J-S84012-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

MYRON WATSON,

                         Appellant                   No. 1017 EDA 2016


               Appeal from the PCRA Order of March 10, 2016
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0002273-2005

BEFORE: OLSON, SOLANO and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED JANUARY 31, 2017

      Appellant, Myron Watson, appeals from the order entered on March

10, 2016, dismissing his first petition filed pursuant to the Post-Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The factual background and procedural history of this case are as

follows.   On October 26, 2004, the 16-year-old female victim was

babysitting Laquandra Toodles’ (“Toodles”) children at Toddles’ residence.

Appellant entered the residence and discovered that drugs he stored at

Toodles’ residence were missing.      Eventually, Appellant and two other

individuals forced the victim into a vehicle and drove her to Philadelphia.

She was taken to a basement where Appellant interrogated her about his

missing drugs. During this interrogation, Appellant struck the victim with a




* Retired Justice specially assigned to the Superior Court
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handgun and threatened to kill her if she did not reveal the location of his

drugs.    After this questioning, Appellant took the victim back to Toodles’

residence and handcuffed her to a banister. Eventually, Toodles’ daughter

gave the victim a telephone so that she could call 911.

        On August 31, 2005, Appellant was convicted of simple assault, 1

conspiracy to commit simple assault,2 recklessly endangering another

person,3 conspiracy to commit recklessly endangering another person,4

making terroristic threats,5 conspiracy to commit making terroristic threats,6

kidnapping,7    conspiracy     to   commit    kidnapping,8   unlawful   restraint,9

conspiracy to commit unlawful restraint,10 false imprisonment,11 and




1
    18 Pa.C.S.A. § 2701(a).
2
    18 Pa.C.S.A. §§ 903, 2701(a).
3
    18 Pa.C.S.A. § 2705.
4
    18 Pa.C.S.A. §§ 903, 2705.
5
    18 Pa.C.S.A. § 2706(a)(1).
6
    18 Pa.C.S.A. §§ 903, 2706(a)(1).
7
    18 Pa.C.S.A. § 2901(a)(1).
8
    18 Pa.C.S.A. §§ 903, 2901(a)(1).
9
    18 Pa.C.S.A. § 2902(a)(1).
10
     18 Pa.C.S.A. §§ 903, 2902(a)(1).
11
     18 Pa.C.S.A. § 2903(a).



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conspiracy to commit false imprisonment.12 On December 6, 2005, the trial

court sentenced Appellant to an aggregate term of 20 to 40 years’

imprisonment.

        On direct appeal, this Court affirmed Appellant’s judgment of sentence

and our Supreme Court denied allowance of appeal.         Commonwealth v.

Watson, 105 A.3d 27, 2014 Pa. Super. Unpub. Lexis 764 (2014), appeal

denied, 106 A.3d 726 (Pa. 2015).13 Thereafter, Appellant filed a timely pro

se PCRA petition and counsel was appointed. On January 22, 2016, PCRA

counsel filed a petition to withdraw as counsel along with a no-merit letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On

January 25, 2016, the PCRA court granted counsel’s petition to withdraw and

12
     18 Pa.C.S.A. §§ 903, 2903(a).
13
    The direct appeal proceedings before this Court were protracted. They
included over one dozen extensions of time to file various documents and
one remand to the trial court. Moreover, as this Court explained:

        The evidentiary hearing with regard to Appellant’s post-sentence
        motions, at which trial counsel testified, was held approximately
        seven years prior to our Supreme Court’s [] decision in
        Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). At the
        time of the hearing, [our Supreme C]ourt’s decision in
        Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), permitted
        ineffective assistance of counsel claims to be addressed on
        [direct] appeal when a proper evidentiary record had been
        created.

Watson, 2014 Pa. Super. Unpub. Lexis 764 at *10 n.3. Thus, this Court
disposed of Appellant’s ineffective assistance of counsel claims on the
merits.



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issued notice of its intent to dismiss the petition without an evidentiary

hearing. See Pa.R.Crim.P. 907(A). Appellant did not file a response to the

Rule 907 notice.14 On March 10, 2016, the trial court dismissed Appellant’s

PCRA petition. This timely appeal followed.15

      Appellant presents seven issues for our review:

      1. Whether trial counsel provided ineffective assistance by failing
         to call a key witness?

      2. Whether trial counsel provided ineffective assistance by failing
         to request a corrupt source instruction?

      3. Whether direct appeal counsel provided ineffective assistance
         by failing to raise the trial court’s abuse of discretion when it
         reversed its pre-trial ruling which denied the Commonwealth’s
         motion in limine without any new evidence being presented?

      4. Whether the trial court imposed an illegal sentence?

      5. Whether Appellant is entitled to [p]ost-[c]onviction [r]elief in
         the form of a new trial as a result of [after]-discovered
         evidence?

      6. Whether PCRA counsel provided ineffective assistance by
         filing a no-merit letter when the preceding claims possessed
         merit?

Appellant’s Brief at 3.

      In his first and second issues, Appellant argues that trial counsel was

ineffective. “[T]he Sixth Amendment to the United States Constitution and

14
  Appellant avers that he filed a response to the Rule 907 notice; however,
the certified record reflects that Appellant only requested a copy of the
docket from the clerk of courts. He did not file a substantive response.
15
   The PCRA court did not order Appellant to file a concise statement of
errors complained of on appeal.



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Article I, [Section] 9 of the Pennsylvania Constitution, [entitle a defendant]

to effective counsel. This right is violated where counsel’s performance so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Commonwealth v. Simpson,

112 A.3d 1194, 1197 (Pa. 2015) (internal quotation marks and citation

omitted).    “[T]rial counsel is presumed to be effective.” Commonwealth

v. Patterson, 143 A.3d 394, 398 (Pa. Super. 2016) (citation omitted). To

prevail on an ineffective assistance of counsel claim, a “petitioner must plead

and prove (1) the legal claim underlying the ineffectiveness claim has

arguable merit; (2) counsel's action or inaction lacked any reasonable basis

designed to effectuate petitioner's interest; and (3) counsel’s action or

inaction resulted in prejudice to petitioner.”    Commonwealth v. Mason,

130 A.3d 601, 618 (Pa. 2015) (citation omitted).       Where it is clear that a

petitioner has failed to satisfy any one prong of the test, this Court may

dispose of the claim on that basis alone.           See Commonwealth v.

Faurelus, 147 A.3d 905, 911 (Pa. Super. 2016) (citation omitted).

      In his first issue, Appellant argues that his trial counsel was ineffective

for failing to call the victim as a witness. The victim, however, appeared as

a witness for the prosecution at trial.       N.T., 8/25/05, at 235.       Thus,

Appellant’s underlying claim lacks arguable merit.16


16
   To the extent that Appellant argues that trial counsel was ineffective for
failing to cross-examine the victim about certain allegations, he is not
(Footnote Continued Next Page)


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      In his second issue, Appellant argues that trial counsel was ineffective

for failing to request a corrupt source jury instruction.                  The trial court,

however, gave a corrupt source jury instruction. N.T., 8/31/05, at 106-109.

Thus, Appellant’s underlying claim lacks arguable merit.

      In his third issue, Appellant argues that direct appeal counsel was

ineffective for failing to challenge the trial court’s order granting the

Commonwealth’s motion in limine. This argument is without merit. Direct

appeal    counsel       challenged      the      trial   court’s   order    granting   the

Commonwealth’s motion in limine. Watson, 2014 Pa. Super. Unpub. LEXIS

764 at *6-10.

      Furthermore, to the extent that Appellant argues that direct appeal

counsel was ineffective for failing to raise the coordinate jurisdiction rule,

this argument also lacks merit. The coordinate jurisdiction rule only applies

to rulings by different judges. See Zane v. Friends Hospital, 836 A.2d 25,

29 (Pa. 2003). In this case, the same judge ruled on the Commonwealth’s

motion in limine prior to trial and then sustained the Commonwealth’s

objection at trial. Therefore, the coordinate jurisdiction rule did not apply.

      Finally, to the extent that Appellant argues that the law of the case

doctrine prohibited the trial court from deviating from its pretrial ruling, this

argument also lacks merit.            Our Supreme Court recently explained that

                       _______________________
(Footnote Continued)
entitled to relief on that argument because it was previously litigated. See
Watson, 2014 Pa. Super. Unpub. Lexis 764 at *10.



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during the course of a trial, the trial court may determine that a prior

evidentiary ruling was incorrect and may therefore alter that ruling.      See

Commonwealth v. Safka, 141 A.3d 1239, 1250 (Pa. 2016). As such, only

the final ruling by the trial court was subject to review by this Court.    As

direct appeal counsel challenged the trial court’s final ruling, Appellant’s

underlying claim lacks arguable merit.

     In his fourth issue, Appellant argues that the mandatory minimum

sentence he received pursuant to 42 Pa.C.S.A. § 9714 was illegal under

Alleyne v. United States, 133 S.Ct. 2160 (2013). “When the legality of a

sentence is at issue on appeal, our standard of review is de novo and our

scope of review is plenary.” Commonwealth v. Martinez, 141 A.3d 485,

487 (Pa. Super. 2016) (citation omitted).          “Section 9714 increases

mandatory minimum sentences based on prior convictions. Accordingly, this

section is not unconstitutional under Alleyne.”   Commonwealth v. Reid,

117 A.3d 777, 785 (Pa. Super. 2015) (citations omitted).           Therefore,

Appellant’s sentence pursuant to section 9714 was legal.

     In his fifth issue, Appellant argues that he is entitled to a new trial

because of after-discovered evidence. See 42 Pa.C.S.A. § 9543(a)(2)(vi).

     To establish such a claim, a petitioner must prove that (1) the
     evidence has been discovered after trial and it could not have
     been obtained at or prior to trial through reasonable diligence;
     (2) the evidence is not cumulative; (3) it is not being used solely
     to impeach credibility; and (4) it would likely compel a different
     verdict.




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Commonwealth v. Cox, 146 A.3d 221, 228 (Pa. 2016) (internal quotation

marks and citation omitted).

      In this case, Appellant argues that an affidavit from David Richardson

serves as after-discovered evidence.     In that affidavit, Richardson alleged

that he told the victim to falsely accuse Appellant of kidnapping her. This

argument, however, only went to the credibility of the victim, a witness.

Accordingly, Appellant failed to satisfy the third prong of an after-discovered

evidence claim and this issue is without merit.

      In his final issue, Appellant argues that PCRA counsel was ineffective.

This argument is waived.       A petitioner waives any claim that his PCRA

counsel was ineffective by failing to raise the issue in response to the PCRA

court’s Rule 907 notice. See Commonwealth v. Henkel, 90 A.3d 16, 29

(Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014)

(citation omitted).     In this case, Appellant did not raise PCRA counsel’s

ineffectiveness before the PCRA court. Accordingly, he waived this issue for

purposes of appellate review.17 See Pa.R.A.P. 302(a).

      Order affirmed.




17
   Moreover, even if Appellant preserved this issue, he would not be entitled
to relief because his preceding five issues are without merit.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/31/2017




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