J-S45045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RANDY WILLIAMS, A/K/A TRAVIS LEE
MORIARTY

                            Appellant                 No. 195 WDA 2016


                  Appeal from the PCRA Order January 7, 2016
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0009320-2006


BEFORE: OLSON, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 19, 2016

        Appellant, Randy Williams, a/k/a Travis Lee Moriarty,1 appeals from

the order denying his timely, counseled first petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546.       Appellant

claims ineffective assistance of trial counsel and an illegal sentence.   We

affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The original caption conflates two names Appellant uses, Randy Williams
and Travis Lee Moriarty. To avoid further confusion, we have revised the
caption to conform to the prior naming usage. In his direct appeal, and
periodically in this record, Appellant’s name is given as Randy Williams, with
an alternate name of Travis Lee Moriarty. We have amended the caption
accordingly.
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      We derive the facts pertinent to our review of Appellant’s properly

preserved collateral claims from our independent review of the certified

record.

      On June 15, 2006, uniformed Pittsburgh police officers Chalene

McGinty and Farquar Holland, on routine patrol in a marked police vehicle,

observed Appellant sitting in a blue Sebring at the corner of Shadeland

Avenue and Woodland Avenue, described as a high drug traffic area. (See

N.T. Trial, 3/24/09, at 45-49).    The Sebring was in the roadway, partially

obstructing traffic.   Appellant sat in the front passenger seat.     The police

observed him in a suspicious hand-to-hand transaction involving the

exchange of currency for an unknown substance with an unidentified male

outside the vehicle. (See id. at 48).

      When the police approached to investigate, Appellant abandoned the

owner of the car, his friend and drug supplier, Gary Pettus, and led them on

a high speed chase through several neighborhoods involving two separate

stolen vehicles.   When he crashed the first car, belonging to Pettus, the

police attempted unsuccessfully to restrain him by use of a Taser, and with a

black jack.

      A private citizen, Eugene Toomer, tried to intervene, but Appellant

subdued him, stole his car, and resumed his attempted escape. Mr. Toomer

testified he heard one of the police officers yelling, “I tased him, but it didn’t

[faze] him.” (Id. at 116).




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        The police finally captured Appellant with the assistance of canines

when they surrounded a house he had broken into belonging to a woman

named Joyce Cager. Once Appellant was in custody, police recovered 146

bags of heroin from his front pants pocket, $37.00, a cellphone, and in the

vehicle, a pistol.

        Independently of this case, but related to an issue on appeal, Officer

Holland was later terminated from the Pittsburgh police department over

charges apparently involving claims that he was involved in unsworn

falsification and forgery stemming from a claim for retirement benefits. At

the time of Appellant’s trial, Officer Holland’s case was pending. (See id. at

8-9).     The trial court granted the Commonwealth’s motion in limine,

prohibiting reference to Holland’s pending charges, subject to “revisiting it

for good cause shown.” (Id. at 10).

        At trial, Ms. Cager, who had originally told police that Appellant held

her in a headlock, testified that “[h]e had his arm around my neck, but not

forcibly. Just like hugging me.” (N.T. Trial, 3/26/09, at 187). Ms. Cager

further testified that although she did not know Appellant, she realized at

the courthouse that she knew his mother. (See id. at 189-90). Appellant

testified in his own defense.

        A jury convicted Appellant of two counts of robbery of a motor vehicle,

possession with intent to deliver (PWID), resisting arrest, fleeing and




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eluding, unlawful restraint, and related offenses.2 On October 7, 2009, the

trial court imposed an aggregate sentence of not less than nine nor more

than eighteen years of incarceration.          (See N.T. Sentencing, 10/07/09, at

37).

        This Court affirmed the judgment of sentence on direct appeal. (See

Commonwealth v. Randy Williams, a/k/a Travis Lee Moriarty, 55

A.3d 130 (Pa. Super. 2012)).            Our Supreme Court denied allowance of

appeal on January 4, 2013.          (See Commonwealth v. Williams, 60 A.3d

536 (Pa. 2013)). Appellant filed a timely pro se PCRA petition on October 2,

2013. The PCRA court appointed counsel who filed amended petitions. The

court dismissed the petition, after due notice pursuant to Pennsylvania Rule

of Criminal Procedure 907, on January 7, 2016. See Pa.R.Crim.P. 907(1).

This timely appeal followed.3

        Appellant presents four questions on appeal:

               I. Whether trial counsel gave ineffective assistance by
        failing to attack the credibility of [f]ormer Police Officer Faquar
        Holland?

               II. Whether trial counsel gave ineffective assistance for
        failing to request a justification instruction?
____________________________________________


2
    Appellant was acquitted of aggravated assault, and various VUFA charges.
3
  February 6, 2016 fell on a Saturday. The PCRA court did not order a
statement of errors complained of on appeal. On February 11, 2016, the
court filed an order referencing its Notice of Intent to Dismiss, filed and
dated December 4, 2015, for the reasons of its decision. See Pa.R.A.P.
1925.



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             III. Whether trial counsel gave ineffective assistance for
      failing to fully cross-examine Joyce Cager?

             IV. Whether the PCRA [c]ourt erred by failing to grant
      relief when Appellant was sentenced to an illegal sentence?

(Appellant’s Brief, at 5).

             Our standard and scope of review for the denial of a PCRA
      petition is well-settled.

        [A]n appellate court reviews the PCRA court’s findings of
        fact to determine whether they are supported by the record,
        and reviews its conclusions of law to determine whether
        they are free from legal error. The scope of review is
        limited to the findings of the PCRA court and the evidence of
        record, viewed in the light most favorable to the prevailing
        party at the trial level.

      Commonwealth v. Spotz, ––– Pa. ––––, 84 A.3d 294, 311
      (2014) (citations and internal quotation marks omitted).

        To establish trial counsel’s ineffectiveness, a petitioner must
        demonstrate: (1) the underlying claim has arguable merit;
        (2) counsel had no reasonable basis for the course of action
        or inaction chosen; and (3) counsel’s action or inaction
        prejudiced the petitioner. See Strickland v. Washington,
        466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984);
        Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973
        (1987).

      Id. at 303 n.3. Furthermore,

        [A] PCRA petitioner will be granted relief only when he
        proves, by a preponderance of the evidence, that his
        conviction or sentence resulted from the ineffective
        assistance of counsel which, in the circumstances of the
        particular case, so undermined the truth-determining
        process that no reliable adjudication of guilt or innocence
        could have taken place.      42 Pa.C.S. § 9543(a)(2)(ii).
        Counsel is presumed effective, and to rebut that
        presumption, the PCRA petitioner must demonstrate that


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        counsel’s performance was          deficient   and   that   such
        deficiency prejudiced him.

      Id. at 311–12 (most case citations, internal quotation marks and
      other punctuation omitted). “Counsel’s assistance is deemed
      constitutionally effective once this Court determines that the
      defendant has not established any one of the prongs of the
      ineffectiveness test.” Commonwealth v. Rolan, 964 A.2d 398,
      406 (Pa. Super. 2008) (citations and internal quotation marks
      omitted) (emphasis in original).

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014).

      Here, in his first issue, Appellant maintains that trial counsel was

ineffective in not attacking the credibility of former police officer Holland

“through Toomer.”       (Appellant’s Brief, at 20) (emphasis added).        We

disagree.

      First, and foremost, Officer Holland did not testify. So he could not be

impeached.     Secondly, Appellant’s argument depends on an incorrect

premise of fact.   Mr. Toomer did not identify Officer Holland as saying, “I

tased him, but it didn’t [f]aze him.”     (N.T. Trial, 3/24/09, at 116).    Mr.

Toomer only referred to one of the police. (See id.).

      Appellant improperly and incorrectly conflates the statement at issue

with Mr. Toomer’s later testimony. Mr. Toomer testified that Officer Holland

was the only police officer involved in his scuffle with Appellant that he could

identify by name, not that former Officer Holland said “I tased him, but it

didn’t [f]aze him.” (See Appellant’s Brief, at 18; (citing N.T. Trial, 3/25/09,

at 118)).




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     To the contrary, the record supports the opposite conclusion. Officer

Holland hit Appellant with a “black jack” or slap jack.       Officer McGinty

Tasered    him.    (See   N.T.   Trial,   3/27/09,   at   350-51;   see   also

Commonwealth’s Brief, at 26).

     More substantively, because there is no dispute that Appellant was

tased, and Appellant himself testified that he was tased, there is no

conceivable prejudice to Appellant that could arise from the statement that

he was tased, whoever said it.       Simply put, there was nothing in the

statement to impeach.

     Similarly, the fact that Appellant continued to try to evade the police

even after he was tased is supported by the record, and not subject to

dispute.

           Prosecutor:
           Q. Did [Appellant] ever attempt to surrender himself?
           Officer McGinty:
           A. No.
           Q. Was he repeatedly beaten on the face and head area?
           A. I tasered him, and like I testified before, at that time,
     Officer Holland did use a slap jack in order to try and subdue him
     and place him under arrest.
           Q. Beyond that, any force used against him by yourself or
     Officer Holland?
           A. No. Other than Officer Holland after he tried to, I
     believe get him out of the vehicle, he went to Mr. Toomer’s car.

(N.T. Trial, 3/27/09, at 350-51). We view the evidence of record in the light

most favorable to the Commonwealth as the prevailing party at the trial

level. See Spotz, supra at 311.




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      Moreover, nothing in the record even remotely suggests, as Appellant

advocates, that Holland could be impeached through any conceivable

testimony by Mr. Toomer.      (See Appellant’s Brief, at 20).    Specifically,

nothing in the record suggests Mr. Toomer had personal knowledge of

Officer Holland’s separate legal difficulties, or was otherwise competent to

testify about them.

      Finally, Appellant’s cited authority does not support his argument.

Specifically, Appellant relies on Commonwealth v. Dawson, 702 A.2d 864,

866-67 (Pa. Super. 1997), appeal denied, 724 A.2d 348 (Pa. 1998), for the

proposition that “a remand for an evidentiary hearing was required

concerning ineffective assistance as to counsel’s failure to properly cross-

examine a witness[.]” (Appellant’s Brief, at 22).

      It bears noting that Dawson was a direct appeal.      Defense counsel

sought to impeach a Commonwealth witness who gave incriminating

testimony while she had pending charges in another county, about her

expectation of leniency in her own case. See Dawson, supra at 866-67.

Contrary to Appellant’s explicit assertion, ineffective assistance was not at

issue. Here, Holland, who did not testify, could not be impeached about the

expectation of leniency in his own case for favorable testimony he had never

given in the first place.

      Furthermore, leaving that aside, Appellant neglects to add that the

Dawson Court nevertheless concluded that the error was harmless where


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the additional cross-examination sought by the appellant was cumulative

and would not have affected the verdict. See id. at 867. Appellant fails to

prove ineffectiveness. His first claim does not merit relief.

      In his second claim, Appellant argues that trial counsel provided

ineffective assistance by failing to request a justification instruction. (See

Appellant’s Brief, at 26-28). Appellant contends, in effect, that his flight was

justified because he feared he was in clear and imminent danger. (See id.

at 28). We disagree.

      As in his first claim, Appellant relies on direct appeal caselaw to

support his ineffectiveness argument on collateral appeal. (See Appellant’s

Brief, at 27-28 (citing Commonwealth v. Billings, 793 A.2d 914 (Pa.

Super. 2002), appeal denied, 805 A.2d 519 (Pa. 2002))).

            In order to be entitled to an instruction on justification by
      necessity as a defense to a crime charged, Appellant must offer
      evidence to show:

            (1) that (he) was faced with a clear and imminent harm,
      not one which is debatable or speculative;

           (2) that (he) could reasonably expect that (his) actions
      would be effective in avoiding this greater harm;

            (3) that there is no legal alternative which will be effective
      in abating the harm; and

             (4) that the Legislature has not acted to preclude the
      defense by a clear and deliberate choice regarding the values at
      issue.

             As with any offer of proof, it is essential that the offer
      meet a minimum standard as to each element of the defense so
      that if a jury finds it to be true, it would support the affirmative

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     defense-here that of necessity. This threshold requirement is
     fashioned to conserve the resources required in conducting jury
     trials by limiting evidence in a trial to that directed at the
     elements of the crime or at affirmative defenses raised by the
     defendant.     Where the proffered evidence supporting one
     element of the defense is insufficient to sustain the defense,
     even if believed, the trial court has the right to deny use of the
     defense and not burden the jury with testimony supporting other
     elements of the defense.

Billings, supra at 916 (citation omitted).

     Here, Appellant maintains that “[t]here is a reasonable probability that

but for counsel’s failure to request the instruction, the verdict concerning

robbery of Toomer’s vehicle, resisting arrest and burglary would have been

different.” (Appellant’s Brief, at 28). We disagree. Appellant’s reliance is

misplaced.

     [A] defendant [raising a claim of ineffective assistance of
     counsel] is required to show actual prejudice; that is, that
     counsel’s ineffectiveness was of such magnitude that it ‘could
     have reasonably had an adverse effect on the outcome of the
     proceedings.’ This standard is different from the harmless error
     analysis that is typically applied when determining whether the
     trial court erred in taking or failing to take certain action. The
     harmless error standard, as set forth by this Court in
     Commonwealth v. Story, 476 Pa. [391], 409, 383 A.2d [155],
     164 [ (1978) ] (citations omitted), states that “[w]henever there
     is a ‘reasonable possibility’ that an error ‘might have contributed
     to the conviction,’ the error is not harmless.” This standard,
     which places the burden on the Commonwealth to show that the
     error did not contribute to the verdict beyond a reasonable
     doubt, is a lesser standard than the Pierce prejudice standard,
     which requires the defendant to show that counsel’s
     conduct had an actual adverse effect on the outcome of
     the proceedings.

Spotz, supra at 315 (some citations omitted) (emphases added).




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      Furthermore, it bears noting that the Billings Court decided that the

defense of justification by necessity was not met. See Billings, supra at

916-17. It is not met here, either.

      Appellant had no justification to flee from the police.

      “We cannot state it any more clearly: there does not exist in

Pennsylvania    a   right    to     resist   arrest,   under    any   circumstances.”

Commonwealth v. Biagini, 655 A.2d 492, 499 (Pa. 1995).

      Here, as already noted, Officer McGinty testified that Appellant never

even attempted to surrender himself. (See N.T. Trial, 3/27/09, at 350).

      When Appellant testified at trial he candidly conceded that his

motivation in fleeing was not clear and imminent danger, but to avoid

arrest:

      [T]he reason I jumped into the driver’s seat of my [sic] car and
      pulled off was because for one, I didn’t want to get caught with
      it (heroin) and for two, I didn’t want him (Pettus, his supplier) to
      get caught with it neither.

            I figured if I got away with these drugs and neither one of
      us got caught with them, they never seen them, I will get to
      keep them, pay for them, and he would tell me you got away, I
      stopped him from getting in trouble and I am stopping me from
      getting in trouble from doing it, too.

(N.T. Trial, 3/27/09, at 314-15).

      Appellant was not entitled to a jury instruction on the defense of

justification by necessity. “[I]t is axiomatic that [trial] counsel will not be

considered     ineffective    for     failing     to   pursue    meritless   claims.”




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Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999), cert. denied,

528 U.S. 975 (1999). Appellant’s second claim lacks merit.

       Next, Appellant totally fails to address, develop any argument, or

provide pertinent authority in support of his third claim, alleging ineffective

cross-examination of Joyce Cager by defense counsel.         (See Appellant’s

Brief, at 28-29). It is not the role of this Court to develop an argument for a

litigant. Accordingly, his third claim is waived.4 See Pa.R.A.P. 2119(a), (b).

       Finally, in his fourth claim, Appellant claims he received an illegal

sentence.     (See Appellant’s Brief, at 29-31).   Appellant maintains that a

mandatory minimum sentence for PWID is illegal under Alleyne v. United

States, 133 S. Ct. 2151 (2013), and Commonwealth v. Newman, 99

A.3d 86 (Pa. Super. 2014), appeal denied, 121 A.3d 496 (Pa. 2015).

       However, this Court has concluded that Alleyne is not entitled to

retroactive effect on collateral review. See Commonwealth v. Riggle, 119

A.3d 1058, 1067 (Pa. Super. 2015).



____________________________________________


4
  Moreover, our independent review of the record confirms that defense
counsel not only cross-examined but re-cross-examined Ms. Cager. (See
N.T. Trial, 3/26/09, at 192-95, 196). Her testimony was favorable to
Appellant. The sentencing court acknowledged that Ms. Cager had softened
her testimony from her statement to the police. (See N.T. Sentencing,
10/07/09, at 35). Defense counsel had no need to cross-examine further.
“Where counsel has made a strategic decision after a thorough investigation
of law and facts, it is virtually unchallengeable[.]” Commonwealth v.
Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (citations omitted).



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      Appellant suggests the possibility of a future change in the law. (See

Appellant’s Brief, at 31). However, this Court continues to follow controlling

precedent as long as a decision has not been overturned by our Supreme

Court.   See Dixon v. GEICO, 1 A.3d 921, 926 (Pa. Super. 2010) (citing

Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa. Super. 2000)).

Appellant’s fourth claim does not merit relief.

      Appellant fails to overcome the presumption of effectiveness.        His

claim of an illegal sentence is not reviewable retroactively on PCRA review.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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