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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
NORMAN WILLIAMS, JR.
Appellant No. 452 MDA 2014
Appeal from the PCRA Order February 4, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001173-2004
BEFORE: BOWES, OLSON, JJ. and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 07, 2017
Appellant, Norman Williams, Jr., appeals from the order entered on
February 4, 2014, dismissing his petition pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9141-9546. Upon consideration, we
affirm.
The factual background and procedural history of this case are as
follows. On February 16, 2004, Appellant was charged with second-degree
murder1 and criminal conspiracy.2 On January 6, 2005, Appellant filed
pretrial motions to suppress statements made to an investigator and to
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1
18 Pa.C.S.A. § 2502(b).
2
18 Pa.C.S.A. § 903.
* Former Justice specially assigned to the Superior Court.
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sever his case from his co-defendant’s trial. The trial court denied both
motions. On January 10, 2005, following a jury trial, Appellant was found
guilty of both charges. On February 28, 2005, the trial court sentenced
Appellant to a term of life imprisonment without the possibility of parole on
the second-degree murder conviction and a concurrent term of 12 to 24
years’ incarceration for conspiracy. This Court affirmed Appellant’s
judgment of sentence, and our Supreme Court denied his petition for
allowance of appeal. See Commonwealth v. Williams, 898 A.2d 1136
(Pa. Super. 2006) (unpublished memorandum), appeal denied, 907 A.2d
1102 (Pa. 2006).
Appellant filed a pro se PCRA petition on January 10, 2007. The PCRA
court appointed counsel, who filed an amended PCRA petition on April 3,
2007. Appointed counsel filed a motion to withdraw on July 23, 2007. 3 The
PCRA court granted counsel’s motion and issued notice of its intent to
dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.
On August 24, 2007, the PCRA court dismissed Appellant’s petition and
Appellant filed a notice of appeal on September 27, 2007. On July 17, 2009,
this Court remanded the matter to determine whether Appellant had filed a
timely notice of appeal from the denial of PCRA relief. See Commonwealth
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3
Counsel did not file 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).
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v. Williams, 981 A.2d 939 (Pa. Super. 2009) (unpublished memorandum).
On September 2, 2009, the PCRA court concluded that Appellant had filed a
timely appeal from the dismissal of his PCRA petition. Nevertheless, on
November 9, 2009, this Court vacated the July 26, 2007 order and
remanded the matter, determining that counsel failed to satisfy the technical
prerequisites of Turner/Finley, and thus the PCRA court erred by granting
counsel’s request to withdraw. See Commonwealth v. Williams, 988 A.2d
732 (Pa. Super. 2009) (unpublished memorandum).
Upon remand, Appellant filed a pro se motion for leave to amend his
original PCRA petition. On December 9, 2010, the PCRA court appointed
new counsel and granted Appellant leave to amend his PCRA petition.
Appellant filed a counseled, supplemental PCRA petition on July 7, 2011. On
August 2, 2011, the PCRA court issued notice of its intent to dismiss the
petition without a hearing pursuant to Pa.R.Crim.P. 907. However, during
the ensuing year, the PCRA court did not act. Appellant filed a pro se PCRA
petition on August 27, 2012, and pro se praecipe for entry of judgment on
November 29, 2013. On February 4, 2014, the PCRA court entered two
separate orders dismissing Appellant’s counseled PCRA petition and his pro
se petition.4
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4
The PCRA court deemed Appellant’s pro se praecipe for entry of judgment
moot.
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Appellant filed a timely notice of appeal. See Commonwealth v.
Williams, 2015 WL 6666284, at *2 (Pa. Super. 2015). On September 4,
2015, this Court remanded the matter and directed the PCRA court to
appoint new counsel with instructions to review Appellant’s petition and
either file an advocate’s brief or an application to withdraw and a “no-merit”
letter. Id. On September 9, 2015, the trial court appointed new counsel,
who subsequently filed a motion to withdraw for medical reasons, which the
PCRA court granted on March 30, 2016. The PCRA court again appointed
new counsel, who filed a brief with this Court on behalf of Appellant.
On appeal, Appellant presents the following issue, with multiple
sub-parts, as follows:
1. Whether trial counsel was ineffective in his representation [of
Appellant] for the following reasons:
[a.] Whether [t]rial [c]ounsel was ineffective for failing to call a
toxicologist regarding the effects of PCP and marijuana in
regards to making a voluntary statement to police?
[b.] Whether [t]rial [c]ounsel was ineffective for failing to
request a mistrial when jury members saw [] Appellant in
handcuffs and shackles?
[c.] Whether [t]rial [c]ounsel was ineffective for failing to have
jury members removed from the panel and/or ask for a
mistrial when jury members were found to be sleeping
during trial?
[d.] Whether [t]rial [c]ounsel was ineffective for advising []
Appellant to testify according to his given statement which
was given when [] Appellant was under the influence of
drugs?
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[e.] Whether [t]rial [c]ounsel was ineffective for failing to
object when the [t]rial [c]ourt instructed the jury that []
Appellant and his co[-defendant] did in fact “intend to
kill?”
Appellant’s Brief at 8.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determinations are supported by the record and are free of legal
error.” Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014)
(internal quotation marks and citations omitted). Each of the issues raised
by Appellant involves a claim of ineffective assistance of trial counsel.
A PCRA petitioner will be granted relief on this ground only when
he proves, by a preponderance of the evidence, that his
conviction or sentence resulted from the “[i]neffective assistance
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.”
Commonwealth v. Smith, 17 A.3d 873, 883 (Pa. 2011), quoting 42
Pa.C.S.A. § 9543(a)(2)(ii).
Generally, “counsel is presumed to be effective.” Commonwealth v.
Patterson, 143 A.3d 394, 398 (Pa. Super. 2016) (citation omitted). To
succeed on a claim of ineffective assistance of counsel, a petitioner must
prove, “(1) the legal claim underlying the ineffectiveness claim has 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). “The failure to satisfy any one of the three
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prongs will cause the entire claim to fail.” Commonwealth v. Faurelus,
147 A.3d 905, 911 (Pa. Super. 2016) (citation omitted).
In issue 1(a), Appellant argues trial counsel was ineffective for failing
to call a toxicologist to testify regarding the effects of drugs in Appellant’s
system when he gave a statement to police. Appellant’s Brief at 14.
Specifically, Appellant contends that if “a toxicologist had been called to
testify on his behalf, [the testimony] would have refuted the finding by the
suppression court that [Appellant’s] statement was given while sober,” and
was therefore voluntary. Id. at 15. “[T]o establish ineffectiveness for
failing to call an expert witness, an appellant must establish that the witness
existed and was available; counsel was aware of, or had a duty to know of
the witness; the witness was willing and able to appear; and the proposed
testimony was necessary in order to avoid prejudice to the appellant.”
Commonwealth v. Weiss, 81 A.3d 767, 804 (Pa.2013) (citation omitted).
In this case, Appellant failed to show that an expert witness was
willing and able to appear at trial. He offers no proof of the testimony an
expert would have given. Additionally, his first court-appointed PCRA
counsel contacted a toxicologist and then subsequently withdrew as counsel
when, after reviewing the recorded interview with police, the toxicologist
found Appellant was not so impaired at the time of his interrogation that he
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did not knowingly waive his rights.5 As such, Appellant’s argument that trial
counsel was ineffective for failing to call an expert witness lacks arguable
merit.
In Appellant’s issue 1(b), he alleges trial counsel was ineffective for
failing to request a mistrial after Appellant was seen by the jury in shackles
and handcuffs. Appellant argues that the jury was brought back into the
courtroom after a lunch break and briefly observed Appellant in shackles and
handcuffs before being escorted out. Appellant’s Brief at 17. Appellant’s
trial counsel brought this issue to the attention of the court, however
counsel did not request a mistrial. Appellant argues that “[b]ecause [t]rial
[c]ounsel failed to request a mistrial and failed to request cautionary
instructions, [] Appellant suffered prejudice and counsel was ineffective.”
Id. at 20.
It is well-settled that “[a] brief accidental sighting of a defendant in
custodial trappings, without more, is not so inherently prejudicial as to
significantly impair the presumption of innocence to which the defendant is
entitled.” Commonwealth v. Neary, 512 A.2d 1226, 1230 (Pa. Super.
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5
In his June 16, 2007 letter, toxicologist Lawrence Guzzardi, M.D., states,
“[h]aving reviewed the above materials, which contain [Appellant’s]
statements regarding his drug abuse in times proximate to his
confession…and the CD recording of his statements, I do not believe that I
can render an opinion that [Appellant] was so impaired by his drug use that
he was unaware of his [c]onstitutional and Miranda rights or so impaired
that his statements were not ‘knowing and voluntary.’” Trial Court Opinion,
9/30/2005, at 3.
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1986); see also Commonwealth v. Valerio, 712 A.2d 301, 302 (Pa.
Super. 1998) (finding that a mere accidental observation of a defendant in
handcuffs outside a courtroom by a juror does not, without more, require
the granting of a mistrial). Further, it is unclear whether any members of
the jury actually saw Appellant handcuffed and Appellant has offered no
evidence as to how he suffered prejudice. Moreover, the jury was
specifically instructed regarding the constitutionally mandated presumption
of innocence to which Appellant is entitled. N.T., 7/29/2005, at 797. Juries
are presumed to follow the court’s instructions. Commonwealth v. Mason,
130 A.3d 601, 673 (Pa. 2015) (citation omitted). Thus, we find Appellant’s
claim lacks merit.
In Appellant’s third sub-issue, he argues trial counsel was ineffective
for failing to seek the dismissal of a juror who was allegedly sleeping during
trial. More specifically, another juror alerted the trial court that a member of
the jury was possibly sleeping while Appellant’s co-defendant testified.
Appellant’s Brief at 20. However, when questioned, the juror claimed she
was closing her eyes to concentrate on the testimony. Id. This Court
decided a similar issue in Commonwealth v. Lawson, 762 A.2d 753 (Pa.
Super. 2000). In Lawson, we stated “[e]ven if a juror slept through
portions of the trial…appellant did not demonstrate that, but for the sleeping
juror, the outcome of the trial would have been different.” Id. at 757.
Likewise, in this case, the Commonwealth presented ample evidence to
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convict Appellant. Further, it was never established that the juror was
actually sleeping. However, even if the juror were sleeping, Appellant failed
to show that, but for the sleeping juror, the outcome of the trial would have
been different. Thus, Appellant has not demonstrated that he suffered
actual prejudice, and therefore, his claim fails.
In his issue 1(d), Appellant contends trial counsel was ineffective for
advising Appellant to testify according to his statement given to police,
which Appellant alleges was given while he was under the influence of drugs.
Appellant’s Brief at 22. Specifically, Appellant argues that “[b]y advising []
Appellant to testify in this manner, [] Appellant was [giving] legitimacy to
that statement that was given while under the influence of marijuana and
PCP.” Id. However, Appellant’s three-sentence argument is
underdeveloped and devoid of any citations to legal authority. As such, we
find Appellant’s claim waived. See Pa.R.A.P. 2119; see also
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (finding
claim waived where appellant’s argument is underdeveloped and fails to
develop argument supported by legal authority). Moreover, even assuming
arguendo that Appellant did not waive this claim, it is otherwise meritless.
We find no evidence in the record, and Appellant cites none, to suggest that
his decision to testify was made involuntarily. Nor do we find that trial
counsel’s recommendation that Appellant testify on his own behalf was
without a reasonable basis. Finally, having already determined that there
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was no merit to Appellant’s claim that he was under the influence of drugs
when he gave statements to police, it would have been reasonable for trial
counsel to recommend that Appellant testify at trial consistent with those
statements.
In Appellant’s final claim for ineffective assistance of counsel, he
argues that trial counsel failed to object to instructions given to the jury.
Specifically, the trial court gave the following jury instruction:
So if either of these two defendants in this case you find beyond
a reasonable doubt entered the apartment, and at the time they
entered the apartment, intended to assault—not necessarily
kill—but, of course they intended to kill, that would be also there
for your consideration.
N.T., 7/29/2005, at 817. Appellant argues that because the trial court
explicitly stated that he and his co-defendant intended to kill in its
instructions, “the jury had no choice other than to convict [Appellant].”
Appellant’s Brief at 23-24.
It is well settled that in reviewing a challenge to a jury instruction, the
charge, as whole, must be considered. Commonwealth v. Lesko, 15 A.3d
345, 397 (Pa. 2011). Furthermore, the trial court has broad discretion in
phrasing the instructions, so long as the directions given “clearly,
adequately, and accurately” reflect the law. Id. When viewing the
instruction as a whole, we are convinced that Appellant was not prejudiced.
The trial judge thoroughly instructed the jury on the intent requirements of
each crime. Furthermore, in his closing remarks to the jury, the trial judge
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stated “[i]t will be your responsibility to consider the evidence, find the
facts, and apply the law to the facts as you find them, to decide whether the
[d]efendant or [d]efendants have been proven guilty beyond a reasonable
doubt.” N.T., 7/29/2005, at 833. Again, as previously stated, we presume
the jury followed the trial court’s instructions. Mason, 130 A.3d at 673.
The jury also submitted questions to the court, which indicates that they
clearly understood they had a “choice” of whether or not to find Appellant
guilty. Thus, Appellant’s claim of counsel ineffectiveness lacks arguable
merit.
Therefore, based on our standard of review and the rationale explained
above, Appellant has failed to establish that his trial counsel was ineffective.
Thus, we conclude that the PCRA court’s determination is supported by the
record and is free of legal error.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2017
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