J-S11019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

JAMES E. SATTERTHWAITE

                          Appellant                   No. 1311 EDA 2017


             Appeal from the PCRA Order entered April 21, 2017
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0704341-2003


BEFORE: OTT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                               FILED MAY 17, 2018

      Appellant, James E. Satterthwaite, appeals from the April 21, 2017 order

of the Court of Common Pleas of Philadelphia County, dismissing his first

amended petition for collateral relief pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

      The PCRA court summarized the factual and procedural background of

this matter as follows:

      [Appellant] was charged, inter alia, [] with [m]urder, generally,
      and [c]arrying a [f]irearm on a [p]ublic [s]treet. These charges
      arose from an incident in which [Appellant] shot and killed the
      victim, Norman Simon, during an argument.

      [Appellant] was tried in May of 2004, by the Honorable Kathryn
      Streeter Lewis and a jury. At the conclusion of the trial, the jury
      found [Appellant] guilty of [t]hird-[d]egree [m]urder and
      [c]arrying a [f]irearm on a [p]ublic [s]treet. On July 20, 2004,
      Judge Streeter Lewis sentenced [Appellant] to eighteen to thirty-
      six years in prison on the [m]urder of the third[] degree charge
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     and nine to eighteen months in prison on the [c]arrying a
     [f]irearm on a [p]ublic [s]treet charge. The sentences were
     directed to run concurrently. [Appellant] filed a direct appeal to
     the Superior Court on October 4, 2004. [Appellant] filed a petition
     for allowance of appeal to the Supreme Court[, which was denied
     on December 28, 2005.] (415 EAL 2005).

     On January 5, 2007, [Appellant] filed a pro se petition pursuant
     to the [PCRA]. The matter was assigned to Judge Street[er] Lewis
     for disposition and counsel was appointed to represent [Appellant]
     in the PCRA proceeding. On May 28, 2008, counsel filed an
     amended petition alleging ineffective assistance of counsel. Judge
     Streeter Lewis resigned from the bench before she could rule on
     the petition and the matter was re-assigned to the Honorable
     Benjamin Lerner. On August 15, 2008, Judge Lerner conducted
     an evidentiary hearing and on February 6, 2009, his Honor
     granted [Appellant]’s PCRA petition and ordered a new trial.

     The Commonwealth appealed Judge Lerner’s decision to the
     Superior Court, which, on October 7, 2010, affirmed the order
     issued by the PCRA court. (679 EDA 2009). The Commonwealth
     thereafter filed a petition for allowance of appeal, which the
     Pennsylvania Supreme Court denied [o]n July 27, 2011 (582 EAL
     2010).

     On remand, the matter was assigned to this [c]ourt for a retrial,
     which occurred in January of 2013. At the conclusion of the non-
     jury trial, this [c]ourt found [Appellant] guilty of [t]hird-[d]egree
     [m]urder and [c]arrying a [f]irearm on a [p]ublic [s]treet. On
     May 31, 2013, this [c]ourt sentenced [Appellant] to eighteen to
     thirty-six years in prison on the [t]hird-[d]egree [m]urder charge
     and two and one half to five years in prison on the weapons
     charge. The sentences were order[ed] to run concurrently.
     [Appellant] thereafter filed post-sentence motions and when they
     were denied, he filed a timely notice of appeal as well as a
     requested [Pa.R.A.P.] 1925(b) statement.

     On September 15, 2014, the Superior Court issued a
     memorandum and order affirming the judgment of sentence.
     (1943 EDA 2013). [Appellant] thereafter filed a [p]etition for
     [a]llowance of [a]ppeal, which was denied by the Pennsylvania
     Supreme Court on February 17, 2015. (508 EAL 2014).




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      On February 1, 2016, [Appellant] filed a timely PCRA petition.
      Counsel was appointed to represent him and on October 30, 2016,
      appointed counsel filed an amended petition. Following the filing
      of a [m]otion to [d]ismiss by the Commonwealth, this [c]ourt
      assiduously reviewed the record and all of the filings. Upon doing
      so, this [c]ourt concluded that the issue raised by [Appellant] was
      meritless and that no other meritorious issues existed.
      Consequently, it sent [Appellant] a Pa.R.Crim.P. 907 Notice of
      Intent to Dismiss on March 24, 2017. [Appellant] did not file a
      response thereto and on April 21, 2017, this [c]ourt issued an
      order dismissing [Appellant]’s PCRA petition without a hearing.
      [Appellant] thereafter filed a timely notice of appeal.

PCRA Court Opinion, 6/21/17, at 1-3.

      On appeal, Appellant argues that the PCRA court erred in dismissing

Appellant’s PCRA petition without a hearing “when trial counsel was ineffective

for failing to call [an alibi witness], and when Appellant was prejudiced as a

result?” Appellant’s Brief at 4.

      “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

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

      In analyzing the claim of trial counsel ineffectiveness for failing to

investigate and call a witness at trial, in Commonwealth v. Johnson, 966

A.2d 523 (Pa. 2009), our Supreme Court explained:

      Counsel has a general duty to undertake reasonable investigations
      or make reasonable decisions that render particular investigations
      unnecessary. . . . The duty to investigate, of course, may include
      a duty to interview certain potential witnesses; and a prejudicial
      failure to fulfill this duty, unless pursuant to a reasonable strategic
      decision, may lead to a finding of ineffective assistance. Recently


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       summarizing cases in Commonwealth v. Dennis, 597 Pa. 159,
       950 A.2d 945 (2008), this Court stated that:

          These cases . . . arguably stand for the proposition that, at
          least where there is a limited amount of evidence of guilt, it
          is per se unreasonable not to attempt to investigate and
          interview known eyewitnesses in connection with defenses
          that hinge on the credibility of other witnesses. They do not
          stand, however, for the proposition that such an omission is
          per se prejudicial.

       Id. at 960 [citations omitted].

                                           ....

       When raising a failure to call a potential witness claim, the PCRA
       petitioner satisfies the performance and prejudice requirement of
       the Strickland[1] 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. Washington, 592 Pa. 698, 927 A.2d 586,
       599 (2007). To demonstrate Strickland prejudice, the PCRA
       petition must show how the uncalled witnesses’ testimony would
       have been beneficial under the circumstances of the case.

Id. at 535-36 (some citations and quotations omitted).

       The PCRA court addressed Appellant’s claim as follows:

       Instantly, this [c]ourt properly denied [Appellant] relief with
       respect to his claim because he averred during a colloquy
       conducted during the trial that he agreed with trial counsel’s
       decision not to call [the witness] and that he did not want any
       witness called. During the colloquy, [Appellant] was specifically
       asked if “[counsel] refused to call anyone [Appellant] want[ed] to

____________________________________________


1   Strickland v. Washington, 466 U.S. 688 (1984).

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      call to testify?” and he said, “No.” This [c]ourt also inquired of
      h[i]m if “[counsel] refuse[d] to do anything [Appellant] didn’t
      want?” [Appellant] again said, “No.” Finally, [Appellant] stated
      that he was satisfied with trial counsel’s representation and he
      responded affirmatively.

PCRA Court Opinion, 6/21/17, at 5-6 (citation to notes of testimony omitted).

      In support of its conclusions, the PCRA court relied on Commonwealth

v. Paddy, 800 A.2d 294, 315 (Pa. 2002) (for the proposition that “counsel

was not ineffective for failing to call witnesses where the defendant stated

during colloquy that ‘he agreed with . . . counsel’s decision not to call

them.’”)), Commonwealth v. Pander, 100 A.3d 626, 643 (Pa. Super. 2014)

(in which we rejected ineffectiveness claims “where ‘the colloquy conclusively

establishe[d] that [a]ppellant agreed with trial counsel’s decision not to

present additional witnesses.’”); and Commonwealth v. Lawson, 762 A.2d

753, 756 (Pa. Super. 2000) (for the proposition that a “defendant who

voluntarily waives his right to call witnesses during a colloquy cannot later

claim ineffectiveness and purport that he was coerced by counsel.”). PCRA

Court Opinion, 6/21/17, at 6.

      We agree with the PCRA court’s recitation of the facts and legal analysis.

Indeed the record confirms that Appellant never complained about a witness

not being called by his counsel, despite being specifically asked about it. The

PCRA court credited Appellant’s answers at the hearing, but not his

unsupported allegations raised in the instant PCRA petition. The PCRA court’s

credibility findings are to be accorded great deference     Indeed, where the


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record     supports   the   PCRA    court’s   credibility   determinations,   such

determinations are binding on a reviewing court. Commonwealth v. Abu–

Jamal, 720 A.2d 79, 99 (Pa. 1998).

         In light of the foregoing, we conclude that the PCRA court’s findings of

fact are supported by the record, and its conclusions of law are free from legal

error.

         Order affirmed.




 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/18




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