J-S52030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONELL WILLIAMS                            :
                                               :
                       Appellant               :   No. 467 MDA 2018

             Appeal from the PCRA Order Entered February 19, 2018
      In the Court of Common Pleas of Franklin County Criminal Division at
                        No(s): CP-28-CR-0000658-2016

BEFORE:      BENDER, P.J.E., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED NOVEMBER 27, 2018

        Donnell Williams appeals from the order denying relief on his Petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Williams’ appointed PCRA counsel has filed a Petition to Withdraw and

an Anders1 brief. We affirm the order of the PCRA court and grant counsel’s

request to withdraw.

        A jury convicted Williams in 2016 of conspiracy to deliver a controlled

substance and criminal use of a communication facility.2 The pertinent

evidence at trial established that a confidential informant (“CI”), who had

previously met with Williams and his brothers, called Williams at a certain

unregistered telephone number and arranged to buy heroin. The CI testified
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*    Retired Senior Judge assigned to the Superior Court.

1   See Anders v. California, 386 U.S. 738 (1967).

2   18 Pa.C.S.A. §§ 903 and 7512(a), respectively.
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that the telephone number belonged to Williams, and Detective Mark King

testified that the CI had called that number when arranging the drug buy.

Detective King also testified that police had found the number in three phones

seized during the investigation, including one belonging to Williams’ brother,

saved under Williams’ nickname. After talking to Williams and arranging to

buy heroin, the CI went to the location discussed during the call. One of

Williams’ brothers sold him three bags of heroin, which the CI then turned

over to the police. The police submitted one of the three bags for testing, and

a lab report confirmed that it contained heroin.

      The trial court sentenced Williams to an aggregate of 45 to 120 months’

incarceration for the above-listed offenses. We affirmed Williams’ judgment of

sentence on June 29, 2017. Commonwealth v. Williams, No. 1999 MDA

2016 (Pa.Super. 2017) (unpublished memorandum). Williams did not seek

review by the Pennsylvania Supreme Court.

      Williams filed a timely, pro se PCRA petition on September 19, 2017.

The PCRA court appointed counsel and held an evidentiary hearing at which

both Williams and his trial counsel testified. The PCRA court denied the

Petition, and Williams filed this timely appeal.

      In this Court, Williams’ appointed PCRA counsel filed a Petition to

Withdraw as counsel as well as an Anders brief stating that Williams’ appeal

is frivolous. We review the Petition to Withdraw prior to reaching the merits

of Williams’ claims. See Commonwealth v. Wrecks, 931 A.2d 717, 721

(Pa.Super. 2007).

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      Counsel requesting to withdraw from PCRA representation must file a

“no merit” brief that conforms to the requirements of Commonwealth v.

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

213 (Pa.Super. 1988) (en banc). See Commonwealth v. Muzzy, 141 A.3d

509, 510-11 (Pa.Super. 2016). A Turner/Finley brief must detail “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.” Id. Counsel must send the

petitioner a copy of the brief, a copy of counsel’s petition to withdraw, and “a

statement advising petitioner of the right to proceed pro se or by new

counsel.” Id. at 511. If counsel fulfills these requirements, then this Court

must conduct its own review of the case, and, if the claims are without merit,

permit counsel to withdraw. Id.

      Here, the brief that Williams’ PCRA counsel filed is styled as an Anders

brief, which is proper in a direct appeal, rather than a Turner/Finley brief.

However, because an Anders brief, which alleges that the issues are frivolous,

rather than meritless, affords greater protection to a defendant, we may

accept   an   Anders    brief   in   lieu   of   a   Turner/Finley   brief.   See

Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011).

      The instant Anders brief details PCRA counsel’s review of the case,

describes the issues Williams desires to raise on appeal, and explains why

counsel believes those issues are frivolous (which presupposes that the issues

are meritless); thus, it meets the Turner/Finley requirements. Furthermore,

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PCRA counsel has appended to his brief a copy of the letter (and envelope) he

sent to Williams. In the letter, counsel explained to Williams that his issues

are frivolous, stated that he was providing a copy of his Anders brief, and

advised Williams that he could proceed pro se, or “hire an attorney to

represent [him],” and “raise any additional issues [he] believe[s] should be

brought to [this Court’s] attention.” Anders Br. at Ex. A. As counsel has met

the preliminary procedural requirements of Turner/Finley, we turn to

whether our review indicates that Williams’ issues have merit.

       In the Anders brief, PCRA counsel identifies two issues for appeal: (1)

whether the PCRA court erred in not finding counsel ineffective for failing to

introduce Williams’ telephone records at trial, and (2) whether the PCRA court

erred in not finding counsel ineffective for stipulating to the admission of the

toxicology report.3 Williams has not responded to PCRA counsel’s request to

withdraw or otherwise attempted to represent himself in this appeal.

       Our review of a denial of PCRA relief “is limited to the findings of the

PCRA court and the evidence of record, viewed in the light most favorable to
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3 The second of these issues was not originally included in Williams’ PCRA
Petition. However, because it was raised at the evidentiary hearing, raised in
Williams’ Pa.R.A.P. 1925(b) statement, discussed by the PCRA court in its
Pa.R.A.P. 1925(a) opinion, and addressed by PCRA counsel in the Anders
brief, and because the Commonwealth, which did not file a brief in this matter,
has not argued that Williams waived the issue, we decline to find waiver.
However, an issue Williams did raise in his PCRA petition – trial counsel’s
ineffectiveness for failing to move for severance – that the parties argued at
the hearing and the PCRA court addressed in its Pa.R.A.P. 1925(a) opinion, is
not in Williams’ Pa.R.A.P. 1925(b) statement, and was not assessed by PCRA
counsel in the Anders Brief to this Court. Nor has Williams raised the issue to
this Court via other counsel or a pro se filing.

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the prevailing party at the PCRA court level.” Commonwealth v. Medina, 92

A.3d 1210, 1214 (Pa.Super. 2014) (en banc). We are bound by any credibility

determinations made by the PCRA court and supported by the record, but

apply a de novo standard of review to the PCRA court’s legal conclusions. Id.

at 1214-15.

      Ineffective assistance is a cognizable claim under the PCRA. See 42

Pa.C.S.A. § 9543(a)(2)(ii). “Counsel is presumed effective, and [a petitioner]

has the burden of proving otherwise.” Commonwealth v. Brown, 161 A.3d

960, 965 (Pa.Super. 2017). To overcome this presumption, a petitioner must

plead and prove that: “(1) the underlying claim has arguable merit; (2)

counsel had no reasonable basis for his or her action or inaction; and (3) the

petitioner    suffered   prejudice   because   of   counsel’s   ineffectiveness.”

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). Failing to satisfy

even one of these factors requires this Court to reject the claim.

Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).

      In his first issue, Williams claims his trial counsel was ineffective for

failing to obtain and introduce his phone records and text message transcripts,

as this evidence would have proven that he had not been in contact with the

CI and exonerated him of any guilt.

      The PCRA court concluded that this claim was without merit under the

first prong of the ineffectiveness test. See PCRA Court Opinion and Order,

filed February 19, 2018, at 15. The PCRA court noted that at the PCRA hearing,

Williams’ trial counsel testified that, “he believed he would not be able to

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obtain text messages in the instant case” and “it was his understanding that

without a Court Order, text messages are usually erased from the phone

server after forty-eight (48) hours.” Id. at 14; see also N.T., 3/14/18 (PCRA

hearing), at 28-29. The court also noted that during trial, Williams’ counsel

had questioned Detective King on cross-examination regarding whether the

Commonwealth had confirmed the alleged communication between the CI and

Williams through the examination of phone records. Detective King replied

that although he had tried to get the records, “[y]ou can’t get messages from

the phone company” when the phone number is unregistered. PCRA Ct. Op.

at 14-15 (quoting N.T., 9/19/16 (Trial), at 125). The PCRA court found the

testimony of trial counsel and Detective King to be credible. Id. at 15.4

       After   a   review    of   the   record,   having   accepted   the   credibility

determinations of the PCRA court, and considered the facts in the light most

favorable to the Commonwealth, we conclude that Williams has failed to carry

his burden to prove that his trial counsel could have obtained any exonerating

phone records. Williams did not introduce any evidence at the PCRA hearing

to establish that his phone records were available to trial counsel, except for

his own testimony that his telephone was not a “burner phone.” See N.T.

(PCRA hearing) at 12. The PCRA court did not find Williams’ testimony on this

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4 The PCRA court also based its decision on its finding that Williams had never
requested that his trial counsel introduce phone records. As we affirm based
on the other conclusions of the PCRA court, we need not address the court’s
conception that counsel cannot be found ineffective for failing to take certain
action that was not specifically requested by his client.

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point credible, and instead credited the contrary testimony that the records

had not been obtainable. As Williams’ counsel cannot be found ineffective for

failing to obtain records that could not have been obtained, Williams has failed

to establish that his claim has merit under the first prong of the ineffectiveness

test, and we affirm the PCRA court’s denial of relief on this issue.

      In his second issue, Williams claims that his trial counsel was ineffective

for stipulating to the authenticity of the toxicology report. At the PCRA hearing,

Williams clarified that he believes his counsel was ineffective for failing to

question the person who produced the report as to why the contents of only

one of the three bags of drugs purchased by the CI was tested. See N.T.

(PCRA hearing) at 19-20. When asked how his proposed line of questioning

would have helped his defense, Williams stated that “[i]t would have just

[given him] a chance to know and understand what was actually . . . going on

with the toxicology report.” Id. at 21.

      We conclude that this issue merits no relief, as Williams has failed to

allege how counsel’s failure to question the toxicologist regarding the contents

of the two untested bags caused Williams prejudice under the third prong of

the ineffectiveness test. To establish prejudice, a petitioner must prove that

“there is a reasonable probability that the outcome of the proceedings would

have been different had counsel not been ineffective in the relevant regard.”

Dennis, 950 A.2d at 954.

      First, the admission of the report did not prevent Williams from arguing

that the Commonwealth failed to prove that the two untested bags contained

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heroin, as the report did not address their contents aside from stating the

combined weight. See Commonwealth’s Trial Ex. 6.

       Second, based on the facts presented at trial, Williams’ conviction for

conspiracy to possess heroin with the intent to deliver did not depend upon

the quantity of heroin involved in the case. See 35 P.S. § 780-113(a)(30)

(prohibiting the possession with intent to deliver a controlled substance,

making no reference to quantity); 35 P.S. § 780-113(f)(1) (stating that any

person who violates subsection (a)(30) with respect the a Schedule I narcotic

is guilty of a felony); see also 18 Pa.C.S.A. § 905 (providing that a conviction

for conspiracy receives the same grading as the offense which is the object of

the conspiracy).

       Third, Williams’ defense did not depend upon proving whether the bags

contained heroin; instead, Williams argued that he was not involved in his

brothers’ drug-selling scheme. See N.T. (PCRA hearing) at 37-38.

       Fourth, Williams’ sentence did not depend upon whether the other two

bags contained heroin. Williams’ offense gravity score for conspiracy of

possession with intent to deliver less than 1 gram of heroin5 reflected the

minimum amount of heroin recognized by the sentencing guidelines for this

offense. See 204 Pa.Code § 303.15 (listing the offense gravity score for

possession with intent to deliver less than one gram of heroin as the minimum

amount); see also 204 Pa.Code § 303.3 (stating a conviction for conspiracy
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5 The court recognized that Williams’ offense gravity score in relation to this
offense was 6. See N.T., 1/19/17 (Sentencing), at 9.

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to commit an offense under 35 Pa.C.S. § 780-113 shall receive the offense

gravity score of the offense which was the object of the conspiracy).

Therefore, even if the jury had only convicted Williams of conspiracy of

possession with intent to deliver the amount of heroin contained in the bag

which was tested (.17 grams), Williams’ offense gravity score would have been

the same, and the same sentencing guideline ranges would have been

presented to the court at sentencing.

     We therefore conclude that Williams has failed to establish how the

stipulation to the toxicology report caused prejudice, and affirm the PCRA

court’s denial of relief on this issue. See Commonwealth v. Clouser, A.2d

656, 661 n.3 (Pa.Super. 2010) (stating we may affirm the order of the trial

court on any basis).

     Order affirmed. Petition to withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/2018




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