J-S60010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

OMAR WILLIAMS,

                            Appellant                No. 3135 EDA 2015


                Appeal from the PCRA Order September 18, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004913-2010


BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 25, 2016

       Appellant, Omar Williams, appeals from the order denying his first

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541–9546. We affirm.

       The PCRA court described the facts of the crime as follows:

              On November 10, 2005, Philadelphia Police Officers, David
       Ewing, and his partner, Officer Austin, were on patrol in a
       marked vehicle on the 600 block of North 52nd Street in
       Philadelphia. N.T. 9/13/2010 at 8-10. At approximately 2:00
       a.m., a person known to Officer Ewing (the “Source”)
       approached the Officers and told them there was criminal
       activity afoot at 52nd Street and Girard Avenue. Id. at 10.
       Based on Officer Ewing’s experience of approximately one year
       working in the 19th District, he knew this to be a high-crime
       area. Id. at 8, 13-14.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S60010-16


           The Officers drove to 52nd Street and Girard Avenue. Id.
     at 10. When they arrived, the Officers saw [Appellant], Omar
     Williams, who matched the description provided by the Source.
     Id.   [Appellant] looked in the direction of the Officers and
     immediately ran around the corner to the rear of the 600 block
     of 52nd street. Id. at 11. Officer Ewing exited the vehicle and
     pursued [Appellant] on foot. While running through a lot behind
     642 North 52nd Street, [Appellant] tripped over a pile of tree
     branches and fell to the ground. Id. Officer Ewing caught up to
     [Appellant], who was lying face down. Id. Officer Ewing stood
     [Appellant] up. Directly under [Appellant’s] stomach area on the
     bundle of tree branches was a silver, black grip revolver; it was
     loaded with six live rounds. Id. at 12-13. The gun was in good
     condition which suggested it had not been sitting out, exposed to
     the elements. Id. at 16. Moreover, the gun was valuable.
     Officer Ewing estimated its street value at approximately
     $600.00 to $700.00. Id. [Appellant] did not have a license to
     carry a handgun. Id. at 17.

PCRA Court Opinion, 3/7/16, at 2–3.

     The PCRA court described the procedural history as follows:

           [Appellant], Omar Williams, was charged with Possession
     of a Firearm Prohibited (18 Pa.C.S.A. § 6105), Carrying Firearms
     Without a License (18 Pa.C.S.A. § 6106), and Carrying Firearms
     on Public Property in Philadelphia (18 Pa.C.S.A. § 6108). A
     waiver trial commenced on September 13, 2010.                The
     Commonwealth presented as evidence the live testimony of
     Philadelphia Police Officer, David Ewing. The Defense presented
     as evidence the live testimony of [Appellant’s] girlfriend,
     Mariama Corbin. At the conclusion of the evidence, this Court
     found [Appellant] guilty of all charges. On December 16, 2010,
     this Court sentenced [Appellant] to an aggregate sentence of
     four (4) to eight (8) years imprisonment.

            On December 30, 2010, [Appellant] filed a Notice of
     Appeal to the Superior Court; the appeal was discontinued on
     October 13, 2011. On March 26, 2012, [Appellant] filed a pro se
     PCRA Petition. On March 25, 2013, J. Matthew Wolfe, Esquire,
     entered his appearance. Mr. Wolfe filed an Amended PCRA
     Petition on March 6, 2014. The Commonwealth filed a Motion to
     Dismiss on May 5, 2015.            This Court granted the
     Commonwealth’s Motion to Dismiss on July 31, 2015; a

                                   -2-
J-S60010-16


      Dismissal Notice under Rule 907 was filed on August 3, 2015.
      On August 16, 2015, [Appellant] filed a pro se Objection to
      Dismissal Pursuant to Pennsylvania Rule of Criminal Procedure
      907. [Appellant] subsequently filed a Notice of Appeal to the
      Superior Court on October 15, 2015. Pursuant to this [c]ourt’s
      directive, [Appellant] filed his Statement of Matters Complained
      of on Appeal on November 9, 2015.

PCRA Court Opinion, 3/7/16, at 1–2.

      Appellant raises the following single issue on appeal:

         1. Did the Appellant’s amended PCRA petition raise
            substantial issues of disputed fact that needed to be
            determined through the holding of an evidentiary hearing?

Appellant’s Brief at 8.

      When reviewing the propriety of an order denying PCRA relief, this

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA

court’s findings will not be disturbed unless there is no support for them in

the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.

Super. 2014).

      “There is no absolute right to an evidentiary hearing on a PCRA

petition, and if the PCRA court can determine from the record that no

genuine issues of material fact exist, then a hearing is not necessary.”

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

Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a

decision is within the discretion of the PCRA court and will not be overturned


                                     -3-
J-S60010-16


absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015).

     We have considered Appellant’s argument, the relevant law, and the

certified record before us.   We conclude that the thorough and detailed

opinion of the Honorable Paula Patrick filed on March 7, 2016, fully

addresses Appellant’s issue, and we rely upon the opinion to affirm dismissal

of Appellant’s PCRA petition without a hearing.     In the event of further

proceedings in this matter, Appellant is directed to attach a copy of the

opinion.

     Order affirmed.

     Judge Strassburger joins the Memorandum.

     Judge Ott concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2016




                                    -4-
         IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                 FJIRS'f JUDICIAL DISTRICT OF PENNSYLVANIA
                            CfilM][NAL TRIAL DIVISION
                                                                         ReCGiVed
                                                                         M#<R 6 Y 2015
COMMONWEALTH OF PENNSYLVANIA                               PHIL~~aOO~Is);;.
                                                           COURT OF coivfMtJFf'p'tJ:1~~

               v.                                          CP-51-CR-0004913-2010

OMAR WILLIAMS                                              3135 EDA2015
                                                                                     'l:E·
                                                                                     ~- ·-··
                                                                                             ·   D'_
                                                                                                 .. _···.


                                                                                  MAR     e 7 2016

                                           OPINION

Patrick, J.                                                              DATE: March 7, 2016

       Defendant/Appellant, Omar Williams, filed an appeal from this Court's dismissal of his

Amended Post-Conviction Relief Act ("PCRA") Petition. This Court now submits the following

Opinion in support of its ruling and in accordance with the requirements of Rule 1925(a) of the

Pennsylvania Rules of Appellate Procedure. For the reasons set forth below, this Court's decision

should be affirmed.



                                 PROCEDURAL HISTORY

       Defendant, Omar Williams, was charged with Possession of a Firearm Prohibited (18

Pa.C.S.A. § 6105), Carrying Firearms Without a License (18 Pa.C.S.A. § 6106), and Carrying

Firearms on Public Property in Philadelphia (18 Pa.C.S.A. § 6108). A waiver trial commenced on

September 13, 2010. The Commonwealth presented as evidence the live testimony of Philadelphia

Police Officer, David Ewing. The Defense presented as evidence the live testimony of the

Defendant's girlfriend, Mariam.aCorbin. At the conclusion of the evidence, this Court found the


                                               1
 Defendant guilty of all charges. On December 16, 2010, this Court sentenced the Defendant to an

 aggregate sentence of four (4) to eight (8) years imprisonment.

        On December 30, 2010, Defendant filed a Notice of Appeal to the Superior Court; the

 appeal was discontinued on October 13, 2011. On March 26, 2012, Defendant filed a prose PCRA

 Petition. On March 25, 2013, J. Matthew Wolfe, Esquire, entered his appearance. Mr. Wolfe filed

 an Amended PCRA Petition on March 6, 2014. The Commonwealth filed a Motion to Dismiss on

 May 5, 2015. This Court granted the Commonwealth's Motion to Dismiss on July 31, 2015; a             !----··




 Dismissal Notice under Rule 907 was filed on August 3, 2015. On August 16, 2015, Defendant

 filed a pro se Objection to Dismissal Pursuant to Pennsylvania Rule of Criminal Procedure 907.

Defendant subsequently filed a Notice of Appeal to the Superior Court on October 15, 2015.

Pursuant to this Court's directive, Defendant filed his Statement of Matters Complained of on

Appeal on November 9, 2015.


                                      FINDINGS OF FACT

        On November 10, 2005, Philadelphia Police Officers, David Ewing, and his partner,

Officer Austin, were on patrol in a marked vehicle on the 600 block of North 52"d Street in

Philadelphia.   N.T. 9/13/2010 at 8-10. At approximately 2:00 a.m., a person known to Officer

Ewing (the "Source") approached the Officers and told them there was criminal activity afoot at

52"d Street anci Girard Avenue. Id. at 10. Based on Officer Ewing's experience of approximately

one year working in the 19th District, he knew this to be a high-crime area. Id. at 8, 13-14.

        The Officers drove to 52"d Street and Girard Avenue. Id. at 10. When they arrived, the

Officers saw the Defendant, Omar Williams, who matched the description provided by the Source.

Id. The Defendant looked in the direction of the Officers and immediately ran around the corner

to the rear of the 600 block of 52"d street. Id at 11. Officer Ewing exited the vehicle and pursued


                                                 2
the Defendant on foot. While running through a lot behind 642 North 52nd Street, the Defendant

tripped over a pile of tree branches· and fell to the ground. Id. Officer Ewing caught up to the

Defendant, who was lying face down. Id. Officer Ewing stood the Defendant up. Directly under

the Defendant's stomach area on the bundle of tree branches was a silver, black grip revolver; it

was loaded with six live rounds. Id. at 12-13. The gun was in good condition which suggested it

had not been sitting out, exposed to the elements. Id. at 16. Moreover, the gun was valuable.

Officer Ewing estimated its street value at approximately $600.00 to $700.00. Id. The Defendant

did not have a license to carry a handgun. Id. at 17.

       Defendant was charged with Violations of the Uniform Firearms Act§§ 6105, 6106, 6108.

A waiver trial commenced on September 13, 2010. At the conclusion of the evidence, this Court

found the Defendant guilty of all charges. On March 26, 2012, Defendant filed a prose PCRA

Petition. On March 6, 2014, an Amended PCRA Petition was filed. The Commonwealth filed a

Motion to Dismiss on May 5, 2015; this Court granted the Commonwealth's Motion on July 31,

2015. Defendant subsequently filed a Notice of Appeal to the Superior Court; he filed his

Statement of Matters Complained of on Appeal on November 9, 2015.




                                                3
                                                JISSUES
        Defendant/ Appellant, Omar Williams, raised the following issues in his l 925(b) Statement

 of Matters Complained of on Appeal:

        1.       The Lower Court erred in failing to grant the Petitioner's PCRA petition for
                 the following reasons:

                 a.      At trial, counsel had filed but declined to litigate a motion to
                         suppress the firearm allegedly found with the Petitioner. Counsel
                         stated to the Petitioner that it was a weak motion and that they would
                         end up losing one of the best trial judges for the defense it [sic] the
                         motion was litigated.

                 b.      Petitioner was denied his rights to due process and effective counsel,
                         under the laws and Constitutions of the United States and
                         Pennsylvania, as the Petitioner's counsel was ineffective for failing
                         to litigate the motion because the police officer was not credible and
                         because without suppression of the firearm there was effectively no
                         defense in the case.

            2.   The Court erred in failing to hold an evidentiary hearing.



                                     STAN])ARD OF REVIEW

        The applicable standard of review for an order denying a petition under the PCRA requires

an inquiry into whether the record supports the PCRA court's determination and whether the

PCRA court correctly stated and applied the law. Commonwealth v. duPont, 860 A.2d 525, 529

(Pa.Super.2004).      The PCRA court's    findings will not be disturbed unless its findings are

unsupported by the record. Id


                                            DISCUSSION

       I.        This Court did not err in dismissing Defendant's Amended PCRA Petition

       On appeal, Defendant claims that this Court erred in failing to grant his Amended PCRA

Petition. Defendant's claim is baseless. In his Amended Petition, Defendant claimed trial counsel

was ineffective for filing but declining to litigate a motion to suppress the firearm. According to

                                                   4
 Defendant, counsel told him it was a weak motion and they would end up losing one of the best

trial judges for the defense if the motion was litigated. Just as this Court found no merit in the

claims raised in Defendant's Amended PCRA Petition, it finds no merit in his claim on appeal.

        It is well-established that counsel is presumed to have been effective. The Defendant bears

the burden of overcoming this presumption and proving ineffectiveness. To establish a claim of

ineffective assistance of counsel under the PCRA, the Defendant must satisfy the Pierce test;

specifically, he must demonstrate the following:

       (1) the underlying claim has arguable merit; (2) counsel's course of conduct was
       without any reasonable basis designed to effectuate his client's interest; and (3) 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.

Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975-76 (1987). Where it is clear that a

Defendant has failed to meet any of the three, distinct prongs of the Pierce test, the claim may be

disposed of on that basis alone, without a determination of whether the other two prongs have been

met. Commonwealth v. Steele, 961 A.2d 786, 796-97 (Pa.2008) (citations omitted).

       Here, Defendant failed to meet his burden. Aside from Defendant's bald assertion that trial

counsel was ineffective for failing to litigate the motion to suppress, he did not specify the basis

upon which counsel should have sought suppression or offer evidence to prove specific facts which

would entitle him to relief under the law. Even so, arguing any such motion would have been

unsuccessful. According to our Superior Court, "[a] defendant moving to suppress evidence has

the preliminary burden of establishing standing and a legitimate expectation of privacy."

Commonwealth v. Maldonado, 14 A.3d 907, 910 (Pa.Super.2011) (quoting Commonwealth v.

Burton, 973 A.2d 428, 435 (Pa.Super.2009) (en bane)). The Defendant "must separately establish




                                                 5
a legitimate expectation of privacy in the area searched or thing seized." Maldonado, 14 A.3d at

910-11 (quoting Burton, 973 A.2d at 435).

        Here, the evidence presented at trial demonstrated that the Defendant did not have a privacy

interest which was infringed upon. At trial, Officer Ewing testified that he was on patrol with his

partner in a marked vehicle on November 10, 2005. At approximately 2:00 a.m., the Officers

received information about the Defendant from the Source. The Officers drove to 52°d Street and

Girard Avenue, a high-crime area.      When they arrived, the Officers saw the Defendant who

matched the description provided by the Source. Officer Ewing observed the Defendant crossing

52nd Street. N.T. 9/13/2010 at 10. As soon as the Defendant "made it from the street onto the

sidewalk," the Officers stopped their vehicle. Id. The Defendant looked in the direction of the

Officers and immediately fled. Officer Ewing pursued the Defendant on foot; he caught up to the

Defendant, who fell on a bundle of tree branches behind 642 North 52nct Street. Officer Ewing

testified that he "stood [the Defendant] up and right from under his stomach area on the tree

branches was a silver, black grip revolver." Id. at 11.

       The Defendant's rights were not violated by the above-referenced        encounter.   Officer

Ewing and his partner were entitled to stop their vehicle after observing the Defendant, who

matched the Source's description, cross 52"d Street. This initial interaction was a mere encounter.

A mere encounter or request for information "is characterized by limited police presence and police

conduct and questions that are not suggestive of coercion," Commonwealth v. Hill, 87 4 A.2d 1214,

1220-21 (Pa.Super.2005) (quoting Commonwealth v. Reppert, 814 A.2d 1196 (Pa.Super.2002))

(internal quotation marks omitted). It does not "need to be supported by any level of suspicion,

and does not carry any official compulsion to stop or respond." Commonwealth v. Smith, 575 Pa.

203, 836 A.2d 5, 10 (2003).



                                                 6
        Additionally, it was lawful for Officer Ewing to chase the Defendant after he ran.          As

discussed above, the Defendant was in a high-crime area and fled immediately after looking in the

direction of the Police Officers. According to our Supreme Court, the combination of presence in

a high-crime area, coupled with unprovoked fight is sufficient to establish reasonable suspicion

and to justify an investigative stop. In re D.M., 781 A.2d 1161 (Pa.2001).

        Finally, Officer Ewing was permitted to seize the firearm. Officer Ewing testified that he

discovered the handgun on top of tree branches "right underneath where [the Defendant] was

laying." N. T. 9/13/2010 at 12. Under the plain view doctrine, a Police Officer may seize a piece

of evidence which is in plain view if he views the object from a lawful vantage point and if the

incriminating nature of the object is immediately apparent to the Officer. Commonwealth v. Ellis,

541 Pa. 285, 662 A.2d I 043, 1049 (1995). Moreover, "areas within a suspect's immediate control

may be searched incident to lawful arrest to prevent danger to the arresting officers and to prevent

destruction of evidence." Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982).

        Based on the foregoing, it is clear that the Defendant did not have legitimate and reasonable

privacy interest in the illegal handgun that fell from his person. Not only did the Defendant fail to

set forth an offer of proof, he would not have been able to demonstrate that the suppression motion

had merit and would have been successful. Thus, it was proper for this Court to dismiss his

Amended PCRA Petition.


              U.      This Court did not err in failing to hold an evidentiary hearing

       On appeal, Defendant claims that this Court erred in failing to hold an evidentiary hearing.

Defendant's claim is baseless.      In Defendant's Amended PCRA Petition, he requested an

evidentiary hearing "to determine the credibility of the [PJolice [O]fficer and to review the strategic

decision made by counsel in failing to litigate the suppression motion." This Court properly


                                                  7
disposed of Defendant's Amended PCRA Petition without first conducting an evidentiary hearing.

Thus, Defendant' s claim should be dismissed.

        It is well-established that "[t]here is no absolute right to an evidentiary hearing on a PCRA

Petition. If the PCRA court can determine from the record that no genuine issues of material fact

exist, then a hearing is not necessary."          Commonwealth v. Jones, 942 A.2d 903, 906

(Pa.Super.2008); Pa.R.Crim.P. 907(2). A reviewing court must examine the issues raised in the

PCRA petition in light of the record to determine whether the PCRA court erred in concluding that

there were no genuine issues of material fact and in denying relief without an evidentiary hearing.

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super.2001) (citation omitted).                  It is

appropriate to dismiss claims "where the pleadings are insufficient to state a claim for post-

conviction relief." Commonwealth v. Clark, 961 A.2d 80 (Pa. 2008). Here, this Court determined

that the claims raised in Defendant's Amended PCRA Petition contained no genuine issues of

material fact.

        In Defendant's Amended PCRA Petition, he claimed trial counsel was ineffective and

requested an evidentiary hearing, in part, to review the strategic decision made by counsel in failing

to litigate the suppression motion. "[T]o merit entitlement to an evidentiary hearing on a claim of

ineffectiveness, a defendant must "set forth an offer to prove at an appropriate hearing sufficient

facts upon which a reviewing court can conclude that ... counsel may have, in fact, been

ineffective." Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). As

previously discussed, Defendant failed to offer evidence to prove specific facts which would entitle

him to relief under the law. Our Supreme Court has held that boilerplate allegations and bald

assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner's burden to

prove that counsel was ineffective. Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa.2011). Since



                                                  8
    there were no genuine issues of material fact with regard to Defendant's ineffectiveness claim, an

    evidentiary hearing was not necessary.

            Defendant also requested an evidentiary hearing, in part, to determine the credibility of the

    Police Officer. According to Defendant's signed certification, he intended to call Police Officer

    Ewing "to testify to the circumstances of stopping and searching the Petitioner, including outlining

    the name of the person who he obtained information from and the substance of that information."!

    This Court determined that a hearing was unnecessary.

           To begin, Officer Ewing already testified to the circumstances of stopping and searching

    the Defendant at the September 13, 2010 waiver trial; such testimony would be duplicative and

    redundant. Moreover, Officer Ewing need not disclose the name of the Source and substance of

    the information he provided.        Although Officer Ewing initially drove to 52nd Street and Girard

    A venue based on information provided by the Source, Officer Ewing had independent reason to

    believe the Defendant was involved in criminal activity-Defendant was in a high-crime area and

    fled.immediately after looking in the direction of the Police Officers. As previously discussed, a

police officer is justified in reasonably suspecting that an individual is involved in criminal activity

when that individual (1) is present in a high-crime area; and (2) engages in unprovoked, headlong

flight after being confronted by the police or recognizing police presence in the immediate

area. Commonwealth v. Washington, 51 A.3d 895, 898 (Pa.Super.2012). The existence, in

combination, of these two factors alone is sufficient to establish reasonable suspicion. Illinois v.

Wardlow, 528 U.S. 119, 124-25 (2000).




1
  Where a petitioner requests an evidentiary hearing, the petition shall include a signed certification as to each intended
witness stating the witness's name, address, date of birth and substance of testimony and shall include any documents
material to that witness's testimony. Failure to substantially comply with the requirements of this paragraph shall
render the proposed witness's testimony inadmissible. 42 Pa.C.S.A. § 9545(d).

                                                            9
           Finally, this Court presided over the September ·13, 2010 trial and had the opportunity to

view Officer Ewing's demeanor and evaluate his credibility; thus, an evidentiary hearing to

    determine the credibility of Police Officer Ewing was not necessary.2

           Based on the foregoing, Defendant's            claim should be dismissed.          This Court properly

disposed of Defendant's Amended PCRA Petition without conducting an evidentiary hearing.



                                                 <CONCLUSION

           For all the foregoing reasons, this Court respectfully requests that its judgment be affirmed

in its entirety.




                                                                         BY THE <COURT:




2
 It is well-settled that the credibility of witnesses and the weight to be accorded the evidence are matters within the
province of the trier of fact, who is free to believe all, some, or none of the evidence. Commonwealth v. Taylor, 324
Pa.Super. 420, 471 A.2d 1228 (1984).

                                                          10
