J-S46039-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  Appellee               :
                                         :
            v.                           :
                                         :
CLAY D. WILLIAMS,                        :
                                         :
                  Appellant              :           No. 2704 EDA 2014

           Appeal from the PCRA Order entered on August 20, 2014
            in the Court of Common Pleas of Philadelphia County,
                Criminal Division, No. CP-51-CR-0505851-2005

BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED SEPTEMBER 16, 2015

      Clay D. Williams (“Williams”) appeals from the Order dismissing his

first Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      This Court previously has set forth the relevant underlying facts as

follows:

              On the night of March 10, 2005, at approximately 12:17
      AM, [sic] Mizael Velez [“Velez”] was shot and killed at a Chinese
      store located on 701 East Thayer Street, Philadelphia,
      Pennsylvania. Velez had ordered Chinese food from the store a
      little earlier, and had walked to the store from his home, a few
      blocks away, to pick up the food. While Velez was waiting in the
      store, Dante Moore [“Moore”], a friend of [Williams], walked in
      the store. [Williams], wearing a leather jacket and [with] a
      sawed-off shotgun up his sleeve, walked into the store a minute
      or so after Moore.

            Velez was wearing his cell phone on his hip. [Williams]
      demanded the phone from Velez, with the intention of robbing
      Velez. Velez refused to surrender the phone and [Williams] left
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        the store. Moore then left the store to walk home and saw
        [Williams] outside. [Williams] then walked back into the store
        and shot Velez once. Velez was struck in his left arm and his
        abdomen.

               After shooting Velez, [Williams] then   ran out of the store.
        Moore, who was walking home, heard              the shot and saw
        [Williams] run by him on the 700 block of      Thayer Street. After
        [Williams] fled, Vicky Lyn, the owner of       the Chinese store[,]
        called the police.

              Officer [Avon] Wilson, of the Philadelphia Police Crime
        Scene Unit, testified that there was no ballistic evidence found in
        the store or in the clothes that [Velez] was wearing at the time
        of the shooting.      However, Dr. Bennett Preston, Assistant
        Medical Examiner of the City of Philadelphia, found twenty-one
        shotgun pellets and a shotgun cup in Velez’s body.

              The gun [Williams] used [on] March 10, 2005, was
        recovered by police on March 22, 2005. The gun, along with a
        number of shells, was found in a book bag in the basement of
        806 East Thayer Street. The nephew of the owner of the house,
        [] Khalil Wright [(“Wright”)], was a friend of [Williams]. Wright
        admitted that [Williams] gave Wright the book bag to keep down
        [in] the basement [sic] the day before it was recovered by
        police.

              Kenneth James Lay [“Lay”] of the Philadelphia Firearms
        Identification Unit examined the shotgun and the ballistic
        evidence removed from [Velez’s] body. [] Lay testified that he
        determined that the shotgun cup found in Velez’s body was
        consistent with the same type of shotgun recovered from 806
        East Thayer Street, but he could not conclude the shot[gun] cup
        was fired from that specific weapon.

              [Williams] was taken into custody on an unrelated warrant
        on March 22, 2005[,] at approximately 7:15 a.m. He was placed
        in an interview room at approximately 8:00 a.m.[,] where
        Detective Don Marano [“Detective Marano”] advised him that he
        wanted to interview him about Velez’s death. At about 1:00
        p.m.[, Williams] indicated that he wanted to make a formal
        statement. After giving him Miranda[1] warnings, which he

1
    Miranda v. Arizona, 384 U.S. 436 (1966).


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      waived, [Williams] told [] Detective Marano that he had gone to
      the Chinese store the night of March 10, 2005[,] and he had
      tried to steal a cell phone from the man in the store. While so
      engaged his gun went off and he fled.

                                      ***

             At the conclusion of trial, a jury found [Williams] guilty of
      First Degree Murder, Robbery, Firearms not to be carried without
      a license, Carrying firearms on public street or public property in
      Philadelphia, and Possessing Instruments of Crime.               On
      December 5, 2006, the sentencing court ordered [Williams] to
      serve life in prison without the possibility of parole on the Murder
      conviction, ten (10) years to twenty (20) years in prison on the
      Robbery conviction, and three (3) years and (6) months to seven
      (7) years in prison on the Firearms not to be carried without a
      license conviction. The latter two offenses were to be served
      concurrently to the Murder sentence, and [Williams] received no
      further penalty on the remaining two convictions.

Commonwealth v. Williams, 959 A.2d 1252, 1253-54 (Pa. Super. 2008)

(citations and footnotes omitted, footnote added). This Court affirmed the

judgment of sentence. See id. at 1255-60.2

      On October 6, 2009, Williams filed a timely pro se PCRA Petition. The

PCRA court appointed Williams counsel. Following a review of the Petition

and the record, counsel filed a “no-merit” letter and a Motion to Withdraw as

counsel.   After counsel was allowed to withdraw, Williams retained new

counsel, who filed an amended PCRA Petition.          The PCRA court filed a


2
  On direct appeal, Williams raised claims regarding the sufficiency of the
evidence, the denial of a Motion to suppress his confession, and evidentiary
rulings. This Court concluded that his sufficiency and suppression claims
were waived for lack of specificity in his Rule 1925(b) Concise Statement.
See Williams, 959 A.2d at 1256-58. This Court also concluded that the
evidentiary rulings claim was waived for failure to properly develop the claim
in his appellate brief. See id. at 1258.


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Pa.R.Crim.P. 907 Notice of Intent to Dismiss without a Hearing.          Williams

filed a Response.      Thereafter, the PCRA court dismissed the Petition.

Williams filed a timely Notice of Appeal.

      On appeal, Williams raises the following questions:

      I.     Did the [PCRA] court err in failing to order [an] evidentiary
             hearing on the issues of appellate counsel’s ineffectiveness
             on appeal from the judgment of sentence[e] because
             [Williams] raised a material issue of fact in this matter
             when [Williams] showed conclusively[,] based on the
             appellate court opinion[,] that appellate counsel waived all
             [] issues on appeal from the judgment of sentence?

      II.    Did the [PCRA] court err in failing to reinstate [Williams’s]
             right to appeal from the judgment of sentence nunc pro
             tunc where appellate counsel’s performance was so
             deficient as to effectively deny both the right to an appeal
             and the right to counsel on appeal?

      III.   Did the [PCRA] court err in denying [Williams] an
             evidentiary hearing on the issue of trial [] counsel’s
             ineffective assistance for failing to object to prejudicial and
             improper questions [by] the prosecutor to [Williams] at the
             suppression hearing?

Brief for Appellant at 2.

            This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.
      Great deference is granted to the findings of the PCRA court, and
      these findings will not be disturbed unless they have no support
      in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).

      In his first claim, Williams contends that his direct appeal counsel was

ineffective for failing to properly preserve his “appealable issues,” including:


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(i) the denial of Williams’s Motion to suppress his statements; (ii) the trial

court allowing Detective Howard Peterman (“Detective Peterman”) to read

Moore’s prior statement to the police, identifying Williams as the shooter;

and (iii) insufficient evidence to sustain the convictions. Brief for Appellant

at 7, 9.3     Williams argues that the PCRA court should have held an

evidentiary hearing on this claim. Id. at 8-9.

      To succeed on an ineffectiveness claim, Williams must demonstrate by

the preponderance of the evidence that

      (1) [the] 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 a reasonable probability
      that the outcome of the proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).                Counsel is

presumed to be effective and the burden is on Williams to prove otherwise.

Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

      “When deciding a motion to suppress a confession, the touchstone

inquiry is whether the confession was voluntary.”        Commonwealth v.

Ogrod, 839 A.2d 294, 320 (Pa. 2003).        “A confession obtained during a


3
  While Williams identifies the issues that were waived on direct appeal, he
fails to provide a substantive discussion as to each issue to demonstrate
counsel’s    ineffectiveness.      See    Pa.R.A.P.    2119(a);  see   also
Commonwealth v. Baumhammers, 92 A.3d 708, 743-44 (Pa. 2014).
Nevertheless, we will address his ineffectiveness claims.


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custodial interrogation is admissible where the accused’s right to remain

silent and right to counsel have been explained and the accused has

knowingly and voluntarily waived those rights.” Commonwealth v. Davis,

861 A.2d 310, 317 (Pa. Super. 2004) (citation omitted). “[T]he standard for

determining whether a statement is voluntary is based on the totality of the

circumstances.” Ogrod, 839 A.2d at 320.

     Here, Detective Marano testified that Williams was arrested on an

unrelated matter and transported to the police department around 8:00 a.m.

on March 22, 2005.     N.T., 8/28/06, at 7-8.    Williams was placed in an

interview room without handcuffs.    Id. at 8.   Detective Marano informed

Williams that the interview was in relation to the Chinese store shooting.

Id. at 9.   Additionally, Detective Marano orally informed Williams of his

Miranda rights.   Id. at 10-11.   Williams stated that he was aware of his

rights and that this was not his first contact with the law. Id. at 11. Over

the next few hours, Detective Marano and other detectives had intermittent

interactions with Williams regarding the shooting.   Id. at 12.   During that

time, the detectives were also interviewing other witnesses to the shooting.

Id. At approximately 1:00 p.m., Williams indicated that he wanted to make

a formal statement.    Id. at 11-13.     Detective Marano again provided

Williams with Miranda warnings.     Id. at 13-16.    Williams signed waiver

documents indicating he understood the rights he was waiving. Id. at 14-

15. After Williams waived his rights, he confessed to shooting Velez while



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trying to steal Velez’s phone. Id. at 21-24. According to Williams, however,

he was coerced into a confession. Id. at 49-51. While Williams conceded

that he signed the waiver documents, he stated that he signed blank

documents. Id. at 52-54.

      The trial court found Detective Marano’s testimony to be credible and

Williams’s to not be credible. Id. at 89-90; see also Commonwealth v.

Rochon, 581 A.2d 239, 243 (Pa. Super. 1990) (stating that the suppression

court is free to reject defendant’s testimony). The trial court found

      the statement was given voluntarily, without threats or force.
      [Williams] voluntarily gave up his right to remain silent and that
      … he was taken into custody lawfully on another warrant and
      that he was properly warned of his right to remain silent during
      the interrogation and that after being warned, after signing the
      warnings, and after being questioned and signing that
      attestation, that was all done voluntarily.

N.T., 8/28/06, at 90.   Upon review of the record and relevant case law, we

conclude that the trial court properly denied the Motion to suppress.      See

Commonwealth v. King, 721 A.2d 763, 774-75 (Pa. 1998) (stating that

when Miranda rights are provided, waived, and the waiver is signed, the

statement is admissible); Commonwealth v. Jones, 683 A.2d 1181,

1189 (Pa. 1996) (concluding that inculpatory statements were voluntarily

given where appellant read and understood the Miranda warnings, there

was not a coercive environment, and appellant was alert and coherent

during questioning).




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      We will next address Detective Peterman’s testimony reading Moore’s

initial statement to the police into the record.

      Our courts long have permitted non-party witnesses to be cross-
      examined on prior statements they have made when those
      statements contradict their in-court testimony.               Such
      statements, known as prior inconsistent statements, are
      admissible for impeachment purposes.            Further, a prior
      inconsistent statement may be offered not only to impeach a
      witness, but also as substantive evidence if it meets additional
      requirements of reliability. The test is a two-part inquiry: 1)
      whether the statement is given under reliable circumstances;
      and 2) whether the declarant is available for cross-examination.
      With respect to the first prong, that the statement is given under
      reliable circumstances, our supreme court has deemed reliable
      only certain statements; among them is a statement that is
      reduced to a writing and signed and adopted by the witness.
      With respect to the second prong, cross-examination, the
      inconsistent statement itself must be the subject of the cross-
      examination in order to satisfy the test.

Commonwealth v. Carmody, 799 A.2d 143, 148 (Pa. Super. 2002)

(citations and quotation marks omitted).

      Following the shooting, Moore provided a signed statement to the

police identifying Williams as the shooter.        N.T., 8/29/06, at 92-93, 113,

116, 171, 173-77. However, at trial, Moore admitted that while he was at

the Chinese restaurant, he could not identify the shooter. Id. at 79-85. The

Commonwealth then introduced Moore’s statement and questioned Moore

about his prior identification of Williams as the shooter. Id. at 92-93, 113-

33. Moore maintained that he never identified Williams as the shooter to the

police.   Id. at 92-94, 124-26, 134-36; see also id. at 133-53 (wherein

Williams’s attorney examined Moore about his trial testimony and initial



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statement to the police).    Thereafter, over Williams’s objection, Detective

Peterman, who took Moore’s statement, read Moore’s initial statement into

the record. Id. at 173-77.

     Based upon the foregoing, the trial court did not abuse its discretion in

allowing Detective Peterman to read Moore’s statement into the record and

Williams’s ineffectiveness claim is without arguable merit. See Hanible, 30

A.3d at 446-47 (concluding that a witness’s written statement given to

police identifying the appellant as the shooter, which was confirmed by both

the witness and the detective taking the statement to have been signed by

the witness, but which was repudiated by the witness at trial, was admissible

as substantive evidence). Moreover, Williams cannot demonstrate prejudice

as he confessed to the crimes.     See Commonwealth v. Burno, 94 A.3d

956, 977 (Pa. 2014) (concluding that appellant failed to demonstrate he was

prejudiced by counsel’s alleged ineffectiveness where he confessed to

committing the crimes).

     With   regard   to   Williams’s   sufficiency   claim,   multiple   witnesses

identified Williams as the shooter, and Williams provided a detailed

confession to the crimes.       See Trial Court Opinion, 6/26/07, at 7-8

(unnumbered). This evidence is sufficient to sustain Williams’s convictions.

     Since all of the “appealable issues” are deemed to be without merit,

counsel cannot be ineffective for failing to properly raise the claims.       See

Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (stating



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counsel cannot be deemed to be ineffective for failing to raise a claim lacking

merit). Furthermore, because Williams’s claims do not have support in the

record, the PCRA court did not err in dismissing the Petition without a

hearing.   See Carter, 21 A.3d at 682 (stating that “a PCRA court may

decline to hold a hearing on the petition if the PCRA court determines that a

petitioner’s claim is patently frivolous and is without a trace of support in

either the record or from other evidence.”).

      In his second claim, Williams contends that his right of appeal should

have been reinstated nunc pro tunc. Brief for Appellant at 10-11. Williams

argues that he is entitled to a new appeal because counsel raised

ineffectiveness of counsel claims that could only be addressed on collateral

review, and did not properly preserve the other claims. Id. at 10.

      “It is well-settled that an accused who is deprived entirely of his right

of direct appeal by counsel’s failure to perfect an appeal is per se without the

effective assistance of counsel, and is entitled to reinstatement of his direct

appellate rights.” Commonwealth v. Grosella, 902 A.2d 1290, 1293 (Pa.

Super. 2006) (citations and quotation marks omitted).

      However, it is also well-settled that the reinstatement of direct
      appeal rights is not the proper remedy when appellate counsel
      perfected a direct appeal but simply failed to raise certain
      claims. Where a petitioner was not entirely denied his right to
      a direct appeal and only some of the issues the petitioner wished
      to pursue were waived, the reinstatement of the petitioner’s
      direct appeal rights is not a proper remedy.

Id. at 1293-94 (emphasis in original).



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      In Grosella, appellate counsel raised only an ineffective assistance of

counsel claim.   Id. at 1291. This Court stated that “[a]lthough appellate

counsel apparently did not pursue all of the issues Appellant wished to raise

on direct appeal, this is not a case where appellate counsel failed to perfect

a direct appeal.”   Id. at 1294.     “The fact this Court concluded on direct

appeal that case law required the dismissal of the ineffective assistance of

counsel claim, without prejudice, makes no difference to [the] analysis.” Id.

      As in Grosella, direct appeal counsel took the necessary steps to

ensure that this Court would consider Williams’s appeal. See id. Therefore,

Williams was not entirely denied his right to direct appeal, and the PCRA

court did not err in denying reinstatement of Williams’s appellate rights nunc

pro tunc.

      In his third claim, Williams contends that trial counsel was ineffective

for failing to object to allegedly improper and prejudicial questioning of him

by the prosecutor at the suppression hearing. Brief for Appellant at 12-14.

      Initially, Williams has failed to cite to the place in the record showing

the improper questions, and only makes bald assertions that counsel was

ineffective. See Pa.R.A.P. 2119(a); see also Commonwealth v. Samuel,

102 A.3d 1001, 1005 (Pa. Super. 2014).        In any event, Williams has not

argued that the allegedly prejudicial questions demonstrated that his

confession was involuntary. See PCRA Court Opinion, 12/3/14, at 7 (stating

that the “[trial c]ourt did not consider the [questioning] by the prosecution



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for the truth of the matter contained therein.      Rather, [the trial c]ourt

considered them solely to determine whether [Williams] gave his statement

voluntarily.”); see also Commonwealth v. Davis, 421 A.2d 179, 183 n.5

(Pa. 1980) (stating that “[a] judge, as factfinder, is presumed to disregard

inadmissible evidence and consider only competent evidence.”).       As noted

above, the totality of the circumstances evidence that Williams voluntarily

confessed to the shooting. Thus, Williams’s ineffectiveness of counsel claim

is without merit, and the PCRA court did not err in dismissing this claim

without a hearing. See Carter, 21 A.3d at 682.

      Based upon the foregoing, the PCRA court’s decision to dismiss

Williams’s Petition without a hearing is supported by the record.4

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2015



4
  We note that in his Rule 1925(b) Concise Statement, Williams also raises
claims regarding juror misconduct and a failure by the Commonwealth to
disclose evidence. However, Williams has not raised these claims in his
appellate brief or in his PCRA Petition. See Commonwealth v. Ousley, 21
A.3d 1238, 1242 (Pa. Super. 2011) (stating that “issues not raised in a PCRA
petition cannot be considered on appeal.”) (citation omitted); see also
Pa.R.A.P. 302(a) (stating that “[i]ssues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”). Thus, we will
not review the claims.


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