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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANJOHNITO WILLET, :
:
Appellant : No. 1276 WDA 2019
Appeal from the PCRA Order Entered June 30, 2019
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001222-2014
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 09, 2020
Anjohnito Willet (“Willet”), pro se, appeals from the Order denying his
first Petition for Relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm in part, and vacate and remand in part.
On direct appeal, this Court set forth the history underlying the instant
appeal as follows:
On November 13, 2013, as four students were leaving Brashear
High School in Pittsburgh, Pennsylvania, shots rang out from a hill
in the woods across the street from the school. Two of the
students sustained head wounds from the shooting. The injured
students were able to retreat back into the school as police
responded to the scene. An eyewitness reported seeing a male
wearing a red hooded sweatshirt on the hill across from Brashear
High School, watching students running away. Upon further
investigation, police learned that the targeted students had been
involved in a physical altercation with [Willet] a month prior to the
incident[,] and [Willet] told a security guard that he was going to
come back and shoot one of them.
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1 42 Pa.C.S.A. §§ 9541-9546.
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Investigating officials were dispatched to a duplex building,
in the Beechview section of Pittsburgh, to execute a search
warrant where [Willet] was thought to reside. Police arrested
[Willet] and interviewed him along with two other men, Antoine
Lewis [(“Lewis”)] and Tyron Harris [(“Harris”)], who were with
[Willet] before and after the shootings and were at the duplex
when police arrived. [Willet] and Harris lived next door to each
other in the duplex. Lewis had been living with Harris. Harris told
police that he and [Willet] walked through the woods towards
Brashear High School around dismissal time on the day of the
incident and that he witnessed [Willet] fire shots towards
students. Lewis told police that, after the shooting, [Willet] and
Harris asked him to dispose of a gun and bullet magazine wrapped
in a towel. Lewis told police that he put the gun and magazine
into a book bag and took it to his great grandmother’s house. At
trial, however, Harris and Lewis recanted their statements to
police.
The following evidence was also adduced at trial. Police
conducted tests on [Willet], Lewis, and Harris for gunshot residue
shortly after the shooting. All three men tested positive, but only
[Willet] had traces of residue on both of his hands. Upon
executing the search warrant at the duplex, police recovered
evidence that [Willet] resided in a bedroom on one side of the
duplex. From that bedroom, they recovered eight .357 caliber
bullets in a bag next to the bed. On the other side of the duplex,
Harris’[s] residence, police recovered two red hooded sweatshirts,
two smartphones, brass knuckles, ten packets of heroin, and an
unfired .22 caliber bullet. Upon analyzing one of the recovered
cellular telephones, police discovered photos of one of the
shooting victims taken hours before a physical altercation that
occurred in October 2013 and 23 photos of [Willet], including a
“selfie.” There was only one contact listed on that phone and it
was for Harris. At trial, the Commonwealth entered the telephone
into evidence and police testified that they believed it belonged to
[Willet]. Police also recovered a book bag from the residence
where Harris’[s] great-grandmother lived. The bag contained a
.357 magnum Ruger revolver and a magazine containing .22
caliber bullets. Finally, police recovered three .22 caliber bullets
from the shooting victims. At trial, the Commonwealth presented
a firearm expert who opined that all of the bullets recovered from
the victims were fired from the same gun, but that it was not
possible to fire a .22 caliber bullet from a .357 magnum firearm.
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Commonwealth v. Willet, 183 A.2d 1095 (Pa. Super. 2018) (unpublished
memorandum at 1-4).
The PCRA court summarized what next transpired as follows:
On February 2, 2016, a jury convicted [Willet] of one count
of [c]riminal [a]ttempt-[h]omicide, three counts of [a]ggravated
[a]ssault, one count of possession of a firearm by a minor, and
four counts of recklessly endangering another person (“REAP”).[FN]
On May 4, 2016, [the trial court] sentenced [Willet] to an
aggregate term of incarceration of twelve to thirty years with two
years of probation consecutive to confinement. The Superior
Court of Pennsylvania affirmed the judgment of sentence on
January 30, 2018. [See id.] Next, [Willet] filed a pro se PCRA
Petition on January 29, 2019. Appointed counsel filed a
Turner/Finley[2] “no merit” letter[. The PCRA court issued
Pa.R.Crim.P. 907 Notice of its intent to dismiss the PCRA Petition
without a hearing. Willet, pro se, filed a Response to the Notice
raising additional issues. On July 31, 2019, the PCRA court
dismissed Willet’s PCRA Petition and granted counsel’s request to
withdraw from representation. Willet] filed a Notice of Appeal on
August 16, 2019[,] and a Concise Statement of Errors Complained
of on Appeal on September 9, 2019.
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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). As
this Court has explained,
[c]ounsel petitioning to withdraw from PCRA representation must
proceed ... under Turner … and Finley … and ... must review the
case zealously. Turner/Finley counsel must then submit a ‘no-
merit’ letter to the [PCRA] court … detailing the nature and extent
of counsel’s diligent review of the case, listing the issues which
[the petitioner] wants to have reviewed, explaining why and how
those issues lack merit, and requesting permission to withdraw.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted)
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[FN][See] 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 6110.1(a), 2705,
respectively. [Willet] was found not guilty on two other counts of
Criminal Attempt-Homicide.
PCRA Court Opinion, 10/17/19, at 1 (one footnote added, some capitalization
omitted).
Willet presents the following claims for our review:
1. Did the Commonwealth [fail] to prove a “prima facie” case, due
to the fact that the arrest [of Willet] was unlawful and
unsupported by probable cause?
2. Was [t]rial counsel ineffective when he [failed] to preserve for
[a]ppellate review, [the] statements and testimony of … Harris,
that established no evidence for a verdict of guilty by [the]
jury?
3. Was trial/appellate counsel ineffective when he [failed] to file
a [] motion to suppress the evidence and testimony of
[Pittsburgh Police] Detective[]s [Cynthia] Smith [(“Detective
Smith”)], [Wade] Sarver [(“Detective Sarver”)] and Sauko[3]
[(“Detective Sauko”)], as well as the Commonwealth’s
witness[,] … Harris?
4. Was trial/appellate counsel ineffective when he [failed] to file
to request and/or present accomplice liability on
Commonwealth’s witnesses [] Harris and [] Lewis?
5. Was trial/appellate counsel ineffective for his failure to support
evidentiary claims with any legal authority on those claims,
which violated Pa.R.A.P. 2119(a), which states that [the]
failure to develop an argument with citation to, and analysis of,
relevant authority waives the issue on review?
6. Was pretrial/trial/appellate counsel[] ineffective for their
failure to request [an] evidentiary hearing for the recantation
of Commonwealth’s witness [] Harris’s testimony?
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3 The first name of Detective Sauko is not available.
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7. Was PCRA counsel ineffective for his [failure] to amend
[Willet’s] PCRA [P]etition for his claims stated in [the first
through sixth issues] that were meritorious?
Brief for Appellant at 2 (footnote added, some capitalization omitted).
When reviewing an order entered in a PCRA proceeding,
we must determine whether the findings of the PCRA court are
supported by the record and whether the court’s legal conclusions
are free from error. The findings of the PCRA court and the
evidence of record are viewed in a light most favorable to the
prevailing party. The PCRA court’s credibility determinations,
when supported by the record, are binding; however, this court
applies a de novo standard of review to the PCRA court’s legal
conclusions. We must keep in mind that the petitioner has the
burden of persuading this Court that the PCRA court erred and
that such error requires relief. Finally, this Court may affirm a
valid judgment or order for any reason appearing of record.
Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations
omitted).
Willet first claims that the Commonwealth failed to establish a prima
facie case, due to the fact that his arrest was unlawful and not supported by
probable cause. Brief for Appellant at 6. Willet argues that at the preliminary
hearing, the trial court relied upon the testimony of Police Homicide Detective
Timothy Nutter (“Detective Nutter”). Id. According to Willet, Detective Nutter
testified regarding Harris’s out-of-court statements, and relied upon those
statements to establish probable cause to arrest Willet. Id. Willet states that
at his preliminary hearing, counsel cross-examined Detective Nutter regarding
Harris’s statements, which constituted hearsay and “second-hand-
information.” Id. Willet directs our attention to Pa.R.E. 703, which does not
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permit an expert to offer an opinion based upon testimonial hearsay.4 Id. at
7. Willet argues that the hearsay testimony was not sufficient to establish a
prima facie case against him. Id. at 8. Therefore, Willet argues that this
Court should remand for an arrest of judgment. Id.
In its Opinion, the PCRA court deemed this claim to be waived, based
upon Willet’s failure to preserve this issue before the trial court, and his failure
to raise the issue on direct appeal. See PCRA Court Opinion, 10/17/19, 3-4;
see also Commonwealth v. Spotz, 47 A.3d 63, 101 (Pa. 2012) (stating that
allegations of error that have been waived are not cognizable under the
PCRA). We agree, and affirm the PCRA court’s resolution of this claim on this
basis. See id.
We additionally observe that Pa.R.Crim.P. 542(E), applicable to
preliminary hearings, provides that
[h]earsay[,] as provided by law[,] shall be considered by the
issuing authority in determining whether a prima facie case has
been established. Hearsay evidence shall be sufficient to establish
any element of an offense, including, but not limited to, those
requiring proof of the ownership of, non-permitted use of, damage
to, or value of property.
Pa.R.Crim.P. 542(E). Further, in Commonwealth v. McClelland, 165 A.3d
19 (Pa. Super. 2017), appeal granted 179 A.3d 2 (Pa. 2018), this Court
concluded that due process rights were not violated by a preliminary hearing
____________________________________________
4 It does not appear that Detective Nutter testified as an expert witness.
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at which only hearsay evidence was presented. Id. at 32. Thus, Willet is not
entitled to relief on this basis as well. See id.
In his second through seventh claims, Willet asserts that all prior
counsel rendered ineffective assistance. Before addressing these claims, we
are cognizant that counsel is presumed to be effective and “the burden of
demonstrating ineffectiveness rests on [the] appellant.” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).
To satisfy this burden, an 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 proceeding would have been different. Failure to
satisfy any prong of the test will result in rejection of the
appellant’s ineffective assistance of counsel claim.
Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal
citations and quotation marks omitted).
In his second claim, Willet argues that his trial counsel rendered
ineffective assistance by failing to preserve for appellate review his challenges
to the statements and testimony of Harris. Brief for Appellant at 8. Willet
claims that his trial counsel, who also represented Harris on direct appeal,
should have claimed a violation of the United States Constitution’s Sixth
Amendment in his post-sentence Motion, and his appellate counsel should
have briefed this issue on appeal. Id.
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In his appellate brief, Willet does not explain or develop his claim of a
violation of his Sixth Amendment right to counsel. “A constitutional claim is
not self-proving, and we will not attempt to divine an argument on [an
a]ppellant’s behalf.” Commonwealth v. Spotz, 18 A.3d 244, 282 (Pa.
2011). Because Willet failed to develop this claim, we are unable to afford
him relief.5 See id.
In his third through sixth claims, Willet asserts ineffective assistance of
counsel for failing to file a requested pretrial suppression motion; failing to file
and/or present a claim regarding the status of Harris and Lewis as accomplices
and “polluted” sources regarding their prior statements; not developing his
evidentiary claims on direct appeal with argument and citation to legal
authority; and failing to request an evidentiary hearing regarding the
recantation of Harris’s testimony. Brief for Appellant at 10-18. In his seventh
claim, Willet argues that his PCRA counsel rendered ineffective assistance by
not amending his PCRA Petition to include these claims. Id. at 17.
In its Opinion, the PCRA court addressed these claims as follows:
[Willet] alleges that counsel was ineffective for failing to file a
motion to suppress the testimony of Detectives Smith, Sarver and
Sauko, as well as the witness[, ] Harris. This claim, and each of
[Willet’s] remaining claims, have not been raised by the initial
PCRA [Petition,] or addressed in the Turner/Finley letter. The
____________________________________________
5 To the extent that the PCRA court addressed a claim regarding the
recantation testimony of Harris, we agree with and adopt its determination
that Willet failed to demonstrate prejudice resulting from counsel’s alleged
ineffectiveness. See PCRA Court Opinion, 10/17/19, at 4-5.
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first mention of these issues occurs in the pro se document[,]
“Rebuttal Petition to the Notice of Intent to Dismiss in accordance
with Procedure [sic] 907,” (“Rebuttal Petition”) wherein [Willet
alleges that PCRA counsel should have amended the PCRA Petition
to include these claims of error. As these issues were not properly
brought before this [c]ourt via an amended PCRA, [the PCRA
court] initially believed these claims should be waived. “The
assertion of a new claim after the court heard argument and
indicated its intent to dismiss the petition militates in favor of the
decision to deny leave to amend.” Commonwealth v. Williams,
732 A.2d 1167, 1191 (Pa. 1999).
However, [the PCRA court] is now persuaded that the better
course of action would have been to permit the PCRA Petition to
be amended, in accordance with the liberal standard of
Pa.R.Crim.P. 905(A).
The only option available to this Court, at this juncture, is
to remand this case back to the PCRA court, so that the court may
consider [the appellant’s] motion for leave to amend in accord
with the liberal standard of Rule 905(A).
Commonwealth v. Crispell, 193 A.3d 919, 930 (Pa.
2018). Since appointed counsel did not address the issues in his
Turner/Finley letter, this [c]ourt believes that a remand to
address these remaining issues is in order.
PCRA Court Opinion, 10/17/19, at 5.
We agree with the PCRA court’s reasoning. Willet has presented claims
that, if frivolous, should have been included and addressed in PCRA counsel’s
no-merit letter. If the issues were not frivolous, counsel should have filed an
amended PCRA petition on Willet’s behalf. Consequently, we reverse the
Order of the PCRA court, which granted counsel leave to withdraw and
dismissed Willet’s PCRA Petition without a hearing. We remand the matter so
that present counsel may either file an amended PCRA petition addressing the
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additional claims raised by Willet, or to file a new Turner/Finley no-merit
letter addressing the additional claims raised by Willet.
Order affirmed in part and vacated in part. Case remanded for further
proceedings in accordance with this Memorandum. The Prothonotary is
directed to remand the certified record to the PCRA court. Superior Court
jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2020
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