J-S36025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                    v.

KENNETH WILLIAMS,

                          Appellant                 No. 2652 EDA 2016


               Appeal from the PCRA Order of August 11, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0005462-2013


BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                              FILED JUNE 14, 2017

      Appellant, Kenneth Williams, appeals pro se from the order entered on

August 11, 2016, dismissing his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court ably summarized the underlying facts and procedural

posture of this appeal:

        On June 6, 2012, [Appellant] was arrested and charged with
        murder and related offenses. On July 14, 2014, [Appellant]
        pled guilty before [the trial] court in exchange for a
        negotiated sentence of [20] to [40 years’] imprisonment for
        third-degree murder, a consecutive sentence of two-and-a-
        half to five years[’ imprisonment] for possession of a
        firearm [by a] prohibited [person], and a concurrent
        sentence of one to two years[’ imprisonment] for firearms
        not to be carried without a license, for [an aggregate]
        sentence of [22 ½ to 45 years in prison].

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        At the negotiated plea hearing on July 14, 2014, [Appellant]
        agreed to the following facts:

           On Saturday, April 14, 2012, just before noon,
           [Appellant] and an unidentified male were following the
           victim in this case, Vondell Reavis, around to the
           victim’s block.

           [Appellant] then approached the victim, and an
           argument ensued. During that argument, [Appellant]
           took out a gun[] and the victim tried to struggle with
           [Appellant] to get the gun away from him.

           During the incident, [Appellant] fired a total of three
           times, striking the victim three times, two of which were
           close-range shots to the victim’s torso area and one of
           which was a fatal shot where it is alleged that
           [Appellant] pushed the victim away from him and then
           made that fatal shot through his armpit which went
           through the victim’s lungs and heart.

           [Appellant] then fled along with a male that was with
           him, and the victim fell to the ground. The victim was
           pronounced dead at the hospital.

           The motive for this case was drug-related, and the
           evidence would also show that [Appellant] had a prior
           conviction for possession with intent to deliver which
           precluded him from carrying a firearm.

        [N.T. Guilty Plea Hearing, 7/14/14,] at 14-16.

PCRA Court Opinion, 8/11/16, at 1-2 (some internal capitalization and

corrections omitted).

     Appellant did not file a notice of appeal from his judgment of sentence.

     On July 9, 2015, Appellant filed a pro se, timely, first PCRA petition.

Within the petition, Appellant claimed that plea counsel was ineffective for:

1) failing to investigate Appellant’s self-defense claim; 2) failing to raise



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Appellant’s self-defense claim; and 3) coercing Appellant “into pleading

guilty knowing [Appellant] had the viable [self-defense claim].” Appellant’s

Pro Se PCRA Petition, 7/9/15, at 1-3E (some internal capitalization omitted).

Appellant also claimed that he received an illegal mandatory minimum

sentence for third degree murder and that the clerk of courts had interfered

with his right to appeal his judgment of sentence by failing to provide him

with the transcript from his preliminary hearing.      Id. at 3E-4.   Appellant

later filed a supplemental PCRA petition, wherein he claimed that plea

counsel was ineffective for “fail[ing] to investigate [that Appellant] was

coerced into pleading guilty where if guilty plea counsel did properly

investigate the mitigating evidence[, Appellant] would have rather opted to

go to trial instead of pleading guilty.”      Appellant’s Supplemental PCRA

Petition, 11/24/15, at 4 (internal capitalization omitted).

      The PCRA court appointed counsel to represent Appellant during the

proceedings. However, on June 30, 2016, appointed counsel filed a no-merit

letter and a request to withdraw as counsel, pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc). After reviewing counsel’s no-merit letter,

the PCRA court issued Appellant notice, pursuant to Pennsylvania Rule of

Criminal Procedure 907, of its intent to dismiss Appellant’s petition in 20

days, without holding a hearing. PCRA Court Order, 10/21/15, at 1-3.

      Appellant filed a response to the PCRA court’s Rule 907 notice, wherein

he repeated the claims he raised in his PCRA petition and also claimed that

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trial counsel was ineffective for failing to object to the lack of a presentence

report.    Appellant’s Response, 7/21/16, at 1-3.    On August 11, 2016, the

PCRA court issued an opinion and order, which dismissed Appellant’s petition

and granted counsel’s motion to withdraw. PCRA Court Opinion and Order,

8/11/16, at 1-8. Appellant filed a timely notice of appeal

        Appellant raises two claims on appeal:

          [1.] Is [] 18 Pa.C.S.A. § 2502(c) unconstitutional under the
          void for vagueness doctrine in that it promotes the arbitrary
          and discriminatory enforcement due to its over broad
          definition of criminal conduct?

          [2.] Is Appellant’s guilty plea void due to being unknowingly
          and unintelligently induced due to the ineffective assistance
          of counsel?


Appellant’s Brief at 5.1

        As we have stated:

          [t]his Court’s standard of review regarding an order
          dismissing a petition under the PCRA is whether the
          determination of the PCRA court is supported by evidence of
          record and is free of legal error. In evaluating a PCRA
          court’s decision, our scope of review is limited to the
          findings of the PCRA court and the evidence of record,
          viewed in the light most favorable to the prevailing party at
          the trial level. We may affirm a PCRA court’s decision on
          any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).

____________________________________________


1
    For ease of discussion, we have re-ordered Appellant’s claims on appeal.



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      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness of counsel 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

      Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”      Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).         To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

        (1) his 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 challenged
        proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).             “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Id.

      We also note that “[a] criminal defendant has the right to effective

counsel during a plea process as well as during trial.” Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).                 Yet, where the

ineffectiveness of counsel is claimed in connection with the entry of a guilty


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plea, a petitioner may only obtain relief where “counsel’s deficient

stewardship resulted in a manifest injustice, for example, by facilitating [the]

entry of an unknowing, involuntary, or unintelligent plea.” Commonwealth

v. Moser, 921 A.2d 526, 530 n.3 (Pa. Super. 2007) (en banc) (internal

citations and quotations omitted). As we have explained:

        once a defendant has entered a plea of guilty, it is
        presumed that he was aware of what he was doing, and the
        burden of proving involuntariness is upon him. Therefore,
        where the record clearly demonstrates that a guilty plea
        colloquy was conducted, during which it became evident
        that the defendant understood the nature of the charges
        against him, the voluntariness of the plea is established.


Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (internal

quotations, citations, and corrections omitted), quoting Commonwealth v.

Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994).         To prove prejudice, the

“defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted

on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

      Appellant first claims that the third-degree murder statute is void for

vagueness. Appellant’s Brief at 12-17. This claim is waived, as Appellant

did not raise the claim in his PCRA petition. Commonwealth v. Santiago,

855 A.2d 682, 691 (Pa. 2004) (“a claim not raised in a PCRA petition cannot

be raised for the first time on appeal”); Commonwealth v. Washington,

927 A.2d 586, 601 (Pa. 2007) (“[a]ny claim not raised in the PCRA petition

is waived and not cognizable on appeal”).


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      Second, Appellant claims that his trial counsel was ineffective for

failing to investigate three witnesses:        Gary Lathan, Lillie Reavis, and

Vaughn Christopher. See Appellant’s Brief at 8-11. These claims fail.

      With respect to Gary Lathan, Appellant claims that his plea counsel

was ineffective for failing to impeach Mr. Lathan at the preliminary hearing,

with possible crimen falsi convictions and possible suspicious motives. See

Appellant’s Brief at 10-11. Appellant’s claim fails, given that:       Mr. Lathan

was testifying at a preliminary hearing, the purpose of which “is to avoid the

incarceration or trial of a defendant unless there is sufficient evidence to

establish a crime was committed and the probability the defendant could be

connected with the crime,” Commonwealth v. Tyler, 587 A.2d 326, 328

(Pa. Super. 1991); Appellant later pleaded guilty to murder; and, even if

Appellant’s   suppositions   regarding   Mr.   Lathan’s   possible    crimen   falsi

convictions and possible suspicious motives are true, Appellant never

claimed that, had counsel impeached Mr. Lathan at the preliminary hearing,

Appellant “would not have pleaded guilty and would have insisted on going

to trial.” Hill, 474 U.S. at 59. The claim thus fails.

      Next, Appellant claims that plea counsel was ineffective for failing to

investigate Lillie Reavis, who informed the police that she saw a male

running from an area near the crime scene and that she was “pretty sure”

Appellant was not the man she saw.          Appellant’s Brief at 9.    Appellant’s

claim of ineffectiveness fails because Appellant does not deny shooting the

victim; Appellant merely claims that he did so in self-defense.                See

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Appellant’s Affidavit Attached to Pro Se PCRA Petition, 7/9/15, at 1.

Therefore,       Ms.   Reavis’   potential   testimony   could   not   have   changed

Appellant’s decision to plead guilty.

      Finally, Appellant claims that his plea counsel was ineffective for failing

to investigate an individual named Vaughn Christopher, who told the police

that, prior to the shooting, the victim “jumped up and grabbed [Appellant’s]

hands.”    Appellant’s Brief at 9.      Again, however, such potential testimony

could not have altered Appellant’s decision to plead guilty, as the testimony

would not have entitled Appellant to a jury instruction on self-defense or

justification.     See Commonwealth v. Hansley, 24 A.3d 410, 421 (Pa.

Super. 2011) (“[e]ven if the court accepted as true [a]ppellant's assertion

that [the victim] failed to identify himself as a Target employee before he

‘grabbed’ [a]ppellant, [a]ppellant's decision to respond to [the victim’s]

efforts to restrain [a]ppellant by withdrawing a knife and pointing it at [the

victim’s] stomach does not constitute proper justification under Section 505,

and does not meet the three (3) elements required to establish self-defense.

The court properly determined as a matter of law that [a]ppellant was not

entitled to a jury instruction on self-defense or justification under the facts of

this case”).

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2017




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