J-S36025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH WILLIAMS,
Appellant No. 2652 EDA 2016
Appeal from the PCRA Order of August 11, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005462-2013
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JUNE 14, 2017
Appellant, Kenneth Williams, appeals pro se from the order entered on
August 11, 2016, dismissing his petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court ably summarized the underlying facts and procedural
posture of this appeal:
On June 6, 2012, [Appellant] was arrested and charged with
murder and related offenses. On July 14, 2014, [Appellant]
pled guilty before [the trial] court in exchange for a
negotiated sentence of [20] to [40 years’] imprisonment for
third-degree murder, a consecutive sentence of two-and-a-
half to five years[’ imprisonment] for possession of a
firearm [by a] prohibited [person], and a concurrent
sentence of one to two years[’ imprisonment] for firearms
not to be carried without a license, for [an aggregate]
sentence of [22 ½ to 45 years in prison].
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At the negotiated plea hearing on July 14, 2014, [Appellant]
agreed to the following facts:
On Saturday, April 14, 2012, just before noon,
[Appellant] and an unidentified male were following the
victim in this case, Vondell Reavis, around to the
victim’s block.
[Appellant] then approached the victim, and an
argument ensued. During that argument, [Appellant]
took out a gun[] and the victim tried to struggle with
[Appellant] to get the gun away from him.
During the incident, [Appellant] fired a total of three
times, striking the victim three times, two of which were
close-range shots to the victim’s torso area and one of
which was a fatal shot where it is alleged that
[Appellant] pushed the victim away from him and then
made that fatal shot through his armpit which went
through the victim’s lungs and heart.
[Appellant] then fled along with a male that was with
him, and the victim fell to the ground. The victim was
pronounced dead at the hospital.
The motive for this case was drug-related, and the
evidence would also show that [Appellant] had a prior
conviction for possession with intent to deliver which
precluded him from carrying a firearm.
[N.T. Guilty Plea Hearing, 7/14/14,] at 14-16.
PCRA Court Opinion, 8/11/16, at 1-2 (some internal capitalization and
corrections omitted).
Appellant did not file a notice of appeal from his judgment of sentence.
On July 9, 2015, Appellant filed a pro se, timely, first PCRA petition.
Within the petition, Appellant claimed that plea counsel was ineffective for:
1) failing to investigate Appellant’s self-defense claim; 2) failing to raise
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Appellant’s self-defense claim; and 3) coercing Appellant “into pleading
guilty knowing [Appellant] had the viable [self-defense claim].” Appellant’s
Pro Se PCRA Petition, 7/9/15, at 1-3E (some internal capitalization omitted).
Appellant also claimed that he received an illegal mandatory minimum
sentence for third degree murder and that the clerk of courts had interfered
with his right to appeal his judgment of sentence by failing to provide him
with the transcript from his preliminary hearing. Id. at 3E-4. Appellant
later filed a supplemental PCRA petition, wherein he claimed that plea
counsel was ineffective for “fail[ing] to investigate [that Appellant] was
coerced into pleading guilty where if guilty plea counsel did properly
investigate the mitigating evidence[, Appellant] would have rather opted to
go to trial instead of pleading guilty.” Appellant’s Supplemental PCRA
Petition, 11/24/15, at 4 (internal capitalization omitted).
The PCRA court appointed counsel to represent Appellant during the
proceedings. However, on June 30, 2016, 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 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, 10/21/15, at 1-3.
Appellant filed a response to the PCRA court’s Rule 907 notice, wherein
he repeated the claims he raised in his PCRA petition and also claimed that
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trial counsel was ineffective for failing to object to the lack of a presentence
report. Appellant’s Response, 7/21/16, at 1-3. On August 11, 2016, the
PCRA court issued an opinion and order, which dismissed Appellant’s petition
and granted counsel’s motion to withdraw. PCRA Court Opinion and Order,
8/11/16, at 1-8. Appellant filed a timely notice of appeal
Appellant raises two claims on appeal:
[1.] Is [] 18 Pa.C.S.A. § 2502(c) unconstitutional under the
void for vagueness doctrine in that it promotes the arbitrary
and discriminatory enforcement due to its over broad
definition of criminal conduct?
[2.] Is Appellant’s guilty plea void due to being unknowingly
and unintelligently induced due to the ineffective assistance
of counsel?
Appellant’s Brief at 5.1
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).
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1
For ease of discussion, we have re-ordered Appellant’s claims on appeal.
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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.” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). 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
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.
We also note that “[a] criminal defendant has the right to effective
counsel during a plea process as well as during trial.” Commonwealth v.
Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). Yet, where the
ineffectiveness of counsel is claimed in connection with the entry of a guilty
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plea, a petitioner may only obtain relief where “counsel’s deficient
stewardship resulted in a manifest injustice, for example, by facilitating [the]
entry of an unknowing, involuntary, or unintelligent plea.” Commonwealth
v. Moser, 921 A.2d 526, 530 n.3 (Pa. Super. 2007) (en banc) (internal
citations and quotations omitted). As we have explained:
once a defendant has entered a plea of guilty, it is
presumed that he was aware of what he was doing, and the
burden of proving involuntariness is upon him. Therefore,
where the record clearly demonstrates that a guilty plea
colloquy was conducted, during which it became evident
that the defendant understood the nature of the charges
against him, the voluntariness of the plea is established.
Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (internal
quotations, citations, and corrections omitted), quoting Commonwealth v.
Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994). To prove prejudice, the
“defendant must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Appellant first claims that the third-degree murder statute is void for
vagueness. Appellant’s Brief at 12-17. This claim is waived, as Appellant
did not raise the claim in his PCRA petition. Commonwealth v. Santiago,
855 A.2d 682, 691 (Pa. 2004) (“a claim not raised in a PCRA petition cannot
be raised for the first time on appeal”); Commonwealth v. Washington,
927 A.2d 586, 601 (Pa. 2007) (“[a]ny claim not raised in the PCRA petition
is waived and not cognizable on appeal”).
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Second, Appellant claims that his trial counsel was ineffective for
failing to investigate three witnesses: Gary Lathan, Lillie Reavis, and
Vaughn Christopher. See Appellant’s Brief at 8-11. These claims fail.
With respect to Gary Lathan, Appellant claims that his plea counsel
was ineffective for failing to impeach Mr. Lathan at the preliminary hearing,
with possible crimen falsi convictions and possible suspicious motives. See
Appellant’s Brief at 10-11. Appellant’s claim fails, given that: Mr. Lathan
was testifying at a preliminary hearing, the purpose of which “is to avoid the
incarceration or trial of a defendant unless there is sufficient evidence to
establish a crime was committed and the probability the defendant could be
connected with the crime,” Commonwealth v. Tyler, 587 A.2d 326, 328
(Pa. Super. 1991); Appellant later pleaded guilty to murder; and, even if
Appellant’s suppositions regarding Mr. Lathan’s possible crimen falsi
convictions and possible suspicious motives are true, Appellant never
claimed that, had counsel impeached Mr. Lathan at the preliminary hearing,
Appellant “would not have pleaded guilty and would have insisted on going
to trial.” Hill, 474 U.S. at 59. The claim thus fails.
Next, Appellant claims that plea counsel was ineffective for failing to
investigate Lillie Reavis, who informed the police that she saw a male
running from an area near the crime scene and that she was “pretty sure”
Appellant was not the man she saw. Appellant’s Brief at 9. Appellant’s
claim of ineffectiveness fails because Appellant does not deny shooting the
victim; Appellant merely claims that he did so in self-defense. See
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Appellant’s Affidavit Attached to Pro Se PCRA Petition, 7/9/15, at 1.
Therefore, Ms. Reavis’ potential testimony could not have changed
Appellant’s decision to plead guilty.
Finally, Appellant claims that his plea counsel was ineffective for failing
to investigate an individual named Vaughn Christopher, who told the police
that, prior to the shooting, the victim “jumped up and grabbed [Appellant’s]
hands.” Appellant’s Brief at 9. Again, however, such potential testimony
could not have altered Appellant’s decision to plead guilty, as the testimony
would not have entitled Appellant to a jury instruction on self-defense or
justification. See Commonwealth v. Hansley, 24 A.3d 410, 421 (Pa.
Super. 2011) (“[e]ven if the court accepted as true [a]ppellant's assertion
that [the victim] failed to identify himself as a Target employee before he
‘grabbed’ [a]ppellant, [a]ppellant's decision to respond to [the victim’s]
efforts to restrain [a]ppellant by withdrawing a knife and pointing it at [the
victim’s] stomach does not constitute proper justification under Section 505,
and does not meet the three (3) elements required to establish self-defense.
The court properly determined as a matter of law that [a]ppellant was not
entitled to a jury instruction on self-defense or justification under the facts of
this case”).
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2017
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Com. v. Williams, K.
Combined Opinion