J. S42036/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
ANTOINE SHAWN WILLIAMS,                  :         No. 109 MDA 2017
                                         :
                         Appellant       :


               Appeal from the Order Entered October 26, 2015,
                in the Court of Common Pleas of Berks County
               Criminal Division at No. CP-06-CR-0004735-2009


BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 31, 2017

        Antoine Shawn Williams appeals, pro se, from the order entered

October 26, 2015, dismissing his PCRA1 petition. We affirm.

        The PCRA court has summarized the history of this matter as follows:

                   In connection with the armed robbery of a local
             barber shop that occurred on November 21, 2008, in
             the city of Reading, Berks County, Pennsylvania,
             during which the owner, Scott Bitler, was killed,
             Antoine Shawn Williams (“Appellant”) was charged
             with Criminal Homicide[Footnote 1], First Degree
             Murder[Footnote 2],           Second         Degree
             Murder[Footnote 3],            Third         Degree
             Murder[Footnote 4], Aggravated Assault[Footnote 5],
             Robbery[Footnote 6], Persons not to Possess, Use,
             Manufacture, Control, Sell or Transfer Firearms
             (“Persons not to Possess”)[Footnote 7], Possessing
             the    Instruments    of   Crime[Footnote 8],    and
             Conspiracy to Commit Robbery[Footnote 9].        The
             Persons not to Possess charge was severed from the

1
    42 Pa.C.S.A. §§ 9541-9546.
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          other charges and the general “Homicide” charge
          was withdrawn.    Following a weeklong trial, the
          Appellant was found guilty by a jury on January 14,
          2011 of all the remaining charges: First, Second,
          and Third Degree Murder, Aggravated Assault,
          Robbery, Possessing the Instrument of a Crime, and
          Conspiracy to Commit Robbery.

               [Footnote   1]   18   Pa.C.S.A.   §2501(a).
               [Footnote   2]   18   Pa.C.S.A.   §2502(a).
               [Footnote   3]   18   Pa.C.S.A.   §2502(b).
               [Footnote   4]   18   Pa.C.S.A.   §2502(c).
               [Footnote   5]   18   Pa.C.S.A.   §2702(a)(1).
               [Footnote   6]   18   Pa.C.S.A.   §3701(a)(1)(A).
               [Footnote   7]   18   Pa.C.S.A.   §6105(a)(1).
               [Footnote   8]   18   Pa.C.S.A.   §907(a).
               [Footnote   9]   18   Pa.C.S.A.   §903(a)(1).

                This Court sentenced Appellant on March 8,
          2011. For the First Degree Murder conviction, which
          merged with Second and Third Degree Murder for
          purposes of sentencing, the Court imposed a
          mandatory life sentence. Appellant also received a
          consecutive term of ten to twenty years of
          incarceration for the Robbery conviction, and
          two-and-a-half to five years on the count of
          Possessing the Instrument of a Crime, which is also
          consecutive to the life sentence but concurrent with
          the Robbery sentence, for an aggregate total
          sentence of life plus ten to twenty years of
          incarceration. Counsel for the Appellant filed timely
          post-sentence motions on March 18, 2011, which
          this Court denied on March 22, 2011. Notice of
          Appeal to the Superior Court was filed on April 20,
          2011.    The Superior Court affirmed Appellant’s
          judgment of sentence on August 29, 2012.
          Appellant filed a Petition for Allowance of Appeal to
          the Pennsylvania Supreme Court, which was denied
          on February 13, 2013.           [Commonwealth v.
          Williams, No. 704 MDA 2011, unpublished
          memorandum (Pa.Super. filed Aug. 29, 2012),
          appeal denied, 760 MAL 2012 (Pa. Feb. 13, 2013)
          (per curiam).]



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                 On August 29, 2013, Petitioner, pro se, filed a
          timely Petition for Collateral Relief under the Post-
          Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546
          (“PCRA”).      This Court appointed PCRA Counsel
          Osmer Deming, Esquire, to assist Petitioner with the
          disposition     of    his  PCRA     claims.        See
          Commonwealth v. Smith, 818 A.2d 494 (Pa.
          2003); Commonwealth v. Ferguson, 722 A.2d 177
          (Pa.Super. 1998). Attorney Deming reviewed the
          entire official file, determined that there were no
          issues of merit, and, on July 8, 2014, filed a No-Merit
          Letter and Motion to Withdraw as Counsel pursuant
          to Commonwealth v. Finley, 550 A.2d 213
          (Pa.Super. 1988) [(en banc)], and Commonwealth
          v. Turner, 544 A.2d 927 (Pa. 1988). This Court
          conducted an independent review of the entire
          record and also concluded that Appellant failed to
          raise any cognizable grounds for PCRA relief.
          Accordingly, on September 22, 2015, we issued an
          Order and Notice of Intent to Dismiss the PCRA
          Petition. In our Notice of Intent to Dismiss, we fully
          reviewed Appellant’s PCRA claims, both of which
          concerned ineffective assistance of counsel.       The
          Berks County Clerk of Courts’ Docket indicates that
          Appellant filed a timely response to our Dismissal
          Order on October 1, 2015. Due to a docketing error,
          however, this Court did not originally receive a copy
          of Appellant’s response. Accordingly, we granted
          Attorney Deming’s Motion to Withdraw and dismissed
          Appellant’s PCRA Petition on October 26, 2015,
          without consideration of Appellant’s response. We
          have since received and reviewed the response.

                On May 24, 2016, Appellant filed a Notice of
          Appeal to the Superior Court of Pennsylvania, in
          which Appellant requested leave to appeal nunc pro
          tunc and sought court permission to file an amended
          PCRA petition.     On June 8, 2016, we filed a
          Memorandum Opinion pursuant to Pa.R.A.P. 1925(a)
          requesting that the Superior Court remand the case
          so that we could review Appellant’s October 1, 2015
          response. On September 30, 2016, the Superior
          Court entered an Order quashing Appellant’s appeal
          as untimely without prejudice for the trial court to


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           address Appellant’s Petition for Leave to Appeal
           Nunc Pro Tunc. Upon consideration of the Petition,
           the Order of the Superior Court, and Appellant’s
           response to our PCRA Dismissal Order, this Court
           entered an Order on October 7, 2016, granting
           Appellant leave to appeal nunc pro tunc within
           thirty days, and denying Appellant’s request to file
           an amended PCRA petition. This appeal followed.

PCRA court opinion, 1/10/17 at 1-3.

     Appellant has raised the following issues for this court’s review:

           1.    WHETHER THE PCRA COURT ERRED IN
                 ADOPTING PCRA COUNSEL’S “NO-MERIT”
                 FINLEY LETTER WHERE ISSUES OF MERIT
                 WERE CONTAINED IN IN [SIC] THE CERTIFIED
                 RECORD AVAILABLE TO THE PCRA COUNSEL
                 FOR EXAMINATION AND REVIEW[?]

           2.    WHETHER THE PCRA COURT ERRED IN
                 FAILING TO MAKE A DETERMINATION AND
                 ISSUE A FINAL ORDER TO THE APPELLANT’S
                 REQUEST FOR THE COURT’S PERMISSION TO
                 AMEND HIS RESPONSE TO COURT’S INTENT
                 TO DISMISS PURSUANT TO PA.R.CRIM.P.
                 907[?]

           3.    WHETER [SIC] THE ANNOUNCEMENT OF
                 MARTINEZ[] V. [] RYAN IS A SUBSTANTIVE
                 CAHNGE [SIC] IN LAW THAT ENTITLES THE
                 EFFECTIVE ASSISTANCE OF COUNSEL ON AN
                 INITIAL COLLATERAL REVIEW[?]

Appellant’s brief at 4 (emphasis added).

     “When reviewing an order [granting or] denying PCRA relief, we must

determine whether the PCRA court’s determination is supported by the

record and is free from legal error.” Commonwealth v. Poplawski, 852

A.2d 323, 327 (Pa.Super. 2004) (citation omitted).



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            [T]he right to an evidentiary hearing on a
            post-conviction     petition   is    not    absolute.
            Commonwealth v. Jordan, 772 A.2d 1011, 1014
            (Pa.Super. 2001). It is within the PCRA court’s
            discretion to decline to hold a hearing if the
            petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. Id.
            It is the responsibility of the reviewing court on
            appeal to examine each issue raised in the PCRA
            petition in light of the record certified before it in
            order to determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without     conducting    an   evidentiary   hearing.
            Commonwealth v. Hardcastle, 549 Pa. 450, 454,
            701 A.2d 541, 542-543 (1997).

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007), quoting Commonwealth v.

Khalifah, 852 A.2d 1238, 1239-1240 (Pa.Super. 2004).

            To prevail on a claim that counsel was
            constitutionally ineffective, the appellant must
            overcome the presumption of competence by
            showing that: (1) his underlying claim is of arguable
            merit; (2) the particular course of conduct pursued
            by counsel did not have some reasonable basis
            designed to effectuate his interests; and (3) but for
            counsel’s ineffectiveness, there is a reasonable
            probability that the outcome of the challenged
            proceeding would have been different. A failure to
            satisfy any prong of the test for ineffectiveness will
            require rejection of the claim.

Commonwealth v. Malloy, 856 A.2d 767, 781 (Pa. 2004) (citations

omitted).   “We presume counsel is effective and place upon Appellant the

burden of proving otherwise. Counsel cannot be found ineffective for failing




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to pursue a baseless or meritless claim.”         Poplawski, 852 A.2d at 327

(citations omitted).

      Appellant raised two distinct issues in his pro se PCRA petition:

1) that   trial   counsel,   Douglas   Waltman,    Esq.,   failed   to   effectively

cross-examine prosecution witness Orlando Colon (“Colon”); and 2) that trial

counsel was ineffective for failing to object to the jury instructions.

Appointed PCRA counsel, Attorney Deming, thoroughly reviewed each of

these issues and determined they were without merit for the reasons set

forth in his Turner/Finley no-merit letter.       (“No-Merit Letter,” 7/8/14 at

10-13; Docket #69.)

      Appellant now argues that Attorney Deming was ineffective for not

uncovering additional issues of arguable merit.      (Appellant’s brief at 8-9.)

Specifically, appellant contends that trial counsel was ineffective for failing to

pursue a defense of diminished capacity.            (Id. at 10-15.)        In fact,

Attorney Waltman did attempt to introduce evidence of diminished capacity

in the form of an expert report prepared by Larry A. Rotenberg, M.D., a

psychiatrist; however, in accordance with Pennsylvania law, the trial court

refused to allow it where appellant had not admitted any involvement in the

murder.     Appellant argues that trial counsel failed to consult with him

regarding a diminished capacity defense.        (Id. at 11-12.)     Although this

issue is being raised for the first time on appeal, appellant argues that a

thorough and independent review of the whole record would have revealed it



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as an issue of arguable merit. Therefore, appellant contends that appointed

PCRA counsel should not have been permitted to withdraw.

     In this case, as stated above, Attorney Deming filed a petition to

withdraw and a “no-merit” letter.

                 In Commonwealth v. Finley, supra, this
           Court restated the procedures to be followed when
           counsel seeks to withdraw in post-conviction
           proceedings. See Commonwealth v. Turner, 518
           Pa. 491, 544 A.2d 927 (1988). In Turner, our
           supreme court endorsed an independent review by
           the court of the record as a follow-up to counsel’s
           “no-merit” letter. The independent review necessary
           to secure a withdrawal request by counsel requires
           proof that:

           1.    PCRA counsel, in a “no-merit” letter, has
                 detailed the nature and the extent of his
                 review;

           2.    PCRA counsel, in the “no-merit” letter,
                 lists each issue the petitioner wishes to
                 have reviewed;

           3.    PCRA counsel must explain, in the
                 “no-merit” letter, why petitioner’s issues
                 are meritless;

           4.    The PCRA court must conduct its own
                 independent review of the record; and

           5.    The PCRA court must agree with counsel
                 that the petition is meritless.

           See, Finley, 379 Pa.Super. at 393, 550 A.2d at 215.

                  In addition, this assessment by the PCRA court
           is, of course, subject to appellate scrutiny to assure
           that these constraints are followed. See, Turner,
           supra.



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Commonwealth v. Mosteller, 633 A.2d 615, 617 (Pa.Super. 1993).

Furthermore, pursuant to Commonwealth v. Friend, 896 A.2d 607

(Pa.Super. 2006), counsel must forward to the petitioner a copy of the

“no-merit” letter and a statement advising the petitioner that, in the event

the PCRA court grants the application of counsel to withdraw, the petitioner

has the right to proceed pro se or with the assistance of privately retained

counsel.

      Instantly,   Attorney      Deming     complied   with   all   of   the      above

requirements. He reviewed appellant’s two issues raised in his pro se PCRA

petition and concluded that neither had any merit. Attorney Deming further

concluded that, after a thorough review of the record, he could find no other

grounds for relief.    The PCRA court, after conducting its own independent

review, agreed with Attorney Deming that there were no meritorious issues

entitling appellant to relief.

      The issue concerning diminished capacity was raised for the first time

in appellant’s Rule 1925(b) statement and is deemed waived.                        See

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (“It is

well-settled that issues not raised in a PCRA petition cannot be considered

on appeal.”     (quotation marks and         citations omitted)); 42       Pa.C.S.A.

§ 9544(b).      Furthermore,     to   the   extent   appellant   now     claims    that

Attorney Deming was ineffective for filing a petition to withdraw and

“no-merit” letter, the claim is both waived and meritless.                It is well



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established that allegations of PCRA counsel’s ineffectiveness cannot be

brought for the first time on PCRA appeal. Commonwealth v. Henkel, 90

A.3d    16,    20   (Pa.Super.     2014)      (en banc)    (citations   omitted);

Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009). Therefore, appellant’s

allegation of PCRA counsel’s ineffectiveness is deemed waived.             In his

pro se response to Rule 907 notice, appellant merely reiterated his claim

regarding the allegedly deficient cross-examination of Colon. (Docket #71.)

Appellant did not argue, as he does now, that Attorney Deming was

ineffective for failing to uncover additional issues of merit, including rejection

of Dr. Rotenberg’s report in support of a diminished capacity defense.

       In addition, Attorney Deming cannot be held ineffective for merely

petitioning to withdraw as he is permitted to do under Turner/Finley. See

Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa.Super. 2017)

(“When appointed, counsel’s duty is to either (1) amend the petitioner’s

pro se Petition and present the petitioner’s claims in acceptable legal terms,

or (2) certify that the claims lack merit by complying with the mandates of

Turner/Finley.”     (footnote    omitted)).      Counsel   complied     with   the

requirements for withdrawal as set forth in Turner/Finley, and the PCRA

court determined that there were no potentially meritorious issues which




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could be raised in a counseled amended PCRA petition. 2 (See PCRA court

opinion, 1/10/17 at 5 (“PCRA Counsel complied with these requirements and

fulfilled his obligations in a competent manner consistent with the directives

of this Court.”).)

      Next, appellant argues that the PCRA court erred in denying his

request to file an amended petition.    (Appellant’s brief at 16.)   However,

appellant does not set forth what additional issues he wanted to raise in an



2
  At any rate, appellant’s claim that trial counsel was ineffective in
connection with the diminished capacity defense is belied by the record.

            Diminished capacity is a limited defense, which does
            not exculpate the defendant from criminal liability
            entirely, but instead negates the element of specific
            intent. Commonwealth v. Gibson, 597 Pa. 402,
            951 A.2d 1110, 1131-32 (2008) (citations omitted).
            Thus, a defendant asserting a diminished capacity
            defense admits responsibility for the underlying
            action, but contests the degree of culpability based
            upon his inability to formulate the requisite mental
            state. Id. at 1132.

Commonwealth v. Williams, 980 A.2d 510, 527 (Pa. 2009). As the PCRA
court observes, diminished capacity would not apply where appellant’s
defense was that he had nothing to do with the shooting of Bitler. (PCRA
court opinion, 1/10/17 at 8-9.) Appellant did not admit responsibility for the
underlying crime. Therefore, the defense of diminished capacity, which may
only be used to reduce murder from a higher degree to a lower degree, was
unavailable. In addition, there was extensive discussion regarding the
admission of Dr. Rotenberg’s report and whether or not appellant could
assert a defense of diminished capacity while simultaneously arguing his
absolute innocence. (Notes of testimony, 1/10-14/11 at 465-475.) Trial
counsel made it very clear that appellant was not prepared to concede that
he was guilty of any of the charged offenses. (Id. at 471-472.) Appellant’s
claim that he was deprived of an opportunity to present a diminished
capacity defense at trial is demonstrably frivolous.


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amended petition, except a generalized allegation that PCRA counsel was

ineffective.     (Id.)   As discussed above, Attorney Deming conscientiously

reviewed both claims advanced in appellant’s pro se PCRA petition and

determined, after thoroughly reviewing the entire official record, that each

claim was meritless.          The PCRA court determined, after considering

appellant’s October 1, 2015 pro se response to Rule 907 notice, that he

failed to establish any grounds upon which relief could be granted under the

PCRA. (PCRA court opinion, 1/10/17 at 7.) The PCRA court did not err in

denying appellant’s request to file an amended petition.

      Finally, appellant claims that the United States Supreme Court case of

Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309 (2012), somehow applies to

his case.      (Appellant’s brief at 17-19.)     Appellant is mistaken.    The High

Court in Martinez held that,

               [w]here, under state law, claims of ineffective
               assistance of trial counsel must be raised in an
               initial-review collateral proceeding, a procedural
               default will not bar a federal habeas court from
               hearing a substantial claim of ineffective assistance
               at trial if, in the initial-review collateral proceeding,
               there was no counsel or counsel in that proceeding
               was ineffective.

Id. at 17, 132 S.Ct. at 1320.         The Martinez Court recognized a narrow

exception to the rule enunciated in Coleman v. Thompson, 501 U.S. 722

(1991), that an attorney’s errors in a post-conviction proceeding do not

qualify as cause for a default.




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      Obviously, this is a state case and does not involve federal habeas

proceedings, let alone the procedural default rule.    Martinez is wholly

inapposite.

      For these reasons, we conclude that the PCRA court did not err in

permitting Attorney Deming to withdraw and dismissing appellant’s petition

without an evidentiary hearing. As such, we will affirm the order dismissing

appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/31/2017




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