J-S58043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JAMES WATSON

                            Appellant               No. 216 MDA 2015


                Appeal from the PCRA Order December 31, 2014
               In the Court of Common Pleas of Bradford County
              Criminal Division at No(s): CP-08-CR-0000449-2001

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

MEMORANDUM BY GANTMAN, P.J.:                     FILED JANUARY 15, 2016

        Appellant, James Watson, appeals from the order entered in the

Bradford County Court of Common Pleas, which denied his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        This Court previously set forth the relevant facts and procedural

history of this case as follows:

          Generally, the evidence at trial, consisting of eyewitness
          testimony, established that in the afternoon of April 17,
          2001, an argument developed between Jason Ryans
          [(“Victim”)] and the Watson brothers [(Kenny Watson and
          Appellant)] at Kenny Watson’s home in Wilkes-Barre,
          Pennsylvania. The Watsons believed that [Victim] had
          stolen a handgun and a safe containing marijuana and
          money. During the argument, Kenny Watson punched
          [Victim]. In an ensuing struggle, Appellant grabbed a
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1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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       knife and inflicted multiple wounds to [Victim’s] hands and
       arms. [Victim] was also punched and kicked repeatedly by
       the Watsons. The Watsons then bound the wrists of
       [Victim], either for the purpose of stopping his bleeding or
       to prevent his escape, or both. [Victim] was then placed in
       a vehicle and transported to a rural area near the Village
       of Camptown in Bradford County. There, [Victim] was
       taken from the vehicle and shot twice in the back of the
       head by Appellant. [Victim] apparently died immediately.

       The evidence against Appellant and Kenny Watson
       diverged with respect to their criminal culpability following
       the altercation in Wilkes-Barre. After [Victim] was bound,
       the Watsons then informed others at the house that they
       would be taking [Victim] to a hospital, but would seek a
       rural hospital. The evidence revealed that Appellant was in
       fact simply looking for a secluded place to murder [Victim],
       but the evidence also suggested that Kenny Watson,
       among others, was duped into accompanying Appellant to
       Bradford County. The jury at least had a reasonable doubt
       as to Kenny Watson’s complicity in any plan to kill
       [Victim], for it acquitted him of all charges of homicide and
       conspiracy to commit homicide. Kenny Watson’s counsel
       admitted to the jury that his client was guilty of assault,
       but denied his involvement in any action or plan intended
       to kill [Victim].

       Procedurally, the jury reached a verdict on September 12,
       2002, convicting Appellant of first-degree murder,
       conspiracy to commit homicide, kidnapping, conspiracy to
       commit kidnapping, and other related offenses. The court
       sentenced Appellant on that day to life imprisonment for
       his murder conviction, but deferred sentencing on the
       remaining convictions. On November 22, 2002, the court
       imposed an aggregate sentence of forty-six (46) to ninety-
       two (92) years’ imprisonment for Appellant’s remaining
       convictions, consecutive to Appellant’s life sentence.

       This Court affirmed the judgment of sentence on August
       20, 2004, and our Supreme Court subsequently denied
       allowance   of   appeal   on   April  18,   2005.   See
       Commonwealth v. Watson, 860 A.2d 1136 (Pa.Super.
       2004), appeal denied, 582 Pa. 717, 872 A.2d 1199 (2005).
       On May 18, 2005, Appellant timely filed a pro se PCRA

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           petition.    The court appointed counsel, who filed an
           amended PCRA petition on April 9, 2008. The court held
           hearings on the petitions on April 7, 2008, April 9, 2008,
           and January 6, 2010. The court denied PCRA relief on
           January 4, 2011.[2] On January 26, 2011, Appellant timely
           filed a notice of appeal.
              2
                The court determined it had improperly imposed
              separate sentences for each of Appellant’s conspiracy
              convictions; consequently, the court granted PCRA
              relief in that respect only.

Commonwealth          v.   Watson,     No.   202    MDA     2011,   unpublished

memorandum at 1-2 (Pa.Super. filed June 1, 2012) (some internal citations

omitted). On appeal, this Court affirmed in part and remanded the case for

the PCRA court to make additional findings with regard to two of Appellant’s

issues. See id.     Following remand, the PCRA court again denied relief on

January 2, 2015. Appellant filed a timely notice of appeal on January 30,

2015.     The court ordered Appellant to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b).         After the court

granted an extension, Appellant timely complied.

        Appellant raises the following issues for our review:

           DID THE PCRA COURT COMMIT ERROR REGARDING THE
           PRATO-BARR    CONVERSATION    WHEN,   MAKING   A
           CREDIBILITY DETERMINATION THAT PRATO’S TESTIMONY
           DID NOT NECESSITATE PCRA RELIEF FOR [APPELLANT],
           THE COURT FOUND THAT [APPELLANT] FIRST FAILED TO
           ESTABLISH THAT HIS TRIAL ATTORNEY KNEW OR SHOULD
           HAVE KNOWN OF THE PRATO-BARR CONVERSATION AND
           HAD PRATO TESTIFY AT TRIAL, AND SECOND, THAT
           [APPELLANT] FAILED TO ESTABLISHED PREJUDICE
           BECAUSE THE ABSENCE OF PRATO TESTIMONY AT
           TRIAL[?]


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         DID THE COURT COMMIT ERROR REGARDING THE
         PRESERVATION OF [APPELLANT’S] APPELLATE RIGHTS IN
         FIRST NOT FINDING THAT [APPELLANT’S] APPELLATE
         RIGHTS WERE NOT PRESERVED NOT EMPLOYING A “PER
         SE” PREJUDICE STATEMENT IN THIS CASE, AND SECOND
         NOT REACHING REAL CREDIBILITY DETERMINATIONS[?]

(Appellant’s Brief at 4).

      In his first issue, Appellant argues that his former girlfriend, Jennifer

Barr, had a conversation with Janelle Prato shortly after the incident (“Prato-

Barr conversation”), in which Ms. Barr indicated someone had been killed

but Appellant was not the killer.             Appellant contends the Prato-Barr

conversation is evidence of Appellant’s innocence and contradicts Ms. Barr’s

testimony at trial identifying Appellant as the person who killed Victim.

Appellant claims the PCRA court failed to follow this Court’s remand

instructions to make credibility determinations regarding the PCRA hearing

testimony of Ms. Prato and defense counsel on the issue of whether defense

counsel was aware of the Prato-Barr conversation.             Appellant asserts Ms.

Prato credibly testified that she relayed the conversation to counsel’s private

investigator. Appellant concludes defense counsel’s failure to call Ms. Prato

as a witness at Appellant’s trial constituted ineffective assistance.               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. Jones, 932 A.2d 179 (Pa.Super. 2007).                      This Court

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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).     If the record supports a post-conviction court’s credibility

determination, it is binding on the appellate court.       Commonwealth v.

Knighten, 742 A.2d 679 (Pa.Super. 1999), appeal denied, 563 Pa. 659, 759

A.2d 383 (2000).

      The   law    presumes    counsel   has   rendered   effective   assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). When asserting a claim

of ineffective assistance of counsel, the petitioner is required to make the

following showing: (1) the underlying claim is of arguable merit; (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).

Because claims of ineffective assistance of counsel are not self-proving, the

petitioner must develop each prong of the test in a meaningful fashion.

Commonwealth. v. Spotz, 587 Pa. 1, 896 A.2d 1191 (2006). Boilerplate,

undeveloped argument regarding counsel’s assistance is not sufficient to

warrant PCRA relief.    Id.   See also Commonwealth v. Reaves, 592 Pa.

134, 148, 923 A.2d 1119, 1128 (2007) (explaining specifically that collateral


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attack under guise of ineffective assistance of counsel in collateral

proceeding regarding alleged defaulted claims on appeal requires showing of

actual prejudice).    The failure to satisfy any prong of the test for

ineffectiveness of counsel will cause the claim to fail. Gonzalez, supra.

     To establish counsel’s ineffectiveness for failure to call a witness, a

petitioner must demonstrate:

        (1) the witness existed; (2) the witness was available; (3)
        counsel was informed of the existence of the witness or
        counsel should otherwise have known of [her]; (4) the
        witness was prepared to cooperate and testify for
        Appellant at trial; and (5) the absence of the testimony
        prejudiced Appellant so as to deny him a fair trial. A
        defendant must establish prejudice by demonstrating that
        he was denied a fair trial because of the absence of the
        testimony    of    the     proposed     witness.        Further,
        ineffectiveness for failing to call a witness will not be found
        where a defendant fails to provide affidavits from the
        alleged witnesses indicating availability and willingness to
        cooperate with the defense.

Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal

denied, 580 Pa. 696, 860 A.2d 123 (2004) (citations omitted).

     Instantly, the PCRA court reasoned as follows:

        [Appellant] failed to prove that defense counsel knew or
        should have known about [the Prato-Barr conversation].
        [Ms.] Prato herself testified that she provided her
        information to counsel’s private investigator, but there is
        no evidence that the investigator relayed [Ms.] Prato’s
        statements to counsel, and counsel denied having been
        told about the testimony [Ms.] Prato might have offered.

        The only evidence that defense counsel was informed prior
        to trial of [Ms.] Prato’s testimony came from [Appellant]
        himself, who claims that he asked defense counsel about
        calling [Ms.] Prato to testify. [Appellant’s] testimony was

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       not credible.

       When first questioned by the police, [Appellant] gave a
       detailed account of how he had been involved in the
       beating, kidnapping, and execution of [Victim], an account
       that was wholly consistent with the facts related by
       [Rodney] Watson, who was present at all times, and by
       [Ms.] Barr, who was present for the kidnapping and
       murder[;] however, while testifying during the PCRA
       hearing, [Appellant] radically changed his story. He now
       claims that he was present when [Victim] was beaten, but
       then went home and remained home while [Victim] was
       kidnapped and killed.

       Because [Appellant’s] PCRA hearing testimony is not
       reliable, the court finds that [Appellant] has not
       established by a preponderance of the evidence that
       defense counsel knew or should have known that [Ms.]
       Prato could testify about [Ms.] Barr’s prior inconsistent
       statement. Further, there is no evidence that defense
       counsel was derelict in his selection of a private
       investigator, nor in relying on the investigator to provide
       him with any and all exculpatory evidence.

       The court also finds that [Appellant] has failed to satisfy
       the fifth element of a claim of ineffectiveness for failure to
       call a witness: The absence of [Ms.] Prato’s testimony was
       not so prejudicial to [Appellant] as to have denied him a
       fair trial.

       The evidence against [Appellant] at trial included the
       testimony of [Appellant’s] mother that [Appellant] has
       confessed to her that he had killed [Victim] because he
       believed that after [Victim] was beaten he represented a
       threat to Kenny Watson and his family. Rodney Watson
       testified that he personally witnessed [Appellant] shoot
       [Victim]. Numerous witnesses supplied testimony that
       [Appellant] orchestrated the kidnapping and the killing,
       and commanded the after-the-fact cover-up. [Ms.] Barr’s
       testimony was corroborated, often in fine detail, by Rodney
       Watson and, except for [Appellant’s] claim that Kenny
       Watson was the shooter, [Appellant’s] own statement to
       the police. The remarkable consistency of the statements
       of those involved leading to the moment of the execution

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         imbues [Ms.] Barr’s testimony with an authenticity that her
         prior inconsistent statement lacks. Moreover, [Ms.] Prato’s
         testimony about [Ms.] Barr’s inconsistent statement refers
         to a time before [Appellant’s] arrest and before [Ms.] Barr
         changed her initial statement to the police that Kenny
         Watson was the shooter.          At the trial, [Ms.] Barr
         acknowledged that she had previously exculpated
         [Appellant], but explained that she did so because she was
         in fear of [Appellant]. Thus, [Ms.] Prato’s testimony was
         cumulative of an inconsistency that [Ms.] Barr readily
         acknowledged. The testimony of [Ms.] Prato would have
         carried little weight, if any.

(PCRA Court Opinion, filed January 2, 2015, at 3-4). The record supports

the PCRA court’s analysis. The court explicitly discredited Appellant’s PCRA

hearing testimony. The court’s observation that defense counsel denied any

awareness of the Prato-Barr conversation, when read in the context of the

court’s conclusion that no evidence showed the Prato-Barr conversation was

relayed to defense counsel, makes clear the court credited counsel’s

testimony.    Thus, Appellant failed to satisfy his burden to show defense

counsel knew or should have known of Ms. Prato and her potential

testimony.    See Knighten, supra; O’Bidos, supra.           Further, Appellant

failed to satisfy the prejudice prong, particularly where Ms. Barr’s alleged

statement to Ms. Prato was cumulative of her prior inconsistent statement to

the police, which was introduced at trial, and Ms. Barr testified as to why she

had initially attempted to exculpate Appellant. See id. Therefore, defense

counsel was not ineffective for failing to call Ms. Prato as a witness.

      In his second issue, Appellant argues defense counsel, who also

represented Appellant on direct appeal, did not discuss with him the matter

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of a direct appeal, including the strengths and weaknesses of potential

claims and the consequences of failing to raise a particular issue. Appellant

concedes counsel informed him of the one issue that would be raised on

direct appeal, i.e., the trial court’s denial of Appellant’s motion for a mistrial.

Nevertheless,   Appellant    disputes   counsel’s   testimony    that   they   had

discussed other possible appellate claims.        Appellant contends the PCRA

court again failed to make a specific credibility determination regarding the

conflicting testimony of Appellant and defense counsel on this issue.

Appellant concludes counsel rendered ineffective assistance when he failed

to discuss potential appealable issues with Appellant. We cannot agree relief

is warranted.

      Pennsylvania law makes clear:

         [A]n accused who is deprived entirely of his right of direct
         appeal by counsel’s failure to perfect an appeal is per se
         without the effective assistance of counsel, and is entitled
         to reinstatement of his direct appellate rights. In those
         extreme circumstances, where counsel has effectively
         abandoned his or her client and cannot possibly be acting
         in the client’s best interests, our Supreme Court has held
         that the risk should fall on counsel, and not his client.

         However, it is also well-settled that the reinstatement of
         direct appeal rights is not the proper remedy when
         appellate counsel perfected a direct appeal but simply
         failed to raise certain claims. Where a petitioner was not
         entirely denied his right to a direct appeal and only some
         of the issues the petitioner wished to pursue were waived,
         the reinstatement of the petitioner’s direct appeal rights is
         not a proper remedy. In such circumstances, the appellant
         must proceed under the auspices of the PCRA, and the
         PCRA court should apply the traditional three-prong test
         for determining whether appellate counsel was ineffective.

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Commonwealth v. Grosella, 902 A.2d 1290, 1293-94 (Pa.Super. 2006)

(internal citations and quotation marks omitted) (emphasis in original).

       Instantly, defense counsel filed a timely direct appeal on Appellant’s

behalf following imposition of sentence. This Court disposed of Appellant’s

single issue on the merits and affirmed the judgment of sentence.

Therefore, Appellant was not entirely denied his right to a direct appeal.

Consequently, Appellant must satisfy the traditional three-prong ineffective

assistance test to determine whether counsel was ineffective for failing to

raise certain issues on appeal.            See Reaves, supra; Spotz, supra;

Grosella, supra. Appellant, however, did not specify any additional issue

he thought counsel should have raised on direct appeal.               Moreover,

Appellant presented no argument on any of the three prongs of the

ineffective assistance of counsel standard. See id. Therefore, Appellant’s

ineffective assistance claim fails.2       See Kimball, supra.   Accordingly, we

affirm.

       Order affirmed.
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2
   Appellant’s claim merits no relief even in the absence of a specific
credibility finding. Here, Appellant had the benefit of a direct appeal decided
on the merits. In any event, Appellant has not identified what additional
issues he thought counsel should have raised on direct appeal. Additionally,
in Appellant’s prior collateral appeal, this Court disposed of Appellant’s
various other claims of ineffectiveness with respect to issues that
conceivably could have been raised on direct appeal. See Commonwealth
v. Watson, No. 202 MDA 2011 (Pa.Super. filed June 1, 2012) (unpublished
memorandum). Therefore, his current claim merits no further attention.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/2016




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