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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    MARK WILLIAMS,                             :
                                               :
                       Appellant               :      No. 1991 EDA 2018

               Appeal from the PCRA Order Entered June 25, 2018
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005669-2013

BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED JULY 29, 2020

        Mark Williams (“Williams”) appeals from the Order dismissing, without

a hearing, his Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1    We affirm.

        Williams was arrested on March 12, 2013, following sexual contact he

had with a 17-year-old female student while he was an administrator at

Northeast High School in Philadelphia, Pennsylvania. Beginning in December

2012, the student was regularly sent to Williams’s office for disciplinary issues.

Williams and the student would eventually spend most mornings in his office

discussing personal matters.         The contact advanced to Williams regularly

texting and having phone conversations with the student outside of school


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1   42 Pa.C.S.A. §§ 9541-9546.
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hours. On January 21, 2013, Williams picked up the student from a party that

she had attended, brought her back to his residence, and engaged in sexual

intercourse with her. After the student took a shower in Williams’s bathroom,

Williams took her to a local Outback Steakhouse for dinner before returning

her home. The student reported the incident to her mother, who reported it

to police. Williams was subsequently arrested and charged with unlawful

contact with a minor, institutional sexual assault, endangering the welfare of

children, and corruption of a minor.2

        Following a jury trial, Williams was convicted of the above-mentioned

crimes. On September 12, 2014, the trial court sentenced Williams to serve

an aggregate term of one-and-a-half to three years in prison, followed by four

years of probation. Williams filed post-sentence Motions, which the trial court

denied. This Court affirmed his judgment of sentence, and the Pennsylvania

Supreme Court denied allowance of appeal.            See Commonwealth v.

Williams, 144 A.3d 196 (Pa. Super. 2016) (unpublished memorandum),

appeal denied, 158 A.3d 1225 (Pa. 2016).

        Williams, pro se, filed the instant timely PCRA Petition on February 21,

2017.     Williams was appointed counsel, who filed an Amended Petition on

October 30, 2017. The Commonwealth requested that Williams’s Amended

Petition be dismissed without a hearing pursuant to Pa.R.Crim.P. 907. On May



____________________________________________


2   18 Pa.C.S.A. §§ 6318(a)(1), 3124.2(a.2)(1), 4304(a)(1), 6301(a)(1)(i).

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24, 2018, the PCRA court issued a Notice of its intent to dismiss the Petition

without a hearing. On June 25, 2018, the PCRA court dismissed Williams’s

Petition. Williams filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal.3

       Williams raises the following issues for our review:

       I. Whether the [PCRA] court erred in [dismissing] [Williams’s]
       PCRA [P]etition without an evidentiary hearing on the issues
       raised in the [A]mended PCRA [P]etition regarding trial counsel’s
       ineffectiveness?

       II. Whether the [PCRA] court erred in not granting relief on the
       PCRA [P]etition alleging counsel was ineffective[?]

Brief for Appellant at 8.

       “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”           Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

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3 In its Opinion, the PCRA court found that Williams’s claims were waived
because his Concise Statement was insufficiently vague. PCRA Court Opinion,
7/17/19, at 6-8. Williams’s Concise Statement asserts that “trial counsel was
ineffective for failing to present witnesses[,]” “trial counsel was ineffective for
failing to properly prepare [Williams’s] case for trial,” and “the [PCRA] court
was in error for failing to grant an evidentiary hearing.” Concise Statement,
8/8/16, at 1-2. Our review of the PCRA court’s Opinion demonstrates that it
ably addressed Williams’s claims in great detail. See Commonwealth v.
Reeves, 907 A.2d 1, 2 (Pa. Super. 2006) (stating that an appellant’s concise
statement must be specific enough for the trial court to identify and address
the issues appellant wishes to raise on appeal). Accordingly, we do not find
waiver on the basis of Williams’s Concise Statement, and will address his
claims on the merits.

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certified record.” Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super.

2012).

             The 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, the defendant is not
      entitled to post-conviction collateral relief, and no legitimate
      purpose would be served by any further proceedings. To obtain
      reversal of a PCRA court’s decision to dismiss a petition without a
      hearing, an appellant must show that he raised a genuine issue of
      fact which, if resolved in his favor, would have entitled him to
      relief, or that the court otherwise abused its discretion in denying
      a hearing.

Commonwealth v. Hutchinson, 25 A.3d 277, 285 (Pa. 2011) (citations and

quotations omitted).

             To be entitled to relief on an ineffectiveness claim, [the
      petitioner] must prove the underlying claim is of arguable merit,
      counsel’s performance lacked a reasonable basis, and counsel’s
      ineffectiveness caused him prejudice. Prejudice in the context of
      ineffective assistance of counsel means demonstrating there is a
      reasonable probability that, but for counsel’s error, the outcome
      of the proceeding would have been different. This standard is the
      same in the PCRA context as when ineffectiveness claims are
      raised on direct review. Failure to establish any prong of the test
      will defeat an ineffectiveness claim.

Commonwealth v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015) (citations

omitted).

      We will address both of Williams’s issues together, as they are related.

First, Williams argues that the PCRA court erred in not holding an evidentiary

hearing on his Petition. Brief for Appellant at 15. Williams claims that trial

counsel’s failure to call witnesses and to properly prepare for trial warranted




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an evidentiary hearing, and that a hearing was necessary “to demonstrate

such manifest injustice.” Id.

      Second, Williams argues that the PCRA court erred in not granting him

relief on the basis of ineffective assistance of counsel. Id. at 16. Williams’s

ineffectiveness argument is split into two primary contentions, which we will

address separately. Id. at 16, 20. Williams contends that trial counsel was

ineffective in failing to present various witnesses at trial. Specifically, Williams

argues that trial counsel was ineffective in failing to call four of his neighbors

(collectively, “the neighbors”) as witnesses, who Williams claims were willing

to testify at trial. Id. at 16-17, 19-20. Williams also challenges trial counsel’s

decision not to investigate or subpoena the testimony of several Northeast

High School teachers and staff members, a family friend, and a repairman

who serviced his home’s air conditioning system on the day in question. Id.

at 17-18. Williams asserts that trial counsel was ineffective because he claims

that the testimony of each witness would have served to establish his

innocence. Id. at 19-20.

             When raising a claim of ineffectiveness for the failure to call
      a potential witness, a petitioner satisfies the performance and
      prejudice requirements of the [ineffectiveness] test by
      establishing that: (1) the witness existed; (2) the witness was
      available to testify for the defense; (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 of the witness was so prejudicial as to have denied the
      defendant a fair trial. To demonstrate [] prejudice, a petitioner
      must show how the uncalled witnesses’ testimony would have
      been beneficial under the circumstances of the case. Thus,
      counsel will not be found ineffective for failing to call a witness

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      unless the petitioner can show that the witness's testimony would
      have been helpful to the defense. A failure to call a witness is not
      per se ineffective assistance of counsel for such decision usually
      involves matters of trial strategy.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations and

quotations omitted).

      The PCRA court addressed Williams’s challenge to his trial counsel’s

failure to call witnesses as follows:

      [Williams’s] Amended PCRA Petition provides certification forms
      for [the neighbors]. He asserts trial counsel was ineffective for
      failing to present the testimony of these witnesses to[] “establish
      there was no activity at [Williams’s] residence on the day in
      question.” While [Williams] provided signed certifications for each
      of these witnesses, the certifications completely fail to list the
      substance of each witness[’]s proposed testimony. As a result[,]
      they provide no basis for relief.

             Further, [Williams] ignores the fact that the proffered
      witnesses would have directly contradicted his testimony. He
      contends that the witnesses would testify as to the lack of
      “activity” at his home on the day in question. However, [Williams]
      admitted at trial that he brought the victim to his home on the
      day in question and permitted her to enter the residence. Thus,
      trial counsel had a reasonable basis to refrain from calling these
      witnesses in order to avoid internal contradictions in the defense’s
      case. Having determined that such a reasonable basis exists for
      the alleged omission, this [c]ourt’s inquiry ceases[,] and trial
      counsel is deemed effective.

             Nor has [Williams] established that he was prejudiced by
      the witnesses’ absence. As noted, the witnesses would have
      directly contradicted [Williams’s] own testimony. In light of
      [Williams’s] admission that the victim had been in his home on
      the day in question, the only material fact in dispute was whether
      [Williams] and the victim engaged in sexual intercourse once
      inside. None of the proffered witnesses would have shed any light
      on this issue. [Williams’s] claim, therefore, fails due to his failure
      to establish prejudice.



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             [Williams] next asserts that trial counsel was ineffective for
      failing to investigate and subpoena unnamed staff from Northeast
      High School. This claim is flatly refuted by the record[,] in which
      [Williams’s] investigator testified to the extensive efforts made to
      secure the testimony of [Philadelphia] School Police Sgt. James
      Pulleum, Lynn Gordon (the receptionist for [Williams]), and
      teacher Hellena Morton. At the request of trial counsel, this
      [c]ourt placed a call to the school to no avail. Thus, [Williams’s]
      claim lacks arguable merit. If [Williams’s] claim pertains to other
      witnesses, he completely fails to identify who the witnesses are[,]
      or provide certifications detailing the substance of their alleged
      testimony, that they were willing to appear as defense witnesses,
      and that trial counsel was aware of their existence. Thus[,] his
      claim fails.

             [Williams’s] final claim regarding trial counsel’s failure to call
      witnesses[] asserts that trial counsel was ineffective for failing to
      call “Debbie” to testify as to the lack of heat and hot water at his
      residence. While [Williams] testified at trial that a woman named
      Deb Wesell stayed at his residence the weekend preceding the
      incident, his [A]mended [P]etition failed to provide a certification
      confirming that “Debbie” is Ms. Wesell. He, likewise, failed to
      provide what the substance of her testimony would be and that
      she was available and willing to testify. As a result, his claim
      cannot succeed. Nor can [Williams] claim to have been prejudiced
      by trial counsel’s failure to call “Debbie” since both he and witness
      Sharon Etheridge testified to the lack of heat and hot water at his
      residence on the day of the incident. [Williams], therefore, has
      failed to demonstrate prejudice from counsel’s alleged omission.

PCRA Court Opinion, 7/17/19, at 9-13 (citations, quotations, and subheadings

omitted; some paragraphs combined).

      We agree with the sound analysis of the PCRA court. Williams failed to

demonstrate that trial counsel lacked a reasonable basis for not calling the

neighbors as witnesses, as their purported testimony would have contradicted

Williams’s. Williams failed to demonstrate an arguable basis for his claim that

counsel rendered ineffective assistance by not procuring witness testimony



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from school employees.      Williams also failed to demonstrate that he was

prejudiced by counsel’s alleged failure to call Debbie Wesell as a witness when

multiple witnesses provided identical testimony. Accordingly, Williams is not

entitled to relief on these claims. See Commonwealth v. Jones, 811 A.2d

994, 1003 (Pa. 2002) (affirming the dismissal of a PCRA petition without a

hearing, noting that ineffective assistance of counsel claims are not self-

proving, and undeveloped claims are insufficient to demonstrate entitlement

to relief); see also Solano, supra.

      Next, Williams argues that his trial counsel rendered ineffective

assistance by failing to (a) subpoena video footage and login records from

Northeast High School, (b) subpoena the testimony of several Northeast High

School employees, and (c) investigate the whereabouts of the home video

system that Williams alleges was stolen from his office. See Brief for Appellant

at 20-26. We will address each of these contentions in turn.

      Regarding his first contention, Williams argues that school video

evidence and login records would have demonstrated that the woman with

whom he met regarding the student’s disciplinary issues, who claimed to be

student’s “mother,” was not same woman who testified as student’s “mother”

at his preliminary hearing and trial. Id. at 20-23. In support of this claim,

Williams asserts that such evidence would have called the mother’s credibility

into question. Id. at 22.




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      Significantly, Williams proffered no evidence to support his theory that

two separate women claimed to be the victim’s “mother.”            Additionally,

Williams does not provide any indication that, to the extent that this evidence

might exist, it would have been admissible or relevant at trial. Accordingly,

this claim fails. See Commonwealth v. Scott, 752 A.2d 871, 877 n.8 (Pa.

2000) (stating that “[a]n evidentiary hearing … is not meant to function as a

fishing expedition for any possible evidence that may support some

speculative claim of ineffectiveness.”).

      Williams also contends that counsel was ineffective in failing to

subpoena various employees of Northeast High School, whom he claims would

be able to bolster his assertions about the victim’s “mother,” and/or the theft

of his video recorder. Brief for Appellant at 23. Again, Williams’s claim is

undeveloped, as he fails to demonstrate any indication that these potential

witnesses were willing and available to testify on his behalf, or that their

testimony would have changed the outcome of his case. See Sneed, supra.

      Regarding his third contention, Williams asserts that trial counsel failed

to properly investigate the whereabouts of his home video system. Brief for

Appellant at 23-24. Williams proffered no evidence for his bald allegation that

the student came into possession of his home video system, and used that

footage to gain knowledge of the layout of his home. Williams’s suggestion

that the video footage was the true source of the student’s knowledge of his

home is belied by Williams’s own admission that he permitted the student to


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enter his home to use the bathroom, which would have allowed her to develop

knowledge of the premises without viewing the recordings. Brief for Appellant

at 24 (wherein Williams states that the student “briefly entered his home to

use the bathroom”).     Because Williams failed to establish that the video

recording system was indeed stolen from his office, or that further

investigation into the video recording system’s whereabouts would have

changed the outcome of his trial, this claim fails. See Commonwealth v.

Miller, 987 A.2d 638, 648 (Pa. 2009) (stating that prejudice is shown when

there is a reasonable probability that, but for counsel’s errors, the result of

the proceeding would have been different) (citation and quotation omitted);

see also Commonwealth v. Simpson, 66 A.3d 253, 277 (Pa. 2013) (stating

that “[i]t is not enough to show that [counsel’s] errors had some conceivable

effect on the outcome of the proceeding … [c]ounsel’s errors must be so

serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.”) (quotation and citation omitted).

      Based upon the foregoing, we conclude that the PCRA court did not

abuse its discretion when it dismissed Williams’s Petition without a hearing.

See Commonwealth v. Edmiston, 634 A.2d 1078, 1093 (Pa. 1993) (holding

that an evidentiary hearing is not required in the absence or proof indicating

the ineffectiveness claim has arguable merit); see also Hutchinson, supra.

Accordingly, the PCRA court did not err in dismissing Williams’s Petition

without a hearing.


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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2020




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