J-S53007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HAROLD WILSON,

                            Appellant                  No. 3027 EDA 2016


             Appeal from the PCRA Order Entered August 12, 2016
             In the Court of Common Pleas of Philadelphia County
                          Criminal Division at No(s):
                           CP-51-CR-0001224-2007
                           CP-51-CR-0001285-2007


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                    FILED SEPTEMBER 20, 2017

       Appellant, Harold Wilson, appeals pro se from the August 12, 2016

order dismissing his first, timely petition under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

       We need not provide a detailed summary of the facts of Appellant’s

case. We only note that he and a cohort, Darnell Yarborough, robbed and

beat one victim, Rasheed Jackson.              Five days later, Appellant and

Yarborough shot and killed a second victim, Lionel Brewer.1          For these

offenses, Appellant was arrested and charged with third-degree murder, and

two counts each of robbery, criminal conspiracy to commit robbery, and
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1
 For a thorough summary of the facts of Appellant’s case, see Trial Court
Opinion, 7/30/09, at 1-3, 4-6.
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possessing an instrument of crime. He and Yarborough, as co-defendants,

proceeded to a jury trial in January of 2008.      At the conclusion thereof,

Appellant was convicted of the above-stated offenses.2 On March 28, 2008,

Appellant was sentenced to an aggregate term of 32 to 64 years’

incarceration.      He timely appealed, and after this Court affirmed his

judgment of sentence, our Supreme Court denied his subsequent petition for

allowance of appeal.        Commonwealth v. Wilson, 998 A.2d 1014 (Pa.

Super. 2010) (unpublished memorandum), appeal denied, 8 A.3d 346 (Pa.

2010).

        On May 25, 2011, Appellant filed a timely, pro se PCRA petition.

Counsel was appointed on January 23, 2012. Despite being represented by

counsel, Appellant filed a pro se, amended petition on May 7, 2012.       For

some unexplained reason, it was not until June 27, 2016, that Appellant’s

counsel filed a petition to withdraw from the case.     On July 8, 2016, the

PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

Appellant’s petition.      Appellant filed a timely, pro se response, but his

petition was ultimately dismissed on August 12, 2016.       That same order

granted Appellant’s counsel’s petition to withdraw.

        Appellant filed a timely, pro se notice of appeal. The PCRA court did

not direct him to file a Pa.R.A.P. 1925(b) statement, but the court issued an


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2
    Yarborough was also convicted of the offenses with which he was charged.



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opinion addressing the issues raised in his petition. Herein, Appellant raises

the following four issues for our review:

      1. Whether the [PCRA] court[] erred by denying [Appellant’s]
      PCRA petition alleging that counsel was ineffective, when counsel
      improperly advised [Appellant] not to testify on his own behalf[,]
      disregarding the fact that he was presenting an alibi witness[?]

      2. Whether the [PCRA] court[] erred by denying the PCRA
      petition alleging that counsel was ineffective for failing to
      conduct an independent investigation and call upon a witness or
      potential suspect[?]   Counsel failed to conduct a pre-trial
      investigation.

      3. Whether the [PCRA] court erred by denying [Appellant’s]
      PCRA [petition] alleging that trial counsel was ineffective for
      failing to protect his client from governmental interference, due
      to the judges [sic] [j]udicial [i]mpropriety and constant
      prejudicial bias[?]

      4. Did the [PCRA] court[] err by denying [Appellant’s] PCRA
      [petition] alleging that counsel was ineffective for failing to
      request a cautionary instruction regarding the weight to be given
      to the testimony of the prosecutors [sic] key witness[’s]
      testimony?

Appellant’s Brief at 7.

       Preliminarily, we note that “[t]his Court’s standard of review from the

grant or denial of post-conviction relief is limited to examining whether the

lower court’s determination is supported by the evidence of record and

whether it is free of legal error.”   Commonwealth v. Morales, 701 A.2d

516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352,

356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received

ineffective assistance of counsel, our Supreme Court has directed that the

following standards apply:



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     [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 “[i]neffective 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 counsel's performance was deficient and that such
     deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
     Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
     Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
     Pennsylvania, we have refined the Strickland performance and
     prejudice test into a three-part inquiry. See [Commonwealth
     v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
     prove counsel ineffective, the petitioner must show that: (1) his
     underlying claim is of arguable merit; (2) counsel had no
     reasonable basis for his action or inaction; and (3) the petitioner
     suffered actual prejudice as a result. Commonwealth v. Ali,
     608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
     prove any of these prongs, his claim fails.” Commonwealth v.
     Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
     omitted).      Generally,   counsel's   assistance    is  deemed
     constitutionally effective if he chose a particular course of
     conduct that had some reasonable basis designed to effectuate
     his client's interests. See Ali, supra. Where matters of strategy
     and tactics are concerned, “[a] finding that a chosen strategy
     lacked a reasonable basis is not warranted unless it can be
     concluded that an alternative not chosen offered a potential for
     success substantially greater than the course actually pursued.”
     Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
     quotation marks omitted). To demonstrate prejudice, the
     petitioner must show that “there is a reasonable probability that,
     but for counsel's unprofessional errors, the result of the
     proceedings would have been different.” Commonwealth v.
     King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
     quotation marks, and citation omitted). “‘[A] reasonable
     probability is a probability that is sufficient to undermine
     confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
     86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
     598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
     U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).


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      In Appellant’s first issue, he argues that his trial counsel acted

ineffectively by improperly advising him that if he testified on his own behalf,

“his prior offenses would be brought into court.”      Appellant’s Brief at 11.

While Appellant does not specify what prior conviction(s) he has, he claims

that “none ... were crimen falsi” and, therefore, they would not have been

admissible as impeachment evidence had he chosen to testify on his own

behalf. Appellant’s Brief at 20; see also Pa.R.E. 609(a) (“For the purpose of

attacking the credibility of any witness, evidence that the witness has been

convicted of a crime, whether by verdict or by plea of guilty or nolo

contendere, must be admitted if it involved dishonesty or false statement.”);

see also Commonwealth v. Moser, 999 A.2d 602, 607 (Pa. Super. 2010)

(“Crimes involving dishonesty or false statement [are] commonly referred to

as crimen falsi crimes.").     Accordingly, Appellant argues that his trial

counsel’s advice not to testify was “so unreasonable as to vitiate a knowing

and intelligent decision by [Appellant] not to testify on his own behalf….”

Appellant’s Brief at 21; see also Commonwealth v. Miller, 987 A.2d 638,

660 (Pa. 2009) (citations omitted) (declaring that “[c]laims alleging

ineffectiveness of counsel premised on allegations that trial counsel’s actions

interfered with an accused’s right to testify require a defendant to prove

either that ‘counsel interfered with his right to testify, or that counsel gave

specific advice so unreasonable as to vitiate a knowing and intelligent

decision to testify on his own behalf”) (citations omitted).




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       Appellant’s argument is unconvincing for several reasons. First, even

if we accepted Appellant’s bald assertion that trial counsel advised him not

to take the stand because his prior conviction(s) might be revealed,

Appellant has not demonstrated that counsel acted unreasonably in that

regard. As stated supra, Appellant does not specify what prior conviction(s)

he has; instead, he merely states that they were not for crimen falsi crimes.

Without Appellant’s providing any details about conviction(s), we simply

cannot accept his unverified statement that he has not committed any

crimen falsi offenses that could have come to light had he taken the stand at

trial.3 Consequently, even if counsel did advise Appellant not to testify for

this reason, Appellant has not demonstrated that such advice was

unreasonable.

       Furthermore, Appellant has also failed to prove that his underlying

claim has arguable merit, as the record demonstrates that Appellant chose

not to take the stand for a different reason than that which he asserts

herein. Specifically, during the colloquy on Appellant’s decision to waive his

right to testify, Appellant initially stated that he had not yet decided whether

to testify.   See N.T. Trial, 1/22/08, at 39.    Appellant confirmed that his

indecision was “based on the fact that [his] alibi witnesses [were] not


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3
  We also point out that Appellant did not provide any specifics about his
prior conviction(s) in his amended PCRA petition, in which he first raised this
ineffectiveness claim. See Amended PCRA Petition, 5/07/12, at 1-6.



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presently in the courtroom…[.]” Id. Appellant indicated that he would make

a final decision “once [he knew] the availability of [his alibi] witnesses…[.]”

Id. Then, during a short recess in the proceedings, one of Appellant’s alibi

witnesses arrived to testify. Id. at 41. Accordingly, the court again asked

Appellant if he wished to testify on his own behalf, and he confirmed that,

because his alibi witness had arrived, he did not want to testify. Id.

       This record supports the PCRA court’s conclusion “that [Appellant’s]

decision of whether or not to testify on his own behalf [was] based upon the

availability of his alibi witnesses.” Id. (citing N.T. Trial, 1/22/08, at 38-42).

Nothing in the colloquy suggests, in any way, that Appellant’s decision not to

testify rested on trial counsel’s advice about his prior conviction(s) being

revealed.4     Therefore, Appellant’s first ineffectiveness claim fails on this

basis, as well.



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4
  Moreover, Appellant did not attach to his PCRA petition any affidavit from
his trial counsel (nor explain why one could not be obtained) to demonstrate
that counsel advised him not to take the stand because of his prior
conviction(s). See Commonwealth v. Roney, 79 A.3d 595, 606-07 (Pa.
2013) (noting that, in arguing trial counsel’s ineffectiveness for not fully
investigating his case, the appellant had failed to include an affidavit from
counsel about what his investigation entailed, nor offer any explanation for
the absence of that affidavit) (citing Commonwealth v. Marshall, 812 A.2d
539, 548 (Pa. 2002) (concluding that the appellant had failed to establish
the reasonable basis prong of his ineffectiveness claim because, inter alia,
he did not proffer affidavits from his trial counsel concerning the underlying
claim of error, and did not provide an explanation as to why such affidavits
could not be procured)).



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      In his second issue, Appellant argues that trial counsel acted

ineffecitvely by “fail[ing] to investigate a potential witness/suspect[,] …

[]Lamar ‘Marbles’ Palmer[].”      Appellant’s Brief at 22.       According to

Appellant, his co-defendant, Yarborough, told police that Palmer was “the

one who set up the robbery of the deceased,” yet Appellant’s trial counsel

never investigated Palmer, nor subpoenaed him to testify.          Id. at 23.

Appellant argues that Palmer’s testimony inculpating himself in Brewer’s

murder would have exonerated Appellant.

      Our Supreme Court has declared that,

      When raising a claim of ineffectiveness for the failure to call a
      potential witness, a petitioner satisfies the performance and
      prejudice requirements of the Strickland test by establishing
      that: (1) the witness existed; (2) the witness was available to
      testify for the defense; (3) counsel knew of, or should have
      known of, the existence of the witness; (4) the witness was
      willing to testify for the defense; and (5) the absence of the
      testimony of the witness was so prejudicial as to have denied the
      defendant a fair trial.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (internal

citations omitted).

      Here, Appellant has not demonstrated that Palmer would have been

willing to testify on his behalf. Appellant concedes that Palmer “would have

had to testify to the facts of his involvement in this case.” Appellant’s Brief

at 24 (emphasis added). In other words, for Palmer to exonerate Appellant,

he would have had to incriminate himself. Appellant offers no explanation of

why Palmer would have been willing to do this for Appellant.       Appellant’s

Brief at 24. Without any explanation by Appellant in this regard - let alone

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an affidavit from Palmer stating that he would have been available and

willing to testify - Appellant has not satisfied the requirements of proving

that his trial counsel acted ineffectively by not calling Palmer to the stand.

        Next, Appellant avers that his trial counsel was ineffective “for fail[ing]

to protect [Appellant] from governmental interference.” Appellant’s Brief at

28 (unnecessary emphasis and capitalization omitted). Appellant essentially

complains that during trial, the court questioned witnesses and made

comments       that   indicated   the   court    was   biased     in   favor   of   the

Commonwealth. Appellant also claims that the court allowed the prosecutor

to make prejudicial remarks in front of the jury.

        Throughout his argument, Appellant repeatedly recognizes that his

trial counsel objected to remarks by the court and the Commonwealth and

several times requested a mistrial. See Appellant’s Brief at 29, 30. In light

of trial counsel’s objections, we fail to see how counsel acted ineffectively.

Additionally, Appellant only baldly states that his appellate “[c]ounsel was

[i]neffective for failing to preserve and raise this issue on [d]irect [a]ppeal.”

Id. at 32. He offers no discussion of this claim.

        Appellant also fails to acknowledge that his appellate attorney did

challenge the trial court’s denial of defense counsel’s motion for a mistrial,

which    was    made    during    the   prosecutor’s   closing    argument.         See

Commonwealth           v.   Wilson,     No.     2498   EDA       2008,   unpublished

memorandum at 9-12 (Pa. Super. filed April 20, 2010). This Court rejected

that claim, concluding that the prosecutor’s remarks “were made in response

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to the evidence presented and defense counsel’s comments, and did not rise

to the level necessary to fix bias and hostility in the jurors’ minds and

require a new trial.”   Id. at 11-12.    Appellant cannot now attempt to re-

litigate this issue, or tack on additional claims of prosecutorial misconduct

and/or court error under the undeveloped guise of trial/appellate counsel’s

ineffectiveness. See 42 Pa.C.S. §§ 9543, 9544 (precluding post-conviction

relief for issues that were previously litigated before “the highest appellate

court in which the petitioner could have had review as a matter of right”);

see also Commonwealth v. D’Amato, 856 A.2d 806, 812 (Pa. 2004)

(stating that to obtain relief on an ineffectiveness claim, the “petitioner

must, at a minimum, present argumentation relative to each layer of

ineffective assistance, on all three prongs of the ineffectiveness standard as

set forth in … Pierce....”). Therefore, Appellant’s third issue is meritless.

      Lastly, Appellant argues that his trial counsel was ineffective in

handling the testimony of one of Appellant’s victims, Rasheed Jackson.

Specifically, during the Commonwealth’s direct-examination of Jackson, he

was questioned about his prior conviction for false identification, and he

admitted that he was on probation for committing that offense. Appellant

now presents an extremely confusing argument in which he appears to first

allege that it was prosecutorial misconduct for the Commonwealth to present

Jackson’s testimony.    Appellant seemingly believes that, because Jackson

had a prior crimen falsi conviction, the entirety of his testimony necessarily




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constituted    “false   or   misleading   evidence”   that   the   Commonwealth

“fraudulent[ly]” presented. Appellant’s Brief at 37.

      Aside from the lack of merit on the face of this claim, Appellant’s

assertion of prosecutorial misconduct could have been raised on direct

appeal, but it was not; consequently, it is waived. See 42 Pa.C.S. §§ 9543,

9544 (directing that PCRA relief may not be provided where a claim is

waived because “the petitioner could have raised it but failed to do so before

trial, at trial, during unitary review, on appeal or in a prior state post[-]

conviction proceeding”).

      Appellant also contends that it was his counsel’s obligation “to bring to

the fact[-]finders [sic] attention that [] Jackson’s testimony was not credible

because he was convicted for a crime involving crimen falsi….” Id. at 38.

However, as the Commonwealth points out, defense counsel did cross-

examine Jackson about that conviction, and his conviction for possession of

narcotics. Namely, counsel elicited Jackson’s acknowledgement that he had

lied to police by providing them with a false name, and that Jackson had

only received probation for his crimes, thus suggesting that Jackson’s lenient

sentence was in exchange for his testifying against Appellant.         See N.T.

Trial, 1/17/08, at 59, 175-76.      Additionally, in closing arguments, defense

counsel again attacked Jackson’s credibility based on, inter alia, his prior

convictions.   Id. at 160.      Appellant does not specify what more counsel

should have done in questioning Jackson to highlight the credibility issue

regarding Jackson’s crimen falsi conviction. He also does not elaborate on

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his assertion that further questioning by counsel “could have been the

gateway into all issues of credibility….” Id.

      Finally, Appellant contends that trial counsel acted ineffectively by not

requesting a cautionary jury instruction regarding Jackson’s credibility in

light of his false identification conviction.   Appellant does not specify what

instruction counsel should have requested; instead, he simply avers that

“[w]hen a prior conviction is admitted to impeach a witness, the party

against whom it is offered is entitled to have the jury instructed that the

conviction may be considered only for impeachment purposes.” Appellant’s

Brief at 37.

      Our review of the record, however, demonstrates that the court did

provide this type of instruction regarding Jackson’s testimony. Namely, the

court stated:

      [The Court:] You have also heard the evidence that one of the
      witnesses, [] Jackson, has been convicted of the crime of
      falsifying identification to law enforcement. The only purpose for
      which you may consider this evidence of a prior conviction is in
      deciding whether or not to believe all or part of his testimony.
      In doing so, you may consider the type of crime committed, how
      long ago it was committed, and how it may have affected the
      likelihood that [] Jackson has testified truthfully in this case.

N.T. Trial, 1/23/08, at 106-07. Furthermore, the court also instructed the

jury that Jackson had been given a “grant of immunity[,]” meaning that his

“testimony was given in exchange for a promise by the Government that []

Jackson would not be prosecuted for his testimony….” Id. at 107. The court

explained that, because of the grant of immunity, the jury should “consider


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[Jackson’s] testimony with greater caution than the other witnesses.”        Id.

In view of this record, Appellant has not demonstrated that he was

prejudiced by trial counsel’s failure to request some additional, unspecified

cautionary   instruction   pertaining    to   Jackson’s   testimony.   Therefore,

Appellant’s fourth claim of trial counsel’s ineffectiveness fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/2017




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