J-S93012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

ANTHONY S. WILLIAMS,

                            Appellant                  No. 411 EDA 2016


                  Appeal from the PCRA Order January 19, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007651-2009
                                         CP-51-CR-0012877-2009


BEFORE: DUBOW, SOLANO, and PLATT,* JJ.

MEMORANDUM BY DUBOW, J.                           FILED FEBRUARY 14, 2017

        Anthony S. Williams appeals pro se from the denial of his Petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546.1 He asserts that trial, appellate, and post-conviction counsel provided

ineffective assistance, and avers that the PCRA court should have held a

hearing on his Petition. We affirm.

        On March 1, 2011, a jury found Appellant guilty of Third-Degree

Murder and Possession of an Instrument of Crime (“PIC”) in connection with

the November 5, 2008 shooting death of Bruce Hollman.           The trial court
____________________________________________


*
    Retired Senior Judge Assigned to the Superior Court.
1
 On August 5, 2016, this Court quashed Appellant’s appeal of CP-51-CR-
0012877-2009. This appeal, thus, pertains only to the case docketed at CP-
51-CR-0007651-2009.



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sentenced him on May 6, 2011, to 18 to 36 years’ incarceration for the

Murder conviction and a consecutive term of 2½ to 5 years for the PIC

conviction. This Court affirmed the Judgment of Sentence and our Supreme

Court denied allowance of appeal on November 13, 2013. Commonwealth

v. Williams, No. 1308 EDA 2011 (Pa. Super. filed April 16, 2013), appeal

denied, 75 A.3d 554 (Pa. 2013).

     On June 4, 2014, Appellant timely filed a pro se PCRA Petition,

followed by a “supplemental” Petition on October 29, 2014.             Appointed

counsel entered his appearance on December 18, 2014.             On February 12,

2015, Appellant filed a second supplemental pro se PCRA Petition. On June

29, 2015, counsel filed a Turner/Finley letter and a Motion to Withdraw as

Counsel.    On August 26, 2015, the PCRA court issued a Pa.R.Crim.P. 907

Notice.    Petitioner filed a pro se response to the Notice and to counsel’s

Turner/Finley letter. On January 19, 2016, the court dismissed Appellant’s

PCRA Petition and permitted counsel to withdraw.

     Appellant timely appealed pro se. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

     Appellant raises the following three issues in his Brief:

           1. Whether trial counsel failed to render constitutionally
              effective assistance infecting the entire trial so that the
              resulting convictions was violative of Appell[ant’s] right to
              effective assistance of counsel, fair tr[ia]l, and due process
              of law under both the state and federal constitutions?

           2. Whether post[-]conviction counsel’s pretext tendered
              defense and perfunctory performance summarized in the


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            following derelictions of duty and breach of professional
            responsibility to the lawyer/client relation rendered his
            representation below ineffective assistance of counsel,
            forfeiting and depriving Appellant of his right to a
            constitutional and meaningful first[-]tier collateral review
            under the Post[-]Conviction Relief Act?

         3. Whether the PCRA Court erred in denying Appellant post[-
            ]conviction relief without holding an evidentiary hearing on
            Appellant’s post[-]conviction record[-]based claims of
            PCRA counsel’s and all prior counselor’s ineffectiveness?

Appellant’s Brief at 4.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). This Court grants great deference to the findings of the PCRA court if

they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,

515 (Pa. Super. 2007). We give no such deference, however, to the court’s

legal conclusions.     Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).

      In the discussion of his first two issues, Appellant avers that he

received ineffective assistance of trial, appellate, and PCRA counsel. The law

presumes counsel has rendered effective assistance.       Commonwealth v.

Rivera, 10      A.3d 1276, 1279     (Pa. Super. 2010).        The   burden of

demonstrating ineffectiveness rests on Appellant.       Id.    To satisfy this

burden, Appellant must plead and prove by a preponderance of the evidence

that: “(1) his underlying claim is of arguable merit; (2) the particular course



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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.” Commonwealth v. Fulton, 830 A.2d 567, 572

(Pa. 2003). Failure to satisfy any prong of the test will result in rejection of

the appellant’s ineffective assistance of counsel claim. Commonwealth v.

Jones, 811 A.2d 994, 1002 (Pa. 2002).

      With respect to layered ineffectiveness claims, the Pennsylvania

Supreme Court has provided the following guidance:

      [I]n order for a petitioner to properly raise and prevail on a
      layered ineffectiveness claim, sufficient to warrant relief if
      meritorious, he must plead, present, and prove the
      ineffectiveness of Counsel 2 (appellate counsel), which as we
      have seen, necessarily reaches back to the actions of Counsel 1
      (trial counsel). To preserve (plead and present) a claim that
      Counsel 2 was ineffective in our hypothetical situation, the
      petitioner must: (1) plead, in his PCRA petition, that Counsel 2
      was ineffective for failing to allege that Counsel 1 was ineffective
      for not [taking the suggested actions], see Commonwealth v.
      Marrero, 748 A.2d 202, 203, n. 1 (2000); and (2) present
      argument on, i.e., develop, each prong of the Pierce test as to
      Counsel 2's representation, in his briefs or other court
      memoranda.

Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003).

      In his first issue, Appellant challenges the effectiveness of trial

counsel, averring counsel (1) offered “erroneous and clearly unreasonable”

advice when he recommended that Appellant not testify on his own behalf

because of a prior juvenile adjudication; (2) failed to interview, investigate,

and call character witnesses; and (3) failed to object to the trial court’s

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“supplemental instruction” that evidenced “judicial coercion.”      Appellant’s

Brief at 9, 18.2

       In addressing each of the issues raised in Appellant’s claim of trial

counsel ineffectiveness, the Honorable Rose Marie DeFino-Nastasi, sitting as

both the trial court and the PCRA court, has authored a comprehensive,

thorough, and well-reasoned Opinion, citing to the record and relevant case

law. First, the court found that Appellant’s challenge to trial counsel’s advice

was waived because he raised it for the first time in his response to the Rule

907 notice and did not seek leave to amend his Petition as required by

Pa.R.Crim.P. 905, and Commonwealth v. Baumhammers, 92 A.3d 708,

730 (Pa. 2014). See PCRA Court Opinion, dated 4/20/16, at 4-5.3

       Next, the court concluded that Appellant knowingly, intelligently, and

voluntarily decided not to call any character witnesses. See Opinion at 5-8

(quoting colloquy with trial court, N.T., 2/28/11, at 6-7). The court further

noted that none of Appellant’s now-proposed witnesses could have provided

____________________________________________


2
 Appellant raised three other claims of trial counsel’s ineffectiveness in his
Pa.R.A.P. 1925(b) Statement but abandoned them because he did not raise
or address them in his Brief. Accordingly, those issues are waived.
Pa.R.A.P. 2116(a).
3
  See also Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super.
2012) (observing “[t]he purpose behind a Rule 907 pre-dismissal notice is to
allow a petitioner an opportunity to seek leave to amend his petition and
correct any material defects”).




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admissible evidence with respect to Petitioner’s character and that counsel

had a reasonable basis for his strategic decision not to call character

witnesses. See Opinion at 9-10 (citing N.T., 2/23/11 at 106, N.T., 2/24/11,

at 70-84). In addition, the court concluded that Appellant could not show

prejudice in light of the “substantial eyewitness evidence connecting

[Appellant] to the decedent’s murder.” Opinion at 11.

      The court last concluded that the trial court properly exercised its

discretion when, after a five-day trial and two hours of deliberation, the

court stated to the jury, in response to a question about hung juries, that

two hours was not enough time to conclude there was a hung jury on part of

the charges. See Opinion at 12-13 (citing Commonwealth v. Marion, 981

A.2d 230, 235 (Pa. Super. 2009); Commonwealth v. Greer, 951 A.2d 346,

354 (Pa. 2008) (noting trial court’s decision to direct jury to deliberate

further will not be disturbed on appeal unless there is a showing that the

court abused its discretion or that the jury’s verdict was the product of

coercion or fatigue)). Accordingly, trial counsel was not ineffective for failing

to object to the court’s statement.

      Our review of the record supports the PCRA court’s findings and its

Order is otherwise free of legal error. We affirm on the basis of the PCRA

court’s April 20, 2016 Opinion. See PCRA Court Opinion, 4/20/16, at 4–13

      Appellant next avers that appellate counsel was ineffective for not

raising trial counsel’s ineffectiveness, and PCRA counsel was ineffective for


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failing to “critique, amend, or supplement Appellant’s pro se Petition for

post-conviction relief.”   Appellant’s Brief at 28.   He asserts that if PCRA

counsel had expanded on Appellant’s asserted claims of prior counsels’

ineffectiveness, the PCRA court “would not have erroneously dismissed

Appellant’s petition without holding an evidentiary hearing, i.e., the

proceeding would have been different.” Appellant’s Brief at 28. This issue is

without merit.

        As noted above, Appellant failed to prove that the underlying claims of

trial counsel’s ineffectiveness had merit. Accordingly, Appellant’s challenge

to prior counsels’ and PCRA counsel’s effectiveness likewise fails to satisfy

the merit prong of the ineffectiveness test. See Jones, supra. Appellant

is, thus, entitled to no relief on these issues.

        Appellant last avers that the PCRA court should have held an

evidentiary hearing and that it erred in the “wholesale adoption of PCRA

counsel’s ‘no merit’ letter without stating the reasons for dismissal in its

Order followed by its 907 Notice.”         Appellant’s Brief at 33 (relying on

Commonwealth v. Williams, 732 A.2d 1167, 1176 (Pa. 1999)) (“Williams

II”).

        There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).     “[A]s to ineffectiveness claims in particular, if the record


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reflects that the underlying issue is of no arguable merit or no prejudice

resulted, no evidentiary hearing is required. For each such claim, we review

the PCRA court's action for an abuse of discretion[.]”      Commonwealth v.

Baumhammers, 92 A.3d 708, 726–27 (Pa. 2014) (citations omitted).

      Rule 907 provides, in relevant part, the following:

      Except as provided in Rule 909 death penalty cases,

      (1)   The judge shall promptly review the petition, any answer
            by the attorney for the Commonwealth, and other matters
            of record relating to the defendant’s claim(s). If the judge
            is satisfied from this review that there are no genuine
            issues concerning any material fact and that the defendant
            is not entitled to post-conviction collateral relief, and no
            purpose would be served by any further proceedings, the
            judge shall give notice to the parties of the intention to
            dismiss the petition and shall state in the notice the
            reasons for the dismissal. The defendant may respond to
            the proposed dismissal within 20 days of the date of the
            notice.    The judge thereafter shall order the petition
            dismissed, grant leave to file an amended petition, or
            direct that the proceedings continue.

                                 ****

Pa.R.Crim.P. 907(1) (emphasis added).

      In the present case, the PCRA court filed its Rule 907 Notice, informing

Appellant that it had reviewed counsel’s “no merit” letter, as well as the

record. The Rule 907 Notice provided as follows:

      You are hereby advised that on October 5, 2015, your request
      for post-conviction relief will be dismissed without further
      proceedings.    No response to this Notice is required.   If,
      however, you choose to respond, your response is due within
      twenty (20) calendar days from the date of this Notice. The
      reason for dismissal is as follows:


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         Your attorney has determined that the issues raised in
         your pro se petition are without merit. See [C]ounsel’s
         letter pursuant to Commonwealth v. Finley, 379 Pa.
         Super. 390, 550 A.2d 213 (1988). The Court, after
         review of the record, accepts the Finley letter and finds
         that the PCRA petition is without merit.

Notice, filed 8/26/15.

      In Williams II, supra, the Supreme Court held that it would not

condone the “wholesale adoption     . . . of an advocate’s brief” in a PCRA

review of a death penalty case, particularly where it was alleged that the

advocate (in this case, the Commonwealth) had “withheld material discovery

at trial, suborned false testimony from an eyewitness, and engaged in a

pattern of racial discrimination in the process of jury selection.”   Id.   The

Court opined that “[r]egardless of the validity of such allegations, the

independent role of the judiciary cannot properly be served in this case

absent some autonomous judicial expression of the reasons for dismissal.”

Id.

      In Commonwealth v. Feighery, 661 A.2d 437, 439 (Pa. Super.

1995), we held that PCRA counsel’s filing of a Turner/Finley letter was not

adequate to satisfy the court’s Rule 907’s notice requirement.        We first

recognized that the Rule 907 Notice is mandatory, as is the Rule’s directive

that such notice provide the rationale for the dismissal. Feighery, 661 A.2d

at 439. We rejected the Commonwealth’s argument that counsel’s no merit

letter sent to the appellant provided “sufficient notice to meet the

requirement” because we could “only engage in a presumption that [the]

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appellant has received a copy of this letter which is addressed to the court,

and also the letter makes no mention of the potential for dismissal without

hearing when there is no further action by appellant.” Id.

      The instant case is distinguishable from Feighery. Although the PCRA

court’s Rule 907 was not expansive in its explanation, unlike in Feighery,

there is no indication that the court relied exclusively on the Turner/Finley

letter to satisfy the notice requirement.     The court indicated that it had

reviewed the record independently before concluding Appellant failed to raise

meritorious issues.     Contrary to Appellant’s characterization, there is no

indication that the court merely “adopted wholesale” counsel’s no-merit

letter.

      Moreover, as demonstrated by Appellant’s detailed response to the

907 Notice, we can ascertain from the record that Appellant had been

adequately informed of the reasons underlying the court’s intent to dismiss.

His detailed response to both the Rule 907 Notice and the Turner-Finley

letter demonstrates that Appellant was not prejudiced by any purported

defects in the PCRA court’s Rule 907 Notice.         Accordingly, Appellant’s

challenge to the Rule 907 Notice merits no relief.

      We have conducted an independent review of the record and conclude

that the PCRA court did not abuse its discretion in dismissing Appellant’s

PCRA Petition without a hearing. Accordingly, we affirm.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2017




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