J-S71045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD C. WATSON                          :
                                               :
                       Appellant               :   No. 459 EDA 2018

             Appeal from the PCRA Order Entered January 18, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0003953-2008


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JULY 21, 2020

        Richard C. Watson appeals pro se from the denial of his petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

The PCRA court concluded that the issues presented in Watson’s PCRA petition

were meritless. We affirm.

        Watson was convicted in October 2009, of first-degree murder,

burglary, robbery, and criminal conspiracy,1 following a bench trial. The trial

court sentenced Watson to life in prison without parole for the murder charge,

with further prison sentences on the other charges. Watson filed a timely

appeal and this Court affirmed his judgment of sentence on February 28,

2011. The Pennsylvania Supreme Court denied allowance of appeal on October

4, 2011.

____________________________________________


1   18 Pa.C.S. §§ 2502, 3502, 3701, and 903, respectively.
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       On August 16, 2012, Watson filed the instant pro se PCRA petition. The

PCRA court appointed Barnaby Wittels as PCRA counsel on November 19,

2013. A little over seven months later, in June 2014, Watson, acting pro se,

filed an amended PCRA petition. On September 26, 2017, PCRA counsel filed

a Turner/Finley letter as well as a petition to withdraw as counsel. 2 The

PCRA court then issued notice of its intent to dismiss Watson’s petition without

a hearing. See Pa.R.Crim.P. 907. Watson responded to the notice and

claimed, inter alia, that his PCRA counsel was ineffective for failing to zealously

investigate his claim of actual innocence. The PCRA court dismissed Watson’s

petition on January 18, 2018, and granted counsel’s motion to withdraw.

Watson filed the instant, timely, pro se appeal and a court-ordered Pa.R.A.P.

1925(b) statement. The trial court issued a Pa.R.A.P. 1925 (a) opinion, which

addressed the claims set forth in PCRA counsel’s Turner/Finley letter.

       The factual history underlying this case was aptly cited by this Court

previously:

             [Watson] met Raheim Mims [(“Mims”)], Marcus Parks
          [(“Parks”)], and Kiree Bennett [(“Bennett”)] in the early
          morning hours of July 28, 2006. After discussing plans to
          burglarize 5032 Jackson Street [in the Frankford section of
          Philadelphia] for drugs and money, Watson drove the entire
          group to Frankford.

             Upon arriving at 5032 Jackson Street, [Watson] exited
          his car and approached the front porch. Watson entered
          through the front gate and front door with an automatic
          handgun. The group proceeded to the second floor where
____________________________________________


2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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         Anthony Acevedo [(“Acevedo”)], Divine Amir Allah
         [(“Allah”)], and [Perry] were asleep. After finding drugs and
         money, Watson told [Perry] to kneel down, put his arms
         behind his back, and put his face in a mattress. [Watson]
         fatally shot [Perry] with an automatic handgun.

            Fellow conspirator, [Mims] testified. According to his
         testimony, the only person with a handgun was Watson.
         Mims was in the basement when he heard a gunshot come
         from the upstairs, middle room. After hearing the gunshot,
         Mims fled the crime scene. Nevertheless, he overheard
         Watson telling Parks to “stop bitching” about the shooting.
         [Watson] also showed Mims the drugs and money he took
         from 5032 Jackson Street.

             Victim [Acevedo] testified. He told the Court he was
         awakened by a smack to the face with an automatic
         handgun. After being told to get dressed he was directed to
         the upstairs, middle room where he noticed [Perry] and
         [Watson]. Watson was standing in the middle of the room.
         [Watson] directed [Perry] to lay against a bed with his face
         in a pillow. After the conspirators went through [Perry’s]
         pockets and pulled his pants down to his knees, [Acevedo]
         saw [Watson] fatally shoot [Perry]. After shooting [Perry],
         [Watson] pointed his gun at [Acevedo] and pulled the
         trigger. No bullet came from the gun, and the burglars
         scattered. In his testimony, he was asked to and identified
         [Watson] as the man who committed this homicide.

             Victim [Allah] testified. He was asleep in the upper,
         middle room when he was awakened by [Watson] striking
         him with an automatic handgun. [Allah] noticed [Watson]
         before being forced to put his face into a pillow. While
         [Allah] did not see the shooting of [Perry], he identified
         [Watson] as the shooter by his voice. [Watson] asked
         [Allah],“Where the money at?” Shortly thereafter the same
         voice said, “I don’t like this [ ].” [Perry] was then fatally shot
         in the back of the head.

Commonwealth v. Watson, 633 EDA 2010 (unpublished memorandum)

(February 28, 2011) (citing Trial Court Opinion, 8/2/10, at 3-4).




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        “Our standard of review of a PCRA court's dismissal of a PCRA petition

is limited to examining whether the PCRA court's determination is supported

by the evidence of record and free of legal error.” Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa.Super. 2003) (en banc).

        Our ability to conduct any meaningful appellate review is hindered by

Watson’s failure to conform his brief to the Pennsylvania Rules of Appellate

Procedure. See Pa.R.A.P. 2111.3 Watson’s brief does not contain any

statement of questions involved, statement of the case, summary of argument

____________________________________________


3   Rule 2111(a) provides:
        The brief of the appellant, except as otherwise prescribed by these rules,
        shall consist of the following matters, separately and distinctly entitled
        and in the following order:
        (1) Statement of jurisdiction.
        (2) Order or other determination in question.
        (3) Statement of both the scope of review and the standard of review.
        (4) Statement of the question involved.
        (5) Statement of the case.
        (6) Summary of the argument.
        (7) Statement of the reasons to allow an appeal to challenge the
        discretionary aspects of a sentence, if applicable.
        (8) Argument for the appellant.
        (9) A short conclusion stating the precise relief sought.
        (10) The opinions and pleadings specified in Subdivisions (b) and (c) of
        this rule.
        (11) In the Superior Court, a copy of the statement of the matters
        complained of on appeal filed with the trial court pursuant to Rule
        1925(b), or an averment that no order requiring a Rule 1925(b)
        statement was entered.
Pa.R.A.P. 2111(a)(1)-(11) (emphasis added).

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or any separate argument section. See Pa.R.A.P. 2116, 2117, 2118 & 2119.

Further, Watson’s failure to develop cogent argument, with reference to

relevant legal authority, in support of his arguments further waived his claims.

See Pa.R.A.P. 2119(a). Thus, because our review has been significantly

hampered by the systemic deficiencies in Watson’s brief, we find any issue

Watson was attempting to raise to be waived. See Commonwealth v.

Samuel, 102 A.3d 1001, 1005 (Pa.Super. 2014); Commonwealth v. Lyons,

833 A.2d 245, 252 (Pa.Super.2003).

      However, even if we did not find Watson’s claims to be waived, to the

extent we can discern the issues he alludes to, we find his claims to be

meritless. First, Watson appears to claim that his PCRA counsel was ineffective

for failing to conduct a “zealous” investigation into his actual innocence claim.

He points to the        delay PCRA counsel admittedly had in filing his

Turner/Finley letter. However, as the PCRA court pointed out, Watson

presented this claim on direct appeal and this Court rejected it. PCRA Ct. Op.,

3/22/19 at 2. It is well settled that a PCRA petitioner cannot obtain relief based

upon claims that have been previously litigated. See Commonwealth v.

Hutchins, 760 A.2d 50, 55 (Pa.Super. 2000).

      Next, it appears that Watson attempts to present several thinly

developed arguments asserting that his trial counsel was ineffective. He claims

that his trial counsel was ineffective for failing to object to the prosecutor’s

reference to two particular witnesses, during opening statements, who did not

ultimately testify at trial.

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      Counsel is presumed to be effective. Commonwealth v. Lesko, 15

A.3d 345, 374 (Pa. 2011). Thus, a petitioner claiming ineffective assistance of

counsel must plead and prove all of the following: (1) the underlying claim is

of arguable merit; (2) counsel’s inaction or action lacked a reasonable basis;

and   (3)   counsel’s   ineffectiveness   caused    the   petitioner   prejudice.

Commonwealth v. Keaton, 45 A.3d 1050, 1060 (Pa. 2012). “Prejudice in

the context of ineffective assistance of counsel means demonstrating there is

a reasonable probability that, but for counsel’s error, the outcome of the

proceeding would have been different.” Id. at 1061. Failure to satisfy just one

prong results in a denial of such a claim. Id.

      The PCRA court properly rejected this claim, because Watson cannot

show prejudice. Watson went to trial before a judge, not a jury, and we

presume that the trial judge knew that counsel’s opening statement was not

evidence and thus disregarded any reference during opening statements to

any witnesses or evidence not actually presented. See Commonwealth v.

Parker, 919 A.2d 943, 946 (Pa. 2007).

      Watson also makes the overarching and factually unsupported argument

that trial counsel was ineffective for “forcing” him to waive his right to both a

jury trial and his right to testify on his own behalf. However, at trial Watson

indicated, during a colloquy conducted by the trial court, that he waived his

right to a jury trial voluntarily and of his own free will. N.T. 10/6/09, at 38-

39. Further, Watson also clearly stated, “I don’t want to testify.” N.T.

10/14/09, at 19. Therefore, the record clearly belies Watson’s contentions and

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these claims are frivolous. See Commonwealth v. Paddy, 800 A.2d 294,

316 (2002) (“[A] defendant who makes a knowing, voluntary, and intelligent

decision concerning trial strategy will not later be heard to complain that trial

counsel was ineffective on the basis of that decision”). The PCRA court did not

err by denying Watson’s PCRA petition.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/20




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