J-S30008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ROBERT C. WILLIAMS,

                        Appellant                    No. 584 MDA 2016


                Appeal from the PCRA Order March 11, 2016
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0002019-2012


BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED AUGUST 08, 2017

      Appellant, Robert C. Williams, appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

      We summarize the procedural history of this case as follows.         On

November 22, 2011, Appellant was charged with various crimes related to

his involvement in the November 10, 2011 robbery and murder of Stanley

Cotton and the robbery of Bobby Barnes.      On November 16, 2012, at the

conclusion of a jury trial, Appellant was convicted of one count of second-
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degree murder and two counts of robbery.1                 The trial court immediately

sentenced Appellant to serve a mandatory term of life imprisonment.

        Appellant did not pursue a direct appeal.             Subsequently, Appellant

timely filed a PCRA petition that resulted in the reinstatement of his direct

appeal rights.      Thereafter, this Court affirmed Appellant’s judgment of

sentence on March 9, 2015. Commonwealth v. Williams, 120 A.3d 1050,

252     MDA    2014     (Pa.    Super.     filed     March   9,   2015)   (unpublished

memorandum).

        On June 2, 2015, Appellant filed, pro se, the instant PCRA petition.

The PCRA court appointed counsel to represent Appellant on June 25, 2015.

On September 16, 2015, counsel filed an amended PCRA petition on

Appellant’s behalf. The PCRA court held a hearing on March 11, 2016, at the

conclusion of which it denied relief.              This timely appeal followed.   Both

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

        Appellant presents the following issues for our review:

        1. Whether the PCRA court erred in denying the Petition for Post-
        Conviction Relief for ineffective assistance of counsel on the
        basis that the Appellant’s trial counsel failed to obtain medical
        records to challenge the voluntariness of the Appellant’s
        statement to police?

        2. Whether the PCRA court erred in denying the Petition for Post-
        Conviction Relief for ineffective assistance of counsel on the
        basis that the Appellant’s trial counsel failed to adequately

____________________________________________


1
    18 Pa.C.S. §§ 2502(b) and 3701(a)(1)(ii).



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      discuss the Appellant’s decision to testify at trial and to allow
      him to exercise his right to testify?

      3. Whether the PCRA court erred in denying the Petition for Post-
      Conviction Relief for ineffective assistance of counsel on the
      basis that the Appellant’s trial counsel failed to redact or object
      to testimony that the Appellant had been previously shot, and
      failed to request a mistrial based on the likelihood of its unfairly
      prejudicial effect after the jury heard such testimony?

Appellant’s Brief at 4.

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

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      We observe that each of Appellant’s claims challenges the effective

assistance of his trial counsel. Our Supreme Court has long stated that in

order to succeed on a claim of ineffective assistance of counsel, an appellant

must demonstrate (1) that the underlying claim is of arguable merit; (2)

that counsel’s performance lacked a reasonable basis; and (3) that the


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ineffectiveness of counsel caused the appellant prejudice. Commonwealth

v. Pierce, 786 A.2d 203, 213 (Pa. 2001).

      We have explained that trial counsel cannot be deemed ineffective for

failing to pursue a meritless claim.    Commonwealth v. Loner, 836 A.2d

125, 132 (Pa. Super. 2003) (en banc). Moreover, with regard to the second

prong, we have reiterated that trial counsel’s approach must be “so

unreasonable    that   no   competent    lawyer    would   have    chosen    it.”

Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000)

(quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).

      Our Supreme Court has defined “reasonableness” as follows:

             Our inquiry ceases and counsel’s assistance is deemed
      constitutionally effective once we are able to conclude that the
      particular course chosen by counsel had some reasonable basis
      designed to effectuate his client’s interests. The test is not
      whether other alternatives were more reasonable, employing a
      hindsight evaluation of the record.        Although weigh the
      alternatives we must, the balance tips in favor of a finding of
      effective assistance as soon as it is determined that trial
      counsel’s decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.

1967)) (emphasis in original).

      In addition, we are mindful prejudice requires proof that there is a

reasonable probability that, but for counsel’s error, the outcome of the

proceeding would have been different. Pierce, 786 A.2d at 213. “A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim



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of ineffectiveness.”   Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,

when it is clear that a petitioner has failed to meet the prejudice prong of an

ineffective-assistance-of-counsel claim, the claim may be disposed of on that

basis alone, without a determination of whether the first two prongs have

been met.     Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super.

2005).

      It is presumed that counsel was effective, unless the petitioner proves

otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999).

We are bound by the PCRA court’s credibility determinations where there is

support for them in the record. Commonwealth v. Battle, 883 A.2d 641,

648 (Pa. Super. 2005) (citing Commonwealth v. Abu-Jamal, 720 A.2d 79

(Pa. 1998)). Furthermore, claims of ineffective assistance of counsel are not

self-proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).

      In his first issue on appeal, Appellant argues that trial counsel was

ineffective for failing to obtain medical records to challenge the voluntariness

of Appellant’s statement to the police. Appellant’s Brief at 9-16. Appellant

asserts that trial counsel should have investigated and sought to suppress

Appellant’s statements to police that were given during a two-and-one-half-

hour interview while Appellant was hospitalized and medicated. Id. at 9-12.

      We have explained that “where an assertion of ineffective assistance of

counsel is based upon the failure to pursue a suppression motion, proof of


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the merit of the underlying suppression claim is necessary to establish the

merit of the ineffective assistance of counsel claim.”    Commonwealth v.

Jones, 942 A.2d 903, 909 (Pa. Super. 2008).           An appellant must also

“establish that there was no reasonable basis for not pursuing the

suppression claim and that if the evidence had been suppressed, there is a

reasonable probability the verdict would have been more favorable.”

Commonwealth v. Arch, 654 A.2d 1141, 1143 (Pa. Super. 1995).                 See

also Commonwealth v. Clark, 626 A.2d 154, 157 (Pa. 1993) (explaining

that a defendant asserting ineffectiveness based upon trial strategy must

demonstrate that the “alternatives not chosen offered a potential for success

substantially greater than the tactics utilized”).

      Here, the PCRA court addressed Appellant’s claim of ineffective

assistance of counsel for failing to seek suppression of Appellant’s

statements to police as follows:

            [Appellant’s] first complaint is that the Trial Court erred in
      denying [Appellant’s] PCRA claim that Trial Counsel was
      ineffective “for failing to obtain medical records to challenge the
      voluntariness of the statement [Appellant] made to the police.”
      [Appellant] was interviewed at the hospital on November 18,
      2011 at 1:19 p.m. (N.T., 3/11/16, page 30). The medical
      records indicate that [Appellant] had been given pain medication
      which included Oxycodone at 11:28 a.m. and Gabapentin at
      1:00 p.m. on the day of the interview. (N.T., 3/11/16, pages 30-
      31; Defendant’s Exhibit 1). However, just because someone is
      taking pain medication does not mean that any statements that
      they have made to the police are suppressible. Commonwealth
      v. Poplawski, 130 A.3d 697 (Pa. 2015). The only question is
      whether the statement was “the product of an essentially free
      and unconstrained choice by its maker.” Id.


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           In regard to the medication that [Appellant] was on at the
     time the statement was given (Oxycodone and Gabapentin),
     there was no evidence presented as to what, if any, effect the
     medication would have had on [Appellant’s] cognitive abilities.
     Moreover, there is nothing in [Appellant’s] statement that leads
     the [PCRA] Court to believe that [Appellant] did not understand
     the questions, or that he was not answering the questions
     appropriately.    [Appellant] did a fairly impressive job of
     maintaining his innocence, and he was consistent throughout.
     The foregoing indicates that [Appellant’s] statement was the
     product of an essentially free and unconstrained choice on
     [Appellant’s] part. There is no evidence to suggest otherwise.

          Trial Counsel testified that in regard to his impression of
     [Appellant’s] statement to police:

           During the 2 ½ hours, [Appellant] always maintained
            his innocence; and

           [Appellant’s] statement was consistent with what
            Bobby Barnes and Darren Massengill were saying;
            and

           [Appellant’s] answers to the questions asked were
            coherent; and

           There was no mention of [Appellant] being under the
            influence of any medication or that he did not
            understand the questions.

     (N.T., 3/11/16, pages 52-53). Trial Counsel further indicated
     that because [Appellant] maintained his innocence throughout
     his statement, it was the best evidence for the defense. (N.T.,
     3/11/16, page 53).

            Trial Counsel had a sound trial strategy for wanting the
     jury to hear [Appellant’s] statement to the police. Trial Counsel
     got the jury to hear that [Appellant] had consistently over two
     and a half hours maintained his innocence of any involvement in
     the crime in question, and he got to do that without [Appellant]
     being subject to cross-examination. Therefore, Trial Counsel’s
     inaction (of failing to obtain the medical records and not filing a
     suppression motion) was grounded on a reasonable basis
     designed to effectuate his client’s interest.

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               Moreover, even if the statement had been suppressed,
         there is no reason to believe that the outcome of the trial would
         have been different. The only difference in the trial would have
         been that the jury would not have had the opportunity to hear
         [Appellant] vociferously declaring his innocence on numerous
         occasions over a two and [one-]half hour interview with the
         police.

               Given the foregoing, this claim fails to meet the second
         and third prongs of the ineffectiveness standard.

PCRA Court Opinion, 6/9/16, at 2-4 (emphasis in orginal).

         The PCRA court determined that Appellant failed to establish two

prongs of the ineffectiveness test because trial counsel articulated a

reasonable basis for making the conscious and strategic decision not to seek

suppression and the outcome of Appellant’s trial would not have been

different if trial counsel sought suppression.     The PCRA court’s analysis is

supported by the record and the law, and we agree with its determination

that Appellant failed to meet his burden to prove that trial counsel was

ineffective. Accordingly, Appellant’s first allegation of ineffective assistance

fails.

         Appellant next argues that trial counsel was ineffective with regard to

Appellant’s decision not to testify at trial.          Appellant’s Brief at 16-20.

Appellant contends that trial counsel failed to adequately discuss with

Appellant the decision of whether to testify and to allow Appellant to

exercise his right to testify.

         The decision to testify on one’s own behalf




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      is ultimately to be made by the accused after full consultation
      with counsel. In order to support a claim that counsel was
      ineffective for “failing to call the appellant to the stand,” the
      appellant must demonstrate either that (1) counsel interfered
      with his client’s freedom to testify, or (2) counsel gave specific
      advice so unreasonable as to vitiate a knowing and intelligent
      decision by the client not to testify in his own behalf.

Commonwealth v. O’Bidos, 849 A.2d 243, 250 (Pa. Super. 2004) (internal

citation and brackets omitted). “Counsel is not ineffective where counsel’s

decision to not call the defendant was reasonable.”        Commonwealth v.

Breisch, 719 A.2d 352, 354-355 (Pa. Super. 1998).

      In its opinion, the PCRA court addressed Appellant’s ineffectiveness

challenge in this regard as follows:

             In [Appellant’s] second complaint, he contends that the
      [PCRA] Court erred in denying [Appellant’s] PCRA claim that Trial
      Counsel “was ineffective for failing to adequately discuss
      [Appellant’s] decision to testify and to allow him to exercise his
      right to testify.” This contention is belied by the record. At trial,
      the [t]rial [c]ourt went through a thorough colloquy with
      [Appellant] regarding his decision not to testify.            (N.T.,
      11/15/12, pages 459-462).           [Appellant’s] answers to the
      questions were clear, and at no point during the colloquy did
      [Appellant] say that he wanted to testify or that his attorney was
      pressuring him not to testify. At the conclusion of the colloquy,
      the [t]rial [c]ourt was satisfied that [Appellant] had the
      intelligence to rationally consider the issue, that [Appellant] and
      Trial Counsel talked about [Appellant’s] options under the law
      regarding this issue, and that [Appellant] knowingly and
      intelligently decided not to testify on his own behalf. (N.T.,
      11/15/12, page 462). Moreover, there is no indication that had
      [Appellant] testified, the outcome of the trial would have been
      different.

            Given the foregoing, as this complaint is without arguable
      merit and there is no prejudice to [Appellant], it therefore fails to
      meet the first and third prongs of the ineffectiveness standard.


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PCRA Court Opinion, 6/9/16, at 4-5.

      Based on our review of the certified record, we discern no evidence to

suggest that trial counsel actually interfered with Appellant’s right to testify

or gave advice so unreasonable as to vitiate a knowing and intelligent

decision by Appellant not to testify.       Accordingly, Appellant’s claim that

counsel was ineffective lacks merit.

      Appellant last argues that trial counsel was ineffective for failing to

adequately handle evidence regarding the fact that Appellant had been shot

in an unrelated incident. Appellant’s Brief at 21-29. Essentially, Appellant

claims that trial counsel should have either objected to such testimony or

requested a mistrial.

      As we have observed:

            Our Supreme Court has recognized that counsel are not
      constitutionally required to forward any and all possible
      objections at trial, and the decision of when to interrupt
      oftentimes is a function of overall defense strategy being
      brought to bear upon issues which arise unexpectedly at trial
      and require split-second decision making by counsel. Under
      some circumstances, trial counsel may forego objecting to an
      objectionable remark or seeking a cautionary instruction on a
      particular point because objections sometimes highlight the issue
      for the jury, and curative instructions always do.

Commonwealth v. Freeland, 106 A.3d 768, 776 (Pa. Super. 2014)

(quoting Commonwealth v. Koehler, 36 A.3d 121, 146 (Pa. 2012)).

      The PCRA court addressed this claim of ineffective assistance of

counsel as follows:




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            [Appellant] contends in his third complaint that the [PCRA]
     Court erred in denying his PCRA claim that Trial Counsel was
     “ineffective for failing to redact and/or object to testimony that
     [Appellant] had been previously shot,” and for failing to request
     a mistrial when the jury heard this mentioned, based on the
     likeliness of its highly prejudicial effect.

           The fact that [Appellant] had been previously shot was
     mentioned in the trial transcript at five (5) different places
     during Detective Mayer’s testimony, when he was reading
     portions of [Appellant’s] interview to the jury. (N.T., 11/14/12,
     pages 347, 359, 373, 394, 409). Trial Counsel did not object at
     any of the times it was mentioned. At the PCRA hearing, Trial
     Counsel indicated that the reason he did not object was because
     he did not want to raise a red flag to the jury regarding the
     shooting reference, and he thought it may have just went past
     them and possibly did not think anything of it. (N.T., 3/11/16,
     page 63). Moreover, Trial Counsel testified that each time it was
     mentioned, it was quickly read over, was not harped upon, and
     he did not think that it was prejudicial. (N.T., 3/11/16, page
     64).

            The [PCRA] Court reviewed each reference in the transcript
     where it is mentioned that [Appellant] had been shot. They
     were all fleeting references; there were no details provided
     about the shooting; and there were no follow-up questions asked
     regarding how [Appellant] got shot. In addition, while people do
     get shot occasionally, it does not necessarily imply that the
     person who got shot committed a crime; rather, it usually
     implies that the person who was shot was the victim of a crime.
     Moreover, [Appellant’s] involvement with illegal drugs was
     clearly indicated to the jury by the evidence presented at trial.

            Given the foregoing, Trial Counsel’s inaction regarding the
     references to [Appellant] getting shot was grounded on a
     reasonable basis and there is no evidence that but for Trial
     Counsel’s inaction, the outcome of the trial would have been
     different. Therefore, this contention fails to meet the second
     and third prongs of the ineffectiveness standard.

PCRA Court Opinion, 6/9/16, at 5-6.




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      We discern no error in the PCRA court’s decision to credit trial

counsel’s explanation for his decision not to highlight the fact that Appellant

had suffered a gunshot injury by objecting and requesting a cautionary

instruction. Thus, this constituted a reasonable trial strategy. Furthermore,

we conclude the PCRA court’s decision to reject this ineffectiveness claim is

correct because Appellant cannot demonstrate any resulting prejudice from

trial counsel’s decision. Hence, Appellant’s claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2017




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