitioner has failed to satisfy any one prong of the test, this Court may
dispose of the claim on that basis alone. See Commonwealth v.
Faurelus, 147 A.3d 905, 911 (Pa. Super. 2016) (citation omitted).
In his first issue, Appellant argues that his trial counsel was ineffective
for failing to call the victim as a witness. The victim, however, appeared as
a witness for the prosecution at trial. N.T., 8/25/05, at 235. Thus,
Appellant’s underlying claim lacks arguable merit.16
16
To the extent that Appellant argues that trial counsel was ineffective for
failing to cross-examine the victim about certain allegations, he is not
(Footnote Continued Next Page)
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In his second issue, Appellant argues that trial counsel was ineffective
for failing to request a corrupt source jury instruction. The trial court,
however, gave a corrupt source jury instruction. N.T., 8/31/05, at 106-109.
Thus, Appellant’s underlying claim lacks arguable merit.
In his third issue, Appellant argues that direct appeal counsel was
ineffective for failing to challenge the trial court’s order granting the
Commonwealth’s motion in limine. This argument is without merit. Direct
appeal counsel challenged the trial court’s order granting the
Commonwealth’s motion in limine. Watson, 2014 Pa. Super. Unpub. LEXIS
764 at *6-10.
Furthermore, to the extent that Appellant argues that direct appeal
counsel was ineffective for failing to raise the coordinate jurisdiction rule,
this argument also lacks merit. The coordinate jurisdiction rule only applies
to rulings by different judges. See Zane v. Friends Hospital, 836 A.2d 25,
29 (Pa. 2003). In this case, the same judge ruled on the Commonwealth’s
motion in limine prior to trial and then sustained the Commonwealth’s
objection at trial. Therefore, the coordinate jurisdiction rule did not apply.
Finally, to the extent that Appellant argues that the law of the case
doctrine prohibited the trial court from deviating from its pretrial ruling, this
argument also lacks merit. Our Supreme Court recently explained that
_______________________
(Footnote Continued)
entitled to relief on that argument because it was previously litigated. See
Watson, 2014 Pa. Super. Unpub. Lexis 764 at *10.
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during the course of a trial, the trial court may determine that a prior
evidentiary ruling was incorrect and may therefore alter that ruling. See
Commonwealth v. Safka, 141 A.3d 1239, 1250 (Pa. 2016). As such, only
the final ruling by the trial court was subject to review by this Court. As
direct appeal counsel challenged the trial court’s final ruling, Appellant’s
underlying claim lacks arguable merit.
In his fourth issue, Appellant argues that the mandatory minimum
sentence he received pursuant to 42 Pa.C.S.A. § 9714 was illegal under
Alleyne v. United States, 133 S.Ct. 2160 (2013). “When the legality of a
sentence is at issue on appeal, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Martinez, 141 A.3d 485,
487 (Pa. Super. 2016) (citation omitted). “Section 9714 increases
mandatory minimum sentences based on prior convictions. Accordingly, this
section is not unconstitutional under Alleyne.” Commonwealth v. Reid,
117 A.3d 777, 785 (Pa. Super. 2015) (citations omitted). Therefore,
Appellant’s sentence pursuant to section 9714 was legal.
In his fifth issue, Appellant argues that he is entitled to a new trial
because of after-discovered evidence. See 42 Pa.C.S.A. § 9543(a)(2)(vi).
To establish such a claim, a petitioner must prove that (1) the
evidence has been discovered after trial and it could not have
been obtained at or prior to trial through reasonable diligence;
(2) the evidence is not cumulative; (3) it is not being used solely
to impeach credibility; and (4) it would likely compel a different
verdict.
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Commonwealth v. Cox, 146 A.3d 221, 228 (Pa. 2016) (internal quotation
marks and citation omitted).
In this case, Appellant argues that an affidavit from David Richardson
serves as after-discovered evidence. In that affidavit, Richardson alleged
that he told the victim to falsely accuse Appellant of kidnapping her. This
argument, however, only went to the credibility of the victim, a witness.
Accordingly, Appellant failed to satisfy the third prong of an after-discovered
evidence claim and this issue is without merit.
In his final issue, Appellant argues that PCRA counsel was ineffective.
This argument is waived. A petitioner waives any claim that his PCRA
counsel was ineffective by failing to raise the issue in response to the PCRA
court’s Rule 907 notice. See Commonwealth v. Henkel, 90 A.3d 16, 29
(Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014)
(citation omitted). In this case, Appellant did not raise PCRA counsel’s
ineffectiveness before the PCRA court. Accordingly, he waived this issue for
purposes of appellate review.17 See Pa.R.A.P. 302(a).
Order affirmed.
17
Moreover, even if Appellant preserved this issue, he would not be entitled
to relief because his preceding five issues are without merit.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
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