J-S11007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

WILLIAM EARL SMITH,

                        Appellant                   No. 407 WDA 2016


               Appeal from the PCRA Order of March 16, 2016
              In the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0000378-2012


BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                           FILED MARCH 17, 2017

     Appellant, William Earl Smith, appeals pro se from the order entered

on March 16, 2016, which dismissed his petition filed pursuant to the Post

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

     The PCRA court ably summarized the facts underlying Appellant’s

convictions. As the PCRA court explained:

        On the afternoon of December 23, 2011, Malik Muhammed
        [(hereinafter “Victim”)], was picking up food at the Taste of
        Soul restaurant, located at the corner of Searight Avenue
        and Dunlap Street in Uniontown, [Pennsylvania]. Victim
        testified that he observed [Appellant], known to him by the
        nickname “Wee Wee,” inside the restaurant; upon leaving,
        Victim was approached by [Appellant].          After a brief
        exchange, [Appellant] pulled a firearm from his jacket and
        shot Victim once in the right shoulder from a distance of
        approximately two feet. Victim sustained multiple injuries,
        including [injuries to] the right shoulder, [right rib], and
        right lung.



*Former Justice specially assigned to the Superior Court.
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          A great deal of evidence was presented against [Appellant
          during Appellant’s trial].     Victim testified that he knew
          [Appellant] because they lived in neighboring apartment
          complexes. Victim testified that he only knew [Appellant]
          as “Wee Wee.” Detective [Donald] Gmitter testified that[,]
          at the hospital, Victim stated that “Wee Wee” had shot him.
          At trial, Victim was able to positively identify [Appellant] as
          the person who shot him. Dr. Christopher Biwojno, the
          physician that treated Victim at Uniontown Hospital,
          testified that the injury Victim suffered was likely fatal had
          he not sought medical treatment.               Susan Atwood,
          Supervisor of the Trace Evidence section of the
          Pennsylvania State Police Crime Laboratory, tested samples
          taken from [Appellant’s] hands in order to detect gunshot
          residue. While no characteristic gunshot residue particles
          were found, Ms. Atwood’s test found indicative particles on
          [Appellant’s] hands. This evidence indicated that one of the
          elements of lead, barium, or antimony was present on
          [Appellant’s] hands. Ms. Atwood testified as to different
          reasons characteristic particles would not be present. The
          Commonwealth presented the indicative gunshot residue
          particles as circumstantial evidence that [Appellant] had
          recently fired a weapon.

PCRA Court Opinion, 3/16/16, at 2-3 (internal citations omitted).

        The jury found Appellant guilty of attempted homicide, recklessly

endangering another person, two counts of aggravated assault, and two

counts of simple assault.1       On January 10, 2013, the trial court sentenced

Appellant to serve a term of 18 to 40 years in prison for attempted homicide

and imposed no further penalty for Appellant’s remaining convictions. This

Court affirmed Appellant’s judgment of sentence on August 9, 2013; the

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

____________________________________________


1
    18 Pa.C.S.A. §§ 901, 2705, 2702, and 2701, respectively.




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appeal on February 26, 2014.      Commonwealth v. Smith, 83 A.3d 1063

(Pa. Super. 2013) (unpublished memorandum) at 1-7, appeal denied, 84

A.3d 1064 (Pa. 2014).

      Appellant filed a timely, pro se PCRA petition on January 5, 2015.

Within Appellant’s petition, Appellant raised the following claims:

        1) Whether counsel for defense was ineffective for failing to
        object to judicial misconduct of judge for bias, and leading
        witness. The victim in case. The forensic expert intending
        to establish probability of guilt. Being partial.

        2) Whether court [erred] in asking expert questions about
        indicative particles which is inconsistent with gunshot
        residue.

        3) Whether counsel was ineffective for failure to request
        mistrial. Due to discovery violation of two other actors
        which was never provided to defense.

        4) Whether prosecutor committed prosecutorial misconduct
        by making statements to prejudice the jury in his closing
        argument. Where he stated the reason you didn’t have
        gunshot residue on the defendant is because he washed
        hands. DA also went on to state in his closing concerning
        defendant prior testimony that defendant stated why shoot
        someone he did.

        5) Whether counsel was ineffective for not filing posttrial
        motion.

        6) Whether counsel prejudice defendant by confusing the
        weight of evidence with the sufficiency of [evidence] on
        appeal.

Appellant’s Pro Se PCRA Petition, 1/5/15, at 3.

      The PCRA court appointed counsel to represent Appellant and counsel

filed an amended petition on Appellant’s behalf. The amended PCRA petition


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raised two claims: 1) trial counsel was ineffective for “fail[ing] to call Daylan

McLee as a witness for the defense” and 2) trial counsel was ineffective for

failing to file a post-sentence motion to challenge the weight of the

evidence. Appellant’s Amended PCRA Petition, 5/7/15, at 2-3.

       On August 24, 2015, the PCRA court held a hearing on Appellant’s

PCRA petition and, on March 16, 2016, the PCRA court denied the petition.

PCRA Court Order, 3/16/16, at 1.

       Appellant filed a timely notice of appeal and, on March 21, 2016,

Appellant filed a concise statement of errors complained of on appeal,

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).            Appellant

raised two claims in his Rule 1925(b) statement:

         1. Whether trial counsel . . . was ineffective for failing to file
         a motion requesting a new trial based on the weight of the
         evidence?

         2. Whether trial counsel was ineffective for failing to call an
         exculpatory witness, Daylan McLee, at trial?

Appellant’s Rule 1925(b) Statement, 3/21/16, at 1.

       On April 6, 2016, Appellant filed a “Motion to Proceed Pro Se” with the

PCRA court. We remanded the case so that the PCRA court could conduct a

Grazier2 hearing. Order, 4/28/16, at 1. Following the Grazier hearing, the

PCRA court concluded that Appellant knowingly, intelligently, and voluntarily

waived his right to counsel during the post-conviction appellate proceedings.
____________________________________________


2
    See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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The PCRA court thus granted Appellant’s “Motion to Proceed Pro Se” and

permitted him to proceed pro se on the current appeal. Trial Court Order,

7/13/16, at 1-2.

      Now on appeal, Appellant raises three claims to this Court:

        1) Appellant is actually innocent of the crime he was
        [wrongfully] convicted of[.]

        2) Plain error denied Appellant due process of law and a fair
        trial.

        3) Appellant has been denied his right          to   effective
        assistance [of] counsel[] in this matter.

Appellant’s Brief at 4.

      As we have stated:

        [t]his Court’s standard of review regarding an order
        dismissing a petition under the PCRA is whether the
        determination of the PCRA court is supported by evidence of
        record and is free of legal error. In evaluating a PCRA
        court’s decision, our scope of review is limited to the
        findings of the PCRA court and the evidence of record,
        viewed in the light most favorable to the prevailing party at
        the trial level. We may affirm a PCRA court’s decision on
        any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2).      Specifically, Section

9543(a)(2) declares:

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       (a) General rule.--To be eligible for relief under this
       subchapter, the petitioner must plead and prove by a
       preponderance of the evidence all of the following:

                                     ...


       (2) That the conviction or sentence resulted from one or
       more of the following:

           (i) A violation of the Constitution of this Commonwealth
           or the Constitution or laws of the United States which, in
           the circumstances of the particular case, so undermined
           the truth-determining process that no reliable
           adjudication of guilt or innocence could have taken
           place.

           (ii) Ineffective assistance of counsel which, in the
           circumstances of the particular case, so undermined the
           truth-determining process that no reliable adjudication
           of guilt or innocence could have taken place.

           (iii) A plea of guilty unlawfully induced where the
           circumstances make it likely that the inducement caused
           the petitioner to plead guilty and the petitioner is
           innocent.

           (iv) The improper obstruction by government officials of
           the petitioner's right of appeal where a meritorious
           appealable issue existed and was properly preserved in
           the trial court.

                                       ...

           (vi) The unavailability at the time of trial of exculpatory
           evidence that has subsequently become available and
           would have changed the outcome of the trial if it had
           been introduced.

           (vii) The imposition of a sentence greater than the lawful
           maximum.

           (viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S.A. § 9543.

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         Appellant’s first two issues on appeal are not cognizable under the

PCRA and Appellant did not raise the issues in his Rule 1925(b) statement.

Therefore, Appellant waived his first two issues on appeal; and, even if the

claims were not waived, the claims would immediately fail.              Pa.R.A.P.

1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b) s]tatement . . .

are waived”); 42 Pa.C.S.A. § 9543(a)(2).

         Finally, Appellant claims that he “has been denied his right to effective

assistance [of] counsel[] in this matter.”       Appellant’s Brief at 4.   Within

Appellant’s brief to this Court, Appellant raises two ineffective assistance of

counsel claims:       1) trial counsel was ineffective for failing “to properly

investigate the case[,] result[ing] in his failure to recognize the arrest

warrant and its accompanying affidavit of probable cause were illegal and

unconstitutional” and 2) trial counsel was ineffective for failing to raise a

weight of the evidence claim in a post-sentence motion. Id. at 28-31.

         Appellant’s first sub-claim is waived because Appellant did not raise

the claim in his PCRA petition or in his Rule 1925(b) statement. Pa.R.A.P.

1925(b)(4)(vii); 42 Pa.C.S.A. § 9543(a)(2).        Appellant’s second sub-claim

fails.

         One of the statutorily enumerated circumstances in Section 9543(a)(2)

is the “[i]neffectiveness of counsel which, in the circumstances of the

particular case, so undermined the truth-determining process that no




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reliable adjudication of guilt or innocence could have taken place.”          42

Pa.C.S.A. § 9543(a)(2)(ii).

        Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”        Rivera, 10 A.3d at

1279.     To satisfy this burden, Appellant must plead and prove by a

preponderance of the evidence 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
          proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).               “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Id.

        To establish the reasonable basis prong, we must look to see whether

trial counsel’s strategy was “so unreasonable that no competent lawyer

would have chosen that course of conduct.” Commonwealth v. Williams,

640 A.2d 1251, 1265 (Pa. 1994). An attorney’s trial strategy “will not be

found to have lacked a reasonable basis unless it is proven that an

alternative not chosen offered a potential for success substantially greater

than the course actually pursued.” Commonwealth v. Howard, 719 A.2d

233, 237 (Pa. 1998).       Further, if an appellant has clearly not met the

prejudice prong, a court may dismiss the claim on that basis alone and need




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not   determine   whether    the   other   two   prongs    have    been   met.

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

      According to Appellant, he was prejudiced by counsel’s failure to file a

post-sentence motion and challenge the weight of the evidence because “a

gunpowder residue test was performed on Appellant by [the] arresting police

[officer] and an analysis of the evidence collected reveals no trace evidence

under the SEM test of the evidence that established gunpowder residue upon

Appellant’s person.” Appellant’s Brief at 30.

      Our Supreme Court has held:

        a verdict is against the weight of the evidence only when
        the jury’s verdict is so contrary to the evidence as to shock
        one’s sense of justice. It is well established that a weight of
        the evidence claim is addressed to the discretion of the trial
        court. A new trial should not be granted because of a mere
        conflict in the testimony or because the judge on the same
        facts would have arrived at a different conclusion. Rather,
        the role of the trial court is to determine that
        notwithstanding all the evidence, certain facts are so clearly
        of greater weight that to ignore them, or to give them equal
        weight with all the facts, is to deny justice. A motion for a
        new trial on the grounds that the verdict is contrary to the
        weight of the evidence concedes that there is sufficient
        evidence to sustain the verdict; thus the trial court is under
        no obligation to view the evidence in the light most
        favorable to the verdict winner.

        Significantly, in a challenge to the weight of the evidence,
        the function of an appellate court on appeal is to review the
        trial court’s exercise of discretion based upon a review of
        the record, rather than to consider de novo the underlying
        question of the weight of the evidence. In determining
        whether this standard has been met, appellate review is
        limited to whether the trial judge’s discretion was properly
        exercised, and relief will only be granted where the facts
        and inferences of record disclose a palpable abuse of

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        discretion. It is for this reason that the trial court’s denial of
        a motion for a new trial based on a weight of the evidence
        claim is the least assailable of its rulings.

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal

quotations and citations omitted). “An abuse of discretion is not merely an

error of judgment, but is rather the overriding or misapplication of the law,

or the exercise of judgment that is manifestly unreasonable, or the result of

bias, prejudice, ill-will or partiality, as shown by the evidence of record.”

Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (internal

quotations and citations omitted).

      The PCRA court judge in this case also presided over Appellant’s trial.

As the PCRA court explained, even if Appellant properly preserved his weight

of the evidence claim at the trial level, the claim would have failed:

        While no characteristic gunshot residue particles were found
        on [Appellant’s] hands, [Susan Atwood, the Supervisor of
        the Trace Evidence section of the Pennsylvania State Police
        Crime Laboratory,] . . . pointed to several factors that could
        contribute to the absence of characteristic particles,
        including the time between the firing of the weapon and
        arrest; washing of the hands; perspiration; and[,] transfer
        to inanimate objects[, including] furniture and clothing. In
        his appeal, [Appellant] pointed to Ms. Atwood’s admission
        that while characteristic particles would indicate a near
        certainty that a defendant had recently discharged a
        firearm, indicative particles could originate from other
        sources in the environment. . . .

        Based on the fact that [five] hours elapsed between the
        time of the shooting and [Appellant’s] arrest, the jury could
        reasonably infer that characteristic particles had been
        present at the time of the incident, but deliberately or
        inadvertently removed from [Appellant’s] hands.


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                                       ...

        It is important to note that, in addition to the evidence of
        [indicative particles], the jury heard direct evidence of
        [Appellant’s] guilt at trial. Victim knew [Appellant] because
        they lived in neighboring apartment complexes. Victim
        knew that [Appellant] was known by the nickname of “Wee
        Wee,” and [Appellant] admitted that he has been known as
        “Wee Wee” since he was a child. Victim was able to identify
        [Appellant] at trial as the person who shot him;
        furthermore, Victim identified the shooter as “Wee Wee” to
        Detective Gmitter at the hospital. The jury was entitled to
        believe Victim’s testimony that [Appellant] was the person
        who shot him, and to disbelieve [Appellant’s] testimony.

                                       ...

        Thus, even if [Appellant had presented a weight of the
        evidence motion to the trial court, the PCRA court]
        conclude[s] that there is no reasonable probability that the
        outcome of the proceedings would have been different. . . .

PCRA Court Opinion, 3/16/16, at 6-7 and 9-10 (internal citations omitted).

      We agree with the PCRA court’s able analysis and conclude that trial

counsel’s failure to file a post-sentence motion to challenge the weight of the

evidence did not cause Appellant any prejudice.        Therefore, Appellant’s

ineffective assistance of counsel claim fails.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2017

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