J-S52021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 SHAHEEM WILLIS                           :
                                          :
                    Appellant             :   No. 1555 EDA 2018


           Appeal from the Judgment of Sentence April 9, 2018,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division at No(s): CP-51-CR-0005238-2009.


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY KUNSELMAN, J.:                    FILED NOVEMBER 15, 2019

      Shaheem Willis appeals pro se from the order denying his first petition

for relief pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§

9541-9546. We affirm.

      The PCRA court summarized the pertinent facts as follows:

            At 3:30 p.m. on February 25, 2009, [Willis] stood on the
         6100 block of Spruce Street in Philadelphia with two
         brothers, Christian and Deshaoun Williams, when they saw
         a car passing by which contained the stepmother and
         brother of Antwoine Saunders, who previously had shot
         Deshaoun. The victim in this case, Antwoine Saunders’
         brother, twelve-year-old J.S., arrived in a car driven by his
         mother, Tamika Anderson. As Anderson circled the block
         looking for a parking place, J.S. noticed that either [Willis]
         or one of the Williams brothers was pointing at the car.
         Once the car was parked on the corner of 60th and Spruce
         Streets, J.S. waited in the front-passenger seat while his
         mother entered the school to pick up his sister.
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          Soon after his mother exited, J.S. observed [Willis] and
       Christian Williams approaching in the rearview mirror.
       [Willis] drew an unlicensed, 9mm Luger handgun and fired
       through the car window at J.S. shooting him in the chest.
       [Willis] than ran up to the car, firing a second shot at J.S.
       from only two feet away that struck J.S. in the hand. [Willis]
       fled toward 60th Street. As Anderson exited the school, J.S.
       exited the car and said, “Mom, they shot me.” She helped
       J.S. lie down on the sidewalk and looked up to see [Willis]
       secreting a gun into his pocket while he fled. Anderson
       chased [Willis] but lost him in the crowd.

          A nearby paratransit bus driver, Jonathan McGill, heard
       the gunshots and observed [Willis] running from the scene
       of the crime. McGill called police and gave them a physical
       description of [Willis]. Crime scene investigators secured
       the area and recovered five 9mm fired cartridge casings at
       the scene of the shooting. Investigators determined that all
       five casings had been ejected from the same gun.

          J.S. spent two and a half weeks in the hospital, sustaining
       what was described as grave, life threatening injuries that
       required extensive surgery to all of his vital organs,
       including removal of part of his lung. He had multiple scars
       from the surgeries and bullet wounds.            After being
       discharged from the hospital, J.S. then spent several
       months recovering from his injuries before he could resume
       some of his normal activities.

          On March 3, 2009, J.S. was shown a photo array. He
       identified [Willis] as the shooter and Christian and Deshaoun
       Williams as his companions.

           Acting pursuant to a warrant, police arrested Deshaoun
       Williams at his home, recovering from Deshaoun a cell
       phone that contained a photo of him brandishing two
       firearms. One of those firearms was the same type used to
       shoot J.S. The cell phone also had [Willis] listed as one of
       Deshaoun’s contacts, under [Willis’] nickname in the
       neighborhood, “Shy.” In addition, police were directed by
       Williams’ mother to a live bullet that matched the bullet
       casings found at the crime scene. This bullet was found in
       a room shared by the Williams brothers.




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              On July 20, 2010, [Willis] was found guilty by a jury of
           attempted murder, aggravated assault [and related
           charges].

PCRA Court Opinion, 11/30/18, at 2-3 (footnote omitted).

      On October 8, 2010, the trial court imposed an aggregate term of twenty

to forty years of imprisonment and a consecutive twelve-year probationary

term. Willis filed a timely post-sentence motion that was denied by operation

of law.    Thereafter, Willis filed a timely appeal to this Court in which he

challenged the discretionary aspects of his sentence. Finding no merit to this

claim,     we   affirmed   his   judgment   of   sentence   on   June   12,   2011.

Commonwealth v. Willis, 53 A.3d 928 (Pa. Super. 2011) (unpublished

memorandum). On March 12, 2013, our Supreme Court denied Willis’ petition

for allowance of appeal. Commonwealth v. Willis, 63 A.3d 777 (Pa. 2013).

On October 7, 2013, the United States Supreme Court denied Willis’ petition

for writ of certiorari. Willis v. Pennsylvania, 571 U.S. 866 (2013).

      The PCRA court summarized the subsequent procedural history as

follows:

               On March 10, 2014, [Willis] filed the instant PCRA
           petition. [Willis] filed an amended petition on August 29,
           2014. On September 15, 2014, [Willis] filed a motion to
           remove counsel and proceed pro se. On February 9, 2016,
           a hearing was held pursuant to Commonwealth v.
           Grazier, 552 Pa. 9 (Pa. 1998) and [Willis] was permitted to
           proceed pro se for PCRA review. On April 25, 2016, [Willis]
           filed a pro se Amended PCRA Petition and filed a
           Supplemental Amended PCRA Petition on May 6, 2016. On
           January 25, 2017, the Commonwealth filed a Motion to
           Dismiss.      [Willis] filed several responses to the
           Commonwealth’s Motion to Dismiss on February 9, 2017,
           April 21, 2017, June 23, 2017, and August 7, 2017. On

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          March 8, 2017, the Commonwealth filed an Amended Motion
          to Dismiss. On August 9, 2017, the Commonwealth filed a
          Response to [Willis’] Third Supplemental PCRA Petition. One
          of the issues raised was whether [Willis] was sentenced to
          an illegal mandatory sentence pursuant to Alleyne v.
          United States, 570 U.S. 99 (2013).

             On April 9, 2018, a resentencing hearing was held. After
          hearing testimony and reviewing the record and all
          documents provided, this Court reimposed [Willis’] original
          sentence and clarified [Willis’] sentence was not influenced
          by any mandatory minimums.

             On April 10, 2018, this Court sent [Willis] a 907 Notice of
          Intent to Dismiss for lack of merit on [Willis’] remaining
          PCRA claims. On May 1, 2018, [Willis] filed a response. On
          May 4, 2018, following an independent review of the record,
          and [Willis’] reply to the 907 Notice, this Court dismissed
          [Willis’] PCRA Petition without a hearing for lack of merit.

PCRA Court Opinion, 11/30/18, at 4-5. This timely appeal followed.1 Although

the PCRA court did not require Willis to comply with Pa.R.A.P. 1925(b), the

court filed an opinion pursuant to Rule 1925(a).

       Willis now raises the following issues:

          A) Did not the [PCRA] court err and abuse its discretion in
             regards to several issues such as: 1) failing to consider
             sentencing factors set forth in 42 Pa.C.S. section
             9721(b); 2) failing to adequately state on the record
             reasons for the sentence imposed, including reasons for
             the grossly disparate sentences between codefendants;
             and 3) focusing solely upon the seriousness of the


____________________________________________


1 On February 7, 2019, Willis filed an “Application For Leave to File Post-
Submission Communication And Motion To Stay Proceedings For Remand To
The Trial Court For Full Evidentiary Hearing And Frye Hearings Pursuant To
PA.R.A.P. 2501.” In an order filed March 11, 2019, we deferred Willis’ request
to this panel for disposition. We deny Willis’ application for remand as moot.


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            offense, resulting in a manifestly excessive and clearly
            unreasonable sentence?

         B) Did not the [PCRA] court err and abuse its discretion by
            dismissing [Willis’] PCRA petition without an evidentiary
            hearing to determine [trial] counsel’s reasonableness for
            failing to impeach [J.S.] with prior sworn testimony and
            inadequately cross examining this witness?

         C) Did not [the] prosecution commit a fraud upon the court
            and the [PCRA] court err and abuse its discretion by
            failing to grant a new trial, dismissing [Willis’] PCRA
            petition, not deeming [trial] counsel constitutionally
            ineffective for failing to investigate and challenge the
            false evidence on any grounds, constituting a complete
            miscarriage of justice?

         D) Did not the [PCRA] court err and abuse its discretion by
            dismissing [Willis’] PCRA petition when [trial] counsel
            was per se ineffective for failing to prepare for trial, while
            his failure to investigate and call two eyewitnesses, and
            his performance during trial supports counsel’s own
            admission to his unpreparedness?

         E) Did not the [PCRA] court err by confusing and misstating
            [Willis’] codefendant with someone else; and abuse its
            discretion by dismissing [Willis’] PCRA petition without an
            evidentiary hearing to determine [trial] counsel’s reason
            for failing to seek a jury instruction to limit the scope of
            evidence that was only admissible against the
            codefendant?

         F) Did not the [PCRA] court err and abuse its discretion in
            its disposition that [trial] counsel’s errors did not
            constitutionally deprive [Willis] of his right to [the]
            effective assistance of counsel?

Willis’ Brief at 4 (excess capitalization omitted). We will address Willis’ issues

in the order presented.

      Our scope and standard of review is well settled:

            In PCRA appeals, our scope of review is limited to the
      findings of the PCRA court and the evidence on the record of the


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      PCRA court's hearing, viewed in the light most favorable to the
      prevailing party. Because most PCRA appeals involve questions
      of fact and law, we employ a mixed standard of review. We defer
      to the PCRA court's factual findings and credibility determinations
      supported by the record. In contrast, we review the PCRA court's
      legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

             When the PCRA court has dismissed a petitioner’s PCRA
      petition without an evidentiary hearing, we review the PCRA
      court’s decision for an abuse of discretion. Commonwealth v.
      Roney, 79 A.2d 595, 604 (Pa. 2013). The PCRA court has
      discretion to dismiss a petition without a hearing when the court
      is satisfied that there are no genuine issues concerning any
      material fact, the defendant is not entitled to post-conviction
      collateral relief, and no legitimate purpose would be served by
      further proceedings. Id. To obtain a reversal of a PCRA court’s
      decision to dismiss a petition without a hearing, an appellant must
      show that he raised a genuine issue of material fact which, if
      resolved in his favor, would have entitled him to relief, or that the
      court otherwise abused its discretion in denying a hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).

      In his first issue, Willis challenges the discretionary aspects of his new

sentence.   Willis preserved his sentencing claims by filing a timely post-

sentence motion, upon which the court did not rule.             See generally

Commonwealth v. Rodriguez, 174 A.2d 1130 (Pa. Super. 2017);

Pa.R.Crim.P. 720(A)(2)(b) (providing that, [if] the defendant files a timely

post-sentence motion, the notice of appeal shall be filed . . within 30 days of

the entry of the order denying the motion by operation of law in cases in which

the judge fails to decide the motion”). However, Willis did not appeal from his

judgment of sentence; instead, he raises a discretionary aspect challenge as

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part of his PCRA appeal. Given these circumstances, Willis’ sentencing claim

is not properly before us. See Commonwealth v. Fowler, 930 A.2d 586,

593 (Pa. Super. 2007) (explaining that challenges to the discretionary aspects

of sentencing are not cognizable under the PCRA).2

         In his remaining claims, Willis alleges the ineffective assistance of trial

counsel. To obtain relief under the PCRA premised on a claim that counsel

was ineffective, a petitioner must establish, by a preponderance of the

evidence, that counsel's ineffectiveness so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.      Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).

“Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Id. This requires the petitioner to demonstrate

that: (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) counsel’s

act or omission prejudiced the petitioner. Id. at 533.

         As to the first prong, “[a] claim has arguable merit where the factual

averments, if accurate, could establish cause for relief.” Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts

____________________________________________


2Even had Willis filed a direct appeal of his new sentence we would have found
his discretionary challenge to be meritless, given that the trial court provided
ample reasons for its sentencing choice. See PCRA Court Opinion, 11/30/18,
at 20-22.


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rise to the level of arguable merit is a legal determination.’”         Id. (citing

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).

       As to the second prong of this test, trial counsel's strategic decisions

cannot be the subject of a finding of ineffectiveness if the decision to follow a

particular course of action was reasonably based and was not the result of

sloth or ignorance of available alternatives. Commonwealth v. Collins, 545

A.2d 882, 886 (Pa. 1988).        Counsel's approach must be "so unreasonable

that no competent lawyer would have chosen it." Commonwealth v. Ervin,

766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted).

       As to the third prong of the test for ineffectiveness, “[p]rejudice is

established if there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different." Stewart, 84 A.3d at

707.    “A reasonable probability ‘is a probability sufficient to undermine

confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899

A.2d 365, 370 (Pa. Super. 2006).

       Finally, when considering an ineffective assistance of counsel claim, the

PCRA court “is not required to analyze these [prongs] in any particular order

of priority; instead if a claim fails under any necessary [prong] of the

ineffectiveness   test,   the   court   may   proceed   to   that   [prong]   first.”

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

In particular, when it is clear that the petitioner has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,




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without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

      In his second issue, Willis contends that the PCRA court erred in

dismissing, without first holding an evidentiary hearing, his claim that trial

counsel was ineffective for failing to impeach the shooting victim, J.S.,

regarding J.S.’s allegedly prior inconsistent testimony at the preliminary

hearing and in otherwise cross-examining him.           According to Willis, trial

counsel “failed to review the preliminary hearing transcripts,” and was thus

“unprepared for the victim’s inconsistencies concerning the most crucial

factors of the case.” Willis’ Brief at 7.

      In its Rule 1925(a) opinion, the PCRA court explained that J.S.’s

preliminary hearing testimony was not inconsistent with his trial testimony

and   that   trial   counsel   effectively   cross-examined   J.S.   regarding   his

identification of Willis as the shooter. The court explained:

             [Willis’] primary defense at trial was misidentification.
         [He] claimed Trial Counsel failed to impeach J.S. properly
         regarding whether he was able to identify the person who
         shot him after broken glass fell in his face and he used his
         hand to cover his face. On this basis, [Willis] argued that
         as a result of Trial Counsel’s failure to question J.S.
         regarding identification, “the jury remained unaware of
         circumstances of which a fact-finder could reasonably infer
         the possibility of a misidentification.”

            “A failure to impeach a key witness is considered
         ineffectiveness in the absence of a reasonable strategic
         basis for not impeaching.” Commonwealth v. Treiber,
         121 A.3d 435, 485 (Pa. 2015). [Willis] argued that J.S.’s
         testimony at the preliminary hearing supported [Willis’]
         misidentification defense, but that Trial Counsel failed to
         question J.S. at trial on his ability to identify [him].

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          However, J.S.’s testimony at trial and the preliminary
          hearing were consistent. At the preliminary hearing . . . J.S.
          never testified that he could not see because of any glass in
          his face. J.S. merely testified that the first gunshot broke
          the passenger window of the car and cut his face. Moreover,
          to the contrary, J.S. was cross-examined at length at trial
          about his ability to identify [Willis] during the shooting. J.S.
          consistently and steadfastly identified [Willis] as the shooter
          on cross-examination by [Trial] Counsel[.]

             The weight and credibility of the identification was for the
          jury to decide. After hearing all the facts of the case, the
          jury clearly determined that J.S.’s identification was
          credible, therefore this claim fails.

PCRA Court Opinion, 11/30/18, at 8-10 (citations omitted).

      Our review of the record supports the PCRA court’s conclusions.          To

support his claim, Willis cites to a portion of the preliminary hearing transcript

wherein J.S. testified that he used his hand to cover his head. See Willis’ Brief

at 17. However, even if J.S’s account of how the shooting took place at the

preliminary hearing and trial were not identical—whether he used his hand to

cover his head or only his chest—Willis has not demonstrated prejudice from

counsel’s lack of cross-examination on this issue, given J.S.’s clear and

unequivocal trial testimony that he was able to identify Willis as the person

who shot him. See Commonwealth v. Rios, 920 A.2d 790, 805 (Pa. 2007)

(explaining that prior counsel will not be found ineffective for failing to

impeach a witness with regard to minor inconsistencies). Thus, Willis’ second

issue fails.

      In his third issue, Willis asserts that the Commonwealth committed a

fraud upon the court and, for that reason, he should be granted a new trial.


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In addition, Willis asserts that trial counsel was ineffective for failing to

“investigate and/or challenge the false evidence on any grounds,” because it

listed a different last name for the patient on some of the documents. Willis’

Brief at 22 (excess capitalization omitted).

      Initially, Willis did not raise the fraud claim in his amended petition or

any supplement thereto. Instead, he first raised this claim in one of his several

responses to the PCRA court’s Rule 907 notice. Thus, we will not consider it

further. See Commonwealth v. Burton, 936 A.2d 521, 527 (Pa. Super.

2007) (explaining that claims not raised in the PCRA petition are waived).

      The PCRA court rejected Willis’s claim that trial counsel was ineffective

for failing to object to the use of the J.S.’s medical records at trial. The Court

explained:

             [Trial] counsel stipulated to the authenticity and content
         of the medical records during trial. In this case, some of the
         medical records would have been admissible because
         statements made for medical diagnosis or treatment are an
         exception to hearsay.         Pa.R.E. 803(4).       Under the
         Pennsylvania Rules of Evidence, hospital records have been
         admitted without witness testimony to show the fact of
         hospitalization, treatment [prescribed], and symptoms
         found. Commonwealth v. Xiong, 630 A.2d 446, 451-52
         (Pa. Super. 1993). The stipulation merely avoided forcing
         the Commonwealth to call medical personnel to authenticate
         the medical records. The actual testimony would have
         included greater detail regarding the extent of the victim’s
         injuries, which the defense had reason not to highlight.
         [Trial] counsel’s decision to stipulate to the [medical]
         records was strategic.

PCRA Court Opinion, 11/30/18, at 16 (some citations omitted).



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      In addition, the PCRA court concluded J.S.’s testimony at trial provided

ample evidence that, as a result of the shooting, he was seriously injured:

            As proof of serious bodily injury, J.S. testified that he was
         in the hospital for three weeks as a result of being shot in
         the chest and hand. He testified that it took approximately
         three months before he could resume normal activities and
         that he has scars on his hand and chest as a result of the
         shooting. J.S. showed the jury the scars on his hand, chest,
         and abdomen as a result of the shooting and resulting
         surgeries. J.S. testified that he gets tired faster as a result
         of his injuries from the shooting. Furthermore shooting
         someone is enough to demonstrate serious bodily injury.
         Therefore, an abundance of evidence was presented to
         demonstrate that, given the totality of the circumstances,
         the victim was shot and sustained serious bodily injury as a
         result.

Id. at 17 (citations omitted).

      Our review of the record supports the PCRA court’s conclusion that Willis

has not established his ineffectiveness claim.     Initially, Willis has failed to

proffer any documentation to support his claim that some of the medical

records used at trial did not belong to J.S. Without such a proffer, he cannot

establish ineffectiveness and the need for an evidentiary hearing.           See

Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008) (explaining that, in

the absence of a sufficient proffer, a petitioner’s bare assertions would

inappropriately convert an evidentiary hearing into a “fishing expedition” for

possible exculpatory evidence).

      Moreover, even if such records exist, Willis cannot establish how he was

prejudiced. As summarized by the PCRA court above, J.S. provided ample


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evidence that the shooting incident caused him to be seriously injured. Thus,

Willis’s third issue fails.

      In his fourth issue, Willis asserts that trial counsel was ineffective for

failing to investigate and then call two eyewitnesses at trial. According to

Willis, trial counsel’s pre-trial investigation of the case was “non-existent,” and

he contends that trial counsel acknowledged on the record that he was

unprepared for trial.     Willis further refers to his prior issues regarding the

preliminary hearing transcript and the medical records to further support this

claim of ineffectiveness.

      Initially, we note that, although trial counsel stated that he was

unprepared for trial, this statement must be read in the context of when it

was made—the trial court denied trial counsel’s request to present expert

testimony regarding the reliability of eyewitness identifications.      See N.T.,

7/12/10, at 15. This statement cannot be read to infer, as Willis suggests,

that trial counsel had completed no other pre-trial investigation. Indeed, our

review of the trial transcript reveals trial counsel was prepared for trial and

continued to present a misidentification defense.

      The two eyewitnesses that Willis contends trial counsel should have

called were Corey Bell, the paratransit driver who was with his co-worker, Mr.

McGill, and Davida Dixon, a passenger in the paratransit bus. In order to

establish that trial counsel was ineffective for failing to investigate and/or call

a witness at trial, a PCRA petitioner must demonstrate that:


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         (1) the witness existed; (2) the witness was available; (3)
         trial counsel was informed of the existence of the witness or
         should have known of the witness’s existence; (4) the witness
         was prepared to cooperate and would have testified on
         appellant’s behalf; and (5) the absence of the testimony
         prejudiced appellant.

Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005).

      The PCRA court concluded that Willis did not proffer sufficient evidence

to support his claim of ineffectiveness:

             As required under the PCRA, [Willis] failed to provide any
         affidavits or signed certifications from any proposed
         witnesses demonstrating that they were available and
         willing to testify on his behalf at trial. [Willis] attached
         statements to his PCRA petition and stated without any
         further support that these witnesses were available and
         would have testified. [Willis’] unsupported assertion is
         insufficient to warrant an evidentiary hearing.

PCRA Court Opinion, 11/30/18, at 13 (citations omitted). Once again, our

review of the record supports the trial court’s conclusion that Willis did not

proffer sufficient information to warrant an evidentiary hearing.         Clark,

supra.

      In addition, the PCRA court concluded that Willis could not establish

prejudice. The court explained:

         Furthermore, [Willis] cannot demonstrate that there was a
         reasonable probability that the outcome of the trial would
         have been different if trial counsel had presented [the]
         testimony of Bell and Davida. Neither witness could identify
         the shooter’s face, however, both described the shooter’s
         age, weight and clothing as being similar to the description
         given by J.S. Significantly, the testimony from Bell and
         Davida actually could have bolstered J.S.’s identification of
         [Willis] as the shooter by providing a description similar to
         J.S.’s description. At the very least, these witnesses could


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          not have demonstrated that J.S. did not see the shooter, as
          [Willis] asserted, because each of these witnesses had very
          different vantage points. J.S. stated that he was sitting in
          the passenger seat of his mother’s car and watched while
          [Willis] approached his vehicle from the rearview mirror,
          thus getting a full frontal view of [Willis]. This observation
          was made after J.S. had also seen [Willis] standing on the
          corner as someone pointed at the vehicle as it circled the
          block. Given J.S.’s unequivocal identification of [Willis] as
          the shooter, it was unlikely that the inability of other
          possible witnesses in different vantage points to see the
          shooter’s face would have caused a different outcome at
          trial.

PCRA Court Opinion, 11/30/18, at 13-14.

       Our review of the record supports the PCRA court’s conclusion that Willis

did not establish prejudice.         Moreover, our review of the trial testimony

refutes Willis’ assertion that “these witnesses’ accounts of events clearly aided

counsel’s defense strategy of misidentification.” Willis’ Brief at 27. Even if

these witnesses testified at trial consistent with their statements to police,

their testimony would not discredit J.S.’s identification of Willis as the shooter,

given the differing circumstances described above by the PCRA court.

       In his fifth issue, Willis claims that he was entitled to an evidentiary

hearing to determine whether trial counsel was ineffective for failing to seek

a jury instruction “to limit the scope of evidence that was only admissible

against the codefendant.”         Willis’ Brief at 28 (excess capitalization). 3   In
____________________________________________


3 Christian Williams was Willis’ co-defendant and the jury convicted him on
similar charges. However, the Commonwealth did not charge Christian with
attempted murder. Although the record is not clear, it appears that all charges
originally filed against Deshaoun Williams involving this incident were later
dismissed.


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support of this issue, Willis first asserts that, because the PCRA court

misidentified which Williams brother was his co-defendant, the PCRA court’s

“disposition to this claim was based upon misinformation which was crucial in

determining whether [trial] counsel was ineffective[.]”       Id.   Willis then

contends that trial counsel’s failure to seek such an instruction “caused

damaging spill-over prejudice” to him. Id. We disagree.

     At trial, the Commonwealth introduced into evidence a live 9mm bullet

that was found in the bedroom of Christian and Deshaoun Williams.          The

Commonwealth also introduced a picture of Deshaoun Williams holding a

firearm that matched the description of the weapon used in this case.

     Although misidentifying Willis’ co-defendant in its Rule 1925(a) opinion,

the PCRA court properly found this claim to be meritless. The court explained:

           [Willis] argued that since he was not in the picture, the
        jury could not consider it as evidence against him. To the
        contrary, [Willis] was charged with criminal conspiracy
        along with Deshaoun Williams [sic]. Therefore, the live
        round was relevant and probative of [Willis’] involvement in
        the conspiracy to commit attempted murder and aggravated
        assault.

           While [Willis] labeled his ineffective assistance of counsel
        argument as a failure to request a limiting instruction,
        [Willis] framed the argument as a failure to file a motion to
        sever his case from his co-defendant. [Willis] claimed that
        the evidence introduced against co-defendant Williams was
        confusing and he suffered prejudice as a result. However,
        as stated above, given the fact that [Willis] was charged
        with conspiring with co-defendant Williams, there was great
        weight against severing the co-defendants.

           As a result, evidence that co-defendant Deshaoun
        Williams [sic] possessed a firearm of the same make and
        model as the one [Willis] used to shoot [J.S.] could be used

                                    - 16 -
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         as evidence of [Willis’] participation in the conspiracy as
         well. Commonwealth v. Brewington, 740 A.2d 247, 252
         (Pa. Super. 1999). Therefore, a limiting instruction was not
         warranted and trial counsel could not be ineffective for
         failing to raise a meritless objection. Commonwealth v.
         Hannibal, 99 A.3d 197, 207 (Pa. 2016).

PCRA Court Opinion, 11/30/18, at 14-15.

      In addition, the PCRA court concluded that Willis could not establish

prejudice:

             Moreover, even if Trial Counsel was ineffective for failing
         to request a limiting instruction, [Willis] was not prejudiced
         by his failure. Given the substantive evidence introduced
         against him at trial, including the identification by [J.S.], it
         was unlikely that the jury would have arrived at a different
         verdict even if this Court specifically instructed the jury that
         the photograph of co-defendant Williams [sic] holding a gun
         and the 9mm bullet found in co-defendant Williams’s
         bedroom could only be              used     against Williams.
         Commonwealth v. Spotz, 84 A.3d 294, 314, 317 (Pa.
         2014) (finding that the court must analyze the nature of the
         alleged violation “against the strength of the prosecution’s
         case at trial” to determine suffered prejudice and that
         “where there was overwhelming evidence of guilt, outcome
         of the trial would not have been different had trial counsel”
         pursued a different action or strategy).

PCRA Court Opinion, 11/30/18, at 14-15.

      Our review of the record supports the PCRA court’s conclusion. Although

Willis no longer argues severance, the fact that he and Christian Williams were

charged with conspiracy renders his claim meritless. In addition, as the PCRA

court stated, given the overwhelming evidence of guilt, Willis cannot establish

prejudice. Spotz, supra. Thus, Willis’ fifth issue fails.




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      In his sixth and final issue, Willis asserts that trial counsel “was

undoubtedly ineffective” because each of his preceding issues had merit.

Willis’ Brief at 30. As noted above, we agree with the trial court’s contrary

conclusion that none of the issues had merit. As the court explained:

            In the case at bar, none of [Willis’] individual claims have
         merit.    Moreover, [Willis] also failed to demonstrate
         prejudice as a result of any of the individual claims. As a
         result, there is no collection of errors to analyze to find that
         either Trial Counsel or Appellate Counsel rendered deficient
         performance. Accordingly, this claim fails.

PCRA Court Opinion, 11/30/18, at 19-20. As noted supra, our review of the

record supports the PCRA court’s assessment of Willis’ final ineffective

assistance claim.    See Commonwealth v. Tedford, 960 A.2d 1, 56 (Pa.

2008) (explaining “no number of failed claims may collectively warrant relief

if they fail to do so individually”).

      In sum, Willis’ sentencing claim is not properly before us and otherwise

without merit.    Additionally, because he has not established his ineffective

assistance of counsel claims, the PCRA could did not err in denying Willis’

petition without a hearing. Blakeney, supra. We therefore, affirm the order

denying Willis post-conviction relief.

      Application for Remand denied. Order affirmed.




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J-S52021-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/19




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