J-S52009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERNEST WILLIAMS                            :
                                               :
                       Appellant               :   No. 2589 EDA 2018

                 Appeal from the Order Entered August 15, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008700-2012


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 21, 2019

        Ernest Williams appeals from the order entered August 15, 2018, in the

Court of Common Pleas of Philadelphia County, that dismissed, without a

hearing, his first counseled petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.             Williams seeks relief from the

judgment of sentence to serve an aggregate term of 10 to 20 years’

imprisonment, imposed upon his convictions for one count each of aggravated

assault, possessing instruments of crime (PIC), carrying firearms on public

streets in Philadelphia (VUFA), and persons not to possess firearms.1          On

appeal, Williams claims trial counsel was ineffective for:         (1) failing to

investigate and locate an exculpatory witness; and (2) failing to argue self-


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1   18 Pa.C.S.A. §§ 2702(a)(1), 907(a), 6108, and 6105(a)(1), respectively.
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defense based upon the castle doctrine. See Williams’ Brief at 4. For the

reasons discussed below, we affirm.

      We take the underlying facts and procedural history in this matter from

the trial court’s June 11, 2015 1925(a) opinion on direct appeal and our review

of the certified record:

      EVIDENCE AT TRIAL

      Ms. Linesa Gunther testified that on June 15, 2012, she was living
      on the 5100 block of Harlan Street in the City of Philadelphia,
      where she got into a physical fight with her neighbor, Ms. Millicent
      Williams [“Wife”], whom she knew from the block, but did not
      socialize with. She testified that the fight arose out of an
      altercation between her son and daughter and [ ] Williams’ son in
      front of the Williams’[ ] home. At some point during the fight she
      was punched in the back of the head by [Williams], at which time
      her brother, the complainant Hakiem Gunther, and her cousin
      began fighting with [Williams]. [Williams] then broke away from
      her brother and cousin, ran into the house and returned with a
      gun shooting into the crowd as he came off his porch.

      Ms. Gunther testified that everyone immediately fled the scene
      with her brother, being chased by [Williams], ran back towards
      her home. “He ran down the street after my brother. He ran up
      on the porch. Hakiem, that’s my brother, he couldn't get in the
      house, and [Williams] started shooting. Hakiem fell. [Williams]
      then stood over him and shot three or four more times.”
      [Williams’] gun emptied after firing additional shots into the
      house, at which point he left her porch.

      The complainant, Mr. Hakiem Gunther, testified that at
      approximately 9:00 p.m., on June 5, 2012, as he was approaching
      his sister’s house for a visit, he observed his sister embroiled in a
      physical fight with another woman. As he drew near he observed
      a male with white hair get involved in the fight. When he called
      out that[ ] it’s “a girl fight,” he got hit and began fighting with the
      white haired male.

      At some point, thinking everything was over, he began walking
      away when he heard someone call out, “He got a gun.” He next

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     remembers being shot on the porch of his sister’s house by a
     figure standing over him, before he passed out. He testified that
     he was shot three times, in the groin, thigh and back and is now
     paralyzed as a result.

     Ms. Centoria Gunther testified that on June 15, 2012, she was
     living on the 5100 block of Harlan Street with her sister, Ms. Linesa
     Gunther, and her cousin. At approximately 9:00 p.m. she saw her
     sister engaged in a fight in front of the [Williams’] house with
     [Wife], whom she knew from the block and also did not socialize
     with. While the two women were fighting, she saw [Williams]
     punch her sister in the back of the head, at which point, her
     brother, the complainant Hakim Gunther, and her cousin began
     fighting with [Williams].

     She testified that [Williams] got up, after falling to the ground and
     being kicked, ran into his house and, within a minute or two, came
     back out with a gun shooting from the top of his steps in the
     direction of Mr. Gunther.      [Williams] then chased after Mr.
     Gunther, firing shots at him, as he ran towards her house. When
     Mr. Gunther reached the porch of her house [Williams] shot him
     from a distance of three feet striking him in the back, causing him
     to fall to the ground. When [Williams] couldn’t gain entry into the
     house through the locked door, he fled from the porch, running
     back into his own home.

     [Wife] testified that she got into a physical fight with Ms. Linesa
     Gunther, arising out of a dispute between their children. She also
     testified that [Williams] became involved in a fight with two men
     during which he was able to break away and retrieve a gun from
     the house. [Williams] then returned and fired two shots. On
     hearing the two shots, the “fight stopped. That’s when they let me
     go, after I heard these two shots, everybody just—they started
     running and they let me go . . .”

     Philadelphia Police Officer Darnell Jessie testified that at
     approximately 9:00 p.m., on June 15, 2012, he was in uniform on
     routine patrol in a marked patrol car, and he responded to a radio
     call of a shooting. He arrived on the call at 5134 Harlan Street
     “less than two minutes later” and found Mr. Gunther lying on his
     back, in a pool of blood on the front porch, with another man
     hovering over him calling out, “Stay with me.” Concerned for the
     life of the victim, Officer Jessie placed Mr. Gunther in the back of


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      his patrol car and immediately transported him directly to the
      Hospital of the University of Pennsylvania for treatment.

      Philadelphia Police Officer Richard Link testified that at
      approximately 9:00 p.m., on June 15, 2012, he too responded to
      a radio call of a shooting on the 5100 block of Harlan Street. On
      arriving at 5134 Harlan Street, he observed a black male lying
      unconscious on the porch. After securing the scene, he recovered
      two 45 caliber fired shell casings and one live round from the
      street near the porch where he first observed the complainant.
      He also testified that the only blood documented at the scene was
      found on the porch and the steps leading up to it. He attributed
      the presence of the blood on the steps to the complainant being
      carried from the porch to the patrol car for transport to the
      hospital.

Trial Court Opinion, 6/11/2015, at 3-6 (record citations omitted).

      On June 5, 2014, a jury convicted Williams of aggravated assault, PIC,

and VUFA. The trial court found him guilty of persons not to possess firearms.

On September 24, 2014, the trial court sentenced Williams as delineated

above. Williams filed a timely appeal.

      On December 30, 2015, this Court affirmed the judgment of sentence,

and the Pennsylvania Supreme Court denied Williams’ petition for allowance

of appeal on June 15, 2016. Commonwealth v. Williams, 135 A.3d 669

[301 EDA 2016] (Pa. Super. 2015) (unpublished memorandum), appeal

denied, 140 A.3d 13 (Pa. 2016).

      On September 7, 2017, Williams filed the instant timely PCRA petition.

On July 11, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice of intent

to dismiss. On July 27, 2018, Williams filed a response to the Rule 907 notice.




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On August 15, 2018, the PCRA court dismissed the petition. This timely appeal

followed.2

       The principles that guide our review are well settled.

       We review the denial of PCRA relief to decide whether the PCRA
       court’s factual determinations are supported by the record and are
       free of legal error. When supported by the record, the PCRA
       court’s credibility determinations are binding on this Court, but we
       apply a de novo standard of review to the PCRA court’s legal
       conclusions. We must review the PCRA court’s findings and the
       evidence of record in a light most favorable to the Commonwealth
       as the winner at the trial level.

                                         ****

       With respect to claims of ineffective assistance of counsel, counsel
       is presumed to be effective, and the petitioner bears the burden
       of proving to the contrary. To prevail, the petitioner must plead
       and prove, by a preponderance of the evidence, the following
       three elements: (1) the underlying claim has arguable merit; (2)
       counsel had no reasonable basis for his or her action or inaction;
       and (3) the petitioner suffered prejudice as a result of counsel’s
       action or inaction. With regard to the second prong (reasonable
       basis), we do not question whether there were other more logical
       courses of action which counsel could have pursued; rather, we
       must examine whether counsel’s decisions had any reasonable
       basis. We will hold that counsel’s strategy lacked a reasonable
       basis only if the petitioner proves that a foregone alternative
       offered a potential for success substantially greater than the
       course actually pursued. Our review of counsel’s performance
       must be highly deferential.       To establish the third element
       (prejudice), the petitioner must show that there is a reasonable
       probability that the outcome of the proceedings would have been
       different but for counsel’s action or inaction.
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2On September 10, 2018, the PCRA court ordered Williams to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.         Following the
appointment of new counsel, Williams filed a timely concise statement on
December 18, 2018; the court issued its opinion on May 2, 2019.



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      Because a petitioner’s failure to satisfy any of the above-
      mentioned elements is dispositive of the entire claim, [a] court is
      not required to analyze the elements of an ineffectiveness claim
      in any particular order of priority; instead, if a claim fails under
      any necessary element of the ineffectiveness test, the court may
      proceed to that element first.

                                    ****

      To prove that trial counsel provided ineffective assistance for
      failing to call a witness, a petitioner must demonstrate:

            (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.

                                    ****

      With respect to [a petitioner’s] claim that he should have been
      provided a full evidentiary hearing on all of his PCRA claims, the
      law in this area is clear:

      [T]he PCRA court has the discretion to dismiss a petition without
      a hearing when the court is satisfied that there are no genuine
      issues concerning any material fact, the defendant is not entitled
      to post-conviction collateral relief, and no legitimate purpose
      would be served by further proceedings. To obtain reversal of a
      PCRA court’s decision to dismiss a petition without a hearing, an
      appellant must show that he raised a genuine issue of fact which,
      if resolved in his favor, would have entitled him to relief, or that
      the court otherwise abused its discretion in denying a hearing. We
      stress that an evidentiary hearing is not meant to function as a
      fishing expedition for any possible evidence that may support
      some speculative claim of ineffectiveness.

Commonwealth v. Brown, 196 A.3d 130, 150-151, 167, 192-193 (Pa.

2018) (citations, internal citations, and quotation marks omitted).



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       Williams first claims trial counsel was ineffective for failing to call

Gregory Gordon, a neighbor who allegedly witnessed the shooting, as a

defense witness.3 Williams’ Brief, at 13-16.

       In his PCRA petition and in his response to the Rule 907 notice, Williams

claimed Gordon’s testimony was necessary to demonstrate “[Williams] was

standing on his front steps when he fired the shots that struck and injured the

complainant. . . . the Commonwealth’s witnesses . . . stated that [Williams]

was in the middle of the street when he fired.” Petition for Post Conviction

Relief, 9/07/2017, at unnumbered pages 2-3; see also Petitioner’s Objections

to the Court’s Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907,

7/27/2018, at 1.       In his Rule 1925(b) statement, Williams stated Gordon

would have testified, “[Williams] discharged his weapon from the steps of his

own home, when defending his wife who was being beaten by a group of

assailants, to include the complainant[.]” Statement of Errors Complained of

on Appeal, 12/16/2018, at 1.

       On appeal, Williams has largely abandoned this contention. Instead, he

now argues Gordon would have supported Wife’s testimony that multiple

women, who cut her with razors, attacked her. Williams’ Brief, at 14. Further,



____________________________________________


3 On February 3, 2017, a private detective, along with a Detective Keary Willis,
interviewed Gordon. Williams attached the unsworn interview transcript as
an exhibit to his PCRA petition. See interview, 2/03/2017, at unnumbered
pages 1-3.

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Gordon would testify the complainant shot at Williams and his family with a

rifle and Williams only shot to defend his life. Id. at 15.

      We have held an appellant waives PCRA issues not raised in a PCRA

petition or amended PCRA on appeal. Commonwealth v. Lauro, 819 A.2d

100, 103-104 (Pa. Super. 2003), appeal denied, 830 A.2d 975 (Pa. 2003)

(waiving five issues not in original or amended PCRA petition).     Also, as

amended in 2007, Rule 1925 provides issues that are not included in the Rule

1925(b) statement or raised in accordance with Rule 1925(b)(4) are waived.

Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306,

308 (Pa. 1998), superseded by rule on other grounds as stated in

Commonwealth v. Burton, 973 A.2d 428, 430 (Pa. Super. 2009).          Lastly,

an appellant cannot raise an argument for the first time on appeal.

Commonwealth v. Hanford, 937 A.2d 1094, 1098 n.3 (Pa. Super. 2007),

appeal denied, 956 A.2d 432 (Pa. 2008) (new legal theories cannot be raised

for first time on appeal); Pa.R.A.P. 302(a).

      Here, Williams did not argue in his PCRA petition, his response to the

Rule 907 notice, or his Rule 1925(b) statement, that Gordon’s testimony was

necessary to demonstrate the complainant discharged a rifle at Williams and

his family or Gordon would bolster Wife’s testimony that her assailants were

armed. Instead, he raised this claim for the first time on appeal. Therefore,

he waived his first issue for appellate review.     See Lord, supra at 308;

Hanford, supra at 1098 n.3; Lauro, supra at 103-104.


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      In any event, even if we were to address the merits of the claim, it would

fail. Initially, we agree with the PCRA court that Williams failed to show trial

counsel knew or should have known of Gordon’s existence. See PCRA Court

Opinion, 5/02/2019, at 7. As the PCRA court aptly stated:

      It is clear, from both the record and [ ] Gordon’s statement that
      not the investigating officers, the Commonwealth, or [Williams],
      were aware of [ ] Gordon’s presence at the shooting.
      Furthermore, it is also clear from his statement that [ ] Gordon
      made no attempt to notify either the police investigating the
      shooting, or [Williams], of his observations. [Williams] has not
      shown how counsel knew of, or should have known of, the
      existence of [ ] Gordon. Therefore, trial counsel cannot be faulted
      for failing to present a witness who was not only unknown to [the]
      parties, but who also made no attempt to reach out in any manner
      to make his presence known to any of the parties.

Id. at 7-8.

      Moreover, even if we were to agree counsel should have known of

Gordon’s existence, the record belies Williams’ claim that Gordon’s testimony

was necessary to counter the Commonwealth’s theory that Williams began

shooting in the middle of the street.      At trial, both the Commonwealth

witnesses and Williams testified consistently, Williams began shooting from

his porch steps.   See N.T. Trial, 6/03/2014, at 58, 60, 74, 84; N.T. Trial,

6/04/2014, at 20, 23, 154. Thus, Gordon’s testimony Williams began shooting

from the steps to his porch would have been merely cumulative. This Court

has held counsel is not ineffective for failing to present cumulative testimony.

See Commonwealth v. Milligan, 693 A.2d 1313, 1319 (Pa. Super. 1997)

(citations omitted).


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       Lastly, the PCRA court found Gordon’s statement was not credible.

PCRA Court Opinion, 5/02/2019, at 8. “A PCRA court’s credibility findings are

to be accorded great deference, and where supported by the record, such

determinations are binding on a reviewing court.”          Commonwealth v.

Treiber, 21 A.3d 435, 444 (Pa. 2015) (citation omitted). Here, the record

supports that determination.

       Gordon’s statement that there was a second shooter,4 who fired a rifle

at Williams and his family, is completely at odds with the testimony of every

other witness, including both Wife and Williams, as well as all of the physical

evidence at trial. Moreover, in his interview, Gordon admitted to tampering

with evidence at the crime scene. Interview, 2/03/2017, at unnumbered page

2.   Williams has failed to demonstrate how counsel’s failure to secure the

testimony of a witness who tampered with evidence and who contradicted the

testimony of every other witness, including Williams, was so detrimental as to

have denied him a fair trial. See Brown, supra. Accordingly, even if Williams

had not waived this issue, his first claim does not merit relief.




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4 In his brief, Williams claims Gordon stated the complainant, Gunther, was
the second shooter. Williams’ Brief, at 15. However, this is not accurate. In
the interview, Gordon does not identify Gunther as the second shooter;
instead, he says the second shooter was a “young boy.”             Interview,
2/03/2017, at unnumbered pages 1-2. Gunther was in his late 20s at the
time of the shooting.

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     In his second claim, Williams contends trial counsel was ineffective for

failing to pursue a defense based on the “castle doctrine,” pursuant to 18

Pa.C.S.A. § 505(b)(2.1)(i). Williams’ Brief, at 17-19. We disagree.

     The PCRA court aptly disposed of this issue as follows:

     . . . [Williams] now complains that [c]ounsel should have argued
     the “castle doctrine,” citing 18 Pa.C.S.A. § 505(b)(2.1)(i), which
     provides, in relevant part, that: “(2.1). . . an actor is presumed to
     have a reasonable belief that deadly force is immediately
     necessary to protect himself against death, serious bodily injury,
     . . . if both of the following conditions exist: i) The person against
     whom the force is used is in the process of unlawfully and
     forcefully entering, or has unlawfully and forcefully entered and is
     present within, a dwelling. . .; or the person against whom the
     force is used is or is attempting to unlawfully and forcefully
     remove another against that other’s will from the dwelling,
     residence. . . .” “The castle doctrine is a specialized component
     of self-defense, which recognizes that a person has no duty to
     retreat from his or her home before using deadly force as a means
     of self-defense.” Commonwealth v. Childs, 142 A.3d 823[,
     824], n.1 (Pa. 2016) (internal citations omitted).

     At trial, [c]ounsel raised the issue of justification in arguing self-
     defense before the jury. In addressing this issue, the [trial c]ourt
     instructed the jury that if [Williams] “reasonably believed that his
     wife was in danger of suffering serious bodily injury or death, then
     the law says he's justified in using deadly force. The lawful
     defense of others is called justification. If [Williams’] actions were
     justified, you cannot find him guilty.” (N.T., 6/4/[20]14 pg. 207)
     The [trial c]ourt further instructed the jury that if [Williams]
     “reasonably believed he had to use deadly force to stop the
     beating of his wife, then that’s self-defense and he’s not guilty of
     any of these crimes. Even if he was wrong in that judgment but
     he was reasonable in thinking that, then that’s self-defense and
     he’s not guilty of any of these crimes. (N.T., 6/4/[20]14 pgs. 211,
     212)[.] Without specifically addressing the “castle doctrine,” this
     instruction, accomplished the same goal, in making it clear to the
     jury that [Williams] had no duty to retreat if he felt he “had to use
     deadly force to stop the beating of his wife.”




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     Additionally, there is no evidence on the record justifying an
     instruction on the “castle doctrine.” That is, there is no evidence,
     including Mr. Gordon’s statement, that anyone attempted to
     “unlawfully and forcefully” enter his home or “unlawfully and
     forcefully” attempted to remove anyone else from his home.

     Finally, to be eligible for PCRA relief, 42 Pa.C.S.A. [§] 9543
     provides in part that: “the petitioner must plead and prove by a
     preponderance of the evidence all of the following: That the
     allegation of error has not been previously litigated or waived.”
     Our Superior Court, [in] Commonwealth v. Williams, No. 3010
     EDA 2014, 2015 WL 9596616, at *1, in affirming [Williams’]
     conviction and sentence, has ruled on this issue in finding, that
     the “Commonwealth met its burden of proof that [Williams]
     became the aggressor when he chased an unarmed victim onto
     the porch where [Williams] shot the victim at point blank
     range . . .”

PCRA Ct. Op., at 8-10.

     We have thoroughly scrutinized the record and we agree with PCRA

court Williams has not shown counsel was ineffective in failing to raise a

meritless defense. See Brown, supra at 150-151.

     As Williams’ claims are both waived and meritless, we affirm the denial

of his PCRA petition without an evidentiary hearing.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/19



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