J-S56023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

YAQUAN GERALD WILLIAMS

                            Appellant                      No. 796 MDA 2015


                    Appeal from the PCRA Order April 9, 2015
               in the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0001092-2009


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                          FILED NOVEMBER 02, 2015

        Yaquan    Gerald    Williams    (“Appellant”),   appeals   from   the   order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

        On September 21, 2010, a jury found Appellant guilty of murder in the

first degree,1 firearms not to be carried without a license,2 and delivery of a

controlled substance – cocaine.3          On September 30, 2010, the trial court

sentenced Appellant to life imprisonment for the murder conviction, and

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2501(a).
2
    18 Pa.C.S. § 6106(a)(1).
3
    35 P.S. § 780-113(a)(30).
J-S56023-15



consecutive sentences of 1 to 2 years’ incarceration for the firearms not to

be carried without a license conviction and 2 to 4 years’ incarceration on the

delivery of a controlled substance conviction.       Appellant appealed.    This

Court affirmed the judgment of sentence on August 2, 2011,4 and the

Supreme Court of Pennsylvania denied Appellant’s petition for allowance of

appeal on January 19, 2012.

       On October 5, 2012, Appellant filed the instant timely PCRA petition.

The PCRA court held evidentiary hearings on August 12, 2014 and October

9, 2014, and denied the PCRA petition on April 9, 2015. Appellant timely

appealed on May 7, 2015.           Also on May 7, 2015, the PCRA court filed a

Pa.R.A.P. 1925(a) opinion that adopted the April 9, 2015 order as the court’s

1925(a) opinion.5

       Appellant raises the following issues for our review:6

       I. [Whether] Appellant was denied his rights under Article 1 § 9
       [of] the Constitution of Pennsylvania and the Sixth Amendment
       to the Constitution of America to effective assistance of counsel
       in that trial counsel failed to investigate, interview and call to
       testify at trial an eyewitness to the crime[?]
____________________________________________


4
  See Commonwealth v. Williams, 1664 MDA 2010, August 2, 2011
(unpublished memorandum).
5
 The PCRA court did not order, and Appellant did not file, a statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
6
  We note that, with the exception of the additional seventh issue alleging
Appellant was prejudiced by the cumulative effect of prior counsel’s
ineffectiveness, these claims mirror exactly Appellant’s claims raised in his
PCRA petition.



                                           -2-
J-S56023-15


      II. [Whether c]ounsel was constitutionally ineffective under the
      Sixth Amendment for eliciting prejudicial testimony from a
      detective about the detective’s personal opinion of the
      truthfulness of another witness’ testimony.          In that the
      detective[’]s opinion of the witness’ credibility supplanted the
      fact finder’s determination, [Appellant’s] Fourteenth Amendment
      rights were violated[?]

      III.   [Whether d]irect appeal[] counsel was constitutionally
      ineffective under the Sixth Amendment for raising a claim
      challenging the trial court’s denial of the motions to suppress
      and then failing to brief said issue, thereby waiving it[?]

      IV. [Whether c]ounsel was constitutionally ineffective under the
      Sixth Amendment for failing to preserve and properly argue a
      hearsay objection to testimony that Ms. Aguilera called people
      and told them that Ms. Johnson was [a] snitch[?]

      V. [Whether c]ounsel was constitutionally ineffective under the
      Sixth Amendment for opening the door to prejudicial testimony
      from a Commonwealth witness[?]

      VI. [Whether c]ounsel was constitutionally ineffective under the
      Sixth Amendment for failing to object [to] questions to an
      eyewitness that confused and misle[]d the jury concerning the
      reliability of the witness’ identification of the perpetrator[?]

      VII.     [Whether t]he [c]umulative [i]mpact        of   [c]ounsel’s
      ineffectiveness entitles Appellant to relief[?]

Appellant’s Brief, pp. 2-3.

      Our standard of review from the denial of post-conviction relief “is

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

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley,   21   A.3d   1238    (Pa.Super.2011)   (citing   Commonwealth       v.

Morales, 701 A.2d 516, 520 (Pa.1997)).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Dennis E.


                                    -3-
J-S56023-15



Reinaker, we conclude Appellant’s issues merit no relief.       The PCRA court

opinion comprehensively discusses and properly disposes of the questions

presented. See PCRA Court Opinion and Order, dated April 9, 2015, pp. 2-

13 (finding: (1) trial counsel was not ineffective for failing to call eyewitness

where Appellant failed to prove proposed witness’s willingness to testify at

trial, or that absence of such testimony prejudiced Appellant where court

found witness’s testimony at PCRA hearing incredible; (2) trial counsel was

not ineffective for eliciting testimony from detective regarding his personal

opinion as to truthfulness of another witness where detective commented on

witness’s truthfulness at time of interview, not trial, trial counsel had

strategic reason for not objecting to detective’s testimony, and trial court

properly instructed jury regarding detective’s testimony; (3) appellate

counsel was not ineffective for raising but failing to brief meritless

suppression issue on direct appeal; (4) trial counsel was not ineffective for

failing to object to alleged hearsay testimony where trial court had ruled

pre-trial that testimony would be admissible; (5) trial counsel was not

ineffective for opening door to prejudicial testimony of Commonwealth

witness where questioning was strategically reasonable to support defense

contention police determined Appellant was the shooter and then attempted

to garner evidence to support their theory of the crime; (6) trial counsel was

not ineffective for failing to object to certain questions posed to eyewitness

where counsel objected, trial court instructed prosecutor to rephrase

question, prosecutor did rephrase question, and Appellant failed to prove

                                      -4-
J-S56023-15



prejudice from counsel’s failure to further object). Accordingly, we affirm on

the basis of the PCRA court’s opinion.

      Order affirmed.

      Judge Shogan joins in the memorandum.

      Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2015




                                     -5-
                                                                                                                                                    Circulated 10/08/2015 01:10 PM
             )   '




             \
                                     IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLV ANI~
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         )                YAQUAN GERALD WILLIAMS                                                                                                          c           :I:
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                                                                                                                                                                      N
                                                                                                      OPINION AND ORDER                                   ~
         )            BY: REINAKER, .T.
         )            April 9, 2015
                                                                                                                      -----------------··· · ·                                       .
         )
        )                            The Defendant, Yaquan Gerald Williams, has filed an Amended Motion for Post-
        )
        )            Conviction Collateral Relief. The Defendant argues that he is entitled to post conviction relief

        )            on six grounds: (1) his Trial Counsel provided ineffective assistance of counsel for failing to
        )
        )            investigate; interview and call to testify
                          • •    ~     •   ,       .• ·•           •       •        ;     I       '
                                                                                                          at trial an eyewitness to the crime; (2) Trial Counsel was
                                                                                                                  •        ,,




        )
                     ineffective when he elicited testimo1,1y from. a detective about the detective's personahJpiniop-uf

    )                the truthfulness of another witness' testimony; (3) his Trial Counsel provided ineffective ·

                     assistance of counsel when hk. failed to raise a hearsay objection to the detective's testimony
    \
    /                regarding what the victim
                                          /
                                               told the detective; (4) his
                                                                        .
                                                                           Trial Counsel
                                                                                      .
                                                                                         provided ineffective asslstance
                                                                       I                                               •




    )
                     of counsel when he opened the door to prejudicial testimony from a Commonwealth witness; (5)
\
    .I               Trial Counsel provided ineffective assistance of counsel for failing to object to the
    )
}
                     Commonwealth's questioning during cross-examination ofan eyewitness that con:thsed and

                     mislead the jury; and (6) Appellate Counsel was ineffective for waiving a claim that challenged
    I
.I
                     the; Trial Court's denial of a moti on to suppress . The Court finds that the Defendant's Amended -.

                     Motion for Post-Conviction Collateral Relief will be Denied •.
                     ..   , '   ••             I           •   •               .    '.,       '       •   •
    I
)




/
    }         .                                                                                              Circulated 10/08/2015 01:10 PM

    }
    i"·····

    )         .
                  )

)                                                          Procedural and Factual Background
)
                                   On September 21, 20 IO a jury found the Defendant guilty of one count of criminal
)
)                         homicide - murder in the first degree, 1 one count of firearms not to be carried without a license,2
)
                          and one count of delivery of cocaine.3 On September 30, 2010, he was sentenced to life
)
                          imprisonment without the possibility ofparole for murder in the first degree, not less than one

                          (1) no more than two (2) years incarceration for possession of firearms, and not less than two (2)

)                         nor more than four ( 4) years incarceration for delivery of a controlled substance, which were to --··-· · _   ···-··········
                          be served consecutively with his life imprisonment for murder charge.

                                  On February 3; 2011 the Defendant, through Appellate Counsel, filed       an appeal to the
                          Superior Court of Pennsylvania. The Superior Court affirmed the judgment of sentence on

                          August 2, 2011. On August 10, 2011 the Defendant next filed a Petition for Allowance of Appeal

                          with the Supreme Court of Pennsylvania which was denied on January 19, 2012.

                                 The Defendant filed a timely Motion for Post-Conviction Collateral Relief on October 5,

                      2012 and the PCRA Court held evidentiary hearings on August 12, 2014 and October 9, 2014.

                      At the conclusion of the hearings, the Court ordered both parties to file briefs. Both parties have

                      submitted their briefs, and the matter is ready for decision.


                                                                       Discussion



                      following standards apply to the determination of ineffectiveness issues.




                      1
                          18 Pa.C.S.A. §2501(a).
                      218 Pa.C.S.A. §6106(a)(l).
                      3 35 P.S. §780.. J 13(a)(30).


                                                                            2
     )'     '   .                                                                                           Circulated 10/08/2015 01:10 PM

     J.. -··        s-.=0. ···-···----·-·

     \I
     ) ..
                                   The law presumes that counsel was effective and the Defendant has the burden of proving

     )                   ineffectiveness. Commonwealth v. Brooks, 839 A.2d 245, 248 (Pa. 2003). Therefore, to prevail
     )                   on an ineffectiveness claim, the Defendant must demonstrate that: (1) the underlying claim is of
     )
     )                   arguable merit; (2) counsel's performance lacked a reasonable basis; and (3) counsel's
     )
                         performance caused him prejudice. Commonwealth v. Miller, 746 A.2d 592 (Pa. 2000). The
     )
 )                       Defendant must establish that there was a resulting prejudice regardless if his claim satisfies the
 )
                         first two requirements of the ineffective assistance standard. Commonwealth v. Neal, 713 A.2d
 )
 )                       657, 662 (Pa.Super.Ct. 1998). Additionally, to be eligible for relief, the petitioner must ~th

                         plead and prove his case. 42 Pa.C.S.A. §9543(a). Where matters of strategy and tactics are
)
)                        concerned, counsel's assistance is generally deemed constitutionally effective if the course
)
                         chosen had some reasonable basis designed to effectuate the defendant's interest.
_)
)                        Commonwealth v. Miller, 819 A.2d 504, 517 (Pa.2002). Such a claim cannot succeed through a

)                       hindsight comparison of the chosen strategy and other alternatives. Id.
 \
j

)                            1. The Defendant's assertion that his Trial Counsel provided ineffective assistance of
)
                                  counsel for failure to call eyewitness is meritless,
)

)                                 The Defendant's first ineffective assistance of counsel claim addresses his Trial
)
                        Counsel's failure to call an eyewitness to the incident as a witness at trial. Specifically, Trial
_)                      Counsel failed to call Keenan Woods as a witness. In order to prove a claim of ineffective
)
                        assistance for failure to call a witness, the Court in Commonwealth v. Sneed, 45 A.3d 1096,

                        1108-09 (Pa. 2012) established that the petitioner must prove:

                                 ''(l) 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




                                                                             3
   )    .                                                                                                  Circulated 10/08/2015 01:10 PM

- ~..       ··- ........
   ) .            ..
   \.
                           willing to testify for the defense; and (5) the absence of trial testimony of the witness was so
              )
                           prejudicial as to have denied the defendant a fair trial ... "
  )
   )                               Here, the Defendant was able to satisfy the first two elements because Mr. Woods existed
  )
  )                        as a witness and Trial Counsel knew of the witness. The Defendant did not prove that the
  )                        witness was also willing to testify for the defense and that the absence of the witness' testimony
  )
  )                        caused prejudice to the Defendant and denied him a fair trial. The Court finds that the witness
  )                        was not credible based on the testimony provided during the PCRA hearing. During the hearing,
  )
  )                        the witness testified that he spoke with Detective Nickel during an interview a week after the
        ...............    -- ....... ---------------------
  )
                           murder. (Notes of Testimony from PCRA (hereinafter '~N.T.PCRAn at 13-14)). Later the witness
  )
  )·                       testified that he wrote a letter to his attorney in which he stated he did not know who the shooter
  )'
                           was and attempted to contact Detective Nickel to explain that he could provide a description but
 )
  )                        not the shooter's identity. (N.T.PCRA at 20-21). Then the witness testified that on October 4,
 J
                           2011, two years after the murder, he wrote a notarized declaration, in which he provided a
 )
 )                         detailed description of the shooter. (See Commonwealth Exhibit #1, N.T.PCRA 22-24). In
 )
                           addition, the witness stated that two days after speaking with the Detective, he recognized who

 )                         shot the victim and it was not the Defendant. (N.T.PCRA 14-16, 24-25).
 )
                                  The witness's testimony is not credible because-the witness was scheduled to testify for

                           the Commonwealth and against the Defendant at trial. Prior to trial, the witness discussed with

                           the Assistant District Attorney the general description of the shooter and never mentioned that he

                           did not think it was the Defendant. (N.T .PCRA 34). However, during the PCRA hearing the

                           witness testified that he realized who the real shooter was two days after speaking with the

                           Detective. (N.T.PCRA 24-25). The witness also testified that he wrote a letter to his attorney and

                           stated that he attempted to call the police to inform them that someone else was the shooter.
 I
 /·.




                                                                               4
\
/
         .                                                                                      Circulated 10/08/2015 01:10 PM

'I
~:   ....    ~-·-·
)
'    .         (N.T.PCRA 30). Detective testified that he never received a call and would have called him back
         )
               if he left him a voicemail. (N.T.PCRA 94). The Detective further testified that he met with the
)
)              witness on June 6, 2014 and reviewed the witness's statement that he gave on February 3, 2009
)
               and at this recent meeting, the witness agreed with his previous statements. The witness's
)
)              testimony was also not credible when he stated that he tried to contact the Detective to clarify his
)
)              statement but later stated during cross-examination that he did not attempt to contact the police
)              to tell them they arrested the wrong person. (N.T.PCRA 16, 30). In addition, the witness failed to
)

)              explain why he decided to make a notarized statement two years after the trial. (N.T.PCRA 31-
)
               33).
)
)                      Next, the Defendant did not prove that the witness was willing to testify for the defense
)
               because during the PCRA hearing the witness only stated that he would have testified for the
)
               defense if they had called him but the witness was also planning on testifying for the
I
               Commonwealth. The Defendant also fails to prove how the absence of the witness's testimony

               was so prejudicial that the defendant was denied a fair trial. Since the witness was not able to

               identify a shooter as a specific person, but would have provided general descriptions of the

               shooter, the witness's testimony would actually have been supported _at trial by other

               eyewitnesses who gave similar descriptions of the shooter. Since the rest of Mr. Woods'

               testimony is not credible, the Defendant fails to prove how he was prejudiced.

                      It is a credible strategic decision for the Trial Counsel to make the decision not to have

               the witness testify. Trial Counsel testified that he did interview the witness and chose not to call

               him as a witness. (N.T. PCRA 47,50). Trial Counsel also stated that it was his typical practice to

               look into potential witnesses if a client provides their name. (N.T.PCRA 57). Therefore, this

               claim is without merit


                                                                 5
         \        ..                                                                                          Circulated 10/08/2015 01:10 PM
         .I


'k . . ~····· · ·--···-------·······
         \
             ·'
         .i
                            2. The Defendant's claim for ineffective assistance of counsel after bis Trial Counsel
         )
         .,
         )                        elicited testimony from the Detective is meritless .
         )
     \
         /                        The Defendant's next claim addresses his Trial Counsel's ineffective assistance of
         )
     )                  counsel for eliciting testimony from Detective Nickel that the Detective believed Mr. Pinnock
     )
                        was telling the truth while giving his statement to the police. The claim is meritless since
     \
     )

     )                  Detective Nickel was commenting on the witness' truthfulness during the time of police

     ) ---- -- -·
     y··               __gµestioning, not the witness' truthfulness at the tdal. The jJ.U:Y- had the ability to determine_the___ .. ..... ,, ....

     )                 credibility of Mr. Pinnock when he provided his testimony at trial and not rely on the Detective's
     )
                       opinion.
     )
     I


     )                          In addition, the Defendant fails to prove that Trial Counsel lacked reasonable basis for his
     )
                       decision to not object and that the failure to object caused the Defendant prejudice. The
     \
 )                     Defendant's Trial Counsel testified during the PCRA hearing that "if the jury seems to think
 \
     r
 )
                       you're trying to keep something out of evidence, then the jury may believe the evidence is
 )                     helpful to the Commonwealth." (N.T.PCRA at 54-55). The jury also received appropriate
 )
 )                     instructions on how to assess the credibility of a witness during the jury instructions. The

                       instructions specifically explained that the jury should not merely believe a law enforcement
 )
)                      officer's testimony because of his position and it should be evaluated the same way as every
)
                       other witness's testimony. (See N.T.T. 981-83). Therefore, the claim is meritless.


                           3. · Defendant's claim that his Appeal Counsel was ineffective for failing to raise a claim and

                               brief the issue is meritless.

_)
                          The Defendant asserts that his Appeals Counsel failed to file an appeal after the Trial Court

                       denied the Defense's Motion to Suppress Evidence. The Defendant's Trial Counsel filed an
                                                                             6
     ) ..                                                                                       Circulated 10/08/2015 01:10 PM

L.
    \   ..   A.mended Motion to Suppress on October 9, 2009 to challenge the legality of the vehicle stop of

             the Defendant. The Defendant's Appellate Counsel raised the issue that the Trial Court erred in
    )
    )        denying the Suppression Motion but failed to brief the issue and it was therefore waived.
    )
)                The Defendant failed to prove that the claim has arguable merit and his Appellate Counsel

)            provided ineffective assistance of counsel. During the Suppression Hearing Sergeant Jarrad
 )
·)           Berkihiser provided testimony that he had reasonable suspicion to stop the Defendant and also

)            had probable cause to arrest the Def endant. (Notes of Suppression Hearing, hereinafter "N. S .H."
 )
)            at 7-14). The Sergeant had reasonable suspicion to stop the Defendant after he arrived on the
} -· - . ·····-. ··;~ene of the incident and then left in order to search for the Defendant, who was identified by the
)
)            victim and the police were aware that the victim was an informant. (N.S.H. 7-14). The Defendant
)
             was found four blocks away from the location of the incident. (N.S.H. 14-15). In addition, the
 )
)            Sergeant was informed by fellow officers that the Defendant used a black Honda with Delaware

             registration plates and was frequently in the area and the Defendant was in fact found four blocks
)
\
r            away from the location of the incident an hour after the incident occurred. (N.S.H. 14-15, 17-18).
\I
)                These facts satisfy the officer's need to "point to specific and articulable facts and reasonable
)            inferences drawn from those facts in light of the officer's experience" in determining whether the
)
)            officer had reasonable suspicion. (Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999) (citing
)            Commonwes1lth v. Jackson, 698 A.2d 571, 573 (Pa; 1997)). The Sergeant also testified that he
)
)            witnessed two motor vehicle code violations, which provide reasonable suspicion and proper

                                     .. H. 34-38). However, the Sergeant also had reasonable suspicion to stop
.i,
             the Defendant as part of an investigative detention.




                                                                 7
 )      -,
                                                                                                 Circulated 10/08/2015 01:10 PM
 )
    )

'\                   The Defendant also raised the issue of whether there was sufficient probable cause in the

                 search warrant for the search of the black Honda. The search was not a search incident to arrest
)
                 as the Defendant asserts, but rather was the result of a search wan·ant.

 )
                     During the PCRA hearing, Appellate Counsel testified that he chose not to pursue the claim
    )            because he thought it was frivolous and ridiculous and, therefore, lacked merit. (N.T.PCRA 65).
)
)                Appellate Counsel's tactics were to raise only the claims that have a chance at success in order to
.)'
                 create a stronger impression with the Superior Court regarding the validity of the case. (N.T .
)·
)                PCRA 65-66). Specifically, Appellate Counsel asserted that he did not raise the suppression
T            .
                 issue because he did not "think that's effective advocacy. I think your best chance is to raise
)
)                claims that have some arguable merit; give yourself a chance to be heard." (N.T.PCRA 65).
)
\
                 Appellate Counsel continued to explain that "I think it's a stronger presentation to raise
)

)                something that has some chance of success on appeal." (N.T.PCRA. 66).

\
                     The Defendant asserts ·that while Counsel has the ultimate decision to raise the issues on
}

                 appeal, Counsel failed to discuss the reasoning behind his decision to not pursue the case with
)
                 the Defendant. Therefore, the issue was waived and the Defendant was unaware of the impact of
'/               waiving the issue and his Appellate Counsel was not objectively reasonable or acting in the
\,
                 client's best interest. Defendant also asserted that Counsel's decisions will not be considered

                 strategic if Counsel fails to consult with his client or the decision is unsound according to U.S. v.

                 Narducci, 18 F.Supp.2d ~81 (E.D.Pa. 1997). Narducci involves ABA Standard 4-5.2 and the

                  e en ant asserts that a strategy will not be considered legally reasonable if the alternative

                 course pursued by counsel does not have a significant potential for success. The Court in

                 Narducci looks at the ABA Standard 4-5.2 and lists decisions that are made by counsel after a
_;·

                 full consultation with the defendant and the topic of whether to appeal is on the list. However,


                                                                   8
 ) .·                                                                                          Circulated 10/08/2015 01:10 PM
.}
     J •
 )             Narducci contains a second prong where the Petitioner must prove prejudice occurred as a result.
           )
 )
               18 F.Supp.2d at 493-94. Here, the Defendant failed to demonstrate that the claim caused him
 )             prejudice. There is no indication that the outcome of the appeal would have been different based
 >
 )             on the facts determined bythe Trial Court regarding the validity of the search warrants and
 )
               discovering the critical evidence of the gun that were used to convict him.
 )
 )    .            Therefore; this claim is meritless as his Appellate Counsel had a reasonable strategic basis
 )
               for not pursuing the claim and the Defendant failed to show that prejudice would have occurred.

 )
 ,   .•.   -·····~------~~~~~~~~~~~~~~~~~~~~~~~~~~~~~---·-·-··-                                                                 --   .
 '               . 4. The Defendant's claim that Trial Counsel's failure to object toDetective's testimony is

                       also meritless,

                       The Defendant's next claim addresses his Trial Counsel's failure to object to Detective

               Nauman's testimony, which contained possible hearsay. The Commonwealth makes note that

               the Defendant's heading in his PCRA discusses Counsel's failure to preserve and properly argue

               a hearsay objection regarding Ms. Aguilera's testimony but the body of the argument does 'not

               mention any testimony regarding Ms. Aguilera. During the Trial, Detective Nauman testified that

               Ms. Johnson informed him that the Defendant called her and told her that he, the Defendant,

               heard that she was snitching and that if she was snitching to the police; then he was going to kill

               her, (N. T.T. 62-63). The Defendant's Trial Counsel did not object during this testimony. The

               Defendant asserts that the testimony.is classic hearsay under Pa.RBvid, 801 because the

                etective was repeating a statement made by Ms. Johnson in order to establish the truth of the

               matter asserted, that Ms. Johnson feared the defendant and she was aware that if she "snitched"

               she would be killed. The Defendant also stated that none of the hearsay exceptions under

               Pa.R.Evid. 803 and 804 apply.
           )

                                                                9
     \
     )
              .                                                                                           Circulated 10/08/2015 01:10 PM
         --
. r ,
  ).
  \- .
                  )             However, the Commonwealth asserted that the matter was discussed in pre-trial motions

 )
                        and previously ruled upon by the Court. On March 3~ 2010 the Commonwealth filed a Notice of
 )                      Intent to Introduce Evidence of Other Crimes, Wrong or Acts and a hearing was held on April
 )
 )                      19, 2010. The Commonwealth requested that evidence of Defendant's relationship and prior
 )
                        contact with Ms. Johnson as related by Ms. Johnson to other individuals, to show the
 )
 )                      Defendant's motive, malice, intent, knowledge, and plan. The Conunonwealth asserts that it is

                       therefore admissible as non-hearsay because it is not offered to show the truth of the matter

 ) _-                 _. ~~-~rtedbut rather to show motive, intent, state ofmind, __and the history of this case. This Court

                       issued its ruling on May 24, 2010 ordering that "evidence regarding Defendant's relationship and

                       prior contact with Mary Johnson, including testimony regarding alleged controlled substance

                       transactions between the two as well as discussions regarding possible sales of firearms, shall be

                       admitted at trial." Therefore, the testimony that was introduced by the Commonwealth was

                       permitted and an objection to this testimony would lack arguable merit.

                               In addition, the Defendant failed to prove that Trial Counsel provided ineffective

                       assistance of counsel by failing to object to the testimony and there was no prejudice caused

                       because the Trial Court ensured that the testimony would be offered as proof of motive only and

                       not the truth of the matter asserted. (N.T. 9/14/10 at 37). Therefore, the claim is meritless.



                          5, The Defendant's Trial Counsel was not constitutional]y ineffective under the Sixth

                              Amendment for opening the door to prejudicial testimony from a Commonwealth

                              witness.

                          The Defendant asserts that his Trial Counsel provided ineffective assistance of counsel for

                      opening the door to prejudicial testimony by Officer Halstead. During cross-examination the ·


                                                                         10
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     )
.~:      ...

     )
           )   Defendant's Trial Counsel alluded to the fact that Officer Halstead questioned Ms. Turner and

               only took the version of events that pleased the Officer. Trial Counsel's questioning during direct
     )
 \
     )         and cross-examination demonstrates that Trial Counsel had a reasonable basis for questioning the
     )
 )-            officer because he was pursuing the theory that the police determined that the Defendant was the
 )             shooter and then attempted to garner evidence to support the theory.
 )
 )                 The Defendant also asserts that the outcome of the trial would have been different if Trial
 )
               Counsel did not open the door. The Defendant believes that Trial Counsel elicited prejudicial .
     )
 )             testimony from a witness, Ms. Turner, after she testified she gave conflicting testimony because -···· ....

               she was scared. (N.T.T. 112). However, even though it may appear that the Trial Counsel did not
 )
 )
 I
               have a tactical reason for opening the door and attempted to withdraw the question, the testimony
 )
               was not prejudicial. The Defendant was elso-identifled by Ms. Johnson and Mr. Middleton, and
 )
 \
               he admitted to shooting Ms. Johnson to Mr. Morant and Ms. Turner. Ms. Turner herself stated
 J

 \,
               that she originally told Officer Halstead a different version of the events because she was scared.
 )             (N.T.T. 580). Therefore, the testimony ~hat Officer Halstead provided would have been brought
)
 )
               out by Ms. Turner's testimony as well. This claim must fail because the Defendant fails to show
 }
               that Trial Counsel lacked reasonable basis in bringing the claim and that it caused him prejudice.


 )
                  6. Trial Counsel was not constitutionally ineffective under the Sixth Amendment for failing
 )
 \
 .I
                      to object to questions to an eyewitness.

                  The Defendant's final claim asserts that his Trial Counsel provided ineffective assistance of

               counsel for failing to object to a question the Prosecution posed to Mr. Pinnock during direct

               examination. Mr. Pinnock provided testimony regarding who was in the area at the time of the

               shooting. Mr. Pinnock testified that he saw who was in the area and identified the shooter as


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 )




                           wearing dark clothing. (N.T.T. 493-95). The Defendant argues that the prosecution's question:
\
 I
                           "Of all those people, who does that person most resemble?" (N. T.T. 496-97) was objectionable.
)
)                       · The fact that the Prosecution asked whether the Petitioner resembled the person he saw that night
)
)
                          was. not relevant or material. However, Trial Counsel objected to the question but the Court

                          overruled the objection but directed the Prosecution to make his question more specific. (N.T.T.
)
)                         497). The prosecution next asked Mr. Pinnock who the person resembled in terms of clothing

                          and stature (N.T.T. 497). During the PCRA hearing, Trial Counsel testified that he believed that

                          "asking an eyewitness if the defendant looks like the person who committed the crime is
) . ... . .   . .. ·-·· .. ·-··                        -·-· ·-------   ·-------             ·-=----------·-·-·                     -     .
                          inherently different from asking him if this is the same person who committed the crime." CN:.T.

                         PCRA at 56). In addition, Trial Counsel did state that he didn'tknow if he heard the

                          Commonwealth ask an eyewitness if the defendant resembled someone, but he probably did hear

                         it. (N.T. PCRA 55-56).

                                  The Court did not sustain the objection but instead directed the ADA to make his

                         question more specific. (N.T.496-97). The ADA complied with the Court's request and asked

                         Mr. Pinnock.who the person resembled in terms of clothing, build and stature. (N.T. 497). Since

                         the Court never sustained Trial Counsel's objection, he.would not have been aware that the

                         question was objectionable as the Defendant believes and failing to object to the more specified

                        questions is meritless. The Defendant references Commonwealth v. Pierce, 645 A.2d 189, 197

                        (Pa. 1994) in support of asking who the person resembled as misleading the jury but Pierce .

                      · establishes the prosecutorial misconduct for calling a sequestered witness after he sat through

                        trial proceedings. The Defendant also references Commonwealth v. Miles, 681 A.2d 1295, 1301

                        (Pa. 1996), which also discusses prosecutorial misconduct but for violation of the Bruton rule,

                        after the Commonwealth attempted to use a non-testifying co-defendant' swords against a


                                                                             12
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'¥~ .
    )
        \.·

                        defendant. The Court therefore notes that while the Defendant addresses these cases, they

                        concern prosecutorial misconduct when the Defendant is asserting ineffective assistance of Trial
    )                  Counsel for failure to object to the ADA's question ..
    )
    \
    )
                               In addition, even if the Trial Counsel was found lneffective.fhe Defendant fails to show
    )
                       how he was prejudiced by the testimony. The Defendant is unable to show if the objection had
    )
)                      been sustained and found improper and inadmissible, the outcome of the trial would have been
)
                       different. There was sufficient evidence besides the witness' testimony regarding the
)
) __              _ __ _ _ ~~~_emblance of the Defendant to show that the Defendant was the shooter. Two other witnes.s.es    . ··-· · ··-   .

                       were able. to identify the Defendant as the shooter and two witnesses testified that the Defendant
)
)                      admitted that he shot the victim. (N.T.T Mr. Middleton 445-48,.460, Ms. Johnson 240-41, Mr.
)
)
                      Morant 547-50, and Ms. Turner 577-79). Therefore, the claim is meritless.
)
)
)
)
                              Accordingly, I enter the following:
)
)




                                                                       13
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         J '. !\.
         '               .
                                                 IN THE COURT OF COMM:ON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
         )                                                                                  CRIMINAL
         )
         )                               COMMONWEALTH OF PENNSYLVANIA
         )
         )                                                           v.                                             No. 1092-2009
        )
        )                                YAQUANGERALD WILLIAMS
        )
         )
        )                                                                                        ORDER
        -,
        ).                   . - ---·    - ·--·--~=-=-==-=--o:--:--::-:--~--.:--:--T:""'"'"'.'~:C---:,------c:----:----:c---c----:---:-=---:--:---,;:---:::------·           ---

    )
                                                  AND NOW, this 9th day of April, 2015 after a hearing on the Amended Petition for Post-

    ).' .                                Conviction Collateral Relief filed October 5, 2012~ it is hereby ordered that the petition is
    )
    )
                                         DENIED.
    )

                                                                                                  BY THE COURT:

                                                                                                      IIIDENNIS AEINAKER
                                                                                                            PRE&· JUDGE
                                                                                                 DENNISE. REINAKER
                                                                                                 PRESIDENT JUDGE
                                                                                                 April 9, 2015
 )
                                         ATTEST: -

 )
    )
    )
    )                                   · Amber L. Czerniakowski, Esquire
                                          Teri B. Himebaugh, Esquire
 )
)
/
    l

 I   '               .




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    '            .
