J-S93012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTHONY S. WILLIAMS,
Appellant No. 411 EDA 2016
Appeal from the PCRA Order January 19, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007651-2009
CP-51-CR-0012877-2009
BEFORE: DUBOW, SOLANO, and PLATT,* JJ.
MEMORANDUM BY DUBOW, J. FILED FEBRUARY 14, 2017
Anthony S. Williams appeals pro se from the denial of his Petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546.1 He asserts that trial, appellate, and post-conviction counsel provided
ineffective assistance, and avers that the PCRA court should have held a
hearing on his Petition. We affirm.
On March 1, 2011, a jury found Appellant guilty of Third-Degree
Murder and Possession of an Instrument of Crime (“PIC”) in connection with
the November 5, 2008 shooting death of Bruce Hollman. The trial court
____________________________________________
*
Retired Senior Judge Assigned to the Superior Court.
1
On August 5, 2016, this Court quashed Appellant’s appeal of CP-51-CR-
0012877-2009. This appeal, thus, pertains only to the case docketed at CP-
51-CR-0007651-2009.
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sentenced him on May 6, 2011, to 18 to 36 years’ incarceration for the
Murder conviction and a consecutive term of 2½ to 5 years for the PIC
conviction. This Court affirmed the Judgment of Sentence and our Supreme
Court denied allowance of appeal on November 13, 2013. Commonwealth
v. Williams, No. 1308 EDA 2011 (Pa. Super. filed April 16, 2013), appeal
denied, 75 A.3d 554 (Pa. 2013).
On June 4, 2014, Appellant timely filed a pro se PCRA Petition,
followed by a “supplemental” Petition on October 29, 2014. Appointed
counsel entered his appearance on December 18, 2014. On February 12,
2015, Appellant filed a second supplemental pro se PCRA Petition. On June
29, 2015, counsel filed a Turner/Finley letter and a Motion to Withdraw as
Counsel. On August 26, 2015, the PCRA court issued a Pa.R.Crim.P. 907
Notice. Petitioner filed a pro se response to the Notice and to counsel’s
Turner/Finley letter. On January 19, 2016, the court dismissed Appellant’s
PCRA Petition and permitted counsel to withdraw.
Appellant timely appealed pro se. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following three issues in his Brief:
1. Whether trial counsel failed to render constitutionally
effective assistance infecting the entire trial so that the
resulting convictions was violative of Appell[ant’s] right to
effective assistance of counsel, fair tr[ia]l, and due process
of law under both the state and federal constitutions?
2. Whether post[-]conviction counsel’s pretext tendered
defense and perfunctory performance summarized in the
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following derelictions of duty and breach of professional
responsibility to the lawyer/client relation rendered his
representation below ineffective assistance of counsel,
forfeiting and depriving Appellant of his right to a
constitutional and meaningful first[-]tier collateral review
under the Post[-]Conviction Relief Act?
3. Whether the PCRA Court erred in denying Appellant post[-
]conviction relief without holding an evidentiary hearing on
Appellant’s post[-]conviction record[-]based claims of
PCRA counsel’s and all prior counselor’s ineffectiveness?
Appellant’s Brief at 4.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). This Court grants great deference to the findings of the PCRA court if
they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,
515 (Pa. Super. 2007). We give no such deference, however, to the court’s
legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.
Super. 2012).
In the discussion of his first two issues, Appellant avers that he
received ineffective assistance of trial, appellate, and PCRA counsel. The law
presumes counsel has rendered effective assistance. Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The burden of
demonstrating ineffectiveness rests on Appellant. Id. 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
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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
a reasonable probability that the outcome of the challenged proceeding
would have been different.” Commonwealth v. Fulton, 830 A.2d 567, 572
(Pa. 2003). Failure to satisfy any prong of the test will result in rejection of
the appellant’s ineffective assistance of counsel claim. Commonwealth v.
Jones, 811 A.2d 994, 1002 (Pa. 2002).
With respect to layered ineffectiveness claims, the Pennsylvania
Supreme Court has provided the following guidance:
[I]n order for a petitioner to properly raise and prevail on a
layered ineffectiveness claim, sufficient to warrant relief if
meritorious, he must plead, present, and prove the
ineffectiveness of Counsel 2 (appellate counsel), which as we
have seen, necessarily reaches back to the actions of Counsel 1
(trial counsel). To preserve (plead and present) a claim that
Counsel 2 was ineffective in our hypothetical situation, the
petitioner must: (1) plead, in his PCRA petition, that Counsel 2
was ineffective for failing to allege that Counsel 1 was ineffective
for not [taking the suggested actions], see Commonwealth v.
Marrero, 748 A.2d 202, 203, n. 1 (2000); and (2) present
argument on, i.e., develop, each prong of the Pierce test as to
Counsel 2's representation, in his briefs or other court
memoranda.
Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003).
In his first issue, Appellant challenges the effectiveness of trial
counsel, averring counsel (1) offered “erroneous and clearly unreasonable”
advice when he recommended that Appellant not testify on his own behalf
because of a prior juvenile adjudication; (2) failed to interview, investigate,
and call character witnesses; and (3) failed to object to the trial court’s
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“supplemental instruction” that evidenced “judicial coercion.” Appellant’s
Brief at 9, 18.2
In addressing each of the issues raised in Appellant’s claim of trial
counsel ineffectiveness, the Honorable Rose Marie DeFino-Nastasi, sitting as
both the trial court and the PCRA court, has authored a comprehensive,
thorough, and well-reasoned Opinion, citing to the record and relevant case
law. First, the court found that Appellant’s challenge to trial counsel’s advice
was waived because he raised it for the first time in his response to the Rule
907 notice and did not seek leave to amend his Petition as required by
Pa.R.Crim.P. 905, and Commonwealth v. Baumhammers, 92 A.3d 708,
730 (Pa. 2014). See PCRA Court Opinion, dated 4/20/16, at 4-5.3
Next, the court concluded that Appellant knowingly, intelligently, and
voluntarily decided not to call any character witnesses. See Opinion at 5-8
(quoting colloquy with trial court, N.T., 2/28/11, at 6-7). The court further
noted that none of Appellant’s now-proposed witnesses could have provided
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2
Appellant raised three other claims of trial counsel’s ineffectiveness in his
Pa.R.A.P. 1925(b) Statement but abandoned them because he did not raise
or address them in his Brief. Accordingly, those issues are waived.
Pa.R.A.P. 2116(a).
3
See also Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super.
2012) (observing “[t]he purpose behind a Rule 907 pre-dismissal notice is to
allow a petitioner an opportunity to seek leave to amend his petition and
correct any material defects”).
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admissible evidence with respect to Petitioner’s character and that counsel
had a reasonable basis for his strategic decision not to call character
witnesses. See Opinion at 9-10 (citing N.T., 2/23/11 at 106, N.T., 2/24/11,
at 70-84). In addition, the court concluded that Appellant could not show
prejudice in light of the “substantial eyewitness evidence connecting
[Appellant] to the decedent’s murder.” Opinion at 11.
The court last concluded that the trial court properly exercised its
discretion when, after a five-day trial and two hours of deliberation, the
court stated to the jury, in response to a question about hung juries, that
two hours was not enough time to conclude there was a hung jury on part of
the charges. See Opinion at 12-13 (citing Commonwealth v. Marion, 981
A.2d 230, 235 (Pa. Super. 2009); Commonwealth v. Greer, 951 A.2d 346,
354 (Pa. 2008) (noting trial court’s decision to direct jury to deliberate
further will not be disturbed on appeal unless there is a showing that the
court abused its discretion or that the jury’s verdict was the product of
coercion or fatigue)). Accordingly, trial counsel was not ineffective for failing
to object to the court’s statement.
Our review of the record supports the PCRA court’s findings and its
Order is otherwise free of legal error. We affirm on the basis of the PCRA
court’s April 20, 2016 Opinion. See PCRA Court Opinion, 4/20/16, at 4–13
Appellant next avers that appellate counsel was ineffective for not
raising trial counsel’s ineffectiveness, and PCRA counsel was ineffective for
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failing to “critique, amend, or supplement Appellant’s pro se Petition for
post-conviction relief.” Appellant’s Brief at 28. He asserts that if PCRA
counsel had expanded on Appellant’s asserted claims of prior counsels’
ineffectiveness, the PCRA court “would not have erroneously dismissed
Appellant’s petition without holding an evidentiary hearing, i.e., the
proceeding would have been different.” Appellant’s Brief at 28. This issue is
without merit.
As noted above, Appellant failed to prove that the underlying claims of
trial counsel’s ineffectiveness had merit. Accordingly, Appellant’s challenge
to prior counsels’ and PCRA counsel’s effectiveness likewise fails to satisfy
the merit prong of the ineffectiveness test. See Jones, supra. Appellant
is, thus, entitled to no relief on these issues.
Appellant last avers that the PCRA court should have held an
evidentiary hearing and that it erred in the “wholesale adoption of PCRA
counsel’s ‘no merit’ letter without stating the reasons for dismissal in its
Order followed by its 907 Notice.” Appellant’s Brief at 33 (relying on
Commonwealth v. Williams, 732 A.2d 1167, 1176 (Pa. 1999)) (“Williams
II”).
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). “[A]s to ineffectiveness claims in particular, if the record
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reflects that the underlying issue is of no arguable merit or no prejudice
resulted, no evidentiary hearing is required. For each such claim, we review
the PCRA court's action for an abuse of discretion[.]” Commonwealth v.
Baumhammers, 92 A.3d 708, 726–27 (Pa. 2014) (citations omitted).
Rule 907 provides, in relevant part, the following:
Except as provided in Rule 909 death penalty cases,
(1) The judge shall promptly review the petition, any answer
by the attorney for the Commonwealth, and other matters
of record relating to the defendant’s claim(s). If the judge
is satisfied from this review that there are no genuine
issues concerning any material fact and that the defendant
is not entitled to post-conviction collateral relief, and no
purpose would be served by any further proceedings, the
judge shall give notice to the parties of the intention to
dismiss the petition and shall state in the notice the
reasons for the dismissal. The defendant may respond to
the proposed dismissal within 20 days of the date of the
notice. The judge thereafter shall order the petition
dismissed, grant leave to file an amended petition, or
direct that the proceedings continue.
****
Pa.R.Crim.P. 907(1) (emphasis added).
In the present case, the PCRA court filed its Rule 907 Notice, informing
Appellant that it had reviewed counsel’s “no merit” letter, as well as the
record. The Rule 907 Notice provided as follows:
You are hereby advised that on October 5, 2015, your request
for post-conviction relief will be dismissed without further
proceedings. No response to this Notice is required. If,
however, you choose to respond, your response is due within
twenty (20) calendar days from the date of this Notice. The
reason for dismissal is as follows:
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Your attorney has determined that the issues raised in
your pro se petition are without merit. See [C]ounsel’s
letter pursuant to Commonwealth v. Finley, 379 Pa.
Super. 390, 550 A.2d 213 (1988). The Court, after
review of the record, accepts the Finley letter and finds
that the PCRA petition is without merit.
Notice, filed 8/26/15.
In Williams II, supra, the Supreme Court held that it would not
condone the “wholesale adoption . . . of an advocate’s brief” in a PCRA
review of a death penalty case, particularly where it was alleged that the
advocate (in this case, the Commonwealth) had “withheld material discovery
at trial, suborned false testimony from an eyewitness, and engaged in a
pattern of racial discrimination in the process of jury selection.” Id. The
Court opined that “[r]egardless of the validity of such allegations, the
independent role of the judiciary cannot properly be served in this case
absent some autonomous judicial expression of the reasons for dismissal.”
Id.
In Commonwealth v. Feighery, 661 A.2d 437, 439 (Pa. Super.
1995), we held that PCRA counsel’s filing of a Turner/Finley letter was not
adequate to satisfy the court’s Rule 907’s notice requirement. We first
recognized that the Rule 907 Notice is mandatory, as is the Rule’s directive
that such notice provide the rationale for the dismissal. Feighery, 661 A.2d
at 439. We rejected the Commonwealth’s argument that counsel’s no merit
letter sent to the appellant provided “sufficient notice to meet the
requirement” because we could “only engage in a presumption that [the]
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appellant has received a copy of this letter which is addressed to the court,
and also the letter makes no mention of the potential for dismissal without
hearing when there is no further action by appellant.” Id.
The instant case is distinguishable from Feighery. Although the PCRA
court’s Rule 907 was not expansive in its explanation, unlike in Feighery,
there is no indication that the court relied exclusively on the Turner/Finley
letter to satisfy the notice requirement. The court indicated that it had
reviewed the record independently before concluding Appellant failed to raise
meritorious issues. Contrary to Appellant’s characterization, there is no
indication that the court merely “adopted wholesale” counsel’s no-merit
letter.
Moreover, as demonstrated by Appellant’s detailed response to the
907 Notice, we can ascertain from the record that Appellant had been
adequately informed of the reasons underlying the court’s intent to dismiss.
His detailed response to both the Rule 907 Notice and the Turner-Finley
letter demonstrates that Appellant was not prejudiced by any purported
defects in the PCRA court’s Rule 907 Notice. Accordingly, Appellant’s
challenge to the Rule 907 Notice merits no relief.
We have conducted an independent review of the record and conclude
that the PCRA court did not abuse its discretion in dismissing Appellant’s
PCRA Petition without a hearing. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
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