J-S46042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
KYLE J. WILLIAMS,                         :
                                          :
                  Appellant               :           No. 3176 EDA 2014

          Appeal from the PCRA Order entered on October 31, 2014
            in the Court of Common Pleas of Philadelphia County,
                Criminal Division, No. CP-51-CR-0401451-2005

BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED AUGUST 31, 2015

      Kyle J. Williams (“Williams”) appeals from the dismissal of his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      In 2006, following a jury trial, Williams was convicted of murder of the

first degree, criminal conspiracy, carrying a firearm without a license,

possessing an instrument of crime, and persons not to possess firearms.1

The trial court sentenced Williams to life in prison without the possibility of

parole.




1
  Williams was 17 years old at the time he      committed the murder. The
victim died of two gunshot wounds to the        back of the head. Williams
subsequently confessed to his involvement in    the shooting, and stated that
he had killed the victim because the victim     had robbed him of a couple
hundred dollars.
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     Williams filed a timely Post-Sentence Motion, which was denied. This

Court affirmed the judgment of sentence, and the Pennsylvania Supreme

Court denied Williams’s Petition for Allowance of Appeal. Commonwealth

v. Williams, 954 A.2d 44 (Pa. Super. 2008) (unpublished memorandum),

appeal denied, 964 A.2d 2 (Pa. 2009).

     On January 4, 2010, Williams filed a timely, pro se, PCRA Petition.

Subsequently, the PCRA court appointed Richard Moore, Esquire (“Moore”),

as counsel, who filed an Amended Petition.      After Moore passed away, J.

Scott O’Keefe, Esquire, took over Williams’s representation, but was later

appointed to the bench. Thereafter, the PCRA court appointed Mitchell Scott

Strutin, Esquire, as counsel, who filed another Amended PCRA Petition.

Following a protracted procedural history not relevant to this case, the PCRA

court issued a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907. The

PCRA court then dismissed Williams’s Petition. Williams filed a timely Notice

of Appeal.

     On appeal, Williams raises the following issues for our review:

     1) Is [Williams] entitled to post-conviction relief in the form of a
        new trial or a remand for an evidentiary hearing as a result
        of the ineffective assistance of trial counsel for failing to
        interview alibi witnesses and present their testimony at trial?

     2) Is [Williams] entitled to post-conviction relief in the form of a
        new trial or a remand for an evidentiary hearing as a result
        of the ineffective assistance of trial counsel for failing to
        present Williams’s testimony at trial?

     3) [Whether] the life sentence imposed on [Williams], a juvenile
        at the time of the incident, is illegal pursuant to the recent


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          United States Supreme Court cases of [Miller v. Alabama,
          132 S. Ct. 2455 (2012),] since the life sentence constitutes
          cruel and unusual punishment in violation of the Eighth
          Amendment to the United States Constitution and Article I,
          Section 13 of the Pennsylvania Constitution, and is a basis
          for relief under the PCRA and 42 Pa.C.S.A. § 6501 et seq?

Brief for Appellant at 4.

            This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.
      Great deference is granted to the findings of the PCRA court, and
      these findings will not be disturbed unless they have no support
      in the certified record. Moreover, a PCRA court may decline to
      hold a hearing on the petition if the PCRA court determines that
      a petitioner’s claim is patently frivolous and is without a trace of
      support in either the record or from other evidence.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).

      In his first claim, Williams asserts that his counsel was ineffective for

failing to interview alibi witnesses, Tracy Barnes (“Tracy”) and Shawntay

Barnes (“Shawntay”), and present their testimony at trial.               Brief for

Appellant at 15-16, 23, 27-28.        Williams argues that counsel’s failure to

interview the alibi witnesses or file a notice of alibi pursuant to Pa.R.Crim.P.

567, prejudiced him.        Id. at 23-24.   Williams specifically argues that it is

counsel’s duty to investigate all avenues leading to the facts of relevant

guilt, even if counsel thinks that the particular avenue offers little chance of

success. Id. at 26. Williams claims that the PCRA court should have held a

hearing on this claim. Id. at 28-29.




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      To succeed on an ineffectiveness claim, Williams must demonstrate by

the preponderance of the evidence that

      (1) [the] 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 proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).                  Counsel is

presumed to be effective, and the burden is on the appellant to prove

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

      In seeking to establish that counsel was ineffective for failing to call or

investigate the alibi witnesses, Williams must show,

      (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 wiling 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.

Commonwealth v. Sneed, 45 A.2d 1096, 1108-09 (Pa. 2012). Further, for

an alibi defense to be valid, it must be “a defense that places the defendant

at the relevant time in a different place than the scene involved and so

removed therefrom as to render it impossible for him to be the guilty party.”

Commonwealth v. Roxberry, 602 A.2d 826, 828 (Pa. 1992) (citation

omitted).




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     Here, the evidence established that the murder occurred on January

29, 2005, at approximately 2:20 a.m. See N.T., 9/14/06, at 129-40. In her

affidavit, Tracey stated that Williams was at her house from 6:45 p.m., on

January 28, 2005, until 9:00 a.m. the following morning. Affidavit of Tracey

Barnes, 10/24/11. Tracey also stated that at 3:00 a.m., she saw Williams

asleep with her daughter. Id. Shawntay stated that, Williams was in her

presence from 6:45 p.m., on January 28, 2005, until 9:00 am the following

morning, and that Williams was unable to leave the house because Tracey

locked the house up for the night. Affidavit for Shawntay Barnes, 10/24/11.

Shawntay stated that they slept in the same bed that night from 12:30 a.m.

until 9:00 a.m. See id.

     Based upon the proffered affidavits, the alibi does not completely

support an alibi defense because Williams could have left the residence while

Tracey and Shawntay were sleeping, therefore, it fails to present a version

of events that made it impossible for Williams to commit the murder. See

Roxberry, 602 A.2d at 828 (stating that an alibi defense is valid if it makes

it impossible for the defendant to have committed the crime). Indeed, the

murder occurred at approximately 2:20 a.m., a time which neither Tracey

nor Shawntay could account for Williams.

     Moreover, even if Williams had presented such evidence, it would not

have changed the outcome of the proceeding due to the overwhelming

evidence of Williams’s guilt, including a detailed confession, eyewitness



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testimony, and fingerprint analysis. See N.T., 9/15/06, at 91-125; see also

Trial Court Opinion, 7/20/07, at 2-5, 7-9; Commonwealth v. Bishop, 936

A.2d 1136, 1140 (Pa. Super. 2007) (stating that in light of overwhelming

evidence of appellant’s guilt, there was no prejudice). Accordingly, because

the claim is without support from the record, the PCRA court properly

dismissed the Petition without an evidentiary hearing. See Carter, 21 A.3d

at 682. Thus, Williams’s first claim is without merit.

         In his second claim, Williams argues that counsel was ineffective for

failing to present his testimony at trial.   Brief for Appellant at 30, 34, 38.

Williams contends that trial counsel never informed him of his right to testify

at trial, and Williams was not aware of the full extent of his right to testify at

trial.    Id. at 30, 34-36.   Also, Williams asserts that trial counsel never

discussed the advantages and disadvantages of testifying.          Id.   Williams

claims that the PCRA court should have held an evidentiary hearing on this

issue. Id. at 30, 37-38.

         In order to support his ineffectiveness claim for failing to present

Williams’s testimony, Williams must demonstrate either that “(1) counsel

interfered with [Williams’s] freedom to testify, or (2) counsel gave specific

advice so unreasonable as to vitiate a knowing and intelligent decision by

[Williams] not to testify in his own behalf.” Commonwealth v. Thomas,

783 A.2d 328, 334 (Pa. Super. 2001) (citation omitted).




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      Williams waived his right to testify at trial during a colloquy by the trial

court. N.T., 9/18/06, at 96. The trial court explained to Williams that even

if his attorney advised him not to testify, Williams must make the ultimate

decision.   Id. at 97.   Williams confirmed that he did not wish to testify

during the colloquy. Id. at 98-99.

      Based on the foregoing, the record supports the PCRA court’s

determination that Williams made a knowing, voluntary, and intelligent

waiver of his right to testify. See Commonwealth v. Lawson, 762 A.2d

753, 753 (Pa. Super. 2000) (stating that a defendant who made a knowing,

voluntary, and intelligent waiver of testimony may not later claim ineffective

assistance of counsel for failure to allow defendant to testify); see also

Commonwealth v. Schultz, 707 A.2d 513, 520 (Pa. Super. 1997) (stating

that while appellant may believe that the failure to testify on her own behalf

prejudiced her, counsel was not ineffective where appellant knowingly

waived her right to testify). The record reflects that Williams has failed to

prove that his trial counsel interfered with his freedom to testify or gave him

specific unreasonable advice so as to vitiate a knowing and intelligent

decision to testify on his own behalf.    Moreover, as noted above, Williams

cannot demonstrate prejudice in light of the overwhelming evidence of his

guilt. Further, because the claim is patently frivolous and without support

from the record, the PCRA court properly dismissed the Petition without an




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evidentiary hearing. Carter, 21 A.3d at 682. Thus, Williams’s second claim

is without merit.

      In his third claim, Williams argues that his life sentence without parole

was rendered unconstitutional by Miller.       Brief for Appellant at 39-63.

Williams specifically argues that Miller created a new substantive rule that

should be applied retroactively.     Id. at 48.    Williams argues that the

Supreme Court’s decision in Commonwealth v. Cunningham, 81 A.3d 1

(Pa. 2013), holding that Miller would not be applied retroactively and

precluding relief, was wrongly decided. Brief for Appellant at 46.

      Here, Williams’s judgment of sentence became final in 2009, over

three years prior to the June 2012 Miller decision.         The Pennsylvania

Supreme Court held that Miller does not apply retroactively to juveniles in

Pennsylvania whose judgments of sentence were final at the time Miller was

decided. See Cunningham, 81 A.3d at 10; see also Commonwealth v.

Seskey, 86 A.3d 237, 243 (Pa. Super. 2014) (stating that this Court is

confined by the Cunningham decision).2 Thus, Williams’s        final claim is

without merit.

      Order affirmed.




2
  The United States Supreme Court granted certiorari in Montgomery v.
Louisiana, 135 S. Ct. 1546 (2015), to determine whether Miller applies
retroactively. However, until this decision is issued, Cunningham remains
binding. See Commonwealth v. Cristina, 114 A.3d 419, 424 n.1 (Pa.
Super. 2015) (Mundy, J., concurring).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2015




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