J-S53007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAROLD WILSON,
Appellant No. 3027 EDA 2016
Appeal from the PCRA Order Entered August 12, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0001224-2007
CP-51-CR-0001285-2007
BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 20, 2017
Appellant, Harold Wilson, appeals pro se from the August 12, 2016
order dismissing his first, timely petition under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
We need not provide a detailed summary of the facts of Appellant’s
case. We only note that he and a cohort, Darnell Yarborough, robbed and
beat one victim, Rasheed Jackson. Five days later, Appellant and
Yarborough shot and killed a second victim, Lionel Brewer.1 For these
offenses, Appellant was arrested and charged with third-degree murder, and
two counts each of robbery, criminal conspiracy to commit robbery, and
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1
For a thorough summary of the facts of Appellant’s case, see Trial Court
Opinion, 7/30/09, at 1-3, 4-6.
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possessing an instrument of crime. He and Yarborough, as co-defendants,
proceeded to a jury trial in January of 2008. At the conclusion thereof,
Appellant was convicted of the above-stated offenses.2 On March 28, 2008,
Appellant was sentenced to an aggregate term of 32 to 64 years’
incarceration. He timely appealed, and after this Court affirmed his
judgment of sentence, our Supreme Court denied his subsequent petition for
allowance of appeal. Commonwealth v. Wilson, 998 A.2d 1014 (Pa.
Super. 2010) (unpublished memorandum), appeal denied, 8 A.3d 346 (Pa.
2010).
On May 25, 2011, Appellant filed a timely, pro se PCRA petition.
Counsel was appointed on January 23, 2012. Despite being represented by
counsel, Appellant filed a pro se, amended petition on May 7, 2012. For
some unexplained reason, it was not until June 27, 2016, that Appellant’s
counsel filed a petition to withdraw from the case. On July 8, 2016, the
PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition. Appellant filed a timely, pro se response, but his
petition was ultimately dismissed on August 12, 2016. That same order
granted Appellant’s counsel’s petition to withdraw.
Appellant filed a timely, pro se notice of appeal. The PCRA court did
not direct him to file a Pa.R.A.P. 1925(b) statement, but the court issued an
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2
Yarborough was also convicted of the offenses with which he was charged.
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opinion addressing the issues raised in his petition. Herein, Appellant raises
the following four issues for our review:
1. Whether the [PCRA] court[] erred by denying [Appellant’s]
PCRA petition alleging that counsel was ineffective, when counsel
improperly advised [Appellant] not to testify on his own behalf[,]
disregarding the fact that he was presenting an alibi witness[?]
2. Whether the [PCRA] court[] erred by denying the PCRA
petition alleging that counsel was ineffective for failing to
conduct an independent investigation and call upon a witness or
potential suspect[?] Counsel failed to conduct a pre-trial
investigation.
3. Whether the [PCRA] court erred by denying [Appellant’s]
PCRA [petition] alleging that trial counsel was ineffective for
failing to protect his client from governmental interference, due
to the judges [sic] [j]udicial [i]mpropriety and constant
prejudicial bias[?]
4. Did the [PCRA] court[] err by denying [Appellant’s] PCRA
[petition] alleging that counsel was ineffective for failing to
request a cautionary instruction regarding the weight to be given
to the testimony of the prosecutors [sic] key witness[’s]
testimony?
Appellant’s Brief at 7.
Preliminarily, we note that “[t]his Court’s standard of review from the
grant or denial of post-conviction relief is limited to examining whether the
lower court’s determination is supported by the evidence of record and
whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d
516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352,
356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received
ineffective assistance of counsel, our Supreme Court has directed that the
following standards apply:
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[A] PCRA petitioner will be granted relief 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.” 42
Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
rebut that presumption, the PCRA petitioner must demonstrate
that counsel's performance was deficient and that such
deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
Pennsylvania, we have refined the Strickland performance and
prejudice test into a three-part inquiry. See [Commonwealth
v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
prove counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali,
608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
prove any of these prongs, his claim fails.” Commonwealth v.
Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
omitted). Generally, counsel's assistance is deemed
constitutionally effective if he chose a particular course of
conduct that had some reasonable basis designed to effectuate
his client's interests. See Ali, supra. Where matters of strategy
and tactics are concerned, “[a] finding that a chosen strategy
lacked a reasonable basis is not warranted unless it can be
concluded that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.”
Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
quotation marks omitted). To demonstrate prejudice, the
petitioner must show that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceedings would have been different.” Commonwealth v.
King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
quotation marks, and citation omitted). “‘[A] reasonable
probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
U.S. at 694, 104 S.Ct. 2052)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
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In Appellant’s first issue, he argues that his trial counsel acted
ineffectively by improperly advising him that if he testified on his own behalf,
“his prior offenses would be brought into court.” Appellant’s Brief at 11.
While Appellant does not specify what prior conviction(s) he has, he claims
that “none ... were crimen falsi” and, therefore, they would not have been
admissible as impeachment evidence had he chosen to testify on his own
behalf. Appellant’s Brief at 20; see also Pa.R.E. 609(a) (“For the purpose of
attacking the credibility of any witness, evidence that the witness has been
convicted of a crime, whether by verdict or by plea of guilty or nolo
contendere, must be admitted if it involved dishonesty or false statement.”);
see also Commonwealth v. Moser, 999 A.2d 602, 607 (Pa. Super. 2010)
(“Crimes involving dishonesty or false statement [are] commonly referred to
as crimen falsi crimes."). Accordingly, Appellant argues that his trial
counsel’s advice not to testify was “so unreasonable as to vitiate a knowing
and intelligent decision by [Appellant] not to testify on his own behalf….”
Appellant’s Brief at 21; see also Commonwealth v. Miller, 987 A.2d 638,
660 (Pa. 2009) (citations omitted) (declaring that “[c]laims alleging
ineffectiveness of counsel premised on allegations that trial counsel’s actions
interfered with an accused’s right to testify require a defendant to prove
either that ‘counsel interfered with his right to testify, or that counsel gave
specific advice so unreasonable as to vitiate a knowing and intelligent
decision to testify on his own behalf”) (citations omitted).
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Appellant’s argument is unconvincing for several reasons. First, even
if we accepted Appellant’s bald assertion that trial counsel advised him not
to take the stand because his prior conviction(s) might be revealed,
Appellant has not demonstrated that counsel acted unreasonably in that
regard. As stated supra, Appellant does not specify what prior conviction(s)
he has; instead, he merely states that they were not for crimen falsi crimes.
Without Appellant’s providing any details about conviction(s), we simply
cannot accept his unverified statement that he has not committed any
crimen falsi offenses that could have come to light had he taken the stand at
trial.3 Consequently, even if counsel did advise Appellant not to testify for
this reason, Appellant has not demonstrated that such advice was
unreasonable.
Furthermore, Appellant has also failed to prove that his underlying
claim has arguable merit, as the record demonstrates that Appellant chose
not to take the stand for a different reason than that which he asserts
herein. Specifically, during the colloquy on Appellant’s decision to waive his
right to testify, Appellant initially stated that he had not yet decided whether
to testify. See N.T. Trial, 1/22/08, at 39. Appellant confirmed that his
indecision was “based on the fact that [his] alibi witnesses [were] not
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3
We also point out that Appellant did not provide any specifics about his
prior conviction(s) in his amended PCRA petition, in which he first raised this
ineffectiveness claim. See Amended PCRA Petition, 5/07/12, at 1-6.
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presently in the courtroom…[.]” Id. Appellant indicated that he would make
a final decision “once [he knew] the availability of [his alibi] witnesses…[.]”
Id. Then, during a short recess in the proceedings, one of Appellant’s alibi
witnesses arrived to testify. Id. at 41. Accordingly, the court again asked
Appellant if he wished to testify on his own behalf, and he confirmed that,
because his alibi witness had arrived, he did not want to testify. Id.
This record supports the PCRA court’s conclusion “that [Appellant’s]
decision of whether or not to testify on his own behalf [was] based upon the
availability of his alibi witnesses.” Id. (citing N.T. Trial, 1/22/08, at 38-42).
Nothing in the colloquy suggests, in any way, that Appellant’s decision not to
testify rested on trial counsel’s advice about his prior conviction(s) being
revealed.4 Therefore, Appellant’s first ineffectiveness claim fails on this
basis, as well.
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4
Moreover, Appellant did not attach to his PCRA petition any affidavit from
his trial counsel (nor explain why one could not be obtained) to demonstrate
that counsel advised him not to take the stand because of his prior
conviction(s). See Commonwealth v. Roney, 79 A.3d 595, 606-07 (Pa.
2013) (noting that, in arguing trial counsel’s ineffectiveness for not fully
investigating his case, the appellant had failed to include an affidavit from
counsel about what his investigation entailed, nor offer any explanation for
the absence of that affidavit) (citing Commonwealth v. Marshall, 812 A.2d
539, 548 (Pa. 2002) (concluding that the appellant had failed to establish
the reasonable basis prong of his ineffectiveness claim because, inter alia,
he did not proffer affidavits from his trial counsel concerning the underlying
claim of error, and did not provide an explanation as to why such affidavits
could not be procured)).
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In his second issue, Appellant argues that trial counsel acted
ineffecitvely by “fail[ing] to investigate a potential witness/suspect[,] …
[]Lamar ‘Marbles’ Palmer[].” Appellant’s Brief at 22. According to
Appellant, his co-defendant, Yarborough, told police that Palmer was “the
one who set up the robbery of the deceased,” yet Appellant’s trial counsel
never investigated Palmer, nor subpoenaed him to testify. Id. at 23.
Appellant argues that Palmer’s testimony inculpating himself in Brewer’s
murder would have exonerated Appellant.
Our Supreme Court has declared that,
When raising a claim of ineffectiveness for the failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the Strickland test by establishing
that: (1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew of, or should have
known of, the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have denied the
defendant a fair trial.
Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (internal
citations omitted).
Here, Appellant has not demonstrated that Palmer would have been
willing to testify on his behalf. Appellant concedes that Palmer “would have
had to testify to the facts of his involvement in this case.” Appellant’s Brief
at 24 (emphasis added). In other words, for Palmer to exonerate Appellant,
he would have had to incriminate himself. Appellant offers no explanation of
why Palmer would have been willing to do this for Appellant. Appellant’s
Brief at 24. Without any explanation by Appellant in this regard - let alone
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an affidavit from Palmer stating that he would have been available and
willing to testify - Appellant has not satisfied the requirements of proving
that his trial counsel acted ineffectively by not calling Palmer to the stand.
Next, Appellant avers that his trial counsel was ineffective “for fail[ing]
to protect [Appellant] from governmental interference.” Appellant’s Brief at
28 (unnecessary emphasis and capitalization omitted). Appellant essentially
complains that during trial, the court questioned witnesses and made
comments that indicated the court was biased in favor of the
Commonwealth. Appellant also claims that the court allowed the prosecutor
to make prejudicial remarks in front of the jury.
Throughout his argument, Appellant repeatedly recognizes that his
trial counsel objected to remarks by the court and the Commonwealth and
several times requested a mistrial. See Appellant’s Brief at 29, 30. In light
of trial counsel’s objections, we fail to see how counsel acted ineffectively.
Additionally, Appellant only baldly states that his appellate “[c]ounsel was
[i]neffective for failing to preserve and raise this issue on [d]irect [a]ppeal.”
Id. at 32. He offers no discussion of this claim.
Appellant also fails to acknowledge that his appellate attorney did
challenge the trial court’s denial of defense counsel’s motion for a mistrial,
which was made during the prosecutor’s closing argument. See
Commonwealth v. Wilson, No. 2498 EDA 2008, unpublished
memorandum at 9-12 (Pa. Super. filed April 20, 2010). This Court rejected
that claim, concluding that the prosecutor’s remarks “were made in response
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to the evidence presented and defense counsel’s comments, and did not rise
to the level necessary to fix bias and hostility in the jurors’ minds and
require a new trial.” Id. at 11-12. Appellant cannot now attempt to re-
litigate this issue, or tack on additional claims of prosecutorial misconduct
and/or court error under the undeveloped guise of trial/appellate counsel’s
ineffectiveness. See 42 Pa.C.S. §§ 9543, 9544 (precluding post-conviction
relief for issues that were previously litigated before “the highest appellate
court in which the petitioner could have had review as a matter of right”);
see also Commonwealth v. D’Amato, 856 A.2d 806, 812 (Pa. 2004)
(stating that to obtain relief on an ineffectiveness claim, the “petitioner
must, at a minimum, present argumentation relative to each layer of
ineffective assistance, on all three prongs of the ineffectiveness standard as
set forth in … Pierce....”). Therefore, Appellant’s third issue is meritless.
Lastly, Appellant argues that his trial counsel was ineffective in
handling the testimony of one of Appellant’s victims, Rasheed Jackson.
Specifically, during the Commonwealth’s direct-examination of Jackson, he
was questioned about his prior conviction for false identification, and he
admitted that he was on probation for committing that offense. Appellant
now presents an extremely confusing argument in which he appears to first
allege that it was prosecutorial misconduct for the Commonwealth to present
Jackson’s testimony. Appellant seemingly believes that, because Jackson
had a prior crimen falsi conviction, the entirety of his testimony necessarily
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constituted “false or misleading evidence” that the Commonwealth
“fraudulent[ly]” presented. Appellant’s Brief at 37.
Aside from the lack of merit on the face of this claim, Appellant’s
assertion of prosecutorial misconduct could have been raised on direct
appeal, but it was not; consequently, it is waived. See 42 Pa.C.S. §§ 9543,
9544 (directing that PCRA relief may not be provided where a claim is
waived because “the petitioner could have raised it but failed to do so before
trial, at trial, during unitary review, on appeal or in a prior state post[-]
conviction proceeding”).
Appellant also contends that it was his counsel’s obligation “to bring to
the fact[-]finders [sic] attention that [] Jackson’s testimony was not credible
because he was convicted for a crime involving crimen falsi….” Id. at 38.
However, as the Commonwealth points out, defense counsel did cross-
examine Jackson about that conviction, and his conviction for possession of
narcotics. Namely, counsel elicited Jackson’s acknowledgement that he had
lied to police by providing them with a false name, and that Jackson had
only received probation for his crimes, thus suggesting that Jackson’s lenient
sentence was in exchange for his testifying against Appellant. See N.T.
Trial, 1/17/08, at 59, 175-76. Additionally, in closing arguments, defense
counsel again attacked Jackson’s credibility based on, inter alia, his prior
convictions. Id. at 160. Appellant does not specify what more counsel
should have done in questioning Jackson to highlight the credibility issue
regarding Jackson’s crimen falsi conviction. He also does not elaborate on
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his assertion that further questioning by counsel “could have been the
gateway into all issues of credibility….” Id.
Finally, Appellant contends that trial counsel acted ineffectively by not
requesting a cautionary jury instruction regarding Jackson’s credibility in
light of his false identification conviction. Appellant does not specify what
instruction counsel should have requested; instead, he simply avers that
“[w]hen a prior conviction is admitted to impeach a witness, the party
against whom it is offered is entitled to have the jury instructed that the
conviction may be considered only for impeachment purposes.” Appellant’s
Brief at 37.
Our review of the record, however, demonstrates that the court did
provide this type of instruction regarding Jackson’s testimony. Namely, the
court stated:
[The Court:] You have also heard the evidence that one of the
witnesses, [] Jackson, has been convicted of the crime of
falsifying identification to law enforcement. The only purpose for
which you may consider this evidence of a prior conviction is in
deciding whether or not to believe all or part of his testimony.
In doing so, you may consider the type of crime committed, how
long ago it was committed, and how it may have affected the
likelihood that [] Jackson has testified truthfully in this case.
N.T. Trial, 1/23/08, at 106-07. Furthermore, the court also instructed the
jury that Jackson had been given a “grant of immunity[,]” meaning that his
“testimony was given in exchange for a promise by the Government that []
Jackson would not be prosecuted for his testimony….” Id. at 107. The court
explained that, because of the grant of immunity, the jury should “consider
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[Jackson’s] testimony with greater caution than the other witnesses.” Id.
In view of this record, Appellant has not demonstrated that he was
prejudiced by trial counsel’s failure to request some additional, unspecified
cautionary instruction pertaining to Jackson’s testimony. Therefore,
Appellant’s fourth claim of trial counsel’s ineffectiveness fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2017
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