J-S62039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SHAWN WILMER

                            Appellant                No. 818 WDA 2015


                   Appeal from the PCRA Order April 24, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0016482-2005


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                    FILED DECEMBER 29, 2015


        Appellant, Shawn Wilmer, appeals from the order entered in the

Allegheny County Court of Common Pleas, which denied his petition brought

pursuant to the Post Conviction Relief Act (“PCRA”).1       For the following

reasons, we affirm.

        The relevant facts and procedural history of this case are as follows.

On December 9, 2005, the Commonwealth charged Appellant with criminal

homicide and criminal conspiracy, in connection with the March 16, 2005,

shooting death of Keith Watts (“Victim”). Appellant proceeded to a jury trial

on April 19, 2007. At trial, the Commonwealth presented the testimony of

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S62039-15



James Jones (“Mr. Jones”). Mr. Jones testified that Appellant had confessed

to Mr. Jones that Appellant had killed Victim. Mr. Jones also testified that

Appellant had complained to Mr. Jones that Appellant’s co-defendant was

trying to take credit for Victim’s death. In response to Mr. Jones’ testimony,

Appellant presented the testimony of David Tracey (“Mr. Tracey”).             Mr.

Tracey testified he knew both Appellant and Mr. Jones from when they were

in jail together. Mr. Tracey stated Appellant stopped by Mr. Tracey’s cell in

October 2006, while Mr. Jones was in Mr. Tracey’s cell. Mr. Tracey further

testified that after Appellant left Mr. Tracey’s cell, Mr. Jones indicated to Mr.

Tracey that he planned to use Appellant to get out of jail. In rebuttal to Mr.

Tracey’s   testimony,   the   Commonwealth      presented   the   testimony    of

Allegheny County Jail Internal Affairs Captain, Thomas Leicht (“Captain

Leicht”). Captain Leicht testified his review of past jail records revealed that

Mr. Jones was not in jail in October 2006, when Mr. Jones allegedly told Mr.

Tracey that Mr. Jones planned to use Appellant to get out of jail.

Specifically, Captain Leicht testified that Mr. Jones did not enter jail until

April 11, 2007.

      On May 4, 2007, the jury found Appellant guilty of first-degree murder

and criminal conspiracy.      The trial court deferred sentencing pending the

preparation of a pre-sentence investigation report. On November 5, 2007,

the trial court sentenced Appellant to life imprisonment for the first-degree

murder conviction, and a consecutive term of two-hundred and forty (240)

to four hundred and eighty (480) months’ imprisonment for the conspiracy

                                      -2-
J-S62039-15



conviction. On November 14, 2007, Appellant filed a post-sentence motion,

and Appellant filed an amended post-sentence motion on March 25, 2008.

Appellant attached jail records to       his post-sentence motions, which

established that Mr. Tracey and Mr. Jones were both in jail in October 2006.

These jail records directly contradicted Captain Leicht’s testimony at trial. On

April 17, 2008, the trial court denied Appellant’s post-sentence motions.

Appellant timely filed a notice of appeal on May 16, 2008.          This Court

affirmed Appellant’s judgment of sentence on May 11, 2009, and our

Supreme Court denied allowance of appeal on February 5, 2010.              See

Commonwealth v. Wilmer, 976 A.2d 1218 (Pa.Super. 2009), appeal

denied, 605 Pa. 674, 989 A.2d 8 (2010).

      On July 16, 2010, Appellant timely filed a pro se PCRA petition, and

the court appointed counsel on September 10, 2010.          On November 19,

2010, appointed counsel filed an application to withdraw and a “no merit”

letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927

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

banc).   On January 21, 2011, the PCRA court granted appointed counsel’s

application to withdraw and issued its notice of intent to dismiss Appellant’s

petition without a hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907 notice”).

On February 11, 2011, Appellant filed a pro se response to the PCRA court’s

Rule 907 notice, and Appellant filed an amended pro se response to the

PCRA court’s Rule 907 notice on April 20, 2011.        The PCRA court denied

relief on June 15, 2011. Appellant filed a timely pro se appeal to this Court

                                     -3-
J-S62039-15



on June 28, 2011.      On April 25, 2012, this Court determined appointed

counsel’s “no-merit” letter was deficient and remanded the case to the PCRA

court with directions to appoint new counsel.

      On October 26, 2012, the PCRA court appointed new PCRA counsel to

represent Appellant. Appellant filed an amended PCRA petition on January

2, 2014, in which Appellant claimed trial counsel and appellate counsel were

ineffective. On March 9, 2015, the PCRA court issued Rule 907 notice as to

Appellant’s amended PCRA petition, and the PCRA court denied relief on April

24, 2015. Appellant timely filed a notice of appeal on May 22, 2015. The

PCRA court did not order Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant did

not file one.

      Appellant raises the following issues for our review:

         WHETHER    THE PROSECUTOR      INTRODUCED FALSE
         EVIDENCE IN THE COMMONWEALTH’S REBUTTAL CASE
         WHICH FALSELY PORTRAYED A KEY DEFENSE WITNESS AS
         A LIAR AND SEVERELY PREJUDICED APPELLANT’S CASE?

         WHETHER     TRIAL COUNSEL   GAVE   INEFFECTIVE
         ASSISTANCE FOR FAILING TO INVESTIGATE THE
         COMMONWEALTH’S WITNESS, CONCERNING ISSUE I, SO
         AS TO PROVE THAT THE COMMONWEALTH PRESENTED
         FALSE EVIDENCE?

         WHETHER APPELLATE COUNSEL GAVE INEFFECTIVE
         ASSISTANCE FOR FAILING TO RAISE ISSUE I ON APPEAL?

         WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL
         BASED UPON THE INTEREST OF JUSTICE?

(Appellant’s Brief at 5).

                                     -4-
J-S62039-15



      For purposes of disposition, we combine Appellant’s issues. Appellant

argues the only evidence of his involvement in the charged crimes consists

of statements made by Appellant to Mr. Jones, a self-interested witness.

Appellant contends Mr. Jones was a biased witness because he was likely to

receive favorable treatment from the Commonwealth with respect to

criminal charges pending against him, in exchange for his testimony against

Appellant.    Appellant maintains Mr. Jones exhibited his bias through his

statement to Mr. Tracey, in which Mr. Jones stated he planned to use

Appellant to get out of jail.      Appellant asserts the Commonwealth’s

presentation of Captain Leicht’s false testimony, which alleged Mr. Jones was

not in jail when Mr. Tracey heard Mr. Jones make the self-interested

statement, made both Appellant and Appellant’s trial counsel appear

fraudulent.   Appellant further avers trial counsel was ineffective because

counsel failed to investigate the jail records and determine that Captain

Leicht’s testimony was false.

      Appellant also argues appellate counsel improperly raised the issue of

Captain Leicht’s false testimony on appeal.      Appellant states appellate

counsel raised an ineffective assistance of counsel claim against trial

counsel, instead of a presentation of false evidence claim against the

Commonwealth. Appellant contends appellate counsel’s failure to raise this

issue properly was prejudicial to Appellant, as there was a reasonable

probability this Court would have remanded Appellant’s case for a new trial

based on Captain Leicht’s false testimony.    Appellant concludes both trial

                                    -5-
J-S62039-15



counsel and appellate counsel were ineffective, and this Court should grant

Appellant a new trial in the interest of justice. We disagree.

      Our standard of review of the denial of a PCRA petition is limited to

examining      whether    the   evidence      of   record     supports           the      court’s

determination     and    whether      its    decision    is   free        of     legal     error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).                We give no such deference,

however, to the court’s legal conclusions.          Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012).             The PCRA court findings will not be

disturbed unless the certified record provides no support for the findings.

Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal

denied, 597 Pa. 715, 951 A.2d 1163 (2008). There is no right to a PCRA

hearing; a hearing is unnecessary where the PCRA court can determine from

the   record    that    there   are   no     genuine     issues      of        material     fact.

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008), appeal

denied, 598 Pa. 764, 956 A.2d 433 (2008).

      The   law   presumes      counsel      has   rendered       effective        assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).                                When

asserting a claim of ineffective assistance of counsel, the petitioner is

required to demonstrate that: (1) the underlying claim is of arguable merit,

                                            -6-
J-S62039-15



(2) counsel had no reasonable strategic basis for his action or inaction, and,

(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).

The failure to satisfy any prong of the test for ineffectiveness will cause the

claim to fail. Williams, supra.

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

         Once this threshold is met we apply the ‘reasonable basis’
         test to determine whether counsel’s chosen course was
         designed to effectuate his client’s interests. If we conclude
         that the particular course chosen by counsel had some
         reasonable basis, our inquiry ceases and counsel’s
         assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

         Prejudice is established when [an appellant] demonstrates
         that counsel’s chosen course of action had an adverse
         effect on the outcome of the proceedings. The [appellant]
         must show that there is a reasonable probability that, but
         for counsel’s unprofessional errors, the result of the
         proceeding would have been different.             A reasonable
         probability is a probability sufficient to undermine
         confidence in the outcome. In [Kimball, supra], we held
         that a “criminal [appellant] alleging prejudice must show
         that counsel’s errors were so serious as to deprive the
         defendant of a fair trial, a trial whose result is reliable.”

                                     -7-
J-S62039-15



Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).

      The   Pennsylvania   Supreme    Court set forth the       framework    for

consideration of layered ineffective assistance of counsel claims, as follows:

         [A] petitioner must plead in his PCRA petition that his prior
         counsel, whose alleged ineffectiveness is at issue, was
         ineffective for failing to raise the claim that the counsel
         who preceded him was ineffective in taking or omitting
         some action.      In addition, a petitioner must present
         argument…on the three prongs of the [ineffectiveness] test
         as to each relevant layer of representation.

Commonwealth v. McGill, 574 Pa. 574, 589, 832 A.2d 1014, 1023 (2003).

Thus, “[f]or the claim related to appellate counsel’s conduct to have

arguable merit, a petitioner must prove the underlying claim of trial counsel

ineffectiveness.”   Commonwealth v. Jones, 583 Pa. 130, 138, 876 A.2d

380, 385 (2005).     The inability of a petitioner to prove each prong of the

ineffective assistance of counsel test with respect to trial counsel’s purported

ineffectiveness will be fatal to his ineffective assistance of counsel claim

against appellate counsel on the same issue. Commonwealth v. Tedford,

598 Pa. 639, 660, 960 A.2d 1, 13 (2008).

      “It is…an established constitutional principle that a conviction obtained

through the knowing use of materially false testimony may not stand; a

prosecuting attorney has an affirmative duty to correct the testimony of a

witness which he knows to be false.” Commonwealth v. Carpenter, 472

Pa. 510, 520, 372 A.2d 806, 810 (1977) (citing Giglio v. United States,

                                     -8-
J-S62039-15


405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Napue v. Illinois,

360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)).             “Further, the

prosecutor’s office is an entity and knowledge of one member of the office

must be attributed to the office of the district attorney as an entity.”

Commonwealth v. Wallace, 500 Pa. 270, 276, 455 A.2d 1187, 1190

(1983). “[W]here the prosecution obtains a conviction through the use of

false or perjured testimony, a strict standard of materiality must be applied.”

Commonwealth v. Romansky, 702 A.2d 1064, 1068 (Pa.Super. 1997),

appeal denied, 555 Pa. 699, 723 A.2d 670 (1998). “[T]he false testimony is

considered material if it could in any reasonable likelihood have affected the

verdict.”    Id.   When making the materiality determination, “the state of

mind of the prosecutor is not material, but rather, the important issue is

whether the accused received a fair trial.” Id. The mere assertion of the

prosecutor’s complicity in the presentation of false evidence, uncorroborated

by competent evidence, does not entitle a defendant to a new trial.

Commonwealth v. Lipscomb, 409 A.2d 857, 859 (Pa.Super. 1979).

      Instantly, with respect to Appellant’s assertions that Captain Leicht’s

false testimony severely prejudiced Appellant, and that trial counsel was

ineffective for failure to investigate jail records to determine the falsity of

Captain Leicht’s testimony, the PCRA court reasoned:

            [Appellant] contends that Captain Leicht’s false testimony
            was intentional and deprived him of a fair trial.
            [Appellant] does not, allege, however, that the prosecutor
            knew that the testimony was false when it was presented

                                      -9-
J-S62039-15


       or at any time during the trial. Accordingly, there is no
       material dispute of fact, and, based on the facts alleged by
       [Appellant] in his [PCRA] [p]etition and which are
       established in the record, this [c]ourt concludes that
       [Appellant’s] claims are without merit as a matter of law…

       In [Commonwealth v. Hallowell, 477 Pa. 232, 383 A.2d
       909 (1978)], our Supreme Court awarded a new trial
       because the prosecution failed to correct a Commonwealth
       witness[’] false testimony that he was not promised
       leniency in pending charges in exchange for his testimony.
       [Our Supreme Court] held that it did not matter whether
       the prosecutor trying the case was aware of the promises
       made to the witness; that knowledge of the promises of
       leniency would be attributed to the office of the District
       Attorney as an entity.         [Appellant’s] reliance on
       [Hallowell, supra] is misplaced.

       [Appellant] claims that in this case it does not matter
       whether the trial prosecutor knew that [Captain] Leicht’s
       testimony was false or erroneous; that the fact that such
       testimony was offered is enough to warrant a new trial.
       First, it is not clear from the record of the trial or from
       anything [Appellant] offered with his PCRA [petition] that
       Captain Leicht intentionally offered false testimony.
       [Appellant’s] reference to a newspaper article that
       reported that Captain Leicht had been fired due to
       “inconsistencies and misrepresentations” found during an
       investigation is woefully insufficient to establish that his
       testimony in this matter was intentionally false.        The
       inconsistencies concern statements [Captain] Leicht made
       about his background that were determined to be false.
       He claimed in a federal court hearing that he had been
       certified as a police officer when, in fact, he had not; and
       that he was previously employed as a police officer, when,
       in fact, he had only worked as a dispatcher.             This
       newspaper article, involving false statements made three
       years after this trial, certainly did not establish that
       Captain Leicht intentionally lied when he testified in this
       matter.

       More importantly, however, even if [Captain] Leicht
       intentionally misled the jury, there is nothing to indicate
       that the district attorney prosecuting this case had any

                                  - 10 -
J-S62039-15


       reason to know that the information conveyed by Captain
       Leicht was not accurate or that anyone else in the
       Allegheny County District Attorney’s Office knew. This fact
       distinguishes this case from those cited by [Appellant].

       In [Hallowell, supra, our] Supreme Court held that
       because another Assistant District Attorney knew of the
       promises of leniency made to the witness, that knowledge
       would be attributable to the office of the District Attorney,
       regardless of what the assistant district attorney
       prosecuting [the defendant] knew. Here, even if [Captain]
       Leicht’s testimony was false and known by him to be false,
       there is nothing establishing that anyone in the District
       Attorney’s Office knew, or should have known of the
       inaccuracy of the testimony.

       Each of the other cases cited by [Appellant] in his [PCRA]
       [p]etition similarly deal with the failure to disclose a
       promise of leniency made by the prosecution to a
       cooperating witness. In [Giglio v. United States, 405
       U.S. 150, 92. S.Ct. 763, 31 L.Ed.2d 104 (1972)], the
       prosecutor failed to disclose an alleged promise made to
       its key witness that he would not be prosecuted if he
       testified for the government[,] and in [Napue v. Illinois,
       360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)], the
       prosecutor elicited testimony from a witness that falsely
       claimed that he had not been offered a reduced sentence
       in exchange for his testimony. The Supreme Court held in
       these cases that a prosecuting office could not receive the
       benefit of testimony secured with a promise of leniency
       without disclosing that promise to the defendant.

       Here, however, there is nothing in [Appellant’s PCRA]
       [p]etition or in the record that establishes that the
       prosecution had any involvement in eliciting testimony it
       knew or suspected was false; nor is there any evidence
       that anyone associated with the district attorney’s office
       had any reason to question the truthfulness and accuracy
       of the testimony from Captain Leicht. In the absence of
       proof that the prosecution knew or should have known
       about the false testimony, this claim must fail.

       [Appellant’s] second claim is that trial counsel was
       ineffective for failing to impeach Captain Leicht with the

                                  - 11 -
J-S62039-15


       jail records that would have shown his testimony to be
       false or in error. This [c]ourt addressed this very issue in
       its September [23], 2008 [o]pinion addressing the claim
       that [Appellant] raised in his [c]oncise [s]tatement.
       Because the Superior Court declined to address the
       ineffectiveness    claims    on    appeal    pursuant     to
       [Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726
       (2002)], this claim cannot be considered previously
       litigated. There is no reason, however, for this [c]ourt to
       reanalyze this claim. This [c]ourt wrote:

          …Regardless of whether [trial] counsel was
          ineffective in not obtaining the [evidence to impeach
          Captain Leicht] that [appellate] counsel did obtain,
          [Appellant] was not prejudiced. First of all, nothing
          in the materials submitted by [Appellant] with his
          [a]mended [p]ost[-s]entence [m]otion supports the
          claim     that   the    Commonwealth      intentionally
          presented false testimony. At best, the witness was
          mistaken.

          More importantly, had the evidence showing that
          [Mr.] Jones was, in fact, in jail with [Mr.] Tracey
          been introduced, it would not have affected the
          outcome of the trial. [Mr.] Tracey’s testimony did
          not establish that anything that [Mr.] Jones said
          about his conversations with [Appellant] was false.
          All that [Mr.] Tracey reports [Mr.] Jones saying is
          that he could use [Appellant] to get out of jail. [Mr.]
          Tracey did not testify that [Mr.] Jones said he would
          lie to do so or that anything he said about
          [Appellant] was anything but the truth. In fact,
          [Mr.] Jones testified on direct that, in essence, he
          was using the information he had about [Appellant]
          to try to get out of jail, or, at least, to lessen the
          sentences he faced for his new charges.
          [Appellant]’s trial counsel even asked [Mr.] Jones
          whether he would be helping the police if he had
          [not] been arrested in September 2006 and needed
          their help and he said that he would not. All that
          [Mr.] Tracey’s testimony did was corroborate what
          the witness [Mr.] Jones himself admitted: that he
          was cooperating only because he knew it would
          benefit him in resolving his pending criminal charges.

                                  - 12 -
J-S62039-15


           Because [Appellant] was not prejudiced by the
           failure    of   trial   counsel     to  impeach    the
           Commonwealth’s rebuttal witness, this claim must
           fail. [(Trial Court Opinion, filed September 23, 2008,
           at 20-21).]

        In addition, [trial counsel] also presented testimony from
        Charles White [“Mr. White”], another fellow inmate of [Mr.]
        Jones, regarding [Mr.] Jones’ statements that he would
        cooperate with the Commonwealth against [Appellant] to
        secure a better deal for himself. [Mr.] White’s claim to
        have been on the same pod as [Mr.] Jones was not
        disputed by the Commonwealth. Accordingly, [Appellant]
        did present a witness who was not impeached who put
        before the jury the question of whether [Mr.] Jones’
        testimony was influenced by a desire to secure better
        treatment from the prosecution.         Given [Mr.] Jones’
        admission that he was testifying in order to secure better
        treatment from the Commonwealth and the un-impeached
        testimony of [Mr.] White that largely corroborated [Mr.]
        Tracey’s testimony regarding [Mr.] Jones’ statements, it is
        clear that [Appellant] suffered no prejudice from the failure
        of counsel to secure and present the mail records proving
        that Leicht’s testimony was false or inaccurate.

(PCRA Court Opinion, filed May 29, 2015, at 3-9) (emphasis in original)

(internal footnote omitted).     The record supports the court’s sound

reasoning. See Chambers, supra.

     Finally, Appellant’s ineffective assistance of counsel claim against

appellate counsel for failure to raise the issue of Captain Leicht’s false

testimony properly fails because Appellant failed to establish that trial

counsel’s treatment of that issue caused Appellant prejudice.       Appellant

cannot argue a layered ineffective assistance of counsel claim against

appellate counsel successfully without first showing that trial counsel was

ineffective for mishandling the same issue.   See Tedford, supra; Jones,

                                   - 13 -
J-S62039-15


supra. Therefore, Appellant’s issues on appeal have no merit. Accordingly,

we affirm.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2015




                                  - 14 -
