J-S53012-19
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN WILLIAMS :
:
Appellant : No. 2825 EDA 2018
Appeal from the PCRA Order Entered August 22, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012558-2010
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: Filed: May 7, 2020
Appellant, Shawn Williams, appeals from an order entered on August 22,
2018, which dismissed his first petition for collateral relief filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On previous appeal, we summarized the facts of this case as follows.
The victim, A.H., was thirteen[-]years[-]old on August 17, 2010,
the day of the attack. [On t]he evening of August 16, 2010, A.H.
was at the Philadelphia[, Pennsylvania] home [that] her sister,
[M.K.], shared with her husband, Appellant, and their baby
daughter. At approximately 11:00 p.m., Appellant and [M.K.]
began to argue, and about an hour later, Appellant evicted [M.K.]
from the house. She was not permitted to take either the baby or
her sister with her.
A.H. was watching television with her niece. Shortly after [M.K.]
left, A.H. put her niece to bed. As A.H. was returning to the first
floor to turn off the television, Appellant came into the hallway.
A.H. described what occurred next, as follows. Appellant “grabbed
my right arm and [] pulled me into the [bed]room, and he put
both hands on my shoulder[s] and pushed me on the bed.” A.H.
told him to “get off” and pushed him away. Appellant rebuked the
child’s attempt to avoid the attack. A.H. testified that she refused
Appellant’s demand to remove her clothing, so Appellant “took
them off for me. I kept trying to pull them up.” Appellant inserted
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his finger into the victim’s vagina, and then placed his mouth on
her vagina. A.H. continued to push and scratch Appellant and tell
him to get off her. Appellant ignored A.H., and then inserted his
penis into her vagina. A.H. said, “[i]t hurt and it was a lot of
pressure.” A.H. reported that the pain from Appellant’s penis was
a nine on a scale of one to ten. Appellant also placed his hands
and mouth on her breasts. At that point, Appellant placed a pillow
over A.H.’s face, and she ceased screaming at him.
When Appellant stopped his assault, A.H. dressed herself and
retrieved her niece, who had been crying and screaming during
the crime. She went downstairs with the child and began to watch
television. Then, Appellant “came downstairs and said if I [told]
anybody, he[] [would] kill me and he said that he[] [was] going
to kill my family.” Eventually, A.H. fell asleep in her niece’s room.
A.H.’s mother came to pick her up at approximately 7:00 a.m. on
August 17th. After Appellant left the house, A.H. immediately told
her mother about the assault, and they went to the police station.
Police transported [A.H.] to the hospital, where she was physically
examined. Her vagina still hurt and she “could [not] use the
bathroom.” A.H. reported that, at the hospital, the pain continued
to be a nine.
***
[Following a non-jury trial conducted on May 24-25, 2011,] Appellant
was convicted of [rape, unlawful contact with a minor, unlawful
restraint, and endangering the welfare of a child]. Appellant was
sentenced to ten to [20] years[’] incarceration for rape and a
consecutive term of five to ten years in jail for unlawful contact with
a minor. Concurrent sentences were imposed [for] the other two
crimes[.]
Commonwealth v. Williams, 106 A.3d 179 (Pa. Super. 2014) (unpublished
memorandum), at 1-4.
Thereafter, Appellant appealed to this Court and we affirmed his judgment
of sentence on August 28, 2014. Id. Appellant did not seek further review. On
June 15, 2015, Appellant filed his first PCRA petition pro se. Appellant’s PCRA
Petition, 6/15/15, at 1-29. Thereafter, Appellant retained private counsel who
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filed two supplemental PCRA petitions on his behalf. Appellant’s Supplemental
PCRA Petition, 12/15/16, at 1-4; Appellant’s Supplemental PCRA Petition,
1/31/18, at 1-2. On July 17, 2018, the PCRA court provided Appellant with notice
that it intended to dismiss his PCRA petition in 20 days without holding a hearing
because it determined that Appellant’s claims lacked merit. PCRA Court Order,
7/17/18, at 1; see Pa.R.Crim.P. 907(1). The PCRA court dismissed Appellant’s
petition on August 22, 2018.
On September 14, 2018, Appellant filed a timely pro se notice of appeal to
this Court, even though he was still represented by counsel. Appellant’s Notice
of Appeal, 9/14/18, at 1. Appellant then filed his brief and reproduced record in
this Court pro se, despite the fact that Appellant’s counsel neither requested nor
received permission to withdraw. Accordingly, on October 23, 2019, this Court
vacated the PCRA court’s dismissal order and remanded this case for the PCRA
court to conduct a Grazier1 hearing to determine whether Appellant knowingly,
voluntarily, and intelligently waived his right to a counseled PCRA appeal.
Commonwealth v. Williams, 222 A.3d 863 (Pa. Super. 2019) (unpublished
memorandum), at 1-7. Thereafter, on November 26, 2019, the PCRA court
granted PCRA counsel’s motion to withdraw. PCRA Court Order, 11/26/19, at 1.
The PCRA court then appointed counsel to represent Appellant on the instant
appeal. On February 20, 2020, this Court issued an order requiring
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1 Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (holding that
“[w]hen a waiver of the right to counsel is sought at the post-conviction and
appellate stages, an on-the-record determination should be made that the
waiver is a knowing, intelligent, and voluntary one.”).
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court-appointed counsel to submit an appellate brief or other submission within
20 days. Order, 2/20/20, at 1. Appellant timely complied.
Appellant raises the following issues on appeal:
I. Whether the PCRA court erred [in] dismissing [Appellant’s]
PCRA petition when evidence was presented that trial
counsel was ineffective for failing to call as a witness the
medical professional that examined the complainant, and
stipulating to medical records that allowed the prosecutor to
present incorrect inferences to the finder of fact[?]
II. Whether the PCRA court erred [in] dismissing [Appellant’s]
PCRA petition when evidence was presented that trial
counsel was ineffective for failing to request a mistrial
because police detectives lost [complainant’s] rape kit []
and [Appellant’s] [cellular tele]phone [] after collecting both
as evidence[?]
III. Whether the PCRA court erred [in] dismissing [Appellant’s]
PCRA petition when evidence was presented that trial
counsel was ineffective for failing to subpoena and obtain
exculpatory evidence[?]
IV. Whether the PCRA court erred [in] dismissing [Appellant’s]
PCRA petition when evidence was presented that [direct
appeal] counsel was ineffective for failing to preserve and
[challenge] the []constitutionality of [Appellant’s]
mandatory sentence [on appeal?]
V. Whether the PCRA court erred by failing to grant an
evidentiary hearing[?]
Appellant’s Brief at 7.
Our standard of review is as follows:
As a general proposition, an appellate court reviews the PCRA
court's findings to see if they are supported by the record and free
from legal error. The court's scope of review is limited to the
findings of the PCRA court and the evidence on the record of the
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PCRA court's hearing, viewed in the light most favorable to the
prevailing party.
Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008)
(citations and quotations omitted).
In issues one through four, Appellant asserts a variety of ineffective
assistance of counsel claims. Our Supreme Court previously explained:
To prevail in a claim of ineffective assistance of counsel, a
petitioner must overcome the presumption that counsel is
effective by establishing all of the following three elements, as set
forth in Commonwealth v. Pierce, 527 A.2d 973, 975–[9]76
([Pa.] 1987): (1) the underlying legal claim has arguable merit;
(2) counsel had no reasonable basis for his or her action or
inaction; and (3) the petitioner suffered prejudice because of
counsel's ineffectiveness. Commonwealth v. Dennis, 950 A.2d
945, 954 ([Pa.] 2008). With regard to the second, reasonable
basis prong, “we do not question whether there were other more
logical courses of action which counsel could have pursued;
rather, we must examine whether counsel's decisions had any
reasonable basis.” [Commonwealth v. Washington, 927 A.2d
586, 594 (Pa. 2007)]. We will conclude that counsel's chosen
strategy lacked a reasonable basis only if [the a]ppellant proves
that “an alternative not chosen offered a potential for success
substantially greater than the course actually pursued.”
Commonwealth v. Williams, 899 A.2d 1060, 1064 ([Pa.] 2006)
(citation omitted). To establish the third, prejudice prong, the
petitioner must show that there is a reasonable probability that
the outcome of the proceedings would have been different but for
counsel's ineffectiveness. Dennis, supra at 954. We stress that
boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner's burden to
prove that counsel was ineffective.
Commonwealth v. Paddy, 15 A.3d 431, 442-443 (Pa. 2011) (parallel
citations omitted).
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We will address appellate issues one through three together, as all relate
to trial counsel’s alleged ineffectiveness. Herein, Appellant first contends that
trial counsel was ineffective because counsel stipulated to the admissibility of
certain medical records and failed to call the nurse who examined A.H. as a
witness. Appellant’s Brief at 11. Next, Appellant alleges that trial counsel was
ineffective by failing to request a mistrial after the Commonwealth claimed
that it lost both the rape kit and Appellant’s cellular telephone. Id. at 12.
Lastly, Appellant argues that trial counsel was ineffective for failing “to make
any attempt to obtain [Appellant’s cellular telephone]” or A.H.’s rape kit as
both allegedly contained exculpatory evidence.2 Id. at 12 and 14. Per
Appellant, “no competent lawyer” would have “[i]gnor[ed] [the
aforementioned] admissible evidence” and “failed to request a mistrial” in light
of the Commonwealth’s actions. Id. at 12.
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2 In his appellate brief, Appellant also argues that he is entitled to relief under
42 Pa.C.S.A. § 9543(a)(1) (explaining that a petitioner is entitled relief if he
pleads and proves that a “violation of the Constitution of this Commonwealth
or the Constitution or laws of the United States 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”). Appellant
bases this claim on the Commonwealth’s failure to produce the rape kit and
Appellant’s cellular telephone at trial. Appellant’s Brief at 14. Appellant,
however, did not raise this issue on direct appeal. As such, it is waived. See
42 Pa.C.S.A. § 9544(b) (“an issue is waived if 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.”). Although we do not consider
these claims as freestanding issues, we shall review them within the context
of a challenge to counsel’s effectiveness, which could not have been raised on
direct appeal.
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In each instance mentioned above, however, Appellant fails to
demonstrate how counsel’s alleged failures resulted in prejudice. Indeed,
Appellant makes no argument that counsel’s actions effected the outcome of
the proceedings and, instead, baldly asserts that the “totality of counsel’s
deficiencies significantly undermines any level of confidence in the legitimacy
of the outcome of the trial.” Id. at 12. “[B]ald assertions of . . . ensuing
prejudice[, however,] cannot satisfy [Appellant’s] burden to prove that
counsel was ineffective.” Paddy, 15 A.3d at 443. Rather, Appellant was
required to demonstrate how “counsel's ineffectiveness was of such
magnitude that it ‘could have reasonably had an adverse effect on the
outcome of the proceedings.’” Commonwealth v. Charleston, 94 A.3d
1012, 1019 (Pa. Super. 2014), quoting Pierce, 527 A.2d 973 at 977. In view
of the victim’s testimony, Appellant’s bald assertions do not demonstrate that
counsel’s actions resulted in prejudice or undermined confidence in the
outcome of Appellant’s trial. Hence, his claims are meritless.
Next, Appellant argues that direct appeal counsel provided ineffective
assistance by failing to preserve a claim challenging the “imposition of the
mandatory sentence [as] unconstitutional.” Appellant’s Brief at 13. Upon
review, however, it is clear that Appellant did not receive a mandatory
minimum sentence.3 Accordingly, Appellant’s claim that direct appeal counsel
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3We note that, on direct appeal, Appellant’s counsel argued that his sentence
was “excessive ‘under the circumstances.’” Commonwealth v. Williams,
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was ineffective for failing to challenge the imposition of his mandatory
sentence as unconstitutional is without merit. Commonwealth v. Spotz,
896 A.2d 1191, 1211 (Pa. 2006) (“[C]ounsel will not be deemed ineffective
for failing to raise a meritless claim.”).
Lastly, Appellant claims that the PCRA court erred in dismissing his PCRA
petition without an evidentiary hearing. Appellant argues that he “raised five
significant instances of trial counsel’s ineffectiveness and one instance of
[direct appeal] counsel’s [ineffectiveness].” Appellant’s Brief at 15. As such,
Appellant claims that he is entitled to an evidentiary hearing. We disagree.
There “is no absolute right to an evidentiary hearing on a PCRA petition.”
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). Rather, a
PCRA court “has the discretion to dismiss a petition without a hearing when
the court is satisfied ‘that there are no genuine issues concerning any material
fact.’” Commonwealth v. Roney, 79 A.3d 595, 605 (Pa. 2013) (citation
omitted). Notably, this rule applies to claims of ineffective assistance. Id.
Indeed, our Supreme Court previously “stress[ed] that an evidentiary hearing
‘is not meant to function as a fishing expedition for any possible evidence that
may support some speculative claim of ineffectiveness.’” Id. (citation
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106 A.3d 179 (Pa. Super. 2014) (unpublished memorandum) at 17 (citation
omitted). To support this claim, counsel asserted that “‘a mandatory
minimum sentence applied to Appellant’s conviction’ for rape by forcible
compulsion” and that “the mandatory minimum was a ‘sufficient sentence.’”
Id. at 18 (citation omitted). This Court, however, explained that Appellant
“incorrect[ly]” stated that his conviction for rape by forcible compulsion
resulted in the imposition of a mandatory minimum sentence. Id.
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omitted). Accordingly, if a PCRA court can determine – without an evidentiary
hearing – that “one of the prongs [of an ineffective assistance claim] is not
met, then no purpose would be advanced by holding an evidentiary hearing.”
Commonwealth v. Jones, 942 A.2d at 906.
As demonstrated above, each of Appellant’s ineffective assistance of
counsel claims are meritless. We therefore conclude that the PCRA court did
not err in dismissing Appellant’s PCRA petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/20
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