J-S66030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DWIGHT WILLIAMS                            :
                                               :
                       Appellant               :   No. 3516 EDA 2018

            Appeal from the PCRA Order Entered November 2, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0006351-2011

BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 13, 2020

        Appellant Dwight Williams appeals from the order dismissing his first

Post Conviction Relief Act1 PCRA petition. As we explain below, Appellant’s

PCRA counsel, David W. Barrish, Esq., has argued that there were no

preserved non-frivolous issues and requested leave to withdraw. We affirm

and grant PCRA counsel’s request to withdraw.

        We adopt the facts and procedural history set forth by the PCRA court:

        On May 18, 2011, William Jackson drove his girlfriend Jessica Blair
        and her son to their home. Jackson was driving a milk-white,
        1976 Chevrolet Impala, which had customized 26” tires and rims.
        Jackson double-parked his vehicle outside of Blair’s home . . . and
        walked Blair and her son to the front door. Blair and Jackson
        talked on the porch for several minutes. Jackson then noticed
        [Appellant] and co-defendant Edward Scott walking down the
        street. They stopped when they reached Jackson’s car and stood
        there talking for approximately five minutes. Jackson finished his
____________________________________________


1   42 Pa.C.S. §§ 9541-9546.
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     conversation and then walked down the porch steps toward his
     vehicle.

     When Jackson reached the bottom of the steps, [Appellant]
     approached Jackson, with co-defendant Scott close behind, and
     pulled out a black and silver semi-automatic handgun. [Appellant]
     pointed the gun in Jackson’s face and told him to get on the
     ground. [Appellant] then removed Jackson’s wallet from his back
     pocket and told co-defendant Scott to take Jackson’s car and drive
     off. [Appellant] then walked away in the same direction as co-
     defendant Scott drove in his vehicle.

     Jackson then got up and went into Blair’s house and called police.
     Police arrived within minutes, and Jackson provided police with
     descriptions of both men. He described [Appellant] as having a
     dark gray hoodie and dark pants, light-skinned goatee, and kind
     of stocky. Jackson testified that he remembered the faces “very
     well” and that there were several street and porch lights on in the
     area.

     Police located [Appellant] just one block from the crime scene.
     Co-defendant Scott was stopped by the police and detained while
     he was walking away from the driver’s side door of the Impala.
     Jackson was taken to a total of three locations to make possible
     identifications. At the first location, he identified his Impala and
     then positively identified co-defendant Scott as the individual who
     stole his vehicle. At the second location, Jackson told the officers
     at the scene that the person they had detained was not involved
     in the robbery. At the third location, Jackson positively identified
     [Appellant] as the individual who pointed the gun at his head and
     took his wallet. Jackson testified that he had no doubt about his
     identifications and would not forget [Appellant’s] face and stature.
     Jackson made these identifications within 10 minutes of the
     robbery.

PCRA Ct. Op., 3/1/19, at 1-2 (citations and some formatting omitted).

     Appellant was tried by a jury and “convicted of robbery, conspiracy,

robbery of a motor vehicle, and possession of an instrument of crime.” Id. at

1. The trial court sentenced Appellant to an aggregate sentence of eight and

one-half to seventeen years’ incarceration. Appellant appealed. This Court

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affirmed, and our Supreme Court denied Appellant’s petition for allowance of

appeal on March 1, 2016.      See Commonwealth v. Williams, 2319 EDA

2013, 2015 WL 5971059 (Pa. Super. filed Aug. 28, 2015) (unpublished

memo.), appeal denied, 132 A.3d 458 (Pa. Mar. 1, 2016).

      On November 10, 2016, Appellant filed a timely pro se PCRA petition

claiming his sentence was void. The PCRA court appointed Joshu Harris, Esq.,

as PCRA counsel, who was granted permission to withdraw. The PCRA court

then appointed David D. Wasson III, Esq., as PCRA counsel, and he filed an

amended petition on March 23, 2017.         The amended petition raised two

claims. The first claim was that “[t]rial counsel was ineffective by failing to

pursue any alibi defense such as cell phone location logs 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.” Am. PCRA Pet., 3/23/17, at ¶ 8. The second claim was that Appellant’s

conviction “resulted from the unavailability at the time of trial of exculpatory

evidence that has subsequently become available and would have changed

the outcome of the trial if it had been introduced, which is the introduction of

expert scientific evidence regarding eyewitness testimony reliability.” Id. at

¶ 9. Neither the pro se petition nor the amended petition attached any cell

phone location logs or otherwise discussed or attached the expert evidence

regarding eyewitness testimony.




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      On August 25, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice,

which stated that Appellant’s claims lacked merit. Over a year passed without

any substantive activity on the docket. On September 14, 2018, Appellant

filed a pro se motion for leave to respond to the Rule 907 notice, claiming that

Attorney Wasson abandoned him by failing to communicate with him and

respond to the PCRA court’s Rule 907 notice. On November 2, 2018, the PCRA

court dismissed Appellant’s PCRA petition.

      Appellant filed a timely pro se notice of appeal on December 1, 2018.

The PCRA court did not order Appellant to comply with Pa.R.A.P. 1925(b).

Although the docket does not reflect a motion to withdraw filed by Attorney

Wasson, on February 12, 2019, the PCRA court “vacated” Attorney Wasson’s

appointment, and appointed David W. Barrish, Esq., to represent Appellant in

his appeal.

      On appeal, Attorney Barrish filed an Anders brief, which included a

request for leave to withdraw.    See Anders v. California, 386 U.S. 738

(1967). In a PCRA matter, a “Turner/Finley no-merit letter, however, is the

appropriate filing. See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d

927 (1988); Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213

(1988) (en banc). Because an Anders brief provides greater protection to a

defendant, this Court may accept an Anders brief in lieu of a Turner/Finley

letter.”   Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super.

2011) (citation omitted).


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     PCRA counsel’s brief contends that neither of the two claims raised in

the amended PCRA petition pleaded and proved trial counsel’s ineffectiveness.

See Anders Brief at 16.

     Before we address the issues identified by PCRA counsel, we must first

address whether PCRA counsel has fulfilled the procedural requirements for

withdrawing his representation. See Commonwealth v. Muzzy, 141 A.3d

509, 510 (Pa. Super. 2016) (stating that “[p]rior to addressing the merits of

the appeal, we must review counsel’s compliance with the procedural

requirements for withdrawing as counsel”).

     Counsel petitioning to withdraw from PCRA representation must
     proceed under [Turner/Finley] and must review the case
     zealously. Turner/Finley counsel must then submit a “no-merit”
     letter to the trial court, or brief on appeal to this Court, detailing
     the nature and extent of counsel’s diligent review of the case,
     listing the issues which petitioner wants to have reviewed,
     explaining why and how those issues lack merit, and requesting
     permission to withdraw.

     Counsel must also send to the petitioner: (1) a copy of the “no
     merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
     and (3) a statement advising petitioner of the right to proceed pro
     se or by new counsel.

     Where counsel submits a petition and no-merit letter that satisfy
     the technical demands of Turner/Finley, the court—trial court or
     this Court—must then conduct its own review of the merits of the
     case. If the court agrees with counsel that the claims are without
     merit, the court will permit counsel to withdraw and deny relief.

Id. at 510-11 (some formatting altered).

     Here, PCRA counsel stated that he has made a “conscientious

examination of the record,” and concluded the appeal is “wholly frivolous.”


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Anders Brief at 17. Additionally, PCRA counsel sent a copy of the Anders

brief to Appellant, which included a copy of a letter sent to Appellant enclosing

the brief and advising Appellant of his right to proceed pro se or retain new

counsel. Id. at App. F. Accordingly, we review PCRA counsel’s conclusion

that Appellant’s two claims lack merit. See Muzzy, 141 A.3d at 510-11.

         The first issue in the Anders brief is that trial counsel was ineffective

by failing to pursue an alibi defense, specifically referencing cell phone location

logs that would have impacted the reliability of the verdict. Anders Brief at

23. The second issue is the existence of after-discovered evidence, specifically

“expert scientific evidence regarding eyewitness identification testimony.” Id.

at 25.

         Initially, we set forth the well-settled standard and scope of review of

an order resolving a PCRA petition claiming trial counsel’s ineffectiveness:

         This Court’s standard of review regarding an order denying a
         petition under the PCRA is whether the determination of the PCRA
         court is supported by the evidence of record and is free of legal
         error. The PCRA court’s findings will not be disturbed unless there
         is no support for the findings in the certified record.

Commonwealth v. Grayson, 212 A.3d 1047, 1051 (Pa. Super. 2019)

(citation omitted).

         To prevail on a claim alleging counsel’s ineffectiveness under the
         PCRA, the petitioner must demonstrate (1) that the underlying
         claim is of arguable merit; (2) that counsel’s course of conduct
         was without a reasonable basis designed to effectuate his client’s
         interest; and (3) that he was prejudiced by counsel’s
         ineffectiveness, i.e. there is a reasonable probability that but for
         the act or omission in question the outcome of the proceeding
         would have been different.

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Id. at 1054 (citation and some formatting omitted).

      With respect to an allegation of ineffectiveness due to trial counsel’s

failure to investigate or adequately investigate, the petitioner must establish

“a reasonable probability that the introduction of such evidence would have

altered the outcome of the trial.” Commonwealth v. Johnson, 966 A.2d

533, 540 (Pa. 2009). A necessary corollary is that such evidence must be

made of record before the PCRA court, so the PCRA court could consider it.

See id. For example, a PCRA petition should include any evidence supporting

the petitioner’s claim to make it of record, such as “exculpatory evidence that

has subsequently become available [post-trial] and would have changed the

outcome of the trial if it had been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi).

      Relatedly,

      [t]he right to an evidentiary hearing on a post-conviction petition
      is not absolute. It is within the PCRA court’s discretion to decline
      to hold a hearing if the petitioner’s claim is patently frivolous and
      has no support either in the record or other evidence. It is the
      responsibility of the reviewing court on appeal to examine each
      issue raised in the PCRA petition in light of the record certified
      before it in order to determine if the PCRA court erred in its
      determination that there were no genuine issues of material fact
      in controversy and in denying relief without conducting an
      evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations and

formatting omitted).

      Here, Appellant’s counseled PCRA petition raised a claim that trial

counsel was ineffective by failing to investigate a potential alibi defense,


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including the existence of cell phone location logs which would have excluded

him as the culprit. Similarly, the counseled PCRA petition referenced after-

discovered   exculpatory   expert   evidence   addressing   the   reliability   of

eyewitness testimony. But the referenced evidence was never attached to the

petition. See Grayson, 212 A.3d at 1051; Wah, 42 A.3d at 338.

     Moreover, even assuming such evidence was part of his petition,

Appellant cannot establish a reasonable probability of a different trial

outcome. See Grayson, 212 A.3d at 1051. Jackson identified him and the

co-defendant within ten minutes of the robbery. See PCRA Ct. Op. at 1-2.

Absent the alibi evidence or proposed testimony of eyewitness reliability, the

PCRA court did not err by holding that Appellant did not establish the

underlying claims had merit, let alone a reasonable probability that the

outcome of the trial would have been different. See Johnson, 966 A.2d at

540. For these reasons we affirm the order below and grant PCRA counsel’s

request to withdraw.

     Order affirmed. PCRA counsel granted permission to withdraw.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/20



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