J-S11035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANJOHNITO WILLET,                          :
                                               :
                       Appellant               :      No. 1276 WDA 2019

               Appeal from the PCRA Order Entered June 30, 2019
               in the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0001222-2014

BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED JUNE 09, 2020

        Anjohnito Willet (“Willet”), pro se, appeals from the Order denying his

first Petition for Relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm in part, and vacate and remand in part.

        On direct appeal, this Court set forth the history underlying the instant

appeal as follows:

        On November 13, 2013, as four students were leaving Brashear
        High School in Pittsburgh, Pennsylvania, shots rang out from a hill
        in the woods across the street from the school. Two of the
        students sustained head wounds from the shooting. The injured
        students were able to retreat back into the school as police
        responded to the scene. An eyewitness reported seeing a male
        wearing a red hooded sweatshirt on the hill across from Brashear
        High School, watching students running away. Upon further
        investigation, police learned that the targeted students had been
        involved in a physical altercation with [Willet] a month prior to the
        incident[,] and [Willet] told a security guard that he was going to
        come back and shoot one of them.
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
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            Investigating officials were dispatched to a duplex building,
     in the Beechview section of Pittsburgh, to execute a search
     warrant where [Willet] was thought to reside. Police arrested
     [Willet] and interviewed him along with two other men, Antoine
     Lewis [(“Lewis”)] and Tyron Harris [(“Harris”)], who were with
     [Willet] before and after the shootings and were at the duplex
     when police arrived. [Willet] and Harris lived next door to each
     other in the duplex. Lewis had been living with Harris. Harris told
     police that he and [Willet] walked through the woods towards
     Brashear High School around dismissal time on the day of the
     incident and that he witnessed [Willet] fire shots towards
     students. Lewis told police that, after the shooting, [Willet] and
     Harris asked him to dispose of a gun and bullet magazine wrapped
     in a towel. Lewis told police that he put the gun and magazine
     into a book bag and took it to his great grandmother’s house. At
     trial, however, Harris and Lewis recanted their statements to
     police.

            The following evidence was also adduced at trial. Police
     conducted tests on [Willet], Lewis, and Harris for gunshot residue
     shortly after the shooting. All three men tested positive, but only
     [Willet] had traces of residue on both of his hands. Upon
     executing the search warrant at the duplex, police recovered
     evidence that [Willet] resided in a bedroom on one side of the
     duplex. From that bedroom, they recovered eight .357 caliber
     bullets in a bag next to the bed. On the other side of the duplex,
     Harris’[s] residence, police recovered two red hooded sweatshirts,
     two smartphones, brass knuckles, ten packets of heroin, and an
     unfired .22 caliber bullet. Upon analyzing one of the recovered
     cellular telephones, police discovered photos of one of the
     shooting victims taken hours before a physical altercation that
     occurred in October 2013 and 23 photos of [Willet], including a
     “selfie.” There was only one contact listed on that phone and it
     was for Harris. At trial, the Commonwealth entered the telephone
     into evidence and police testified that they believed it belonged to
     [Willet]. Police also recovered a book bag from the residence
     where Harris’[s] great-grandmother lived. The bag contained a
     .357 magnum Ruger revolver and a magazine containing .22
     caliber bullets. Finally, police recovered three .22 caliber bullets
     from the shooting victims. At trial, the Commonwealth presented
     a firearm expert who opined that all of the bullets recovered from
     the victims were fired from the same gun, but that it was not
     possible to fire a .22 caliber bullet from a .357 magnum firearm.

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J-S11035-20



Commonwealth v. Willet, 183 A.2d 1095 (Pa. Super. 2018) (unpublished

memorandum at 1-4).

       The PCRA court summarized what next transpired as follows:

              On February 2, 2016, a jury convicted [Willet] of one count
       of [c]riminal [a]ttempt-[h]omicide, three counts of [a]ggravated
       [a]ssault, one count of possession of a firearm by a minor, and
       four counts of recklessly endangering another person (“REAP”).[FN]
       On May 4, 2016, [the trial court] sentenced [Willet] to an
       aggregate term of incarceration of twelve to thirty years with two
       years of probation consecutive to confinement. The Superior
       Court of Pennsylvania affirmed the judgment of sentence on
       January 30, 2018. [See id.] Next, [Willet] filed a pro se PCRA
       Petition on January 29, 2019.         Appointed counsel filed a
       Turner/Finley[2] “no merit” letter[. The PCRA court issued
       Pa.R.Crim.P. 907 Notice of its intent to dismiss the PCRA Petition
       without a hearing. Willet, pro se, filed a Response to the Notice
       raising additional issues. On July 31, 2019, the PCRA court
       dismissed Willet’s PCRA Petition and granted counsel’s request to
       withdraw from representation. Willet] filed a Notice of Appeal on
       August 16, 2019[,] and a Concise Statement of Errors Complained
       of on Appeal on September 9, 2019.



____________________________________________


2  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). As
this Court has explained,

       [c]ounsel petitioning to withdraw from PCRA representation must
       proceed ... under Turner … and Finley … and ... must review the
       case zealously. Turner/Finley counsel must then submit a ‘no-
       merit’ letter to the [PCRA] court … detailing the nature and extent
       of counsel’s diligent review of the case, listing the issues which
       [the petitioner] wants to have reviewed, explaining why and how
       those issues lack merit, and requesting permission to withdraw.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted)


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        [FN][See] 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 6110.1(a), 2705,
        respectively. [Willet] was found not guilty on two other counts of
        Criminal Attempt-Homicide.

PCRA Court Opinion, 10/17/19, at 1 (one footnote added, some capitalization

omitted).

        Willet presents the following claims for our review:

        1. Did the Commonwealth [fail] to prove a “prima facie” case, due
           to the fact that the arrest [of Willet] was unlawful and
           unsupported by probable cause?

        2. Was [t]rial counsel ineffective when he [failed] to preserve for
           [a]ppellate review, [the] statements and testimony of … Harris,
           that established no evidence for a verdict of guilty by [the]
           jury?

        3. Was trial/appellate counsel ineffective when he [failed] to file
           a [] motion to suppress the evidence and testimony of
           [Pittsburgh Police] Detective[]s [Cynthia] Smith [(“Detective
           Smith”)], [Wade] Sarver [(“Detective Sarver”)] and Sauko[3]
           [(“Detective Sauko”)], as well as the Commonwealth’s
           witness[,] … Harris?

        4. Was trial/appellate counsel ineffective when he [failed] to file
           to  request     and/or   present     accomplice  liability   on
           Commonwealth’s witnesses [] Harris and [] Lewis?

        5. Was trial/appellate counsel ineffective for his failure to support
           evidentiary claims with any legal authority on those claims,
           which violated Pa.R.A.P. 2119(a), which states that [the]
           failure to develop an argument with citation to, and analysis of,
           relevant authority waives the issue on review?

        6. Was pretrial/trial/appellate counsel[] ineffective for their
           failure to request [an] evidentiary hearing for the recantation
           of Commonwealth’s witness [] Harris’s testimony?
____________________________________________


3   The first name of Detective Sauko is not available.

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      7. Was PCRA counsel ineffective for his [failure] to amend
         [Willet’s] PCRA [P]etition for his claims stated in [the first
         through sixth issues] that were meritorious?

Brief for Appellant at 2 (footnote added, some capitalization omitted).

      When reviewing an order entered in a PCRA proceeding,

      we must determine whether the findings of the PCRA court are
      supported by the record and whether the court’s legal conclusions
      are free from error. The findings of the PCRA court and the
      evidence of record are viewed in a light most favorable to the
      prevailing party. The PCRA court’s credibility determinations,
      when supported by the record, are binding; however, this court
      applies a de novo standard of review to the PCRA court’s legal
      conclusions. We must keep in mind that the petitioner has the
      burden of persuading this Court that the PCRA court erred and
      that such error requires relief. Finally, this Court may affirm a
      valid judgment or order for any reason appearing of record.

Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations

omitted).

      Willet first claims that the Commonwealth failed to establish a prima

facie case, due to the fact that his arrest was unlawful and not supported by

probable cause. Brief for Appellant at 6. Willet argues that at the preliminary

hearing, the trial court relied upon the testimony of Police Homicide Detective

Timothy Nutter (“Detective Nutter”). Id. According to Willet, Detective Nutter

testified regarding Harris’s out-of-court statements, and relied upon those

statements to establish probable cause to arrest Willet. Id. Willet states that

at his preliminary hearing, counsel cross-examined Detective Nutter regarding

Harris’s    statements,   which   constituted   hearsay   and   “second-hand-

information.” Id.   Willet directs our attention to Pa.R.E. 703, which does not

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permit an expert to offer an opinion based upon testimonial hearsay.4 Id. at

7. Willet argues that the hearsay testimony was not sufficient to establish a

prima facie case against him. Id. at 8. Therefore, Willet argues that this

Court should remand for an arrest of judgment. Id.

        In its Opinion, the PCRA court deemed this claim to be waived, based

upon Willet’s failure to preserve this issue before the trial court, and his failure

to raise the issue on direct appeal. See PCRA Court Opinion, 10/17/19, 3-4;

see also Commonwealth v. Spotz, 47 A.3d 63, 101 (Pa. 2012) (stating that

allegations of error that have been waived are not cognizable under the

PCRA). We agree, and affirm the PCRA court’s resolution of this claim on this

basis. See id.

        We additionally observe that Pa.R.Crim.P. 542(E), applicable to

preliminary hearings, provides that

        [h]earsay[,] as provided by law[,] shall be considered by the
        issuing authority in determining whether a prima facie case has
        been established. Hearsay evidence shall be sufficient to establish
        any element of an offense, including, but not limited to, those
        requiring proof of the ownership of, non-permitted use of, damage
        to, or value of property.

Pa.R.Crim.P. 542(E). Further, in Commonwealth v. McClelland, 165 A.3d

19 (Pa. Super. 2017), appeal granted 179 A.3d 2 (Pa. 2018), this Court

concluded that due process rights were not violated by a preliminary hearing




____________________________________________


4   It does not appear that Detective Nutter testified as an expert witness.

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at which only hearsay evidence was presented. Id. at 32. Thus, Willet is not

entitled to relief on this basis as well. See id.

      In his second through seventh claims, Willet asserts that all prior

counsel rendered ineffective assistance. Before addressing these claims, we

are cognizant that counsel is presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [the] appellant.” Commonwealth v.

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

             To satisfy this burden, an 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 proceeding would have been different. Failure to
      satisfy any prong of the test will result in rejection of the
      appellant’s ineffective assistance of counsel claim.

Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal

citations and quotation marks omitted).

      In his second claim, Willet argues that his trial counsel rendered

ineffective assistance by failing to preserve for appellate review his challenges

to the statements and testimony of Harris. Brief for Appellant at 8. Willet

claims that his trial counsel, who also represented Harris on direct appeal,

should have claimed a violation of the United States Constitution’s Sixth

Amendment in his post-sentence Motion, and his appellate counsel should

have briefed this issue on appeal. Id.




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       In his appellate brief, Willet does not explain or develop his claim of a

violation of his Sixth Amendment right to counsel. “A constitutional claim is

not self-proving, and we will not attempt to divine an argument on [an

a]ppellant’s behalf.”      Commonwealth v. Spotz, 18 A.3d 244, 282 (Pa.

2011). Because Willet failed to develop this claim, we are unable to afford

him relief.5 See id.

       In his third through sixth claims, Willet asserts ineffective assistance of

counsel for failing to file a requested pretrial suppression motion; failing to file

and/or present a claim regarding the status of Harris and Lewis as accomplices

and “polluted” sources regarding their prior statements; not developing his

evidentiary claims on direct appeal with argument and citation to legal

authority; and failing to request an evidentiary hearing regarding the

recantation of Harris’s testimony. Brief for Appellant at 10-18. In his seventh

claim, Willet argues that his PCRA counsel rendered ineffective assistance by

not amending his PCRA Petition to include these claims. Id. at 17.

       In its Opinion, the PCRA court addressed these claims as follows:

       [Willet] alleges that counsel was ineffective for failing to file a
       motion to suppress the testimony of Detectives Smith, Sarver and
       Sauko, as well as the witness[, ] Harris. This claim, and each of
       [Willet’s] remaining claims, have not been raised by the initial
       PCRA [Petition,] or addressed in the Turner/Finley letter. The
____________________________________________


5 To the extent that the PCRA court addressed a claim regarding the
recantation testimony of Harris, we agree with and adopt its determination
that Willet failed to demonstrate prejudice resulting from counsel’s alleged
ineffectiveness. See PCRA Court Opinion, 10/17/19, at 4-5.


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      first mention of these issues occurs in the pro se document[,]
      “Rebuttal Petition to the Notice of Intent to Dismiss in accordance
      with Procedure [sic] 907,” (“Rebuttal Petition”) wherein [Willet
      alleges that PCRA counsel should have amended the PCRA Petition
      to include these claims of error. As these issues were not properly
      brought before this [c]ourt via an amended PCRA, [the PCRA
      court] initially believed these claims should be waived. “The
      assertion of a new claim after the court heard argument and
      indicated its intent to dismiss the petition militates in favor of the
      decision to deny leave to amend.” Commonwealth v. Williams,
      732 A.2d 1167, 1191 (Pa. 1999).

            However, [the PCRA court] is now persuaded that the better
      course of action would have been to permit the PCRA Petition to
      be amended, in accordance with the liberal standard of
      Pa.R.Crim.P. 905(A).

            The only option available to this Court, at this juncture, is
      to remand this case back to the PCRA court, so that the court may
      consider [the appellant’s] motion for leave to amend in accord
      with the liberal standard of Rule 905(A).

           Commonwealth v. Crispell, 193 A.3d 919, 930 (Pa.
      2018). Since appointed counsel did not address the issues in his
      Turner/Finley letter, this [c]ourt believes that a remand to
      address these remaining issues is in order.

PCRA Court Opinion, 10/17/19, at 5.

      We agree with the PCRA court’s reasoning. Willet has presented claims

that, if frivolous, should have been included and addressed in PCRA counsel’s

no-merit letter. If the issues were not frivolous, counsel should have filed an

amended PCRA petition on Willet’s behalf.        Consequently, we reverse the

Order of the PCRA court, which granted counsel leave to withdraw and

dismissed Willet’s PCRA Petition without a hearing. We remand the matter so

that present counsel may either file an amended PCRA petition addressing the




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additional claims raised by Willet, or to file a new Turner/Finley no-merit

letter addressing the additional claims raised by Willet.

      Order affirmed in part and vacated in part. Case remanded for further

proceedings in accordance with this Memorandum.             The Prothonotary is

directed to remand the certified record to the PCRA court. Superior Court

jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2020




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