J-S52012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

LAMAR WILLIAMS,

                         Appellant                   No. 1817 WDA 2014


               Appeal from the PCRA Order October 29, 2014
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0017932-2009


BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED SEPTEMBER 30, 2015

      Appellant, Lamar Williams, appeals from the order denying his petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

      The PCRA court summarized the facts of this case as follows:

            Briefly, the evidence presented at trial established that on
      July 30, 2009, narcotics division Detectives Goob and Fallert and
      Sergeant Snyder were detailed to the North Side of the City of
      Pittsburgh in an unmarked vehicle when they observed a 2009
      Pontiac G6 run a stop sign at the intersection of Federal Street
      and Lafayette Street. The detectives began to follow the car,
      and observed it run another stop sign at the intersection of
      Federal Street and Perrysville Avenue. The detectives then
      activated their lights and the car gave chase, swerving around a
      PAT bus, crossing a double yellow line and reaching speeds of
      60-65 mph in [a] 25 mph zone. Eventually the car attempted a
      sharp turn and lost control, striking another vehicle and coming
      to a stop. The detectives pulled up to the driver’s side of the
      wrecked Pontiac so that the driver was unable to exit the
      driver[’s] side door of the vehicle. However, the driver climbed
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      over the seat, jumped out of the passenger side door and began
      to run. He was chased by Sgt. Snyder and Detective Goob.
      During the chase, Sgt. Snyder observed [Appellant] reach into
      his pocket and toss an object out as he ran. Shortly thereafter,
      Sgt. Snyder and Det. Goob caught up with [Appellant] and after
      a short struggle, placed him under arrest. Sgt. Snyder then
      retrieved the object that [Appellant] had thrown and discovered
      it to be a wrapped brick containing 250 stamp bags of heroin
      with a street value of $2500.

PCRA Court Opinion, 4/28/15, at 2-3.

      On January 6, 2011, at the conclusion of trial, a jury convicted

Appellant of fleeing or attempting to elude a police officer, recklessly

endangering another person, possession of a controlled substance with the

intent to deliver, and possession of a controlled substance. In addition, the

trial judge found Appellant guilty of one count of driving while operating

privileges were suspended or revoked, three counts of violating duties at a

stop sign, and one count of reckless driving. On April 5, 2011, the trial court

sentenced Appellant to serve an aggregate term of incarceration of five to

ten years.

      Appellant filed post-sentence motions, which were denied. On July 6,

2012, this Court affirmed Appellant’s judgment of sentence, and the

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on July 2, 2013. Commonwealth v. Williams, 1558 WDA 2011, 55

A.3d 125 (Pa. Super. filed July 6, 2012) (unpublished memorandum), appeal

denied, 69 A.3d 602 (Pa. 2013).




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        On August 19, 2013, Appellant filed a timely pro se PCRA petition.

PCRA counsel was appointed and filed an amended PCRA petition. The PCRA

court held an evidentiary hearing on June 25, 2014. On October 29, 2014,

the PCRA court denied Appellant’s PCRA petition.            This timely appeal

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P.

1925.

        Appellant presents the following issues for our review:

        1. Whether the trial court erred in finding that trial counsel’s
        failure to request the No Adverse Inference jury instruction was
        harmless when the record shows that [Appellant] was prejudiced
        by Attorney Rabner’s error?

        2. Whether the trial court erred in finding trial counsel effective
        when the record shows that Attorney Rabner presented
        testimony from a witness that he failed to adequately interview,
        whose testimony damaged the defense?

Appellant’s Brief at 3.

        Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).        The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).




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      We observe that each of Appellant’s claims challenges the effective

assistance of his trial counsel. In order to succeed on a claim of ineffective

assistance of counsel, an appellant must demonstrate (1) that the

underlying claim is of arguable merit; (2) that counsel’s performance lacked

a reasonable basis; and (3) that the ineffectiveness of counsel caused the

appellant prejudice.   Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.

2001).

      We have explained that trial counsel cannot be deemed ineffective for

failing to pursue a meritless claim.    Commonwealth v. Loner, 836 A.2d

125, 132 (Pa. Super. 2003) (en banc). Moreover, with regard to the second

prong, we have reiterated that trial counsel’s approach must be “so

unreasonable   that    no   competent    lawyer   would   have   chosen    it.”

Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000)

(quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).

      Our Supreme Court has long defined “reasonableness” as follows:

             Our inquiry ceases and counsel’s assistance is deemed
      constitutionally effective once we are able to conclude that the
      particular course chosen by counsel had some reasonable basis
      designed to effectuate his client’s interests. The test is not
      whether other alternatives were more reasonable, employing a
      hindsight evaluation of the record.        Although weigh the
      alternatives we must, the balance tips in favor of a finding of
      effective assistance as soon as it is determined that trial
      counsel’s decision had any reasonable basis.




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Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.

1967)) (emphasis in original).

       In addition, we are mindful that prejudice requires proof that there is a

reasonable probability that, but for counsel’s error, the outcome of the

proceeding would have been different. Pierce, 786 A.2d at 213. “A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim

of ineffectiveness.”   Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,

when it is clear that a petitioner has failed to meet the prejudice prong of an

ineffective assistance of counsel claim, the claim may be disposed of on that

basis alone, without a determination of whether the first two prongs have

been met.     Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super.

2005).

       It is presumed that the petitioner’s counsel was effective, unless the

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,

1177     (Pa. 1999).      We   are   bound by the         PCRA   court’s credibility

determinations    where    there     is   support   for   them    in   the   record.

Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).

       Furthermore, claims of ineffective assistance of counsel are not self-

proving.    Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).


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“[A] post-conviction petitioner must, at a minimum, present argumentation

relative to each layer of ineffective assistance, on all three prongs of the

ineffectiveness standard….”    Commonwealth v. D’Amato, 856 A.2d 806,

812   (Pa.   2004).    “[A]n    underdeveloped   argument,   which   fails   to

meaningfully discuss and apply the standard governing the review of

ineffectiveness claims, simply does not satisfy Appellant’s burden of

establishing that he is entitled to relief.” Commonwealth v. Bracey, 795

A.2d 935, 940 n.4 (Pa. 2001).

      In his first issue on appeal, Appellant argues that trial counsel was

ineffective for failing to request a “no adverse inference” jury instruction.

Appellant’s Brief at 10-12.      Appellant contends that trial counsel was

obligated to insure that the jury acted properly during deliberations by

requesting the instruction and that Appellant’s right to remain silent was

upheld.

      “A ‘no adverse inference’ instruction directs the jury that they may not

draw any adverse inference from the defendant’s failure to testify in his own

defense, because the defendant has the absolute right not to testify if he so

chooses.”    Commonwealth v. Stanley, 830 A.2d 1021, 1022 n.1 (Pa.

Super. 2003). “Pursuant to both the Fifth Amendment to the United States

Constitution and Article I, Section 9, of the Pennsylvania Constitution, a

criminal defendant is entitled to receive, upon timely request, a specific

instruction which informs the jury that it may draw no adverse inference


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from the fact that the defendant did not testify at trial.” Commonwealth v.

Khamphouseane, 642 A.2d 490, 497 (Pa. Super. 1994). As our Supreme

Court explained in Commonwealth v. Thompson, 674 A.2d 217 (Pa.

1996), the “no adverse inference” instruction must be given unless the

defendant expressly waives his right to the instruction in an on-the-record

colloquy. Id. at 221.

      More recently, in Commonwealth v. Perez, 103 A.3d 344 (Pa.

Super. 2014), appeal denied, 116 A.3d 604 (Pa. 2015), this Court reiterated

that pursuant to Stanley, “a failure to request a colloquy with respect to

waiver of the instruction . . . cannot constitute prejudice per se . . . .”

Perez, 103 A.3d at 349. Therefore, the “standard three-part ineffectiveness

test should govern the analysis . . . .” Id. Furthermore, “[a]s this claim is

premised upon trial counsel’s inaction, [the] appellant must establish that he

suffered prejudice as a result of counsel’s failure to act to such a

degree that absent counsel’s error the outcome of the verdict would

have been different.” Thompson, 674 A.2d at 221 (emphasis added).

      Our review of the record reflects that there was no on-the-record

colloquy of Appellant expressly waiving the no adverse inference charge.

Appellant’s trial counsel, Attorney Rabner, testified at the PCRA hearing that

he did not request the “no adverse inference” instruction, and that it was an

apparent oversight on his part. Specifically, the following transpired at the

PCRA hearing:


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     [PCRA COUNSEL]: Did [Appellant] testify during the trial?

     [TRIAL COUNSEL]: He did not.

     [PCRA COUNSEL]: Are you familiar through your practice with
     the no adverse inference jury instruction?

     [TRIAL COUNSEL]: I am familiar with it.

     [PCRA COUNSEL]: Before this morning, did you have an
     opportunity to review the transcript of those proceedings?

     [TRIAL COUNSEL]: At the last time this was listed for Court I
     did, in fact, review the bulk of the transcript. Yes.

     [PCRA COUNSEL]: Based on that review, is it your understanding
     that you requested the no adverse inference jury instruction?

     [TRIAL COUNSEL]: After reading it, I absolutely did not ask for
     the jury instruction.

     [PCRA COUNSEL]: Do you have any reason today to dispute the
     accuracy of that transcript?

     [TRIAL COUNSEL]: No.       It clearly seems that that was an
     oversight by me.

N.T., 6/25/14, at 5-6.

     Thus, by trial counsel’s own admission, he failed to request a “no

adverse inference” charge be given to the jury. Interestingly, trial counsel

alludes to the fact that the “no adverse inference” instruction would have

been requested, but for his oversight of the matter. Assuming for the sake

of argument that trial counsel did not, in fact, request a “no adverse

inference” charge or appropriate colloquy on the record, we presume that

Appellant’s claim of ineffective assistance has arguable merit. Thompson.

However, such oversight by trial counsel does not amount to prejudice per

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se.   Therefore, our inquiry is not at an end.     Rather, Appellant must also

establish that trial counsel’s failure to request a “no adverse inference”

charge prejudiced him to such a degree that the adjudication of guilt was

unreliable.   See Commonwealth v. Howard, 645 A.2d 1300 (Pa. 1994)

(holding that defense counsel’s failure to request a “no adverse inference”

instruction was not per se ineffective and that the           defendant had to

establish that he was prejudiced by the fact that the charge was not given).

      Our review of the certified record reflects that, although the trial court

did not give a “no adverse inference” instruction in its closing charge to the

jury, it did unequivocally instruct the jury at the beginning of Appellant’s trial

that they may not draw any adverse inference against Appellant for failing to

testify, as follows:

      THE COURT: It is very important at that juncture in the trial that
      you have a complete understanding that, in our criminal justice
      system, a person accused of a crime has absolutely no obligation
      whatsoever to offer any evidence on his or her own behalf.

      A person accused of a crime is presumed to be innocent, and the
      sole burden of proof lies with the Commonwealth of Pennsylvania
      to prove that person guilty beyond a reasonable doubt with
      regard to each and every element of each and every crime
      charged.

      Therefore, if the Defendant does not present a defense or
      testify, you must understand that, as the fact-finders in
      this case, you must not draw any adverse inference
      whatsoever against the Defendant.

      The reason is simple: Anyone accused of a crime is presumed to
      be innocent.     The sole burden of proof rests with the
      Commonwealth of Pennsylvania to prove that person guilty


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      beyond a reasonable doubt. A person accused of a crime need
      do nothing.

N.T., 1/5-6/11, at 11-12 (emphasis added).

      Furthermore, while the trial court did not give the “no adverse

inference” instruction at the time of its closing instructions to the jury, it did

instruct the jury that the Commonwealth has the burden of proof, and

Appellant is not required to present any evidence in his defense, as follows:

            The fundamental principle of our criminal justice system is
      that a person accused of a crime, the Defendant, is presumed to
      be innocent. The mere fact that the Defendant was arrested and
      accused of a crime is not any evidence against the Defendant.

             In addition, there is no inference of guilt created by the
      fact that there was a criminal information, criminal complaint, or
      even a trial. Furthermore, the Defendant is presumed innocent
      throughout the trial unless and until you conclude, based on
      careful and impartial consideration of the evidence, that the
      Commonwealth of Pennsylvania has proven the Defendant guilty
      beyond a reasonable doubt.

            It is not the Defendant’s burden to prove the Defendant is
      not guilty. Instead, it is the Commonwealth that always has the
      burden of proving each and every element of the crime or crimes
      charged beyond a reasonable doubt.

           The person accused of a crime is not required to
      present evidence or prove anything in his or her own
      defense. If the Commonwealth fails to meet its burden, then
      your verdict must be not guilty. On the other hand, if the
      Commonwealth does prove beyond a reasonable doubt that the
      Defendant is guilty, then your verdict should be guilty.

N.T., 1/5-6/11, at 232-233 (emphasis added).

      Thus, although not presented as a “no adverse inference” charge at

the end of trial, the record reveals that the trial court gave sufficient


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instructions to the jury equivalent to the “no adverse inference” charge.

“The law presumes that the jury will follow the instructions of the court.”

Commonwealth v. Brown, 567 Pa. 272, 289, 786 A.2d 961, 971 (2001);

see also Commonwealth v. O'Hannon, 732 A.2d 1193, 1196 (Pa. 1999)

(stating that “[a]bsent evidence to the contrary, the jury is presumed to

have followed the trial court’s instructions”). There is no evidence that the

jury ignored the instructions, and “absent evidence to the contrary, the jury

is presumed to have followed the court’s instructions.” O'Hannon, 732 A.2d

at 1196. Accordingly, we conclude Appellant has failed to demonstrate that

he suffered prejudice from counsel’s failure to request a “no adverse

inference” instruction in the closing jury charge.

      Furthermore, Appellant has failed to establish the prejudice prong of

the ineffective assistance of counsel test because, even if a “no adverse

inference” instruction had been given, there is no reasonable probability that

the outcome of the proceedings would have been different.          This Court

determined in Appellant’s direct appeal that there was sufficient evidence to

uphold Appellant’s various convictions. Commonwealth v. Williams, 1558

WDA 2011, 55 A.3d 125 (Pa. Super. filed July 6, 2012) (unpublished

memorandum). It is unlikely that a “no adverse inference” instruction would

have changed the outcome of the trial. Although trial counsel should have

requested a “no adverse inference” colloquy and “no adverse inference”

instruction, Appellant has failed to demonstrate how he was prejudiced by


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counsel’s failure to request that the trial court give the instruction at the end

of trial.

       In summary, in the context of the trial court’s precautionary “no

adverse inference” instruction and the sufficiency of the evidence presented

at trial, we cannot say that the jury would have been so swayed by such an

instruction at the end of trial that the verdict would have been different.

Therefore, Appellant has failed to demonstrate prejudice, and his claim of

ineffective assistance in this regard fails.

       Appellant next argues that trial counsel was ineffective for failing to

adequately interview a defense witness.           Appellant’s Brief at 12-13.

Specifically, Appellant claims that defense counsel did not adequately

interview Mr. Morris Richardson, the co-director of a work-release program

with which Appellant had been involved at the time of the incident.

       In addressing Appellant’s claim, the PCRA court offered the following

analysis:

       2. Failure to Interview Witness

             Next, [Appellant] argues that trial counsel was ineffective
       for “presenting testimony from a witness that he failed to
       adequately interview, whose testimony damaged the defense[.”]
       A review of the record reveals that this claim is meritless.

             At trial, [Appellant] presented the testimony of Morris
       Richardson, the Work Release Program Coordinator at the
       Renewal Center, where [Appellant] was living at the time of the
       instant offenses.     Mr. Richardson testified regarding the
       conditions of [Appellant’s] work release from the facility and the
       details and hours of his employment with Two Cousins Cleaning.
       Mr. Richardson testified that [Appellant] passed random checks

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     with his employer and never failed to make his curfew except on
     the night he was arrested.

           At the [PCRA] hearing, [trial counsel] testified that Mr.
     Richardson’s testimony was intended to coordinate with that of
     another witness [trial counsel] intended to call:

          Q. [PCRA COUNSEL]: During the course of the trial
          did you present testimony from a man named Norris
          [sic] Richardson?

          A. [TRIAL COUNSEL]: If I recall, that was the fellow
          who was in the halfway house who was in charge of
          people who leave the halfway house to work
          assignments.

          Q. What was the purpose of Mr. Richardson’s
          testimony during the trial?

          A. His testimony was largely intended to basically
          dovetail with a witness that my client had guided me
          towards who was supposed to validate that he, not
          [Appellant], was driving at the time of the collision.
          So their testimony was to be integrated as far as I
          understood our theory of the case.

          Q. Did the other witness appear to testify?

          A. What happened is the witness [from] Renewal
          testified first. Then there was a break.

          [The Assistant District Attorney] brought to our
          attention that the witness who had told me that he
          was driving the car was, in fact, in a juvenile facility
          and had lied to me.

          Once we brought that to the - well, [the Assistant
          District Attorney] brought it to my attention. We
          then brought it to the Judge’s attention. At that
          point I ceased to have any desire to call him for
          basically a fraudulent, seemingly, witness.

          Q. Focusing on Mr. Richardson, the witness who did
          testify.

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           A. Yes.

           Q. Did you conduct an interview of that witness
           before trial?

           A. I know that I subpoenaed him. I know that I
           knew he was coming. I knew the gist of what he
           was saying.

           Can I recall the specific interview? No. But I believe
           I was aware of him and talked to him and knew
           generally what he would say.             He testified
           consistently with what I thought he would testify to.

           Q. Can you tell us where the interview took place
           then with this witness? Was it here in the Court
           House [sic] before trial?

           A. I have no independent recollection of where I
           spoke to him. But I would never present a witness
           blindly on the witness stand without having spoken
           to him either on the phone, in the hall or a
           combination thereof.     He would not have been
           somebody to come to my office. I certainly could
           have gone to the Renewal. But it probably would
           have been discussions and then verification of the
           discussions in the hallway setting.

     ([N.T., 6/25/14, at] p. 6-8).

            Contrary to [Appellant’s] argument, there is no indication
     anywhere on the record that [trial counsel] failed to adequately
     interview Mr. Richardson prior to his testimony. [Trial counsel]
     testified that although he could not recall the specifics of the
     interview, he did speak with Mr. Richardson prior to his
     testimony and Mr. Richardson testified as expected.

           Moreover, this Court can discern nothing damaging in Mr.
     Richardson’s testimony. Mr. Richardson testified that [Appellant]
     appeared for work as scheduled and never missed curfew.
     Presumably, this testimony was intended to show that
     [Appellant] did not have time to be involved in drug dealing, and
     to that extent it was positive testimony.        Insofar as this

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      testimony was clearly not damaging to [Appellant], there is no
      argument that counsel was ineffective for failing to properly
      interview Mr. Richardson prior to trial. This claim is meritless.

PCRA Court Opinion, 4/28/15, at 6-8. In light of the fact that trial counsel

testified that he did interview the defense witness, we agree with the PCRA

court that there is no merit to Appellant’s allegations pertaining to this claim

of trial counsel ineffective assistance.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2015




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