J-S46039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : CLAY D. WILLIAMS, : : Appellant : No. 2704 EDA 2014
Appeal from the PCRA Order entered on August 20, 2014 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. CP-51-CR-0505851-2005
BEFORE: MUNDY, OLSON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 16, 2015
Clay D. Williams (“Williams”) appeals from the Order dismissing his
first Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously has set forth the relevant underlying facts as
follows:
On the night of March 10, 2005, at approximately 12:17 AM, [sic] Mizael Velez [“Velez”] was shot and killed at a Chinese store located on 701 East Thayer Street, Philadelphia, Pennsylvania. Velez had ordered Chinese food from the store a little earlier, and had walked to the store from his home, a few blocks away, to pick up the food. While Velez was waiting in the store, Dante Moore [“Moore”], a friend of [Williams], walked in the store. [Williams], wearing a leather jacket and [with] a sawed-off shotgun up his sleeve, walked into the store a minute or so after Moore.
Velez was wearing his cell phone on his hip. [Williams] demanded the phone from Velez, with the intention of robbing Velez. Velez refused to surrender the phone and [Williams] left J-S46039-15
the store. Moore then left the store to walk home and saw [Williams] outside. [Williams] then walked back into the store and shot Velez once. Velez was struck in his left arm and his abdomen.
After shooting Velez, [Williams] then ran out of the store. Moore, who was walking home, heard the shot and saw [Williams] run by him on the 700 block of Thayer Street. After [Williams] fled, Vicky Lyn, the owner of the Chinese store[,] called the police.
Officer [Avon] Wilson, of the Philadelphia Police Crime Scene Unit, testified that there was no ballistic evidence found in the store or in the clothes that [Velez] was wearing at the time of the shooting. However, Dr. Bennett Preston, Assistant Medical Examiner of the City of Philadelphia, found twenty-one shotgun pellets and a shotgun cup in Velez’s body.
The gun [Williams] used [on] March 10, 2005, was recovered by police on March 22, 2005. The gun, along with a number of shells, was found in a book bag in the basement of 806 East Thayer Street. The nephew of the owner of the house, [] Khalil Wright [(“Wright”)], was a friend of [Williams]. Wright admitted that [Williams] gave Wright the book bag to keep down [in] the basement [sic] the day before it was recovered by police.
Kenneth James Lay [“Lay”] of the Philadelphia Firearms Identification Unit examined the shotgun and the ballistic evidence removed from [Velez’s] body. [] Lay testified that he determined that the shotgun cup found in Velez’s body was consistent with the same type of shotgun recovered from 806 East Thayer Street, but he could not conclude the shot[gun] cup was fired from that specific weapon.
[Williams] was taken into custody on an unrelated warrant on March 22, 2005[,] at approximately 7:15 a.m. He was placed in an interview room at approximately 8:00 a.m.[,] where Detective Don Marano [“Detective Marano”] advised him that he wanted to interview him about Velez’s death. At about 1:00 p.m.[, Williams] indicated that he wanted to make a formal statement. After giving him Miranda[1] warnings, which he
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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waived, [Williams] told [] Detective Marano that he had gone to the Chinese store the night of March 10, 2005[,] and he had tried to steal a cell phone from the man in the store. While so engaged his gun went off and he fled.
***
At the conclusion of trial, a jury found [Williams] guilty of First Degree Murder, Robbery, Firearms not to be carried without a license, Carrying firearms on public street or public property in Philadelphia, and Possessing Instruments of Crime. On December 5, 2006, the sentencing court ordered [Williams] to serve life in prison without the possibility of parole on the Murder conviction, ten (10) years to twenty (20) years in prison on the Robbery conviction, and three (3) years and (6) months to seven (7) years in prison on the Firearms not to be carried without a license conviction. The latter two offenses were to be served concurrently to the Murder sentence, and [Williams] received no further penalty on the remaining two convictions.
Commonwealth v. Williams, 959 A.2d 1252, 1253-54 (Pa. Super. 2008)
(citations and footnotes omitted, footnote added). This Court affirmed the
judgment of sentence. See id. at 1255-60.2
On October 6, 2009, Williams filed a timely pro se PCRA Petition. The
PCRA court appointed Williams counsel. Following a review of the Petition
and the record, counsel filed a “no-merit” letter and a Motion to Withdraw as
counsel. After counsel was allowed to withdraw, Williams retained new
counsel, who filed an amended PCRA Petition. The PCRA court filed a
2 On direct appeal, Williams raised claims regarding the sufficiency of the evidence, the denial of a Motion to suppress his confession, and evidentiary rulings. This Court concluded that his sufficiency and suppression claims were waived for lack of specificity in his Rule 1925(b) Concise Statement. See Williams, 959 A.2d at 1256-58. This Court also concluded that the evidentiary rulings claim was waived for failure to properly develop the claim in his appellate brief. See id. at 1258.
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Pa.R.Crim.P. 907 Notice of Intent to Dismiss without a Hearing. Williams
filed a Response. Thereafter, the PCRA court dismissed the Petition.
Williams filed a timely Notice of Appeal.
On appeal, Williams raises the following questions:
I. Did the [PCRA] court err in failing to order [an] evidentiary hearing on the issues of appellate counsel’s ineffectiveness on appeal from the judgment of sentence[e] because [Williams] raised a material issue of fact in this matter when [Williams] showed conclusively[,] based on the appellate court opinion[,] that appellate counsel waived all [] issues on appeal from the judgment of sentence?
II. Did the [PCRA] court err in failing to reinstate [Williams’s] right to appeal from the judgment of sentence nunc pro tunc where appellate counsel’s performance was so deficient as to effectively deny both the right to an appeal and the right to counsel on appeal?
III. Did the [PCRA] court err in denying [Williams] an evidentiary hearing on the issue of trial [] counsel’s ineffective assistance for failing to object to prejudicial and improper questions [by] the prosecutor to [Williams] at the suppression hearing?
Brief for Appellant at 2.
This Court’s standard of review regarding a PCRA court’s order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted).
In his first claim, Williams contends that his direct appeal counsel was
ineffective for failing to properly preserve his “appealable issues,” including:
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(i) the denial of Williams’s Motion to suppress his statements; (ii) the trial
court allowing Detective Howard Peterman (“Detective Peterman”) to read
Moore’s prior statement to the police, identifying Williams as the shooter;
and (iii) insufficient evidence to sustain the convictions. Brief for Appellant
at 7, 9.3 Williams argues that the PCRA court should have held an
evidentiary hearing on this claim. Id. at 8-9.
To succeed on an ineffectiveness claim, Williams must demonstrate by
the preponderance of the evidence that
(1) [the] 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 proceedings would have been different.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy
any prong of the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel is
presumed to be effective and the burden is on Williams to prove otherwise.
Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).
“When deciding a motion to suppress a confession, the touchstone
inquiry is whether the confession was voluntary.” Commonwealth v.
Ogrod, 839 A.2d 294, 320 (Pa. 2003). “A confession obtained during a
3 While Williams identifies the issues that were waived on direct appeal, he fails to provide a substantive discussion as to each issue to demonstrate counsel’s ineffectiveness. See Pa.R.A.P. 2119(a); see also Commonwealth v. Baumhammers, 92 A.3d 708, 743-44 (Pa. 2014). Nevertheless, we will address his ineffectiveness claims.
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custodial interrogation is admissible where the accused’s right to remain
silent and right to counsel have been explained and the accused has
knowingly and voluntarily waived those rights.” Commonwealth v. Davis,
861 A.2d 310, 317 (Pa. Super. 2004) (citation omitted). “[T]he standard for
determining whether a statement is voluntary is based on the totality of the
circumstances.” Ogrod, 839 A.2d at 320.
Here, Detective Marano testified that Williams was arrested on an
unrelated matter and transported to the police department around 8:00 a.m.
on March 22, 2005. N.T., 8/28/06, at 7-8. Williams was placed in an
interview room without handcuffs. Id. at 8. Detective Marano informed
Williams that the interview was in relation to the Chinese store shooting.
Id. at 9. Additionally, Detective Marano orally informed Williams of his
Miranda rights. Id. at 10-11. Williams stated that he was aware of his
rights and that this was not his first contact with the law. Id. at 11. Over
the next few hours, Detective Marano and other detectives had intermittent
interactions with Williams regarding the shooting. Id. at 12. During that
time, the detectives were also interviewing other witnesses to the shooting.
Id. At approximately 1:00 p.m., Williams indicated that he wanted to make
a formal statement. Id. at 11-13. Detective Marano again provided
Williams with Miranda warnings. Id. at 13-16. Williams signed waiver
documents indicating he understood the rights he was waiving. Id. at 14-
15. After Williams waived his rights, he confessed to shooting Velez while
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trying to steal Velez’s phone. Id. at 21-24. According to Williams, however,
he was coerced into a confession. Id. at 49-51. While Williams conceded
that he signed the waiver documents, he stated that he signed blank
documents. Id. at 52-54.
The trial court found Detective Marano’s testimony to be credible and
Williams’s to not be credible. Id. at 89-90; see also Commonwealth v.
Rochon, 581 A.2d 239, 243 (Pa. Super. 1990) (stating that the suppression
court is free to reject defendant’s testimony). The trial court found
the statement was given voluntarily, without threats or force. [Williams] voluntarily gave up his right to remain silent and that … he was taken into custody lawfully on another warrant and that he was properly warned of his right to remain silent during the interrogation and that after being warned, after signing the warnings, and after being questioned and signing that attestation, that was all done voluntarily.
N.T., 8/28/06, at 90. Upon review of the record and relevant case law, we
conclude that the trial court properly denied the Motion to suppress. See
Commonwealth v. King, 721 A.2d 763, 774-75 (Pa. 1998) (stating that
when Miranda rights are provided, waived, and the waiver is signed, the
statement is admissible); Commonwealth v. Jones, 683 A.2d 1181,
1189 (Pa. 1996) (concluding that inculpatory statements were voluntarily
given where appellant read and understood the Miranda warnings, there
was not a coercive environment, and appellant was alert and coherent
during questioning).
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We will next address Detective Peterman’s testimony reading Moore’s
initial statement to the police into the record.
Our courts long have permitted non-party witnesses to be cross- examined on prior statements they have made when those statements contradict their in-court testimony. Such statements, known as prior inconsistent statements, are admissible for impeachment purposes. Further, a prior inconsistent statement may be offered not only to impeach a witness, but also as substantive evidence if it meets additional requirements of reliability. The test is a two-part inquiry: 1) whether the statement is given under reliable circumstances; and 2) whether the declarant is available for cross-examination. With respect to the first prong, that the statement is given under reliable circumstances, our supreme court has deemed reliable only certain statements; among them is a statement that is reduced to a writing and signed and adopted by the witness. With respect to the second prong, cross-examination, the inconsistent statement itself must be the subject of the cross- examination in order to satisfy the test.
Commonwealth v. Carmody, 799 A.2d 143, 148 (Pa. Super. 2002)
(citations and quotation marks omitted).
Following the shooting, Moore provided a signed statement to the
police identifying Williams as the shooter. N.T., 8/29/06, at 92-93, 113,
116, 171, 173-77. However, at trial, Moore admitted that while he was at
the Chinese restaurant, he could not identify the shooter. Id. at 79-85. The
Commonwealth then introduced Moore’s statement and questioned Moore
about his prior identification of Williams as the shooter. Id. at 92-93, 113-
33. Moore maintained that he never identified Williams as the shooter to the
police. Id. at 92-94, 124-26, 134-36; see also id. at 133-53 (wherein
Williams’s attorney examined Moore about his trial testimony and initial
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statement to the police). Thereafter, over Williams’s objection, Detective
Peterman, who took Moore’s statement, read Moore’s initial statement into
the record. Id. at 173-77.
Based upon the foregoing, the trial court did not abuse its discretion in
allowing Detective Peterman to read Moore’s statement into the record and
Williams’s ineffectiveness claim is without arguable merit. See Hanible, 30
A.3d at 446-47 (concluding that a witness’s written statement given to
police identifying the appellant as the shooter, which was confirmed by both
the witness and the detective taking the statement to have been signed by
the witness, but which was repudiated by the witness at trial, was admissible
as substantive evidence). Moreover, Williams cannot demonstrate prejudice
as he confessed to the crimes. See Commonwealth v. Burno, 94 A.3d
956, 977 (Pa. 2014) (concluding that appellant failed to demonstrate he was
prejudiced by counsel’s alleged ineffectiveness where he confessed to
committing the crimes).
With regard to Williams’s sufficiency claim, multiple witnesses
identified Williams as the shooter, and Williams provided a detailed
confession to the crimes. See Trial Court Opinion, 6/26/07, at 7-8
(unnumbered). This evidence is sufficient to sustain Williams’s convictions.
Since all of the “appealable issues” are deemed to be without merit,
counsel cannot be ineffective for failing to properly raise the claims. See
Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (stating
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counsel cannot be deemed to be ineffective for failing to raise a claim lacking
merit). Furthermore, because Williams’s claims do not have support in the
record, the PCRA court did not err in dismissing the Petition without a
hearing. See Carter, 21 A.3d at 682 (stating that “a PCRA court may
decline to hold a hearing on the petition if the PCRA court determines that a
petitioner’s claim is patently frivolous and is without a trace of support in
either the record or from other evidence.”).
In his second claim, Williams contends that his right of appeal should
have been reinstated nunc pro tunc. Brief for Appellant at 10-11. Williams
argues that he is entitled to a new appeal because counsel raised
ineffectiveness of counsel claims that could only be addressed on collateral
review, and did not properly preserve the other claims. Id. at 10.
“It is well-settled that an accused who is deprived entirely of his right
of direct appeal by counsel’s failure to perfect an appeal is per se without the
effective assistance of counsel, and is entitled to reinstatement of his direct
appellate rights.” Commonwealth v. Grosella, 902 A.2d 1290, 1293 (Pa.
Super. 2006) (citations and quotation marks omitted).
However, it is also well-settled that the reinstatement of direct appeal rights is not the proper remedy when appellate counsel perfected a direct appeal but simply failed to raise certain claims. Where a petitioner was not entirely denied his right to a direct appeal and only some of the issues the petitioner wished to pursue were waived, the reinstatement of the petitioner’s direct appeal rights is not a proper remedy.
Id. at 1293-94 (emphasis in original).
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In Grosella, appellate counsel raised only an ineffective assistance of
counsel claim. Id. at 1291. This Court stated that “[a]lthough appellate
counsel apparently did not pursue all of the issues Appellant wished to raise
on direct appeal, this is not a case where appellate counsel failed to perfect
a direct appeal.” Id. at 1294. “The fact this Court concluded on direct
appeal that case law required the dismissal of the ineffective assistance of
counsel claim, without prejudice, makes no difference to [the] analysis.” Id.
As in Grosella, direct appeal counsel took the necessary steps to
ensure that this Court would consider Williams’s appeal. See id. Therefore,
Williams was not entirely denied his right to direct appeal, and the PCRA
court did not err in denying reinstatement of Williams’s appellate rights nunc
pro tunc.
In his third claim, Williams contends that trial counsel was ineffective
for failing to object to allegedly improper and prejudicial questioning of him
by the prosecutor at the suppression hearing. Brief for Appellant at 12-14.
Initially, Williams has failed to cite to the place in the record showing
the improper questions, and only makes bald assertions that counsel was
ineffective. See Pa.R.A.P. 2119(a); see also Commonwealth v. Samuel,
102 A.3d 1001, 1005 (Pa. Super. 2014). In any event, Williams has not
argued that the allegedly prejudicial questions demonstrated that his
confession was involuntary. See PCRA Court Opinion, 12/3/14, at 7 (stating
that the “[trial c]ourt did not consider the [questioning] by the prosecution
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for the truth of the matter contained therein. Rather, [the trial c]ourt
considered them solely to determine whether [Williams] gave his statement
voluntarily.”); see also Commonwealth v. Davis, 421 A.2d 179, 183 n.5
(Pa. 1980) (stating that “[a] judge, as factfinder, is presumed to disregard
inadmissible evidence and consider only competent evidence.”). As noted
above, the totality of the circumstances evidence that Williams voluntarily
confessed to the shooting. Thus, Williams’s ineffectiveness of counsel claim
is without merit, and the PCRA court did not err in dismissing this claim
without a hearing. See Carter, 21 A.3d at 682.
Based upon the foregoing, the PCRA court’s decision to dismiss
Williams’s Petition without a hearing is supported by the record.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/16/2015
4 We note that in his Rule 1925(b) Concise Statement, Williams also raises claims regarding juror misconduct and a failure by the Commonwealth to disclose evidence. However, Williams has not raised these claims in his appellate brief or in his PCRA Petition. See Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (stating that “issues not raised in a PCRA petition cannot be considered on appeal.”) (citation omitted); see also Pa.R.A.P. 302(a) (stating that “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). Thus, we will not review the claims.
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