J-S26012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KENNETH L. WILLIAMS

                            Appellant                   No. 473 EDA 2015


                 Appeal from the PCRA Order January 27, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0008760-2009


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                FILED APRIL 12, 2016

        Appellant, Kenneth L. Williams, appeals pro se from an order entered

on January 27, 2015 that dismissed his petition filed pursuant to the Post

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

        The PCRA court accurately summarized the factual and procedural

history in this case as follows:

        On December 21, 2010, a jury found Appellant guilty of six
        counts of [c]riminal [c]onspiracy,1 seven counts of [r]obbery –
        fear of serious bodily injury,2 seven counts of [s]imple [a]ssault,3


____________________________________________


1
    18 Pa.C.S.A. § 903(a)(1).
2
    18 Pa.C.S.A. § 3701(a)(1)(ii).
3
    18 Pa.C.S.A. § 2701(a)(3).




*Retired Senior Judge assigned to the Superior Court.
J-S26012-16


        five counts of [t]erroristic [t]hreats,4 and seven counts of [t]heft
        by [u]nlawful [t]aking.5 Appellant’s convictions arose out of [a
        string of armed robberies committed with his co-conspirator,
        Dennis Maddrey, during August 2009. During the robberies,
        Maddrey approached and robbed the victims while Appellant
        drove the getaway vehicle.]

        Appellant was sentenced [to an aggregate term of ten to 20
        years’ incarceration] on June 1, 2011. A timely direct appeal
        was filed. Th[e trial c]ourt authored a [Pa.R.A.P.] 1925(a)
        [o]pinion addressing claims that suppression was improperly
        denied, a motion for a mistrial was improperly denied, there was
        insufficient evidence to convict and a challenge to the
        discretionary aspects of sentencing. Ultimately, on March 5,
        2012, [this C]ourt dismissed the direct appeal without reaching
        the merits based upon appellate counsel’s failure to file a brief.

        On May 31, 2012, Appellant filed a timely pro se PCRA petition.
        Th[e PCRA c]ourt appointed counsel to represent Appellant. On
        July 31, 2012, PCRA counsel submitted an [a]mended PCRA
        petition, requesting that Appellant’s direct appeal rights be
        reinstated nunc pro tunc due to appellate counsel’s
        ineffectiveness in failing to file a brief with [this C]ourt, causing
        his initial direct appeal to be dismissed.                 With the
        Commonwealth in agreement, on August 2, 2012, th[e PCRA
        c]ourt issued an [o]rder reinstating Appellant’s direct appeal
        rights. Appellant filed his notice of appeal on August 29, 2012.
        Appellant also filed a concise statement of errors complained of
        on appeal and th[e PCRA c]ourt authored a Pa.R.A.P. 1925(a)
        [o]pinion, addressing issues [involving] an allegedly improper
        denial of suppression, improper denial of a mistrial, and whether
        incriminating statements were properly admitted.




____________________________________________


4
    18 Pa.C.S.A. § 2706(a)(1).
5
    18 Pa.C.S.A. § 3921(a).



                                           -2-
J-S26012-16


       On April 26, 2013, [this Court] affirmed Appellant’s judgment of
       sentence.6 The Pennsylvania Supreme Court denied Appellant’s
       petition for allowance of appeal on September 17, 2013.

       On August 21, 2014, Appellant filed the pro se PCRA petition,
       which is currently at issue. PCRA counsel was appointed on
       August 28, 2014. Finding no non-frivolous issues to pursue,
       PCRA counsel filed a no-merit letter and a petition to withdraw
       as counsel. Pursuant to Pa.R.Crim.P. 907, th[e PCRA c]ourt
       issued an order dated December 30, 2014, notifying Appellant of
       [the court’s] intention to dismiss his PCRA petition without a
       hearing and of his right to file a response to the proposed
       dismissal. Counsel was permitted to withdraw.

       Subsequently, on January 14, 2015, Appellant filed a [m]otion
       for [e]xtension of [t]ime to file a response to the proposed
       dismissal order. This request was denied and a final order of
       dismissal was entered on January 27, 2015. This timely appeal
       follow[ed].

PCRA Court Opinion, 4/20/15, at 1-3.

       Appellant raises several claims that we divide into three categories and

that we shall describe in detail in the discussion that follows. Specifically,

Appellant alleges claims involving trial court error, a claim that his sentence

is illegal, and claims asserting ineffectiveness by prior trial and appellate

counsel. These contentions merit no relief.

       We begin with a recitation of our standard of review, as set forth by

the PCRA court.

       “An appellate court reviews the PCRA court’s findings of fact to
       determine whether they are supported by the record, and
____________________________________________


6
  Appellate counsel only raised two issues [before this Court], namely
whether the motion to suppress was properly decided and whether the
motion for a mistrial was properly denied[.]



                                           -3-
J-S26012-16


      reviews its conclusions of law to determine whether they are free
      from legal error. The 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.”
      Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super.
      2014), quoting Commonwealth v. Spotz, 84 A.3d 294, 311
      (Pa. 2014) (citations and internal quotation marks omitted).

      To be entitled to PCRA relief, an appellant must establish, by a
      preponderance of the evidence, that his conviction or sentence
      resulted from one or more of the enumerated errors in 42
      Pa.C.S.A. § 9543(a)(2), his claims have not been previously
      litigated or waived, and “the failure to litigate the issue prior to
      or during trial … or on direct appeal could not have been the
      result of any rational, strategic or tactical decision by trial
      counsel.” [42 Pa.C.S.A.] § 9543(a)(3) [and] (a)(4). An issue is
      previously litigated if “the highest appellate court in which
      [appellant] could have had review as a matter of right has ruled
      on the merits of the issue.” [42 Pa.C.S.A.] § 9543(a)(2). An
      issue is waived if appellant “could have raised it but failed to do
      so before trial, at trial, … on appeal or in a prior state
      postconviction proceeding.” [42 Pa.C.S.A.] § 9544(b)[;] see
      also, Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa.
      2013).

PCRA Court Opinion, 4/20/15, at 4.

      In his brief, Appellant argues that he is entitled to relief in view of

several errors allegedly committed by the trial court. Specifically, Appellant

claims that: 1) the evidence was insufficient to support his convictions; 2)

the court erred in admitting testimony that supposedly related to other

crimes, including robberies that occurred outside Montgomery County; 3)

the Commonwealth engaged in prosecutorial misconduct through the alleged

introduction of perjurious testimony regarding other crimes, including

robberies that occurred outside Montgomery County; and, 4) the court’s

charge to the jury failed to instruct the panel as to the correct application of

                                     -4-
J-S26012-16


the corpus delecti rule.        Appellant’s Brief at 21-58.   These freestanding

claims of trial court error are unattached to any claim of ineffectiveness by

prior counsel.     As such, Appellant’s claims of trial court error could have

been raised on direct appeal but were not.7 See Commonwealth v. Spotz,

18 A.3d 244, 262 (Pa. 2011) (underlying claim of trial court error is distinct

from claim alleging ineffectiveness of counsel). The PCRA provides that an

issue is waived if it could have been raised before trial, at trial, on direct

appeal, or in a prior state post-conviction proceeding.        Comonwealth v.

Chmiel, 30 A.3d 111, 1127 (Pa. 2011), citing 42 Pa.C.S.A. § 9544(b).

Accordingly, as the PCRA court held, Appellant waived review of the

foregoing claims. PCRA Court Opinion, 4/20/15, at 5.

       Appellant next claims that the trial court erred in sentencing him as a

second strike offender pursuant to the mandatory minimum sentencing

scheme set forth at 42 Pa.C.S.A. § 9714(a).          Citing Commonwealth v.

____________________________________________


7
  On direct appeal, Appellant litigated a claim asserting that he was entitled
to a new trial in light of the court’s admission of testimony that related to
other robberies that occurred outside Montgomery County.              Appellant
distinguishes that claim from his present contention on grounds that his
present claim involves testimony elicited after the trial court issued its
curative instruction. See Appellant’s Brief at 41-42 (“To be clear on this
matter I’m not arguing that [the court’s order disposing of the motion in
limine was violated or that] a mistrial should have been granted. That’s not
the issue here, that issue was previously litigated on direct appeal and
[Appellant] is barred from raising this claim.”; “Right after the curative
instruction from [the trial court to the jury, the district attorney] continued
to elicit from [the investigating detective] information from the second
statement regarding [the] Philadelphia robberies.”).



                                           -5-
J-S26012-16


Shiffler, 879 A.2d 185 (Pa. 2005), Appellant argues that § 9714 espouses a

“recidivist    philosophy”   that   permits   the   imposition   of   an   enhanced

punishment only where an offender has had an intervening opportunity to

reform following a predicate conviction for a violent crime. See Appellant’s

Brief at 18.      Appellant maintains that his sentence is illegal because the

court imposed two consecutive second strike sentences following a single

criminal episode and without an intervening opportunity for reform.

      A petitioner’s claim that his sentence is illegal is cognizable under the

PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(vii). “Generally, a challenge to the

application of a mandatory minimum sentence is a non-waiveable challenge

to the legality of the sentence. Issues relating to the legality of a sentence

are questions of law, as are claims raising a court's interpretation of a

statute.      Our standard of review over such questions is de novo and our

scope of review is plenary.”        Commonwealth v. Pennybaker, 121 A.3d

530, 532 (Pa. Super. 2015), quoting Commonwealth v. Hawkins, 45 A.3d

1123, 1130 (Pa. Super. 2012).

      In relevant part, § 9714 states:

      § 9714. Sentences for second and subsequent offenses.

      (a) Mandatory sentence.—

      (1) Any person who is convicted in any court of this
      Commonwealth of a crime of violence shall, if at the time of the
      commission of the current offense the person had previously
      been convicted of a crime of violence, be sentenced to a
      minimum sentence of at least ten years of total confinement[.]


                                        -6-
J-S26012-16


    42 Pa.C.S.A. § 9714(a). Robbery and conspiracy to commit robbery are

    defined as crimes of violence in § 9714.8      42 Pa.C.S.A. § 9714(g).   If,

    after conviction and before sentencing, an offender receives reasonable

    notice that a mandatory minimum sentence will be requested under

    § 9714 and the offender meets the criteria for sentencing under that

    provision, the trial court lacks authority to impose a lesser sentence than

    that prescribed in § 9714. 42 Pa.C.S.A. § 9714(d) and (e).

       Appellant’s sentence was lawful.          The record confirms that the

    Commonwealth supplied Appellant with the requisite notice before

    sentencing. N.T. Sentencing, 6/1/11, at 4 Exhibit C-1. Moreover, as the

    Commonwealth points out, none of Appellant’s current convictions served

    as the predicate offense that triggered application of § 9714.    Instead,

    Appellant’s 2004 robbery conviction (entirely omitted from Appellant’s

    analysis) prompted application of § 9714. For this reason, the trial court

    correctly determined that Appellant was convicted and sentenced for an

    underlying predicate offense at the time of the criminal episodes in this

    case.    Since Appellant had an opportunity to reform between his

    conviction and sentence in the 2004 case and the commission of the

    current robberies, his sentence was lawfully imposed under § 9714.


____________________________________________


8
  Appellant was sentenced to consecutive ten-year mandatory minimum
sentences pursuant to § 9714 for robbery and conspiracy to commit robbery.



                                           -7-
J-S26012-16



      In his final category of claims, Appellant asserts that his prior counsel

were ineffective.    Specifically, Appellant contends that:   1) both trial and

“appellate” counsel improperly failed to challenge the trial court’s instruction

to the jury regarding application of the corpus delecti rule; 2) trial counsel

failed to thoroughly cross-examine the robbery victims; 3) trial counsel

failed to cross-examine co-conspirator Maddrey; 4) trial counsel failed to

disclose Maddrey’s statement to Appellant; and, 5) trial counsel failed to

challenge the racial composition of Appellant’s jury.

      We have explained the legal standard of review for such claims as

follows:

           Counsel is presumed effective, and to rebut that
           presumption, the PCRA petitioner must demonstrate that
           counsel's performance was deficient and that such
           deficiency prejudiced him. … Accordingly, to prove counsel
           ineffective, the petitioner must demonstrate that: (1) the
           underlying legal issue has arguable merit; (2) counsel's
           actions lacked an objective reasonable basis; and (3) the
           petitioner was prejudiced by counsel's act or omission. A
           claim of ineffectiveness will be denied if the petitioner's
           evidence fails to satisfy any one of these prongs.

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa. Super. 2015)

(internal citations and brackets omitted).

      Our review of the record confirms that Appellant’s contentions are

meritless. We explain briefly. First, the trial court correctly explained to the

jury that it should not consider Appellant’s statement unless it found beyond

a reasonable doubt that a crime was committed. Thus, there is no arguable

merit to Appellant’s initial claim involving counsel’s ineffectiveness. Second,

                                      -8-
J-S26012-16


although Appellant is correct that trial counsel did not cross-examine the

victims, the record confirms that none of the victims identified Appellant. In

this factual posture, counsel pursued a reasonable strategy in deciding to

forego inquiry and simply argue to the jury that Appellant should be

acquitted since the victims failed to identify him. As this is precisely what

counsel did, Appellant’s claim fails. Third, trial counsel cannot be deemed

ineffective in failing to cross-examine Maddrey since he did not testify at

Appellant’s trial, he was not one of Appellant’s accusers, and since calling

him to the witness stand would pose grave risks. Fourth, Appellant fails to

explain how trial counsel’s failure to disclose Maddrey’s statement to him

caused any prejudice. Finally, there is no merit to Appellant’s claim that trial

counsel failed to challenge the racial composition of the jury. The record

shows that counsel raised a challenge pursuant to Batson v. Kentucky, 476

U.S. 79 (1986).       See N.T. Trial, 12/20/10, at 6-7.    Counsel cannot be

deemed ineffective where he or she takes the course of action that the

petitioner alleges should have been taken. See Commonwealth v. Cook,

952 A.2d 594, 620 (Pa. 2008). For each of these reasons, Appellant is not

entitled to relief.

      Order affirmed.




                                     -9-
J-S26012-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2016




                          - 10 -
