J-S46025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

NORMAN WILLIAMS, JR.

                            Appellant                      No. 452 MDA 2014


                 Appeal from the PCRA Order February 4, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0001173-2004



BEFORE: BOWES, OLSON, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                             FILED SEPTEMBER 07, 2017

       Appellant, Norman Williams, Jr., appeals from the order entered on

February 4, 2014, dismissing his petition pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9141-9546.              Upon consideration, we

affirm.

       The factual background and procedural history of this case are as

follows. On February 16, 2004, Appellant was charged with second-degree

murder1 and criminal conspiracy.2              On January 6, 2005, Appellant filed

pretrial motions to suppress statements made to an investigator and to

____________________________________________


1
    18 Pa.C.S.A. § 2502(b).
2
    18 Pa.C.S.A. § 903.



* Former Justice specially assigned to the Superior Court.
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sever his case from his co-defendant’s trial.         The trial court denied both

motions. On January 10, 2005, following a jury trial, Appellant was found

guilty of both charges.        On February 28, 2005, the trial court sentenced

Appellant to a term of life imprisonment without the possibility of parole on

the second-degree murder conviction and a concurrent term of 12 to 24

years’ incarceration for conspiracy.             This Court affirmed Appellant’s

judgment of sentence, and our Supreme Court denied his petition for

allowance of appeal.       See Commonwealth v. Williams, 898 A.2d 1136

(Pa. Super. 2006) (unpublished memorandum), appeal denied, 907 A.2d

1102 (Pa. 2006).

       Appellant filed a pro se PCRA petition on January 10, 2007. The PCRA

court appointed counsel, who filed an amended PCRA petition on April 3,

2007. Appointed counsel filed a motion to withdraw on July 23, 2007. 3 The

PCRA court granted counsel’s motion and issued notice of its intent to

dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.

On August 24, 2007, the PCRA court dismissed Appellant’s petition and

Appellant filed a notice of appeal on September 27, 2007. On July 17, 2009,

this Court remanded the matter to determine whether Appellant had filed a

timely notice of appeal from the denial of PCRA relief. See Commonwealth

____________________________________________


3
   Counsel did not file a “no-merit” letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc).



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v. Williams, 981 A.2d 939 (Pa. Super. 2009) (unpublished memorandum).

On September 2, 2009, the PCRA court concluded that Appellant had filed a

timely appeal from the dismissal of his PCRA petition.      Nevertheless, on

November 9, 2009, this Court vacated the July 26, 2007 order and

remanded the matter, determining that counsel failed to satisfy the technical

prerequisites of Turner/Finley, and thus the PCRA court erred by granting

counsel’s request to withdraw. See Commonwealth v. Williams, 988 A.2d

732 (Pa. Super. 2009) (unpublished memorandum).

       Upon remand, Appellant filed a pro se motion for leave to amend his

original PCRA petition.       On December 9, 2010, the PCRA court appointed

new counsel and granted Appellant leave to amend his PCRA petition.

Appellant filed a counseled, supplemental PCRA petition on July 7, 2011. On

August 2, 2011, the PCRA court issued notice of its intent to dismiss the

petition without a hearing pursuant to Pa.R.Crim.P. 907.    However, during

the ensuing year, the PCRA court did not act. Appellant filed a pro se PCRA

petition on August 27, 2012, and pro se praecipe for entry of judgment on

November 29, 2013.          On February 4, 2014, the PCRA court entered two

separate orders dismissing Appellant’s counseled PCRA petition and his pro

se petition.4


____________________________________________


4
 The PCRA court deemed Appellant’s pro se praecipe for entry of judgment
moot.



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      Appellant filed a timely notice of appeal.       See Commonwealth v.

Williams, 2015 WL 6666284, at *2 (Pa. Super. 2015). On September 4,

2015, this Court remanded the matter and directed the PCRA court to

appoint new counsel with instructions to review Appellant’s petition and

either file an advocate’s brief or an application to withdraw and a “no-merit”

letter. Id. On September 9, 2015, the trial court appointed new counsel,

who subsequently filed a motion to withdraw for medical reasons, which the

PCRA court granted on March 30, 2016.         The PCRA court again appointed

new counsel, who filed a brief with this Court on behalf of Appellant.

      On appeal, Appellant presents the following issue, with multiple

sub-parts, as follows:

   1. Whether trial counsel was ineffective in his representation [of
      Appellant] for the following reasons:

      [a.]   Whether [t]rial [c]ounsel was ineffective for failing to call a
             toxicologist regarding the effects of PCP and marijuana in
             regards to making a voluntary statement to police?

      [b.]   Whether [t]rial [c]ounsel was ineffective for failing to
             request a mistrial when jury members saw [] Appellant in
             handcuffs and shackles?

      [c.]   Whether [t]rial [c]ounsel was ineffective for failing to have
             jury members removed from the panel and/or ask for a
             mistrial when jury members were found to be sleeping
             during trial?

      [d.]   Whether [t]rial [c]ounsel was ineffective for advising []
             Appellant to testify according to his given statement which
             was given when [] Appellant was under the influence of
             drugs?




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      [e.]   Whether [t]rial [c]ounsel was ineffective for failing to
             object when the [t]rial [c]ourt instructed the jury that []
             Appellant and his co[-defendant] did in fact “intend to
             kill?”

Appellant’s Brief at 8.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determinations are supported by the record and are free of legal

error.”   Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014)

(internal quotation marks and citations omitted). Each of the issues raised

by Appellant involves a claim of ineffective assistance of trial counsel.

      A PCRA petitioner will be granted relief on this ground only when
      he proves, by a preponderance of the evidence, that his
      conviction or sentence resulted from the “[i]neffective assistance
      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.”

Commonwealth v. Smith, 17 A.3d 873, 883 (Pa. 2011), quoting 42

Pa.C.S.A. § 9543(a)(2)(ii).

      Generally, “counsel is presumed to be effective.” Commonwealth v.

Patterson, 143 A.3d 394, 398 (Pa. Super. 2016) (citation omitted).          To

succeed on a claim of ineffective assistance of counsel, a petitioner must

prove, “(1) the legal claim underlying the ineffectiveness claim has merit;

(2) counsel’s action or inaction lacked any reasonable basis designed to

effectuate petitioner’s interest; and (3) counsel’s action or inaction resulted

in prejudice to petitioner.” Commonwealth v. Mason, 130 A.3d 601, 618

(Pa. 2015) (citation omitted).   “The failure to satisfy any one of the three



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prongs will cause the entire claim to fail.”   Commonwealth v. Faurelus,

147 A.3d 905, 911 (Pa. Super. 2016) (citation omitted).

      In issue 1(a), Appellant argues trial counsel was ineffective for failing

to call a toxicologist to testify regarding the effects of drugs in Appellant’s

system when he gave a statement to police.           Appellant’s Brief at 14.

Specifically, Appellant contends that if “a toxicologist had been called to

testify on his behalf, [the testimony] would have refuted the finding by the

suppression court that [Appellant’s] statement was given while sober,” and

was therefore voluntary.     Id. at 15.    “[T]o establish ineffectiveness for

failing to call an expert witness, an appellant must establish that the witness

existed and was available; counsel was aware of, or had a duty to know of

the witness; the witness was willing and able to appear; and the proposed

testimony was necessary in order to avoid prejudice to the appellant.”

Commonwealth v. Weiss, 81 A.3d 767, 804 (Pa.2013) (citation omitted).

      In this case, Appellant failed to show that an expert witness was

willing and able to appear at trial. He offers no proof of the testimony an

expert would have given.       Additionally, his first court-appointed PCRA

counsel contacted a toxicologist and then subsequently withdrew as counsel

when, after reviewing the recorded interview with police, the toxicologist

found Appellant was not so impaired at the time of his interrogation that he




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did not knowingly waive his rights.5 As such, Appellant’s argument that trial

counsel was ineffective for failing to call an expert witness lacks arguable

merit.

       In Appellant’s issue 1(b), he alleges trial counsel was ineffective for

failing to request a mistrial after Appellant was seen by the jury in shackles

and handcuffs.      Appellant argues that the jury was brought back into the

courtroom after a lunch break and briefly observed Appellant in shackles and

handcuffs before being escorted out.           Appellant’s Brief at 17.   Appellant’s

trial counsel brought this issue to the attention of the court, however

counsel did not request a mistrial. Appellant argues that “[b]ecause [t]rial

[c]ounsel failed to request a mistrial and failed to request cautionary

instructions, [] Appellant suffered prejudice and counsel was ineffective.”

Id. at 20.

       It is well-settled that “[a] brief accidental sighting of a defendant in

custodial trappings, without more, is not so inherently prejudicial as to

significantly impair the presumption of innocence to which the defendant is

entitled.”   Commonwealth v. Neary, 512 A.2d 1226, 1230 (Pa. Super.
____________________________________________


5
   In his June 16, 2007 letter, toxicologist Lawrence Guzzardi, M.D., states,
“[h]aving reviewed the above materials, which contain [Appellant’s]
statements regarding his drug abuse in times proximate to his
confession…and the CD recording of his statements, I do not believe that I
can render an opinion that [Appellant] was so impaired by his drug use that
he was unaware of his [c]onstitutional and Miranda rights or so impaired
that his statements were not ‘knowing and voluntary.’” Trial Court Opinion,
9/30/2005, at 3.



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1986); see also Commonwealth v. Valerio, 712 A.2d 301, 302 (Pa.

Super. 1998) (finding that a mere accidental observation of a defendant in

handcuffs outside a courtroom by a juror does not, without more, require

the granting of a mistrial). Further, it is unclear whether any members of

the jury actually saw Appellant handcuffed and Appellant has offered no

evidence as to how he suffered prejudice.           Moreover, the jury was

specifically instructed regarding the constitutionally mandated presumption

of innocence to which Appellant is entitled. N.T., 7/29/2005, at 797. Juries

are presumed to follow the court’s instructions. Commonwealth v. Mason,

130 A.3d 601, 673 (Pa. 2015) (citation omitted). Thus, we find Appellant’s

claim lacks merit.

      In Appellant’s third sub-issue, he argues trial counsel was ineffective

for failing to seek the dismissal of a juror who was allegedly sleeping during

trial. More specifically, another juror alerted the trial court that a member of

the jury was possibly sleeping while Appellant’s co-defendant testified.

Appellant’s Brief at 20.   However, when questioned, the juror claimed she

was closing her eyes to concentrate on the testimony.          Id.    This Court

decided a similar issue in Commonwealth v. Lawson, 762 A.2d 753 (Pa.

Super. 2000).    In Lawson, we stated “[e]ven if a juror slept through

portions of the trial…appellant did not demonstrate that, but for the sleeping

juror, the outcome of the trial would have been different.”          Id. at 757.

Likewise, in this case, the Commonwealth presented ample evidence to


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convict Appellant.      Further, it was never established that the juror was

actually sleeping. However, even if the juror were sleeping, Appellant failed

to show that, but for the sleeping juror, the outcome of the trial would have

been different.       Thus, Appellant has not demonstrated that he suffered

actual prejudice, and therefore, his claim fails.

        In his issue 1(d), Appellant contends trial counsel was ineffective for

advising Appellant to testify according to his statement given to police,

which Appellant alleges was given while he was under the influence of drugs.

Appellant’s Brief at 22. Specifically, Appellant argues that “[b]y advising []

Appellant to testify in this manner, [] Appellant was [giving] legitimacy to

that statement that was given while under the influence of marijuana and

PCP.”       Id.        However,    Appellant’s   three-sentence   argument   is

underdeveloped and devoid of any citations to legal authority. As such, we

find    Appellant’s    claim   waived.     See   Pa.R.A.P.   2119;   see   also

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (finding

claim waived where appellant’s argument is underdeveloped and fails to

develop argument supported by legal authority). Moreover, even assuming

arguendo that Appellant did not waive this claim, it is otherwise meritless.

We find no evidence in the record, and Appellant cites none, to suggest that

his decision to testify was made involuntarily.       Nor do we find that trial

counsel’s recommendation that Appellant testify on his own behalf was

without a reasonable basis.       Finally, having already determined that there


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was no merit to Appellant’s claim that he was under the influence of drugs

when he gave statements to police, it would have been reasonable for trial

counsel to recommend that Appellant testify at trial consistent with those

statements.

      In Appellant’s final claim for ineffective assistance of counsel, he

argues that trial counsel failed to object to instructions given to the jury.

Specifically, the trial court gave the following jury instruction:

      So if either of these two defendants in this case you find beyond
      a reasonable doubt entered the apartment, and at the time they
      entered the apartment, intended to assault—not necessarily
      kill—but, of course they intended to kill, that would be also there
      for your consideration.

N.T., 7/29/2005, at 817.         Appellant argues that because the trial court

explicitly stated that he and his co-defendant intended to kill in its

instructions, “the jury had no choice other than to convict [Appellant].”

Appellant’s Brief at 23-24.

      It is well settled that in reviewing a challenge to a jury instruction, the

charge, as whole, must be considered. Commonwealth v. Lesko, 15 A.3d

345, 397 (Pa. 2011).     Furthermore, the trial court has broad discretion in

phrasing   the   instructions,   so   long   as   the   directions   given   “clearly,

adequately, and accurately” reflect the law.             Id.   When viewing the

instruction as a whole, we are convinced that Appellant was not prejudiced.

The trial judge thoroughly instructed the jury on the intent requirements of

each crime. Furthermore, in his closing remarks to the jury, the trial judge



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stated “[i]t will be your responsibility to consider the evidence, find the

facts, and apply the law to the facts as you find them, to decide whether the

[d]efendant or [d]efendants have been proven guilty beyond a reasonable

doubt.” N.T., 7/29/2005, at 833. Again, as previously stated, we presume

the jury followed the trial court’s instructions.   Mason, 130 A.3d at 673.

The jury also submitted questions to the court, which indicates that they

clearly understood they had a “choice” of whether or not to find Appellant

guilty.   Thus, Appellant’s claim of counsel ineffectiveness lacks arguable

merit.

      Therefore, based on our standard of review and the rationale explained

above, Appellant has failed to establish that his trial counsel was ineffective.

Thus, we conclude that the PCRA court’s determination is supported by the

record and is free of legal error.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2017




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