J-A24001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

STANFORD WILLIAMS

                         Appellant                 No. 1932 WDA 2015


               Appeal from the PCRA Order November 9, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0000019-1994


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                       FILED December 1, 2017

      Stanford Williams appeals from the November 9, 2015 order entered in

the Allegheny County Court of Common Pleas denying his petition filed under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm.

      We have previously set forth the factual history of this case, which we

incorporate and adopt herein. Commonwealth v. Williams, No. 126 WDA

2000, unpublished mem. at 1-5 (Pa.Super. filed Aug. 9, 2002) (quoting Trial

Court Opinion, 12/7/00, at 2-7).

      This case has a complicated procedural history. Following a November

1996 trial, a jury was unable to reach a verdict. In August 1998, a second

trial ended in a mistrial.   On November 23, 1999, following a third trial,

Williams was convicted of first-degree murder, burglary, criminal conspiracy,
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careless driving, and driving on the right side of the road.1 On December 15,

1999, the trial court sentenced Williams to life in prison for the murder

conviction and a consecutive term of 5 to 10 years’ imprisonment for the

conspiracy conviction.       This Court affirmed the judgment of sentence on

September 9, 2011,2 and the Pennsylvania Supreme Court denied Williams’

petition for allowance of appeal on April 10, 2012.

       On October 23, 2012, Williams filed a timely pro se PCRA petition. The

PCRA court appointed counsel, who filed an amended petition. The PCRA court

held an evidentiary hearing. On November 17, 2015, the PCRA court denied

the petition, finding the issues lacked merit. On December 15, 2015, Williams

filed a timely notice of appeal.

       Williams raises the following issues on appeal:

           I. Did the lower court abuse its discretion in dismissing the
           PCRA petition where the petition was timely filed; [Williams]
           is serving a term of imprisonment pursuant to the instant
           convictions; he is eligible for relief based on violations of his
           constitutional rights; and his claims have not been
           previously litigated or waived?
____________________________________________


       18 Pa.C.S. §§ 2501(a), 3502, and 903(a)(1); 75 Pa.C.S. §§ 3714, and
       1

3301, respectively.

       2This Court originally remanded to the trial court for a hearing and re-
assessment of Williams’ Rule 600 motion. Commonwealth v. Williams, No.
126 WDA 2000, unpublished mem. at 13-14 (Pa.Super. filed Aug. 9, 2002).
Following remand, the trial court granted the motion. On appeal, this Court
reversed and re-instated the judgment of sentence. Commonwealth v.
Williams, No. 35 WDA 2005, unpublished mem. (Pa.Super. filed June 27,
2006). On March 2, 2007, the Pennsylvania Supreme Court denied Williams’
petition for allowance of appeal. Williams direct appeal rights were re-instated
and he appealed, raising issues other than the Rule 600 issue.

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         II. Did the lower court abuse its discretion in dismissing the
         PCRA petition where [Williams] established that his
         convictions were obtained in violation of the double jeopardy
         clause, and his right to the effective assistance of counsel of
         the United States and Pennsylvania Constitutions, because
         trial counsel failed to move to dismiss the charges on double
         jeopardy grounds?

         III. Did the lower court abuse its discretion in dismissing the
         PCRA petition where [Williams] established that his
         convictions were obtained in violation of his right to due
         process of law under the United States and Pennsylvania
         Constitutions, because trial counsel was ineffective for
         failing to lay a proper foundation for calling witness John
         Elash who would have raised a reasonable doubt as to the
         probative value of gunshot residue evidence?

Williams’ Br. at 4.

      In his first issue, Williams argues his petition was timely, he is currently

incarcerated, and his claims are not previously litigated or waived. The PCRA

court reviewed the merits of Williams’ claims and dismissed his PCRA petition

because the claims raised lacked merit. The PCRA court did not dismiss the

petition because the petition was untimely, because Williams was not currently

incarcerated, or because the claims were previously litigated or waived. This

issue, therefore, does not merit relief.

      Williams next argues that his trial counsel was ineffective for failing to

file a motion to bar re-trial following the grant of a mistrial during the August

1998 trial. He argues that the double jeopardy provisions of the United States

and   Pennsylvania    Constitutions   prohibited    the   Commonwealth       from

proceeding with the November 1999 trial.         He maintains that he did not




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request or consent to the mistrial, but rather that the trial court granted the

mistrial sua sponte without a manifest necessity to do so.

      During the August 1998 trial, Williams’ counsel, John Elash, Esquire,

informed the trial court that a defense witness, John Faingnaert, whose

testimony had been stipulated to for the November 1996 trial, had altered his

testimony. N.T., 8/13/98, at 315. The 1996 stipulation, which was based on

an affidavit from the witness and from the witness’s discussions with Elash,

stated that Faingnaert

         met Stanford Williams on the premises of the State
         Gamelands on November 7, 1996, between 12:00 and 1:00
         p.m. Mr. Faingnaert assisted Mr. Williams with the cleaning
         and test-firing of his deer rifle for the upcoming deer season,
         and this was a bolt-action rifle.

         I'm sorry. 1993. I'm sorry. That was November 7, 1993.

N.T., 11/19-22/96, at 391-92; see also N.T., 8/13/98, at 315, 317. In August

1998, Faingnaert informed the Commonwealth that he had not seen Williams,

nor had he told Elash that he had seen Williams. N.T., 8/12-14/98, at 315,

317. The following exchange then occurred:

         [THE COURT]: The problem that we have is that you can’t
         put that testimony forward because testimony through
         [Williams’] sister is hearsay. You would have to put him up
         and you would be impeaching your own witness. You
         couldn’t waive claims of ineffectiveness for your failure to
         come and testify in any subsequent impeachment of that
         witness if put forward by [the Commonwealth].

                                      ...

         We’re left in a situation where there is no out in terms of the
         continuation of this particular trial.



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           [DEFENSE COUNSEL]: Your Honor, I also, I don’t know
           what Mr. Williams wants to do. I know he has paid for four
           different attorneys in the recent past, he has paid for two
           trials to me. I don’t know if he has the funds to even go
           forward. I guess we would have to let the Court know that.
           Obviously, I can’t continue to represent him.

           THE COURT: You’re going to be a witness?

           [DEFENSE COUNSEL]: I am going to be a witness. If [the
           Commonwealth] wants to supplement, that is my
           understanding.[3]

Id. at 317-18. The trial court granted “[Williams’] motion for a mistrial.” Id.

at 321.4

       On direct appeal following his November 1999 trial, we found that

Williams waived his claim that the proceedings should have been dismissed

on double jeopardy grounds because he did not raise it before the trial court.

Commonwealth v. Williams, No. 824 WDA 2008, unpublished mem. at 8

(Pa.Super. filed Sept. 9, 2011). We further noted that even if he had not

waived the claim, Williams would not be entitled to relief because he sought



____________________________________________


       3The certified record in this case contains only limited portions of the
record from the August 1998 trial. Based on our review of that limited record,
it appears that Faingnaert’s recantation led Williams’ trial counsel to perceive
the need to testify about his earlier discussions with Faingnaert, thus
necessitating a new trial.

       4 The certified record contains only pages 315 through 322 of the
transcript from the August 1998 trial. Although that portion of the transcript
does not contain a “motion” for a mistrial, counsel stated that he could not
continue to represent Williams because counsel would be a witness. Further,
counsel did not object after the trial court granted “[Williams’] motion for a
mistrial.” N.T., 8/12-13/98, at 321.


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the mistrial and, therefore, a subsequent trial was not barred by double

jeopardy. Id. at 9.

       The PCRA court denied Williams’ ineffective assistance of counsel claim,

reasoning that the underlying claim lacked merit.         It found that, because

Williams requested a mistrial, the claim that double jeopardy barred a re-trial

was meritless. This was not error.

       Williams next argues that his counsel at his November 1999 trial, David

Shrager, Esquire, was ineffective for failing to lay a proper foundation for the

admission of the testimony of Elash, Williams’ prior counsel. The PCRA court

found:

            A hearing was held on Williams’ petition for post–conviction
            relief at which hearing Elash testified. By raising the claim
            of Shrager’s[5] ineffectiveness for failing to lay the proper
            foundation, Williams failed to put forward any information
            during Elash’s testimony as to what the scope of Elash’s
            testimony would have been.[6] It is known that at the first

____________________________________________


       5   Shrager was deceased at the time of the PCRA hearing.

       6At the November 1999 trial, the Commonwealth requested an offer of
proof regarding Elash’s testimony. The following exchanged then occurred:

            MR. SHRAGER: John spoke to Mr. Faingnaert on earlier
            occasions, and he would indicate that Mr. Faingnaert said
            that he had met with Stanford on November 7th, 1993 at
            the Gamelands, and that Mr. Faingnaert said to John Elash
            that he helped Mr. Williams sight the gun and clean the gun,
            or that he taught him how to clean the gun. He told him he
            taught him what was necessary to clean the gun, and that
            would be the offer.



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          trial Williams presented the testimony of John Faingnaert,
          who testified that he was game warden and that he assisted
          Williams in shooting and cleaning a rifle. This testimony was
          put forward to help explain why gunshot residue may have
          appeared on Williams’ hand when he was apprehended by
          the police and subsequently subjected to a gunshot residue
          test. Elash was available to testify on this subject, however,
          was never once asked a question during the post-conviction
          relief hearing as to what his testimony would have been. It
          was incumbent upon Williams not only to plead, but also to
          prove this particular claim of error and he has failed to do
          so.

1925(a) Op. at 7. We agree and conclude that the PCRA court did not err.

       Order affirmed.




____________________________________________


          MR. MERRICK: That wasn’t challenged. Mr. Faingnaert went
          beyond the offer in terms of what he said, and I hadn’t heard
          some things, but on those points it wasn’t challenged, and I
          might add I suspect that this testimony is being offered to
          show that he cleaned the gun, and that would be for the
          truth of the matter asserted. Faingnaert wasn’t asked about
          that by the defense on direct, and he wasn't crossed on it.

          THE COURT: He said he told whoever he was meeting with
          how to clean a gun.

          MR. MERRICK: And that wasn’t challenged. I didn't ask him
          question one about that, and I strongly object to this
          testimony.

          THE COURT: Sustained.

N.T., 11/23/99, at 34-35.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2017




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