Com. v. Williams, M.

• Court: Superior Court of Pennsylvania
• Decided: June 27, 2024
• Docket: 817 MDA 2023
• Status: Unpublished

Opinion

J-A07015-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARKUS WILLIAMS : : Appellant : No. 817 MDA 2023

Appeal from the PCRA Order Entered May 8, 2023 In the Court of Common Pleas of Dauphin County Criminal Division at No: CP-22-CR-0005252-2016

BEFORE: STABILE, J., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED JUNE 27, 2024

Appellant, Markus Williams, who is serving a sentence of imprisonment

for voluntary manslaughter, appeals from the May 8, 2023, order of the Court

of Common Pleas of Dauphin County, which dismissed his petition for collateral

relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

Appellant argues that trial counsel was ineffective for failing to interview

Teejay Hoffman or call Hoffman as a witness during trial. We hold that the

PCRA court correctly determined that trial counsel’s failure to interview or call

Hoffman as a witness did not prejudice Appellant. Accordingly, we affirm.

On direct appeal, we summarized the relevant background as follows:

____________________________________________

* Former Justice specially assigned to the Superior Court. J-A07015-24

[D]uring the night of July 29 into July 30, 2016, Appellant shot and killed Bryan Taylor, who had been standing next to Zachary “Sean” Harr, with whom Appellant had been arguing.[1]

During trial, Harr testified that, prior to the shooting, Appellant had been acting in an aggressive manner towards him and then said, “Cause I’m about that gun play.” N.T. Trial[, March 24-26, 2017,] at 187. The witness continued that he, Harr, did not reach for nor display his own firearm during this entire conversation with Appellant. See id., at 189-190. He also testified that he did not see Taylor push Appellant, display a firearm, nor make any motions or gestures suggesting he had a firearm. See id., at 188, 190. Harr acknowledged that he gave a statement to police the day after the shooting. See id., at 191. He further testified that he did not see a firearm removed from Taylor’s body. See id., at 200.

Another eyewitness, Jonathan Porter, who had been drinking with Harr and Taylor at a few local bars earlier in the evening, testified that he did not see Harr or Taylor display a weapon or reach into their pockets or waistbands prior to the shooting. See id., at 120, 136. Porter further testified that, after the shooting, he saw a firearm protruding from Taylor’s waistband. See id., at 139.

During Porter’s cross-examination, defense counsel showed him a photograph of Porter and Taylor, admitted as Defendant’s Exhibit 1, which Porter confirmed had been taken at a bar shortly before the shooting. See id., at 148, 150-151. . . .

****

Appellant testified that, immediately prior to the shooting, Harr was acting aggressively towards him, smacking him on the chest, and asking him if he had a problem with a man nicknamed “Poor- Poor.” Id., at 221. Appellant continued that he was leaving when Harr reached behind his back, where the butt of a firearm was protruding from his pants. See id., at 222, 229. Appellant testified that another man, unknown to him at the time, but later identified as Taylor, approached him, grabbed him by the throat, and shoved him against a wall. See id., at 230. Appellant stated ____________________________________________

1 The shooting took place outside a house “known as a ‘speak easy’ or an after-hours club” in Harrisburg. Trial Court Opinion, 12/19/17, at 2.

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that, after Harr pulled out his firearm, Appellant discharged his own weapon and fled in fear for his life. See id., at 230-232. Appellant admitted that he did not report the incident to police. See id., at 254.

Commonwealth v. Williams, No. 1652 MDA 2017, unpublished

memorandum at *1-3 (Pa. Super. filed January 11, 2019).

Following the facts described above,

[on] August 2, 2016, [Appellant] was charged with: (1) Criminal Homicide; (2) Possession of Firearm Prohibited, and (3) Firearms Not to be Carried without a License. On March 26, 2017, [Appellant] was found guilty at Count 1 of the lesser-included offense of Voluntary Manslaughter – Unreasonable belief, as well as the remaining counts as charged. . . . On August 8, 2017, [Appellant] was sentenced to an aggregate term of fifteen (15) to thirty (30) years in a state correctional institution. [Appellant] filed a post-sentence motion, which was subsequently denied . . . on September 21, 2017.

On October 23, 2017, [Appellant] filed a timely notice of appeal to the Superior Court of Pennsylvania challenging the weight and sufficiency of the evidence. The Superior Court affirmed [Appellant]’s judgment of sentence on January 11, 2019 [Williams, supra]. [Appellant] filed a petition for allowance of appeal to the Supreme Court of Pennsylvania on February 11, 2019, which was subsequently denied on June 10, 2019 [see Commonwealth v. Williams, 214 A.3d 228 (Pa. 2019)].

PCRA Court Opinion, 5/8/23, at 1-2 (unnecessary capitalization omitted;

footnotes omitted).

On June 3, 2020, Appellant filed the PCRA petition presently under

review. The PCRA court appointed several attorneys to represent Appellant,

all of whom eventually were allowed to withdraw. During a hearing in which

the third PCRA attorney moved to withdraw, Appellant stated to the court that

PCRA counsel was ineffective for failing to assert that trial counsel was

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ineffective for failing to call a defense witness and failing to request a jury

instruction for “imperfect self-defense.” Based on Appellant’s statement, the

PCRA court scheduled a hearing to address trial counsel’s alleged

ineffectiveness for failing to call Teejay Hoffman as a defense witness or

request an imperfect self-defense jury instruction. After granting the third

PCRA attorney’s motion to withdraw, the PCRA court appointed another

attorney to represent Appellant and to locate Hoffman.

On April 13, 2023, the parties entered a stipulation that Hoffman resided

in Harrisburg at the time of Appellant’s trial and that, if called to testify, his

testimony would have been consistent with the voluntary statement he

provided to police on August 8, 2016. In this statement,

Mr. Hoffman stated that he was extremely intoxicated to the point he almost tripped over his own feet. He further stated that he had an altercation with the person believed to be the shooter, [i.e., Harr] . . . [over a spilled drink]. ****

[Hoffman] explained that he went to the party/after-hours club with his cousin, Chris Brown, and met [Appellant] there. Mr. Hoffman and Chris briefly left to pick up some food, and upon returning to the party/after-hours club, Mr. Hoffman got into the altercation described above.

[Hoffman] stated he had never seen the individual [i.e., Harr] before that night and that the person did not brandish a weapon during the altercation. Neither [Appellant] nor Chris witnessed the altercation, and Mr. Hoffman could not recall whether he told them about it. Mr. Hoffman further stated that he heard five (5) or six (6) gunshots about thirty (30) minutes to an hour after altercation. Mr. Hoffman and Chris were inside when they heard the gunshots. When they went outside, Mr. Hoffman saw the man who he previously had an altercation with [i.e., Harr] shooting a firearm in front of him.

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PCRA Court Opinion, 5/8/23, at 8-9 (citations to record omitted).

On May 8, 2023, following an evidentiary hearing, the PCRA court denied

Appellant’s PCRA petition. The instant appeal followed.

On appeal, Appellant argues that the PCRA court erred in not finding

trial counsel ineffective for failing to interview Hoffman or call him to testify.

We begin with the presumption that counsel rendered effective assistance. Commonwealth v. Basemore, 560 Pa. 258, 277 n.10, 744 A.2d 717, 718 n. 10 ([Pa.] 2000). To obtain relief on a claim of ineffective assistance of counsel, a petitioner must rebut that presumption and demonstrate that counsel’s performance was deficient, and that such performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687–91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In our Commonwealth, we have rearticulated the Strickland Court’s performance and prejudice inquiry as a three-prong test. Specifically, a petitioner must show: (1) the underlying claim is of arguable merit; (2) no reasonable basis existed for counsel’s action or inaction; and (3) counsel’s error caused prejudice such that there is a reasonable probability that the result of the proceeding would have been different absent such error. Commonwealth v. Pierce, 515 Pa. 153, 158–59, 527 A.2d 973, 975 (1987).

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011). The PCRA court

may deny an ineffectiveness claim if the petitioner fails to meet any one of

these prongs. Commonwealth v. Basemore, 744 A.2d 717, 738 n. 23 (Pa.

2000).

We employ the following standard in evaluating whether counsel had a

reasonable basis for his acts or omissions:

[T]he question is not whether there were other courses of action that counsel could have taken, but whether counsel’s decision had any basis reasonably designed to effectuate his client’s interest. . . . [T]his cannot be a hindsight evaluation of counsel’s

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performance, but requires an examination of “whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect [the] defendant’s interests.” Our evaluation of counsel’s performance is “highly deferential.”

Commonwealth v. (Christopher) Williams, 141 A.3d 440, 463 (Pa. 2016)

(internal citations omitted).

We first address Appellant’s claim that trial counsel was ineffective for

failing to call Hoffman as a witness. To establish whether counsel was

ineffective for failing to interview/call a witness, a petitioner must

demonstrate:

(1) the witness existed; (2) the witness was available; (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 was so prejudicial to petitioner to have denied him or her a fair trial. Commonwealth v. Clark, 599 Pa. 204, 222, 961 A.2d 80, 90 (2008).

Commonwealth v. Dennis, 17 A.3d 297, 302 (Pa. 2011).

For two reasons, the PCRA court correctly rejected Appellant’s claim that

counsel was ineffective for failing to call Hoffman as a witness. First, the PCRA

court found that “[trial counsel] had a reasonable basis not to call Mr. Hoffman

as a defense witness at trial. The defense strategy was to show that the victim

and Mr. Harr were the aggressors, and that [Appellant] shot the victim in self-

defense. . . . [Appellant] has failed to show how calling Mr. Hoffman as a

defense witness at trial would have had a greater success than what

occurred.” PCRA Court Opinion, 5/8/23, at 11. The record supports this

determination. Trial counsel testified during the PCRA hearing that his

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strategy was to contend Appellant acted in self-defense in response to

Harr/Taylor’s attack. Hoffman was not present during the altercation between

Appellant and Harr, and Appellant was indeed in a far better position to

describe his self-defense claim. This strategy actually worked; as the PCRA

court observed, “the jury ultimately agreed that [Appellant] shot the victim in

self-defense and found him guilty of voluntary manslaughter instead of first-

degree homicide.” Id.

Second, the PCRA court correctly reasoned that Appellant suffered no

prejudice from Hoffman not being called as a witness. Appellant argues that

had the jury heard Hoffman testifying about Harr’s behavior on the night of

the incident, “not only would Hoffman’s testimony lead to a likely acquittal” of

Appellant but would also result in Harr being charged for felony murder of

Taylor. Appellant’s Brief at 16. As Appellant acknowledged, however,

Hoffman was not present during the altercation between Appellant and

Harr/Taylor. Thus, while Hoffman’s testimony might have been useful to

provide some additional background information, it would not have affected

the core testimony elicited at trial pertaining to the murder. At trial, Harr

testified that Appellant was the initial aggressor and that neither Harr nor the

actual victim, Taylor, had displayed their firearms to Appellant or indicated

with words or actions that they were carrying firearms. See N.T. Trial, 3/24-

26/17, at 187-90. Another eyewitness, Porter, confirmed that neither Harr

nor Taylor had threatened Appellant prior to the shooting. Id. at 136. Porter

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also noted that Taylor had not pulled out his firearm, which was still in his

waistband after he was shot. Id. at 139. Hoffman’s testimony would not

have undermined the evidence of guilt set forth by the testimony of Appellant,

Harr, and Porter. As such, Appellant failed to show he suffered actionable

prejudice from trial counsel’s failure to call Hoffman as a witness.

Appellant also disputes trial counsel’s decision to rely simply on

Appellant, a convicted felon, to testify in his own defense, as opposed to calling

Hoffman, who had no prior convictions. Appellant claims that he had

credibility issues in the eyes of the jury because he had been convicted of

robbery and spent time in a state prison for that crime. Once again, Appellant

did not suffer prejudice as a result of Hoffman not testifying. As noted,

Hoffman could not testify about the facts at issue here, because he was not

present during the altercation between Harr and Appellant that eventually led

to Taylor’s death. Furthermore, as Appellant acknowledged in his brief,

Appellant’s criminal past “would almost unavoidably [have] come out at trial.”

Appellant’s Brief at 13.

We now turn to Appellant’s argument that trial counsel was ineffective

for failing to interview Hoffman. At the outset, we note that “neglecting to

call a witness differs from failing to investigate a witness in a subtle but

important way,” in that “it can be unreasonable per se to conduct no

investigation into known witnesses.” Commonwealth v. Stewart, 84 A.3d

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701, 712 (Pa. Super. 2013). However, even when counsel fails to conduct

such an investigation,

a petitioner still must demonstrate prejudice. Id. To demonstrate prejudice where the allegation is the failure to interview a witness, the petitioner must show that there is a reasonable probability that the testimony the witness would have provided would have led to a different outcome at trial. Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945, 961 (2008).

In this respect, a failure to investigate and interview a witness claim overlaps with declining to call a witness since the petitioner must prove: (i) the witness existed; (ii) the witness was available to testify; (iii) counsel knew of, or should have known of, the existence of the witness; (iv) the witness was willing to testify; and (v) the absence of the testimony was so prejudicial as to have denied the defendant a fair trial. See Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297, 302 (2011) (discussing failure to interview and call an alibi witness).

Commonwealth v. Pander, 100 A.3d 626, 638-39 (Pa. Super. 2014).

Here, the PCRA court correctly determined that Appellant suffered no

prejudice from trial counsel’s alleged failure to interview Hoffman for the same

reason that counsel’s alleged failure to call Hoffman to testify did not prejudice

Appellant. Specifically, Hoffman was not present during the altercation

between Appellant and Harr/Taylor. Thus, Hoffman’s testimony would not

have undermined the evidence of guilt established by the testimony of

Appellant, Harr, and Porter.

In short, the PCRA court correctly rejected Appellant’s claim that trial

counsel was ineffective for failing to call Hoffman as a witness because this

claim failed the reasonable trial strategy and prejudice prongs of the

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ineffectiveness test. Moreover, the PCRA court correctly rejected Appellant’s

claim that counsel was ineffective for failing to interview Hoffman because this

claim failed the prejudice prong of the ineffectiveness test. Thus, the PCRA

court correctly denied Appellant’s PCRA petition.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 06/27/2024

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