J-S31007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ZACHARY T. WILSON                         :
                                           :
                    Appellant              :   No. 2988 EDA 2017

                Appeal from the PCRA Order August 25, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0929501-1986


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.:                       FILED SEPTEMBER 17, 2018

      Appellant, Zachary T. Wilson, appeals pro se 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 factual and procedural issues of this

case as follows:

             [Appellant] Zachary Wilson was tried and convicted of first
      degree murder on January 7, 1988, and was sentenced to death
      for the 1981 shooting of Jamie Lamb. The Pennsylvania Supreme
      Court upheld this conviction on November 9, 1994.
      Commonwealth v. Wilson, 649 A.2d 435 (Pa. 1994). [Appellant]
      subsequently filed a petition under the Post–Conviction Relief Act
      and the [c]ourt’s denial of the petition was upheld on appeal on
      November 19, 2004. Commonwealth v. Wilson, 861 A.2d 919 (Pa.
      2004). [Appellant] subsequently filed a federal petition for a writ
      of habeas corpus based on alleged Brady violations by the
      prosecution. The federal district court granted [Appellant’s]
      petition on August 9, 2006, and was upheld on appeal on
      December 23, 2009. Wilson v. Beard, 589 F.3d 651 (3rd Cir.
      2009). [Appellant] was subsequently retried in April 2013, with
J-S31007-18


     the Commonwealth no longer seeking the death penalty. That
     trial resulted in a hung jury.      Thereafter, the matter was
     reassigned to the undersigned trial judge.

           On April 1, 2014, following a jury trial before this [c]ourt,
     [Appellant] was again convicted of one count each of first degree
     murder (18 Pa.C.S. § 2502) and possessing an instrument of
     crime (18 Pa.C.S. § 907). The [c]ourt immediately imposed the
     mandatory sentence of life in prison for the murder charge (18
     Pa.C.S. § 1102(a)(1)), with no further penalty on the charge of
     possessing an instrument of crime.       [Appellant] filed post–
     sentence motions, which the [c]ourt denied on July 24, 2014. On
     [June 3, 2016], the Superior Court affirmed [Appellant’s]
     judgment of sentence. [Appellant] was represented at trial, at
     sentencing, and on direct appeal by Michael Wiseman, Esquire and
     Benjamin Marshal, Esquire.

            [Appellant] then filed a pro se petition under the Post -
     Conviction Relief Act (“PCRA”) on July 26, 2016.            David
     Rudenstein, Esquire[,] was appointed to represent [Appellant] on
     January 6, 2017. On May 25, 2017, pursuant to Commonwealth
     v. Finley, 550 A.2d 213 (Pa. Super. 1988), Mr. Rudenstein filed a
     letter stating there was no merit to [Appellant’s] claims for
     collateral relief. See Finley Letter of David Rudenstein, filed
     5/25/2017 (“Finley Letter”). On June 23, 2017, the [c]ourt issued
     notice, pursuant to Pa.R.Crim.P. 907 (“907 Notice”), of its
     intention to dismiss [Appellant’s] PCRA Petition without an
     evidentiary hearing. [Appellant] responded to the [c]ourt’s 907
     Notice on July 19, 2017. On August 25, 2017, the [c]ourt formally
     dismissed [Appellant’s] PCRA Petition and granted Mr.
     Rudenstein’s motion to withdraw his appearance.

           [Appellant timely] . . . appealed the [c]ourt’s dismissal of
     his PCRA Petition, raising a total of 22 issues, some duplicative, in
     a Statement of Errors and a Supplemental Statement of Errors.
     See 1925 (b) Concise Statement of Matters Complained of on
     Appeal (“Statement of Errors”) at ¶¶ A-J; Supplement 1925 (b)
     Concise Statement of Matters Complained of on Appeal
     (“Supplemental Statement of Errors”) at ¶11 A-L.

PCRA Court Opinion, 12/18/17, at 1-2.




                                     -2-
J-S31007-18


     Appellant presents the following issues for our review, which we restate

here verbatim:

     A.    WHETHER APPELLANT SHOULD BE GRANTED AN ARREST OF
           JUDGMENT/DISMISSAL       AS   HE   WAS    WRONGFULLY
           PROSECUTED GIVEN THAT THE MUNICIPAL COURT [JUDGE
           LIPSCHUTZ] DISMISSED HIS CASE WITH PREJUDICE [AND
           DISCHARGED HIM] ON MAY 27, 1982 [AND THE
           COMMONWEALTH FAILED TO FILE A RULE 132 MOTION AND
           OBTAIN APPROVAL FOR THE REINSTITUTING OF THE
           DISMISSED CASE NEARLY 5 YEARS LATER, AS REQUIRED
           BY PA.R.CRIM.P. 544 (A -B), DUE PROCESS AND THE EQUAL
           PROTECTION OF THE LAW]?

     B.    WHETHER APPELLANT SHOULD BE GRANTED RELIEF IN
           SOME FORM GIVEN THAT THE SUPERIOR COURT
           MISCONSTRUED THE FACTS OF THE CASE AND WAS LEAD
           TO RELY ON FABRICATED AND/OR [KNOWINGLY USED]
           PERJURED TESTIMONY [NEVER CORRECTED BY THE
           COMMONWEALTH]?

     C.    WHETHER THE TRIAL COURT LACKED SUBJECT-MATTER
           JURISDICTION TO PROCEED TO THE MERITS OF
           APPELLANT’S ISSUES WHEN APPELLANT WAS ON DIRECT
           APPEAL AND APPELLANT COUNSEL FAILED TO CONSULT
           APPELLANT ABOUT FILING A PETITION FOR ALLOWANCE OF
           APPEAL TO THE PENNSYLVANIA SUPREME COURT TO
           REVIEW ISSUES E-J BELOW AND APPELLANT FILED A
           TIMELY PCRA PETITION RAISING THOSE ISSUES SHOWING
           HE DESIRED COUNSEL TO FILE A PETITION FOR
           ALLOWANCE OF APPEAL ON DIRECT APPEAL?

     D.    WHETHER THE PCRA COURT ERRED IN FILING TO GRANT
           AN APPEAL NUNC PRO TUNC FOR APPELLANT TO FILE A
           PETITION FOR ALLOWANCE OF APPEAL TO THE
           PENNSYLVANIA SUPREME COURT WITH THE APPOINTMENT
           OF NEW COUNSEL IN LIGHT OF APPELLANT COUNSEL’S
           FAILURE TO DO SO AND PCRA COUNSEL’S FAILURE TO FILE
           AN AMENDED PETITION RAISING ALL PRIOR COUNSELS’
           (TRIAL AND APPELLANT) INEFFECTIVENESS?

     E.    WHETHER THE TRIAL COURT ERRED IN DENYING THE
           APPELLANT’S PRE-TRIAL MOTIONS   TO  BAR  RE-

                                   -3-
J-S31007-18


          PROSECUTION ON DOUBLE JEOPARDY GROUNDS OR,
          ALTERNATELY, TO CONDUCT A HEARING ON WHETHER THE
          PROSECUTOR      INTENTIONALLY    WITHHELD      BRADY
          EVIDENCE [IN LIGHT OF THE SUPREME COURT’S FEBRUARY
          28, 2017 DECISION RENDERED IN COMMONWEALTH-V-
          JAWAYNE K. BROWN; COMMONWEALTH -V -RICHARD
          BROWN; AND COMMONWEALTH-V-AQUIL BOND, 2017
          PA.LEXIS 476 (NO. 384 EAL 2016, NO. 385 EAL 2016, NO.
          386 EAL 2016) AND NO FACTUAL FINDINGS EVER BEING
          MADE BY THE ORIGINAL TRIAL JUDGE, OR A HEARING ON
          FURTHER TESTIMONY, REGARDING THE INTENT OF THE
          PROSECUTOR]?

     F.   WHETHER THE TRIAL COURT ERRED AND VIOLATED THE
          APPELLANT’S RIGHT TO DUE PROCESS WHEN IT EXCLUDED
          DEFENSE WITNESSES WHO WOULD HAVE PLACED AN
          INCULPATORY STATEMENT IN PROPER CONTEXT, THUS
          CHALLENGING THE COMMONWEALTH’S THEORY THAT THE
          STATEMENT SHOWED CONSCIOUSNESS OF GUILT?

     G.   WHETHER THE TRIAL COURT ERRED WHEN IT ADMITTED
          MICHAEL PATTERSON’S TESTIMONY THAT “TURTLE” TOLD
          HIM THAT APPELLANT WAS THE SHOOTER AND OTHER
          TESTIMONY SUGGESTING THAT TURTLE WAS AN
          EYEWITNESS    WITH  THE   ERROR  ALLOWING    THE
          COMMONWEALTH TO BENEFIT FROM ITS EARLIER BRADY
          VIOLATIONS ALL VIOLATING DUE PROCESS OF LAW AND
          THE RIGHT TO CONFRONTATION?

     H.   WHETHER THE TRIAL COURT ERRED WHEN IT ADMITTED
          PRIOR STATEMENTS OF EDWARD JACKSON THAT
          IMPROPERLY BOLSTERED HIS IN COURT TESTIMONY?

     I.   WHETHER THE TRIAL COURT ERRED AND ABUSED ITS
          DISCRETION WHEN IT ADMITTED A PORTION OF THE
          APPELLANT’S 1988 PENALTY PHASE TESTIMONY WHICH
          SAID TESTIMONY VIOLATING THE APPELLANT’S RIGHT TO
          DUE PROCESS OF LAW BECAUSE IT WAS THE PRODUCT OF
          EARLIER BRADY VIOLATIONS?

     J.   WHETHER THE TRIAL COURT ERRED WHEN IT DENIED
          MOTIONS MADE DURING AN AFTER TRIAL FOR DISCOVERY
          OF THE MEDICAL REASONS FOR THE FIVE-DAY DELAY OF
          EDWARD JACKSON’S TESTIMONY?

                               -4-
J-S31007-18



      K.     WHETHER TRIAL AND APPELLATE COUNSEL RENDERED
             INEFFECTIVE ASSISTANCE, IN VIOLATION OF THE SIXTH
             AMENDMENT, FOR FAILING TO: (1) PROVIDE EVIDENCE IN
             THE RECORD ON APPEAL TO SUPPORT HIS JUDGE
             BRONSON ERRED IN FAILING TO ALLOW THE DEFENSE TO
             INQUIRE INTO THE MEDICAL RECORDS OF EDWARD
             JACKSON TO DETERMINE WHETHER HE HAD A PROBLEM
             WITH ALCOHOL AND DRUGS, EVIDENCE THAT APPEARED
             AT THE NOVEMBER 24, 1997 PCRA HEARING AND
             ESTABLISHED     THAT   THE    COMMONWEALTH     HAD
             DELIBERATELY MISLED THE APPELLATE COURT IN ITS
             APPELLEE BRIEF IN REGARDS TO JACKSON’S ALCOHOL AND
             DRUG PROBLEM; AND (2) CONSULT WITH APPELLANT
             ABOUT FILING A TIMELY PETITION FOR ALLOWANCE OF
             APPEAL IN THE PENNSYLVANIA SUPREME COURT AND
             CERTIORARI ON DIRECT APPEAL, WHERE APPELLANT FILED
             A TIMELY PCRA PETITION RAISING THE SAME CLAIMS AND
             SHOWING HIS DESIRE TO DO SO ?

      L      WHETHER PCRA COUNSEL RENDERED INEFFECTIVE
             ASSISTANCE, IN VIOLATION OF THE SIXTH AMENDMENT,
             IN FAILING TO FILE AN AMENDED PETITION TO RAISE THE
             INEFFECTIVE ASSISTANCE OF ALL PRIOR COUNSEL?

Appellant’s Brief at vi-vii.

      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. Hernandez, 79 A.3d

649, 651 (Pa. Super.2013). The PCRA court’s findings will not be disturbed

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

      We have reviewed the briefs of the parties, the relevant law, the certified

record before us, and the PCRA court’s opinion. We conclude that the record

supports the PCRA court’s determination, and we discern no error in its

analysis. Accordingly, we affirm the August 25, 2017 order based on the PCRA


                                      -5-
J-S31007-18



court’s opinion, and we adopt its analysis and reasoning as our own. 1 The

parties are directed to attach a copy of the PCRA court’s December 18, 2017

opinion in the event of further proceedings in this matter.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/18




____________________________________________


1 We note that the order in which the PCRA court addressed Appellant’s issues
varies from the order of Appellant’s issues listed in his Statement of Issues
Involved. Nevertheless, the PCRA court addressed each of Appellant’s issues.

                                           -6-
                                                                                                Circulated 08/2212FJtEf:18 PM


                                IN THE COURT OF COMMON PLEAS                                                       DEC 18 2017
                           FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                    CRIMINAL TRIAL DIVISION                                              Office of Judicial Record:
                                                                                                            AppealS/Post Trial
       COMMONWEALTH OF                                                     CP-51-CR-0929501-1986
       PENNSYLVANIA                                          ,_---·---------�
                                                                 CP-51-CR-0929501-1986_ Comm. v. Wilson. Zachary
                                                             I
                                                             I                      Op��n
                                                             I
               v.

       ZACHARY WILSON                                        L I I--IIIHlUIIII
                                                                    � -- __    - . -.. --   .      ·---- _.,
                                               OPINION

       BRONSON, J.                                                         December 18, 2017



       Defendant Zachary Wilson was tried and convicted of first degree murder on January

7, 1988, and was sentenced to death for the 1981 shooting of Jamie Lamb. The Pennsylvania

Supreme Court upheld this conviction on November 9, 1994. Commonwealth v, Wilson, 649

A.2d 435 (Pa. 1994). Defendant subsequently filed a petition under the Post-Conviction

ReJief Act and the Court's denial of the petition was upheld on appeal on November 19, 2004.

Commonwealth v. Wilson, 861 A.2d 919 (Pa. 2004). Defendant subsequently filed a federal

petition for a writ of habeas corpus based on alleged Brady violations by the prosecution. The

federal district court granted defendant's petition on August 9, 2006, and was upheld on

appeal on December 23, 2009. Wilson v. Beard, 589 F.3d 651 (3rd Cir. 2009). Defendant was

subsequently retried in April 2013, with the Commonwealth no longer seeking the death

penalty. That trial resulted in a hung jury. Thereafter, the matter was reassigned to the

undersigned trial judge.

       On April 1, 2014, following a jury trial before this Court, defendant was again

convicted of one count each of first degree murder ( 18 Pa.C.S. § 2502) and possessing an

instrument of crime (18 Pa.C.S. § 907). The Court immediately imposed the mandatory

sentence of life in prison for the murder charge ( 18 Pa.C.S. § 1102(a)(l )), with no further

penalty on the charge of possessing an instrument of crime. Defendant filed post-sentence
motions, which the Court denied on July 24, 2014. On July 6, 2016, the Superior Court

affirmed defendant's judgment of sentence. Defendant was represented at trial, at sentencing,

and on direct appeal by Michael Wiseman, Esquire and Benjamin Marshal, Esquire.

        Defendant then filed a prose petition under the Post-Conviction Relief Act (''PCRA")

on July 26, 2016. David Rudenstein, Esquire was appointed to represent defendant on January

6, 2017. On May 25, 2017, pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988), Mr. Rudenstein filed a letter stating there was no merit to defendant's claims for

collateral relief. See Finley Letter of David Rudenstein, filed 5/25/2017 ("Finley Letter"). On

June 23, 2017, the Court issued notice, pursuant to Pa.R.Crim.P. 907 ("907 Notice"), of its

intention to dismiss defendant's PCRA Petition without an evidentiary hearing. Defendant

responded to the Court's 907 Notice on July 19, 2017. On August 25, 2017, the Court

formally dismissed defendant's PCRA Petition and granted Mr. Rudenstein's motion to

withdraw his appearance.

       Defendant has now appealed the Court's dismissal of his PCRA Petition, raising a total

of 22 issues, some duplicative, in a Statement of Errors and a Supplemental Statement of

Errors. See 1925 (b) Concise Statement of Matters Complained of on Appeal ("Statement of

Errors") at 11 A-J; Supplement 1925 (b) Concise Statement of Matters Complained of on

Appeal ("Supplemental Statement of Errors") at ,i,i A-L. The issues set forth in the Statement

of Errors are listed verbatim below in their entirety, without corrections (block capitals

omitted):

               A. Whether appellant should be granted an arrest of
                  judgment/dismissal as he was wrongfully prosecuted given that the
                  municipal court (Judge Lipschutz) dismissed his case with prejudice
                  (and discharged him) on May 27, 1982 (and the Commonwealth
                  failed to file a Rule 132 motion and obtain approval for the
                  reinstituting of the dismissed case nearly 5 years later, as required
                  by Pa.R.Crim.P. 544 (A-B), due process and the equal protection of
                  the law)?



                                                2
 B. Whether appellant should be granted relief in some form given that
   . the Superior Court misconstrued the facts of the case and was lead
     to rely on fabricated and/or (knowingly used) perjured testimony
     (never corrected by the Commonwealth)?

C. Whether the trial court erred in denying the appellant's pre-trial motions to
   bar re-prosecution on double jeopardy grounds or, alternately, to conduct a
   hearing on whether the prosecutor intentionally withheld Brady evidence
   (in light of the Supreme Court's February 28, 2017 decision rendered in
   Comrnonwealth-b-Jawayne K. Brown; Cornmonwealth-v-Richard Brown;
   and Comrnonwealth-v-Aquil Bond, PA.Lexis 476 (No. 384 EAL 2016, No.
   385 EAL 2016, No. 386 EAL 2016) and no factual findings ever being
   made by the original trial judge, or a hearing on further testimony,
   regarding the intent of the prosecutor)?

D. Whether the trial court erred and violated the appellant's right to
   due process when it excluded defense witnesses who would have
   placed an inculpatory statement in the proper context, thus
   challenging the Commonwealth's theory that the statement showed
   consciousness of guilt?

E. Whether the trial court erred when it admitted Michael Patterson's
   testimony that "Turtle" told him that appellant was the shooter and
   other testimony suggesting that Turtle was an eyewitness with the
   error allowing the Commonwealth to benefit from its earlier Brady
   violations all violating due process of law and the right to
   confrontation?

F. Whether the trial court erred when it admitted prior statements of
   Edward Jackson that improperly bolstered his in court testimony?

G. Whether the trial court erred and abused its discretion when it
   admitted a portion of the appellant's 1998 penalty phase testimony
   violating the appellant's right to due process of law because it was
   the product of earlier Brady violations?

H. Whether the trial court erred when it denied notions made during an
   after trial for discovery of the medical reasons for the five-day delay
   of Edward Jackson's testimony?

l.   Whether trial and appellate counsel rendered ineffective assistance,
     in violation of the sixth amendment, for failing to provide evidence
     in the record on appeal to support his Judge Bronson erred in failing
     to allow the defense to inquire into the medical records of Edward
     Jackson to determine whether he had a problem with alcohol and
     drugs, evidence that appeared at the November 24, 1997 PCRA
     hearing and established the Commonwealth had deliberately misled
     the appellate court in its appellee brief in regards to Jackson's
     alcohol and drug problem?


                                 3
               J. Whether PCRA counsel rendered ineffective assistance, in violation
                  of the sixth amendment, in failing to file an amended petition to
                   raise the ineffective assistance of all prior counsel?

Statement of Errors at,, 'A-J. The issues set forth in the Supplemental Statement of Errors are

listed verbatim below in their entirety, without corrections (block capitals omitted):

               A Whether appellant should be granted an arrest of
                 judgment/dismissal as he was wrongfully prosecuted given that the
                 municipal court (Judge Lipschutz) dismissed his case with prejudice
                  [and discharged him] on May 27, 1982 (and the Commonwealth
                 failed to file a Rule 132 motion and obtain approval for the
                 reinstituting of the dismissed case nearly 5 years later, as required
                 by Pa.R.Crim.P 544 (A-B), due process and the equal protection of
                 the law)?

               B. Whether appellant should be granted relief in some form given that
                  the Superior Court misconstrued the facts of the case and was lead
                  to rely on fabricated and/or (knowingly used] perjured testimony
                  [never corrected by the Commonwealth)?

               C. Whether the trial court lacked subject-matter jurisdiction to proceed
                  to the merits of appellant's issues when appellant was on direct
                  appeal and appellant counsel failed to consult appellant about filing
                  a petition for allowance of appeal to the Pennsylvania Supreme
                  Court to review issues E-J below and appellant filed a timely PCRA
                  petition raising those issues showing he desired counsel to file a
                  petition for allowance of appeal on direct appeal?

              D. Whether the PCRA court erred in filing to grant an appeal nunc pro
                 tune for appellant to file a petition for allowance of appeal to the
                 Pennsylvania Supreme Court with the appointment of new counsel
                 in light of appellant counsel's failure to do so and PCRA counsel's
                 failure to file an amended petition raising all prior counsels' (trial
                 and appellant) ineffectiveness?

              E. Whether the trial court erred in denying the appellant's pre-trial
                 motions to bar re-prosecution on. double jeopardy grounds or,
                 alternatively, to conduct a hearing on whether the prosecutor
                 intentionally withheld Brady evidence (in light of the Supreme
                 Court's February 28, 2017 decision rendered in Commonwealth-v-
                 Jawayne K. Brown; Cornmonwealth-v-Richard Brown;
                 Cornmonwealth-v-Aquil Bond, Pa.Lexis 476 (No. 384 EAL 2016,
                 No. 386 EAL 2016) and no factual findings ever bring made by the
                 further testimony, regarding the intent of the prosecutor)?

              F. Whether the trial court erred and violated the appellant's right to
                 due process when it excluded defense witnesses who would have
                 placed an inculpatory statement in the proper context, thus

                                               4
                    challenging the Commonwealth's theory that the statement showed
                    consciousness of guilt?

               G. Whether the trial court erred when it admitted Michael Patterson's
                  testimony that "Turtle" told him that appellant was the shooter and
                  other testimony suggesting that Turtle was an eyewitness with the
                  error allowing the Commonwealth to benefit from its earlier Brady
                  violations all violating due process of law and the right to
                  confrontation?

               H. Whether the trial court erred when it admitted prior statements of
                  Edward Jackson that improperly bolstered his in court testimony?

               I.   Whether the trial court erred and abused its discretion when it
                    admitted a portion of the appellant's 1988 penalty phase testimony
                    which said testimony violating the appellant's right to due process
                    of law because it was the product of earlier Brady?

               J.   Whether the trial court erred when it denied motions made during
                    an after trial for discovery of the medical reasons for the five-day
                    delay of Edward Jackson's testimony?

               K. Whether trial and appellate counsel rendered ineffective assistance,
                  in violation of the sixth amendment for failing to: (1) provide ·
                  evidence in the record on appeal to support his Judge Bronson erred
                  in failing to allow the defense to inquire into the medical records of
                  Edward Jackson to determine whether he had a problem with
                  alcohol and drugs, evidence that appeared at the November 24,
                   1997 PCRA hearing and established that the Commonwealth had
                  deliberately misled the appellate Court in its appellee brief in
                  regards to Jackson's alcohol and drug problem; and (2) consult with
                  appellant about filing a timely petition for allowance of appeal in
                  the Pennsylvania Supreme Court and certiorari on direct appeal,
                  where appellant filed a timely PCRA petition raising the same
                  claims and showing his desire to do so?

               L. Whether PCRA counsel rendered ineffective assistance, in violation
                  of the Sixth Amendment, in failing to file an amended petition to
                  raise the ineffective assistance. of all prior counsel?


Supplemental Statement of Errors at 11 A-L. For the reasons set forth below, defendant's

claims are without merit or are waived, and the PCRA Court's order dismissing his PCRA

Petition should be affirmed.




                                                5
                                         II. FACTUAL BACKGROUND

           This Court set forth the relevant facts in its opinion regarding defendant's direct appeal

as follows.

           At trial, the Commonwealth presented the testimony of Newtown Township
           Police Lieutenant Charles Schuck, Philadelphia Police Lieutenant Daniel
           Judge, Philadelphia Police Detectives William Wynn (Ret.), Christopher Starr
           (Ret.), Lawrence Gerrard (Ret.), Leon Lubiejewski (Ret.), Roger Harmon
           (Ret.), and Gregory Rodden, Philadelphia Police Officer Raymond
           Andrejczak:, Deputy Chief Medical Examiner Dr. Gary Collins, Michael
           Patterson, Robert Biggins, Harold Higgins, Quma Lamb, Cathy Lamb, and
           Edward Jackson. Defendant presented the testimony of Albert Levitt. Viewed
           in the light most favorable to the Commonwealth as the verdict winner, the
           evidence established the following.

           Ronnie Williams was defendant's adopted brother.1 After Williams was
           murdered, defendant came to believe that Williams had been killed by Jamie
           Lamb.2 N.T. 3/26/14 at 15. Michael Patterson, who knew both defendant and
           Lamb, spoke with defendant about Lamb sometime prior to August 3, 1981.3
           During that conversation, defendant told Patterson that he had heard Lamb
           "had something to do with killing [Ronnie Williams]," and that defendant "was
           going to get with Jamie," regardless of how long it took. N.T. 3/25/14 at 203-
           204.

           On August 3, 1981, at approximately 1 :00 pm, Patterson went to Gainer's Tire
           Shop located at Fox Street and Lippincott Street in North Philadelphia. There,
           outside the shop, were defendant, Rodney Wells,4 and ford Howard. N.T.
           3/25/14 at 190-193. While this group was together, Lamb, Kenny Mozelle,
           Jeffrey Rahming,5 "Peanut,"6 and Carl Rowland walked past. N.T. 3/25/14 at
           193-194. Lamb was heading to the Sweet Joy Lounge, where his younger
           sister worked, at the comer of 24th Street and Allegheny Street in North
           Philadelphia. N.T. 3/25/14 at 80; 3/26/14 at 68-69. As he passed, Lamb
           smiled at defendant, who appeared angry in response. N.T. 3/25/14 at 194-195.
           Shortly after Lamb left, defendant, Howard, and Wells all left the Tire Shop,
           walking in the same direction that Lamb had gone. N.T. 3/25/14 at 196.
           Defendant was wearing a dark "applejack" style hat. N.T. 3/25/14 at 197-198,
           257-258.

           Minutes later, Lamb was in the back of the Sweet Joy Lounge. Defendant
           entered the lounge, walked into the rear section, and shot Lamb five times.
           N.T. 3/25/14 at 286; 3/27/14 at 99-102; 3/31/14 at 35-36. Defendant then
           attempted to flee the lounge, but tripped over Edward Jackson, one of the

1
    Ronnie Williams was also referred to as defendant's cousin Jock. N.T. 3/25/14 at 203-204; 3/26/14 at 16-17.
2
    Lamb's full name was William Jamar Lamb. N.T. 3/27/14 at 118.
3
    Patterson was also known as Buck. N.T. 3/25/14 at 253. ·
4
    Wells was also known as Hoppa. N.T. 3/25/14 at 191.
5   Rahming was also known as Turtle. N.T. 3/31114 at 172.
6
    Peanut's real name was not revealed during the trial.
                                                         6
       patrons who had fallen to the floor when the shooting started. N.T. 3/31/14 at
       36. Jackson was able to view defendant's face before defendant stood up and
       ran out of the building. N.T. 3/31/14 at 36-37. Upon exiting, defendant ran
       into a Cadillac, which sped away from the scene and failed to stop at a red
       light. N.T. 3/25/14 at 255-256, 260; 3/27/14 at 75-76. Wells owned a Cadillac
       Eldorado at the time of the shooting. N.T. 3/25/14 at 202.

       At approximately l: 15 p.m., Patterson saw Rowland running down the street,
       yelling "[cJome on, y'all, come on, come on," and that "[tjhe little short guy
       just killed Jamie, they just passed us down there by the car." N.T. 3/25/ 14 at
        I 99. Rowland further stated that "the little short guy" had just been with
       Howard and Wells. N.T. 3/25/14 at 199-200.

       A few days after Lamb's death, Patterson was on the phone with defendant
       when Patterson stated, "Turtle says you killed Jamie." N.T. 3/25/14 at 201.
       Defendant replied that "Turtle needed to keep his name out of his mouth ...
       before he get plucked." N.T. 3/25/14 at 201.

       On March 3 l, 1982, Jackson attended a line up and purposefully misidentified
       the shooter, selecting someone other than defendant. N.T. 3/31/14 at 43"44.
       Jackson did this because he had been visited by two men with a gun,
       approximately five months earlier, who told him to "mind [his] own business
       and don't say nothing to the cops about nothing." N.T. 3/31/14 at 41. Jackson
       informed homicide detectives that same day that he purposefully selected the
       wrong person. N.T. 3/31/ 14 at 45.

Trial Court Opinion, filed November 26, 2014, at pp. 2-4.


                                         III. DISCUSSION

       If court-appointed counsel for a PCRA petitioner determines that the issues the

petitioner raises for collateral review are meritless, and the PCRA court concurs, counsel may

withdraw and the petitioner may proceed prose, by privately retained counsel, or not at all.

Finley, 550 A.2d at 218. To be permitted to withdraw, petitioner's counsel must file a no-

merit letter, or "Finley letter," deta�ling the nature and extent of counsel's review and listing

each issue the petitioner wished to raise, with counsel's explanation as to why the issues are

meritless. Commonwealth v, Pitts, 981 A.2d 875, 876 (Pa. 2009) (quoting Finley, 550 A.2d at

215). After reviewing a Finley letter, the PCRA court is required to independently review the

record to evaluate the petitioner's claims. Id. A PCRA petition may be dismissed without a

hearing if the Court determines that there are no claims of arguable merit and no purpose

                                                 7
would be served by further proceedings. Commonwealth v. Lignons, 971 A.2d 1125, 1143

(Pa. 2009); see Pa.R.Crim.P. 907(1 ).

         Some of defendant's claims are premised upon his contention that he received

ineffective assistance of counsel. Under Pennsylvania law, counsel is presumed to be

effective and the burden to prove otherwise lies with the petitioner. Commonwealth v.

Basemore, 744 A.2d 717, 728 (Pa. 2000), n.10 (citing Commonwealth v. Copenhefer, 719

A.2d 242, 250 (Pa. 1998)). To obtain collateral relief based on the ineffective assistance of

counsel, a petitioner must show that counsel's representation fell below accepted standards of

advocacy and that as a result thereof, the petitioner was prejudiced. Strickland v. Washing/on,

466 U.S. 668, 694 (1984). In Pennsylvania, the Strickland standard is interpreted as requiring

proof that: ( l) the claim underlying the ineffectiveness claim had arguable merit; (2) counsel's

actions lacked any reasonable basis; and (3) the ineffectiveness of counsel caused the

petitioner prejudice. Commonweallh v. Miller, 987 A.2d 638, 648 (Pa. 2009); Commonwealth

v. Pierce, 527 A.2d 973 (Pa. 1987). To satisfy the third prong of the test, the petitioner must

prove that, but for counsel's error, there is a reasonable probability that the outcome of the

proceeding would have been different. Commonwealth v. Sneed, 899 A.2d I 067, 1084 (Pa.

2006) (citing Strickland, 466 U.S. at 694). If the PCRA court determines that any one of the

three prongs cannot be met, then the court need not hold an evidentiary hearing as such a

hearing would serve no purpose. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008), appeal denied, 956 A.2d 433 (Pa. 2008).


    1.   CLAIMS FROM ST A TEMENT OF ERRORS

         A. Previous Dismissal of the Case with Prejudice

         Defendant first alleges that he "should be granted an arrest of judgment/dismissal as he

was wrongfully prosecuted given that the municipal court (Judge Lipschutz) dismissed his

case with prejudice ( and discharged him) on May 27, 1982 .... " Statement of Errors at 1 A

                                                8
This claim could have, but was not, raised on a direct appeal. It is therefore waived. 42

Pa.C.S. § 9544(b) (''an issue is waived if the petitioner could have raised it but failed to do so

before trial, at trial, [or] on appeal"); see Commonwealth v. Lambert, 797 A.2d 232, 240 (Pa.

2001).

          B. Superior Court Error in Misconstruing Facts

         Defendant next claims that he is entitled to relief as the Superior Court "misconstrued

the facts of the case." Statement of Errors at 1 B. The PCRA court, however, is without

jurisdiction to review a decision of the Superior Court.

          C. Double Jeopardy

         Defendant next alleges that the "the trial court erred in denying the appellant's pre-trial

motions to bar re-prosecution on double jeopardy grounds or, alternately, to conduct a hearing

on whether the prosecutor intentionally withheld Brady evidence .... " Statement of Errors at 1

C. This claim was raised in defendant's direct appeal and rejected by the Superior Court. See

Superior Court Opinion, filed 6/3/ l 6 at pp. 4-8. Because this claim was previously litigated

on defendant's direct appeal, it is not cognizable under the PCRA. 42 P.A.C.S. § 9543(a)(3)

& 9544(a)(2); see Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016).

         D. Excluding Defense Witnesses at Trial

         Defendant next alleges that the "trial court erred and violated the appellant's right to

due process when it excluded defense witnesses who would have placed an inculpatory

statement in proper context. ... " Statement of Errors at 1 D. This claim was raised in

defendant's direct appeal and rejected by the Superior Court. See Superior Court Opinion,

filed 6/3/16 at pp. 9-12. Because this claim was previously litigated on defendant's direct

appeal, it is not cognizable under the PCRA. 42 P.A.C.S. § 9543(a)(3) & 9544(a)(2); see

Johnson, 139 A.3d at 1272.




                                                 9
            E. Admission of Michael Patterson's Testimony

        Next, defendant claims "the trial court erred when it admitted Michael Patterson's

testimony that 'Turtle' told him that appellant was the shooter and other testimony suggesting

that Turtle was an eyewitness with the error allowing the Commonwealth to benefit from its

earlier Brady violations .... " Statement of Errors at 1 E. This claim was raised in defendant's

direct appeal and rejected by the Superior Court. See Superior Court Opinion, filed 6/3/16 at

pp. 9-12. Because this claim was previously litigated on defendant's direct appeal, it is not

cognizable under the PCRA. 42 P.A.C.S. § 9543(a)(3) & 9544(a)(2); see Johnson, 139 A.3d

at 1272.

           F Prior Statements of Edward Jackson

       Next, defendant claims that the trial court erred in admitting prior statements of

Edward Jackson because they improperly bolstered his in-court testimony. Statement of

Errors at   1 F.   This claim was raised in defendant's direct appeal and rejected by the Superior

Court. See Superior Court Opinion, filed 6/3/16 at pp. 21-28. Because this claim was

previously litigated on defendant's direct appeal, it is not cognizable under the PCRA. 42

P.A.C.S. § 9543(a)(3) & 9544(a)(2); see Johnson, 139 A.3d at 1272.

           G. Admission of Penalty Phase Testimony from Prior Trial

       Next, defendant claims that the trial court abused its discretion when it admitted a

portion of his 1988 penalty phase testimony. Statement of Errors at      1 G.   This claim was

raised in defendant's direct appeal and rejected by the .superior Court. See Superior Court

Opinion, filed 6/3/16 at pp. 29-31. Because this claim was previously litigated on defendant's

direct appeal, it is not cognizable under the PCRA. 42 P.A.C.S. § 9543(a)(3) & 9544(a)(2);

see Johnson, 139 A.3d at 1272.




                                                   lO
        H Denial of Motions for Discovery regarding Witness Edward Jackson

       Next, defendant claims that that the trial court erred in denying his motions seeking

discovery pertaining to the medical reasons for the five-day delay in the testimony of

Commonwealth witness Edward Jackson. Statement of Errors at, H. This claim was raised

in defendant's direct appeal and rejected by the Superior Court. See Superior Court Opinion,

filed 6/3/16 at pp. 31-33. Because this claim was previously litigated on defendant's direct

appeal, it is not cognizable under the PCRA. 42 P.A.C.S. § 9543(a)(3) & 9544(a)(2); see

Johnson, 139 A.3d at 1272.

        1.   Ineffective Assistance of Counsel regarding Edward Jackson's Medical Records

       Defendant next claims that both trial and appellate counsel were ineffective for not

presenting evidence regarding Edward Jackson's prior drug and alcohol problems in order to

support the claim that the trial court erred in denying defendant access to Jackson's medical

records. Defendant cites to testimony from a hearing held in 1997 regarding a prior PCRA

petition, in which Jackson admitted that he had a history of alcohol abuse. Statement of

Errors at, I.

       First, trial counsel could not have been ineffective in failing to obtain and present

evidence of Jackson's drug and alcohol problems, since he made every possible effort to do

so. When Jackson failed to appear for trial due to a claimed illness, the prosecutor asked for a

brief continuance and presented a note from Jackson's doctor stating that Jackson had the flu

and was unable to attend court. N.T. 3/27/2014 at 6-7. Notwithstanding the doctor's note,

counsel demanded access to the medical records to determine if the actual problem was

related to "alcohol, drugs, some other illness that may impact on credibility, his ability to

recall[.]" N.T. 3/27/14 at 8. Because the Court had observed Jackson in court the day before

exhibiting flu-like symptoms, and since the doctor's note stated that Jackson had the flu, the

Court denied the request. N.T. 3/27/2014 at 9.


                                                 11
        Moreover, when Jackson subsequently testified at the trial, counsel attempted to ask

him on cross-examination whether he had "a history of alcohol problems." N.T. 3/31/2014 at

98-99. 7 Jackson admitted that he had "quite a bit to drink" just before the shooting, allowing

counsel to argue that he was an impaired witness. N.T. 3/31/2014 at 99. There was nothing

more that trial counsel could do.

        As for appellate counsel, it is true that the Superior Court, in rejecting defendant's

claim that the Court erred in denying defendant access to Jackson's medical records, stated

that there was no evidence in the record that Jackson suffered from drug or alcohol problems,

and that defendant did not point to any such evidence in his brief. See Superior Court

Opinion, filed 6/3/16 at pp. 33. However, even if appellate counsel had marshalled all of the

evidence of alcohol consumption and presented it to the Superior Court, it would not have

changed the Superior Court's decision. As the Superior Court stated, the decision whether to

allow access to Jackson's medical records was vested in the discretion of the trial court.

Superior Court Opinion, filed 6/3/16 at pp. 33. Here, the trial court had personally observed

Jackson demonstrating flu-like symptoms, and his flu was confirmed by a doctor's note. Also,

as the Superior Court noted, "defense counsel was free to cross-examine Jackson regarding

any factor that may have impacted his ability to testify truthfully or recall the events in

question," Superior Court Opinion, filed 6/3/16 at pp. 33, and defense counsel did so

extensively. Counsel brought out in detail Jackson's crimen falsi conviction, the poor lighting

conditions, Jackson's prior inconsistent statements, his lack of opportunity to observe, his

consumption of alcohol on the day of the shooting, his prior misidentification at a lineup, and

other factors bearing upon credibility. N.T. 3/31/2014 at 64-120, 136-139. A fishing




1
  The Court sustained the Commonwealth's objection to this question, but permitted counsel to ask about
Jackson's alcohol consumption on the day of the murder and before speaking to the police. N.T. 3/31/2014 at 98-
100.
                                                      12
expedition into Jackson's medical records was not appropriate and could not have affected the

outcome of defendant's trial. No· relief is due.

        J   Ineffective Assistance of PCRA Counsel

       Defendant next contends that "PCRA Counsel rendered ineffective assistance, in

violation of the Sixth Amendment in failing to file an amended petition to raise the ineffective

assistance of all prior counsel." Statement of Errors at 1 J. Defendant fails, however, to

identify the specific claims of ineffective assistance of counsel that PCRA counsel should

have raised. Accordingly, this claim is waived. See Commonwealth v. Cannon, 954 A.2d

1222, 1228 (Pa. Super. 2008), app. denied, 964 A.2d 893 (Pa. 2009) (where a defendant

makes a vague and generalized objection on appeal that leaves the trial court to guess at his

claims, those claims are deemed to have been waived).

   2. CLAIMS FROM SUPPLEMENTAL STATEMENT OF ERRORS

       Ten of the claims set forth in defendant's Supplemental Statement of Errors are

identical to claims set forth in his Statement of Errors and are, therefore, not addressed further

below. The duplicative claims are as follows, with the corresponding letter headings from the

Statement of Errors set forth in parentheses: A (A above); B (B above); .E (C above); F (D

above); G (E above); H (F above); I (G above); J (H above); K (I above); and L (J above).

The remaining two claims are addressed below, preserving the letter headings from the

Supplemental Statement of Errors for ease of reference.

       C. Subject Matter Jurisdiction and Failure to Petition for Allowance ofAppeal

       Defendant next claims that he is entitled to relief since: 1) the Court lacked subject-

matter jurisdiction to proceed to the merits of defendant's PCRA petition while defendant's

direct appeal was pending; and 2) appellate counsel failed to consult with defendant about

filing a petition for allowance of appeal to the Pennsylvania Supreme Court. Supplemental
                                                                             ,,
Statement of Errors at 1 C.


                                                   13
       As to the first of defendant's claims, the Court did not rule on the merits of defendant's

PCRA petition while his case was pending on direct appeal. On July 6, 2016, the Superior

Court affirmed defendant's judgment of sentence. Defendant did not file his PCRA petition

until July 26, 2016, and the Court did not rule on the petition until August 25, 2017.

Accordingly, this claim is without merit.

       As for defendant's claim that appellate counsel failed to consult with him about filing

a petition for allowance of appeal to the Pennsylvania Supreme Court, this claim was never

presented to the PCRA court and is therefore waived. Commonwealth v. Rigg, 84 A.3d l 080,

l 084-85 (Pa. Super. 2014) (issues not raised in the PCRA court in a PCRA petition, amended

petition, or 907 response, are waived and cannot be raised for the first time on appeal).

       D. Failing to Reinstate Defendant's Right to Seek Supreme Court Review

       Defendant next claims that "the PCRA Court erred in fia]iling to grant an appeal nunc

pro tune for appellant to file a petition for allowance of appeal to the Pennsylvania Supreme

Court with the appointment of new counsel in light of appellant counsel's failure to do so and

PCRA counsel's failure to file an amended petition raising all prior counsels' (trial and

appellant) ineffectiveness." Supplemental Statement of Errors at 1 D. This c1aim was never

presented in the PCRA court and is therefore waived. Rigg, 84 A.3d at 1084 (issues not raised

in the PCRA court in a PCRA petition, amended petition, or 907 response, are waived and

cannot be raised for the first time on appeal).




                                                  14
                                      IV. CONCLUSION

       For all of the foregoing reasons, the Court's order dismissing defendant's PCRA

petition should be affirmed.




                                                   BY THE COURT:




                                                   GLENN B. BRONSON, J




                                             15
Commonwealth v. Zachary Wilson                                  CP-51-CR-0929501-1986
Type of Order: 1925(a) Opinion

                                    PROOF OF SERVICE

l hereby certify that 1 am this day serving the foregoing Court Order upon the person(s), and
in the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P.114:

Defense Counsel/Party:
                                Zachary Wilson
                                AM-8465
                                SCI Graterford
                                P.O. Box 244
                                Graterford, PA 19426-0246

Type of Service:         () Personal (X) First Class Mail () Other, please specify:



District Attorney(s ):
                                Hugh J. Bums, Jr., Esquire
                                Chief, Appeals Unit
                                Philadelphia District Attorney's Office
                                Three South Penn Square
                                Philadelphia, PA 19107


Type of Service          () Personal (X) First Class Mail ( ) Other, please specify:



Additional Counsel/Party:
                                Joseph D. Seletyn, Esquire
                                Prothonotary
                                Office of the Prothonotary- Superior Court
                                530 Walnut Street, Suite 315
                                Philadelphia, PA 19106

Type of Service:         () Personal (X) First Class Mail () Other, please specify:




Aaron ..Wicker
Law Clerk to Hon. Glenn B. Bronson

                                                                                                )

                                                                                                i
