J-S77022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ERIC DONTE WILLIAMSON-TOWERY

                            Appellant                No. 2105 MDA 2015


                Appeal from the PCRA Order November 4, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003028-2012
                            CP-22-CR-0003047-2012



BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED JANUARY 10, 2017

       Appellant, Eric Donte Williamson-Towery, appeals pro se from the

order entered on November 4, 2015, which dismissed his petition filed

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

9546. We affirm.

       This Court previously summarized the facts surrounding Appellant’s

convictions for one count of possession with the intent to deliver a controlled

substance, two counts of possession of drug paraphernalia, and one count of

persons not to possess a firearm.1 We explained:

____________________________________________


1
  35 P.S. § 780-113(a)(30) and (32) and 42 Pa.C.S.A. § 6105(a)(1),
respectively.




*Retired Senior Judge assigned to the Superior Court.
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       Officer Timothy Wells, of the Highspire Borough Police
       Department, testified that on the date in question (January
       10, 2012), he was working for the Steelton Police
       Department and became involved in an investigation
       involving a two-car motor vehicle accident. Officer Wells
       witnessed the accident, which he described as “minor,”
       while at the corner of Cameron and Market Streets in
       Harrisburg.     He activated his emergency lights and
       proceeded to where the vehicles were located to advise the
       drivers to get off of the roadway. A tan Chrysler Sedan had
       struck a blue Chevrolet Lumina. Officer Wells knocked on
       the driver's side door of the Chrysler to advise him to pull
       off the road. The driver indicated that he was going to pull
       over, but then accelerated at a high rate of speed down
       Cameron Street. The officer told the occupants of the other
       vehicle to pull off the road and stay put, and Officer Wells
       then proceeded to follow the Chrysler, which had continued
       on at a very high rate of speed. By the time Officer Wells
       got to Cameron and Berryhill Streets, he noticed that the
       vehicle had crashed into several parked cars in Bik's parking
       lot, damaged a fence and a sign, and was resting on top of
       another parked vehicle. Officer Wells identified Appellant as
       the driver of the Chrysler. Appellant fled from the car by
       the time that Officer Wells reached it, but the officer found
       him behind a car wash and placed him under arrest. A
       search of Appellant's person revealed a cell phone, a
       business card, and a small vial filled with an unknown liquid.
       While in the police car, Appellant told Officer Wells that he
       ran because he did not have a driver's license and was on
       state parole.

       When the Harrisburg police officer arrived, Officer Wells
       turned Appellant over to Corporal Lyda and Officer Eric
       Carter, along with the items found on Appellant. Based on
       the information received from Officer Wells, Officer Carter
       placed Appellant under arrest. Officer Carter testified that
       he climbed onto one of the vehicles to reach the Chrysler,
       and managed to obtain the registration slip out of the glove
       box, which indicated that the vehicle was registered to
       Sasha Hall. Due to the condition of the vehicle, the officer
       was not able to access the rest of the car, and the vehicle
       was towed. Appellant did not have a valid driver's license
       and was unable to produce any type of identification to
       Officer Carter at the scene. Based on the fact that the

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       officers observed Appellant striking an occupied vehicle,
       fleeing the scene, causing extensive damage, attempting to
       run on foot from the vehicle, and not being able to provide
       identification, Appellant was taken into custody and taken to
       Harrisburg City Booking.

       Jill Hoover, a state parole agent, testified that on January
       10, 2012, Harrisburg City Booking alerted Pennsylvania
       State Parole that Appellant was at the booking center for
       new criminal charges. Appellant was on parole supervision
       for drug charges, firearms, and escape. Agent Hoover was
       told that Appellant was being released on citations, so her
       supervisor, Peter Hans, told her to go immediately to the
       booking center and bring Appellant back to the parole office
       for a conference.      As Agent Hoover was transporting
       Appellant, she learned that the wrecked vehicle driven by
       Appellant was never searched, and called her supervisor to
       advise him of this. Supervisor Hans told Agent Hoover to
       go search the vehicle. At that point, Agent Hoover drove to
       Don's Towing. She asked Appellant if she would find
       anything in the car, to which he replied no. On the driver's
       side floor of the Chrysler driven by Appellant, Agent Hoover
       found a plastic bag with marijuana in it, along with a scale;
       she immediately called Detective Heffner of the Harrisburg
       City Police and took Appellant back to booking.         After
       dropping off Appellant, Agent Hoover went back to talk to
       her supervisor, who told her to search Appellant's
       room/residence at 805 North 18th Street in Harrisburg.
       Later that day, Agent Hoover went to Appellant's residence
       and encountered Appellant's grandmother at the house,
       who told her it was fine to search Appellant's bedroom. In a
       wardrobe closet, Agent Hoover found a 9–millimeter
       handgun; she also found a scale on the bed.              She
       immediately called both Supervisor Hans and Harrisburg
       City Police. In his testimony, Supervisor Hans confirmed
       Agent Hoover's account of the events of January 10, 2012.

       Appellant filed a motion to suppress the evidence obtained.
       The trial court held a hearing on the motion on February 7,
       2013, and then ultimately denied relief. . . .

       [Prior to Appellant’s September 11, 2013 bench trial,
       Appellant moved for the dismissal of all charges against him
       on the basis that the Commonwealth had violated

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         Pennsylvania Rule of Criminal Procedure 600. Following a
         hearing on Appellant’s Rule 600 motion, the trial court
         denied the motion. N.T. Trial, 10/11/13, at 11].        On
         September 11, 2013, the trial court held a bench trial and
         convicted Appellant of [one count of possession with the
         intent to deliver a controlled substance, two counts of
         possession of drug paraphernalia, and one count of persons
         not to possess a firearm]. On the same day, the trial court
         sentenced Appellant to an aggregate term of four to eight
         years of imprisonment.

Commonwealth v. Williamson-Towery, 105 A.3d 49 (Pa. Super. 2014)

(unpublished    memorandum)      at   1-4   (internal   quotations,   citations,

corrections, and footnotes omitted), appeal denied, 104 A.3d 525 (Pa.

2014).

      On June 30, 2014, this Court affirmed Appellant’s judgment of

sentence and, on December 10, 2014, the Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal. Id.

      On April 23, 2015, Appellant filed a timely, pro se PCRA petition.

Appellant raised one claim in his PCRA petition:

         Direct appeal counsel was ineffective for failing to raise a
         challenge to the trial judge’s refusal to grant [Appellant’s]
         Rule 600/speedy trial motion to dismiss . . . where[:] (1)
         the judge erred in crediting the time from 10-1-12 to 11-5-
         12 (i.e., 35 days) against [Appellant] because a public
         defender requested a continuance on [Appellant’s] behalf;
         (2) the judge erred in crediting the time from 1-24-13 to 7-
         1-13 (i.e., 158 days) against [Appellant] because
         [Appellant’s] pre-trial motion to suppress was pending; and
         (3) the judge erred in crediting the time from 7-16-13 to 8-
         5-13 (i.e., 20 days) against [Appellant] because after the
         suppression motion was denied the first available trial date
         was on 8-5-13; as such, [Appellant’s] state and federal
         constitutional rights to fundamental fairness, equal
         protection, due process, and effective assistance of counsel
         were violated.

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Appellant’s Pro Se PCRA Petition, 4/23/15, at 4 (some internal capitalization

omitted).

      The PCRA court appointed counsel to represent Appellant in the

proceedings. PCRA Court Order, 6/1/15, at 1. However, on June 22, 2015,

appointed counsel filed a no-merit letter and a request to withdraw as

counsel, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

After reviewing counsel’s no-merit letter, the PCRA court granted counsel’s

petition to withdraw and issued Appellant notice, pursuant to Pennsylvania

Rule of Criminal Procedure 907, of its intent to dismiss Appellant’s petition in

20 days, without holding a hearing. PCRA Court Order, 8/4/15, at 1.

      On September 24, 2015, Appellant filed a response to the dismissal

notice. Within Appellant’s response, Appellant repeated some of the claims

he raised in his earlier, pro se PCRA petition.    See Appellant’s Response,

10/24/15, at 4-8. However, Appellant also claimed that appointed counsel

“overlooked” certain meritorious issues. These issues were, first, that “there

was no judge present at [Appellant’s] formal arraignment.”           Id. at 3.

According to Appellant, since there was no judge present at his formal

arraignment, Appellant did not have an opportunity to waive his right to

appointed counsel.      Appellant claimed that he was not granted this

opportunity to waive his right to counsel and, as a result of counsel’s

appearance, counsel moved for a continuance that Appellant did not want,

and this continuance “possibly waiv[ed] [Appellant’s] Rule 600 rights for the

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time of 10/1/12 [to] 11/5/12.” Id. at 3-4.      Second, Appellant claimed that

“[d]irect appeal counsel was ineffective for failing to raise trial counsel’s

ineffectiveness at the first opportunity.” Id. at 8. According to Appellant,

counsel on direct appeal should have claimed that trial counsel was

ineffective for:   “fail[ing] to call [] key witness Sasha Hall on [Appellant’s

behalf during the suppression hearing,] to challenge the illega[l] search that

was performed on Sasha Hall’s vehicle” and for failing to “properly argue the

issues pertaining to [Appellant’s R]ule 600 [motion] that he wished to

address to the courts.” Id. at 8-10.

      On November 4, 2015, the PCRA court dismissed Appellant’s PCRA

petition. Appellant filed a timely notice of appeal and Appellant now raises

the following claims to this Court:

        [1.] Did the PCRA court [commit] an error of law and fact
        when it held, trial counsel was not ineffective for failing to
        raise a “Structural Error” issue due to no judge being
        present at Appellant’s formal arraignment, and where it held
        direct appeal counsel was not ineffective for failing to raise
        this [issue], and where it held PCRA counsel was not
        [ineffective] for failing to raise trial and direct appeal
        counsel’s ineffectiveness for failing to raise this issue and,
        where the PCRA court held this issue was waived?

        [2.] Did the PCRA court [commit] an error of law and fact
        when it held, trial counsel was not ineffective for failing to
        raise a “Structural Error” issue due to [] Appellant being
        denied the assistance of counsel at a critical stage of the
        formal arraignment[,] and where it held direct appeal
        counsel was not ineffective for failing to raise [this] issue,
        and where it held PCRA counsel was not ineffective for
        failing to raise trial counsel and direct appeal counsel
        ineffectiveness for failing to raise this issue; or where it held
        . . . this issue was waived?

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        [3.] Did the PCRA court [commit] an error of law and fact
        when it held, trial counsel was not ineffective for failing to
        raise a “Structural Error” issue due to [] Appellant being
        denied the right to self representation[,] and where it held
        direct appeal counsel was not ineffective for failing to raise
        [this] issue; and where it held PCRA counsel was not
        ineffective for failing to raise trial and direct appeal
        counsel’s ineffectiveness for failing to raise this issue; or
        where the PCRA court held this issue was waived?

        [4.] Did the PCRA court [commit] an error of law and fact
        when it held trial counsel was not ineffective for taking a
        limited role at Appellant’s [R]ule 600/speedy trial hearing;
        and where it held direct appeal counsel was not ineffective
        for failing to raise this issue; and where it held PCRA
        counsel was not ineffective for failing to raise trial and direct
        appeal counsel’s ineffectiveness for failing to raise this
        issue?

        [5.] Did the PCRA court [commit] an error of law and fact
        when it held, the time from 10/1/12 [to] 11/5/12 was
        properly excluded from the calculation of [] Appellant’s
        [R]ule 600/speedy trial violation due to an illegal waiver of
        [] Appellant’s [R]ule 600/speedy trial rights?

        [6.] Did the PCRA court [commit] an error of law and fact
        when it held[] the time from 1/24/13 [to] 7/1/13 was
        properly excluded from the calculation of [] Appellant’s
        [R]ule 600/speedy trial violation due to the outcome of []
        Appellant’s suppression motion?

        [7.] Did the PCRA court [commit] an error of law and fact
        when it held[] the time from 7/16/13 [to] 8/5/13 was
        properly excluded from the calculation of [] Appellant’s
        [R]ule 600/speedy trial violation due to the courts not being
        able to effectuate a trial date?

        [8.] Did the PCRA court [commit] an error of law and fact
        when it held[] the Commonwealth showed due diligence in
        bringing [] Appellant to trial within 365 [days] under the
        U.S. 6th Amendment to the Constitution?

Appellant’s Brief at 6 (some internal capitalization omitted).


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        As we have stated:

          [t]his Court’s standard of review regarding an order
          dismissing a petition under the PCRA is whether the
          determination of the PCRA court is supported by evidence of
          record and is free of legal error. In evaluating a PCRA
          court’s decision, our scope of review is limited to the
          findings of the PCRA court and the evidence of record,
          viewed in the light most favorable to the prevailing party at
          the trial level. We may affirm a PCRA court’s decision on
          any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).

        To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness of counsel which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

        Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”        Rivera, 10 A.3d at

1279.     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 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

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        a reasonable probability that the outcome of the challenged
        proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).              “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Id.

      To establish the reasonable basis prong, we must look to see whether

trial counsel’s strategy was “so unreasonable that no competent lawyer

would have chosen that course of conduct.” Commonwealth v. Williams,

640 A.2d 1251, 1265 (Pa. 1994). An attorney’s trial strategy “will not be

found to have lacked a reasonable basis unless it is proven that an

alternative not chosen offered a potential for success substantially greater

than the course actually pursued.” Commonwealth v. Howard, 719 A.2d

233, 237 (Pa. 1998).      Further, if an appellant has clearly not met the

prejudice prong, a court may dismiss the claim on that basis alone and need

not   determine    whether    the   other   two    prongs   have    been    met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

      For Appellant’s first and second claims on appeal, Appellant contends

that his trial counsel was ineffective for failing to raise any issue relating to

there being no judge at the formal arraignment and Appellant being “denied”

the assistance of counsel at the formal arraignment.          These claims fail

because they are factually baseless.     To be sure, the record reflects that

Appellant was formally arraigned on August 16, 2012, at 8:30 a.m., in the

jury assembly room of the Court of Common Pleas of Dauphin County and,

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at the time of Appellant’s formal arraignment, Appellant was represented by

Jerry Joseph Russo, Esquire. See Court of Common Pleas Docket Sheet, at

1-15; Magisterial District Judge 12-1-04 Criminal Docket Sheet, at 1-5; see

also   N.T.   Preliminary   Hearing,    6/25/12,    at   1-24   (Attorney     Russo

represented Appellant during the June 25, 2012 preliminary hearing and did

not thereafter file a motion to withdraw his representation; therefore,

Attorney Russo was Appellant’s attorney at the time of the formal

arraignment); see also Pa.R.Crim.P. 571(B) (“[i]n the discretion of the

court, the arraignment of the defendant may be conducted by using two-way

simultaneous audio-visual communication”). Therefore, Appellant’s first and

second claims on appeal fail.

       Next, Appellant claims that trial counsel was ineffective for failing to

raise the claim that Appellant was denied the right to self-representation at

“the Miscellaneous court date on 10/1/12.”         Appellant’s Brief at 27.    This

claim fails because it was Appellant’s responsibility to invoke his right to self-

representation – and, in this case, Appellant never petitioned the trial court

for the right to proceed pro se. Commonwealth v. Davido, 868 A.2d 431

(Pa. 2005) (“when a defendant desire[s] to represent himself, he must

petition the court and the court must follow the appropriate legal

procedure for securing a valid waiver of counsel”) (internal quotations and

citations omitted) (emphasis added). Therefore, Appellant’s third claim fails.




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      Fourth, Appellant claims that his trial counsel was ineffective for

“taking a limited role at Appellant’s Rule 600/speedy trial hearing.”

Appellant’s Brief at 30. This claim fails because Appellant nowhere specifies

what, precisely, his trial counsel should have done differently at the hearing

or how his trial counsel’s alleged failings caused him any prejudice. See id.

at 30-34.

      For Appellant’s remaining claims on appeal, Appellant contends that

the trial court erred in concluding that certain specific time periods were

excludable “from the calculation of [] Appellant’s Rule 600/speedy trial” date

and in concluding that the Commonwealth “exercised due diligence in

bringing [] Appellant to trial [within] the [requisite] 365 days.” Id. at 35-

55.   None of these substantive Rule 600 claims are cognizable under the

PCRA.     See 42 Pa.C.S.A. § 9543(a)(2).      Further, since Appellant’s Rule

1925(b) statement and Rule 2116(f) “statement of questions involved” limit

Appellant’s remaining claims to substantive Rule 600 claims, Appellant’s

remaining claims necessarily fail.   See Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues

not included in the [Rule 1925(b) s]tatement . . . are waived”); Pa.R.A.P.

2116(a) (“[n]o question will be considered unless it is stated in the

statement of questions involved or is fairly suggested thereby”).

        Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2017




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