J-S81027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MARK L. WILLIAMS

                            Appellant                    No. 62 EDA 2016


                   Appeal from the PCRA Order January 4, 2016
                In the Court of Common Pleas of Delaware County
               Criminal Division at No(s): CP-23-CR-0005614-2009

BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                             FILED MARCH 01, 2017

       Mark L. Williams appeals, pro se, from the January 4, 2016 order

denying his petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-45.1 We affirm.

       On September 22, 2009, Williams was arrested and charged with the

murder of Isaiah McLendon, who was shot multiple times on the sidewalk at

20 North Third Street in Darby Borough. At Williams’ trial, Gregory Graham



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       *
           Former Justice specially assigned to the Superior Court.
       1
       On December 23, 2015, Williams prematurely filed a pro se notice of
appeal, before the PCRA court had entered an order disposing of his petition.
The PCRA court entered its order denying the petition on January 4, 2016.
Therefore, we will treat Williams’ appeal as timely filed from the date of that
order.   See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”).
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testified that Williams had murdered McClendon and that Graham had

participated in the murder.

           [Graham] testified that he drove [Williams] to an alley
           behind [the scene of the crime]. [Williams] exited the car
           and told [Graham] to meet him at a Save-A-Lot store.
           While parked at the nearby Save-A[-L]ot store, [Graham]
           heard gunshots in the distance. Shortly after the shots
           rang out, [Williams] appeared at the Save-A-Lot, got into
           [Graham’s] car and said, “I shot that n[*****] and wonder
           if he’s dead.”       [Graham] then drove [Williams] to
           Philadelphia. Later, [Williams] telephoned [Graham] and
           solicited his assistance in disposing of the murder weapon.

Commonwealth v. Williams, No. 2728 EDA 2013, unpublished mem. at 5

n.2 (Pa.Super. filed Dec. 23, 2014) (quoting Commonwealth v. Graham,

No. 738 EDA 2011, unpublished mem. at 2 (Pa.Super. filed Feb. 8, 2012))

(some alterations in original).2

       The PCRA court set forth additional facts relevant to this appeal as

follows:

              At trial, defense counsel expressed his intention to call
           two witnesses, James Shepard and Stefan Fenwick.
           Shepard was available to testify, but his attorney, Stephen
           Gilson, Esq., advised him not to do so.           [Williams]
           proposed to call Shepard to impugn the credibility of
           Jeffrey Mason, the jailhouse snitch. [Williams] advised his
           counsel that Shepard might be called to testify that he
           witnessed Mason reviewing paperwork in [Williams’] cell.
           If Shepard did, indeed, so testify, this evidence may have
           raised the inference that Mason became familiar with
           [Williams’] case by reading paperwork, not by hearing
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       2
        Graham was also charged in McLendon’s murder but entered a plea
agreement in which he agreed to testify for the Commonwealth at Williams’
trial. Graham pled guilty to third-degree murder and conspiracy to commit
aggravated assault.


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            [Williams] actually admit to the crime. Stefan Fenwick
            could be called to the stand to give evidence that may
            have rebutted a portion of Gregory Graham’s account of
            his whereabouts on the day and night of the shooting.
            Both Shepard and Fenwick declined to testify.

               On October 19, 2010, Timothy Possenti, Esq. was
            appointed to represent these two reluctant witnesses.
            After consultation, he advised that each invoke his
            privilege against self-incrimination.

Opinion, 4/21/16, at 7 (“1925(a) Op.”) (citations omitted).            Thereafter,

defense counsel stated that in light of their invocation of the privilege, he

would not call either Shepard or Fenwick to testify. N.T., 10/19/10, at 6, 11.

The trial court then dismissed both witnesses. Id. at 9, 11.

       On October 20, 2010, the jury convicted Williams of first-degree

murder and carrying a firearm without a license.3          On December 7, 2010,

the trial court sentenced Williams to an aggregate term of life imprisonment

without the possibility of parole.         Williams timely appealed to this Court,

which affirmed his judgment of sentence on October 11, 2011.                  The

Pennsylvania Supreme Court denied Williams’ petition for allowance of

appeal on April 30, 2012.

       On September 24, 2012, Williams filed a timely pro se PCRA petition,

alleging several claims of trial counsel’s ineffectiveness.       The PCRA court

appointed counsel, who filed a Turner/Finley4 “no-merit” letter and a


____________________________________________


       3
           18 Pa.C.S. §§ 2502(a) and 6106(a)(1), respectively.
       4
      Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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motion to withdraw from representation on May 6, 2013.         Williams filed a

pro se response to the no-merit letter on May 28, 2013. On May 29, 2013,

the PCRA court issued notice of its intent to dismiss Williams’ petition, to

which Williams filed a pro se response. On September 17, 2013, the PCRA

court dismissed Williams’ PCRA petition and granted counsel’s motion to

withdraw.

       Williams timely appealed to this Court. On December 23, 2014, this

Court vacated the PCRA court’s order and remanded for an evidentiary

hearing on two of Williams’ ineffectiveness claims: (1) whether trial counsel

was ineffective for failing to object to the trial court’s acceptance of

Shepard’s and Fenwick’s assertions of the Fifth Amendment privilege against

self-incrimination; and (2) whether trial counsel was ineffective for failing to

object to the trial court’s jury instruction regarding Graham’s statement that

he “knew the real reason” for McLendon’s murder. Williams, No. 2728 EDA

2013, unpublished mem. at 21.

       Following remand and the appointment of new counsel, Williams filed

an amended PCRA petition. The PCRA court held a hearing on December 9,

2015, limited to the two issues identified in this Court’s prior memorandum.

At the conclusion of the hearing, Williams expressed his desire to waive

counsel and proceed pro se on appeal. The trial court conducted a Grazier5

colloquy and granted Williams’ request to proceed pro se.       On January 4,

____________________________________________


       5
           Commonwealth v. Grazier, 713 A.2d 31 (Pa. 1998).


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2016, the PCRA court denied Williams’ petition, concluding that trial counsel

was not ineffective.

      On appeal, Williams raises the following issues:

      1. THE PCRA COURT COMMITTED REVERSIBLE ERROR OF
         LAW, ABUSED ITS DISCRETION, AND DENIED [WILLIAMS]
         HIS STATE AND FEDERAL CONSTITUTIONAL DUE PROCESS
         RIGHTS    UNDER     THE  SIXTH  AND   FOURTEENTH
         AMENDMENTS; SPECIFICALLY WHERE THE COURT: a)
         ERRONEOUSLY DENIED [WILLIAMS’] [PCRA] CLAIM OF
         TRIAL COUNSEL’S CONSTITUTIONALLY DEFICIENT AND
         PREJUDICIAL INEFFECTIVE ASSISTANCE CONCERNING
         COUNSEL’S FAILURE TO PURSUE COMPULSORY PROCESS
         AT TRIAL; b) ERRONEOUSLY DENIED [WILLIAMS’] [PCRA]
         CLAIM   OF    TRIAL   COUNSEL’S  CONSTITUTIONALLY
         DEFICIENT AND PREJUDICIAL INEFFECTIVE ASSISTANCE
         CONCERNING COUNSEL’S FAILURE TO OBJECT TO THE
         COURT’S IMPROPER INSTRUCTION.

      2. PCRA COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
         VIOLATING [WILLIAMS’] STATE PROCEDURAL RIGHTS
         AND [FEDERAL] CONSTITUTIONAL DUE PROCESS RIGHTS
         UNDER THE FOURTEENTH AMENDMENT; SPECIFICALLY
         WHERE COUNSEL; a) FAILED TO TIMEL[Y] RAISE AS
         REQUESTED BY [WILLIAMS] FIVE (5) MERITORIOUS
         CLAIMS FOR RELIEF IN HIS AMENDED PCRA PETITION
         CAUSING APPELLANT’S CLAIMS TO BE PROCEDURALLY
         DEFAULTED AND BARRING THOSE CLAIMS FROM HABEAS
         CORPUS REVIEW.

Williams’ Br. at 4.

      Our review of an order denying PCRA relief is limited to determining

“whether the decision of the PCRA court is supported by the evidence of

record and is free of legal error.” Commonwealth v. Melendez–Negron,

123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s

factual findings “unless there is no support for [those] findings in the

certified record.” Id.

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         To prevail on a claim of ineffective assistance of counsel, a PCRA

petitioner must show that: (1) the underlying claim has arguable merit; (2)

counsel had no reasonable, strategic basis for his or her act or omission; and

(3) but for counsel’s act or omission, there is a reasonable probability that

the      outcome      of   the    proceedings    would     have     been      different.

Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999).                     Counsel is

presumed to be effective, and the petitioner has the burden of proving each

of the three prongs by a preponderance of the evidence. Commonwealth

v. Steckley, 128 A.3d 826, 831 (Pa.Super. 2015), app. denied, 140 A.3d 13

(Pa. 2016).

         First, Williams asserts that trial counsel was ineffective for failing to

object when the trial court accepted both Fenwick’s and Shepard’s

invocations of the Fifth Amendment privilege against self-incrimination at

trial.

         The Fifth Amendment to the United States Constitution affords

witnesses     the    privilege   against   answering   official   questions    if   they

reasonably believe the answers may incriminate them in subsequent

proceedings.        Commonwealth v. Brown, 26 A.3d 485, 494 (Pa.Super.

2011). The trial court is in the best position to determine whether the Fifth

Amendment privilege applies.          See Commonwealth v. Treat, 848 A.2d

147, 148 (Pa.Super. 2004).

         Our Court has explained the standard for evaluating a witness’s

invocation of the Fifth Amendment privilege as follows:


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             The relevant parameters of the privilege are clear. The
         privilege extends not only to statements that by
         themselves would be evidence that the declarant has
         committed a crime, but also to assertions that would be “a
         link in the chain” of evidence needed to convict. “An
         individual who invokes the privilege must have a
         reasonable basis for believing that the testimony to be
         given will be incriminatory.”

Id. (citations omitted). “Unless the privilege clearly does not apply, the trial

court should not require the witness to answer.”      Id. at 149. “[A]lthough

. . . there is no mandatory procedure for deciding whether the privilege

against self-incrimination should be allowed, one acceptable procedure is

[for the trial court] to hold an in camera review” of the witness’s proposed

testimony. Id. at 149-50.

      On remand, the PCRA court conducted an in camera, on-the-record

inquiry to determine whether Fenwick’s assertion of the Fifth Amendment

privilege was justified. The PCRA court met with Williams’ PCRA counsel and

trial counsel, Fenwick, and Fenwick’s counsel. After the in camera hearing,

the PCRA court determined that Fenwick had a reasonable basis for believing

that his proposed testimony would be incriminatory:

             [T]he evidence showed that Fenwick asserted his Fifth
         Amendment privilege . . . because he was awaiting his own
         trial on charges of criminal attempt to commit murder,
         aggravated assault and related crimes arising out of
         another shooting only a few feet from the spot at which
         Isaiah McLendon was shot. Fenwick and Williams were
         both members of a violent drug dealing gang known as the
         “Third Street Boys” that operated out of Darby Borough.
         According to a federal indictment entered into evidence,
         the gang used the house located at 20 N. 3rd Street as a
         stash house for cocaine and marijuana. If called to testify
         on behalf of Williams, the prosecution might [have been]
         able to elicit testimony from Fenwick on cross-examination

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           concerning his distribution of drugs, his use of the stash
           house, and his alleged shooting of another victim at the
           location of Isaiah McLendon’s death. It is clear to this
           Court that Fenwick had a very reasonable fear of self-
           incrimination in other criminal proceedings pending against
           him.

1925(a) Op. at 8. The record supports the PCRA court’s findings. Therefore,

we conclude that Williams’ ineffectiveness claim relating to Fenwick’s

assertion of the Fifth Amendment privilege lacks arguable merit.6

       With regard to Shepard, the PCRA court was unable to determine

whether his invocation of the Fifth Amendment privilege was justified

because Shepard failed to appear at the PCRA hearing7 and Williams’ trial

counsel could not recall the substance of his conversations with Shepard at

the time of trial.      Id.; see N.T., 12/9/15, at 49-54.    However, even if

Williams could establish that the trial court erred in accepting Shepard’s

invocation of the Fifth Amendment privilege, he failed to prove that had

Shepard testified, there is a reasonable probability that the outcome of the

trial would have been different. As the PCRA court explained:

               Even if this Court had ordered [Shepard] to take the
           stand, the defense cannot show that the absence of [his]
           testimony was so prejudicial that [Williams] was denied a
           fair trial. Quite to the contrary, [Shepard’s] proposed
           testimony did not directly contradict any aspect of the
____________________________________________


       6
        We need not analyze the remaining two ineffectiveness prongs
because counsel cannot be deemed ineffective for failing to raise a meritless
claim. See Commonwealth v. Bryant, 855 A.2d 726, 742 (Pa. 2004).
       7
        The record reflects that counsel for both Williams and the
Commonwealth were unable to locate Shepard at the time of the PCRA
hearing. N.T., 12/9/15, at 83-84.


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           account given by Mason, [Williams’] cell-mate. Rather,
           [Williams] proposed to call Shepard to raise questions
           about Mason’s veracity. . . .

                                      ...

              . . . The only question at trial was whether [Williams]
           was [McLendon’s] shooter. Although [Williams] attempted
           to establish an alibi defense, he made incriminating
           statements to the police; to a cell mate, Jeffrey Mason; to
           his godparents, Yolanda Wade and Dallas Andres, while
           being recorded by the surveillance video and audio; and to
           various other witnesses.      The evidence of guilt was
           overwhelming, so [Williams’] inability to call to the stand
           two criminals who might have given testimony that
           perhaps could have called into question some minor details
           of the prosecution’s case [would not have] upset the
           verdict.

1925(a) Op. at 9-10 (citations omitted).        We conclude that the record

supports the PCRA court’s findings.         Because Williams cannot establish

prejudice, his ineffectiveness claim relating to Shepard’s assertion of the

Fifth Amendment privilege fails.

      Next, Williams asserts that trial counsel was ineffective for failing to

object to the trial court’s jury instruction regarding Graham’s prior

inconsistent statement given to police at the time of his arrest.        At the

conclusion of Graham’s testimony, the trial court instructed the jury as

follows:

           One of the things that you need to know about witnesses
           is that one way of challenging their credibility is to
           demonstrate that they gave what is called prior
           inconsistent statements and in this case [defense counsel]
           has given – asked about statements that this witness[,]
           Mr. Graham[,] gave to Detective [Brian] Pitts. One of the
           statements was did you tell Detective Pitts that the
           decedent[,] Isaiah McLendon[,] was a drug dealer or was
           involved in drugs and he may have said that to Detective
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         Pitts and it was obviously inconsistent because he
         knew the real reason why this homicide occurred.
         There’s no evidence in this case that Isaiah McLendon was
         involved in dealing drugs and I want to make that clear to
         you. The reason for that testimony was not to indicate
         that the decedent was involved in drug dealing, but to
         show the inconsistent statements of the witness.

N.T., 10/15/10, at 145 (emphasis added).           Williams claims that this

instruction – and particularly the trial judge’s comment that Graham “knew

the real reason” for the murder – was prejudicial because it encouraged the

jury to disbelieve Graham’s initial statement to police, in which he did not

implicate Williams in the murder, and to believe Graham’s trial testimony

that Williams was the shooter.

      The trial court gave the limiting instruction to clarify that Williams was

using Graham’s prior inconsistent statement solely to impeach Graham, not

as character evidence concerning the victim. At the PCRA hearing, Williams’

trial counsel, Scott Galloway, Esquire, testified that he did not object to the

instruction or ask the trial court for clarification because he did not want to

open the door to character evidence concerning his client or draw further

attention to the trial judge’s remark.   N.T., 12/9/15, at 63-66.     Galloway

testified as follows:
         I requested that something along the nature that the jury
         instruction the Judge finally gave was given because the
         purpose of my cross examination was to show a prior
         inconsistent statement. . . . I chose not to object to that
         [instruction] because I didn’t want to, quite frankly, have
         the jury listen to the instruction again and think about it
         again. . . . As far as the one comment by the Judge, I
         chose not to object because I just didn’t want the jury to
         hear it again, quite frankly.



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Id. at 64-65. The PCRA court credited Galloway’s testimony and concluded

that Galloway made a reasonable, strategic decision not to challenge the

trial court’s instruction because he did not want to highlight the evidence.

Where matters of strategy and tactics are concerned, counsel’s assistance is

deemed effective if the course chosen had some reasonable basis designed

to effectuate his or her client’s interests. Commonwealth v. Koehler, 36

A.3d 121, 132 (Pa. 2012). The record supports the PCRA court’s conclusion

that Galloway’s reason for refraining from objecting or asking the court for a

corrective instruction was “well within the bounds of reason.” 1925(a) Op.

at 12.8

       Finally, Williams asserts that PCRA counsel was ineffective for failing to

raise five additional meritorious issues in his amended PCRA petition.

Williams identifies the five issues as follows:

           1) Trial counsel provided ineffective assistance . . .
           [s]pecifically where counsel: a) Failed to object at
           sentencing, raise in post-sentence motion, or raise on
           direct appeal the court erroneously imposing an illegal
           sentence which is not pursuant to any statute authorizing
           it. b) Failed to investigate witnesses Elonda Wade & Dallas
           Andrews or present any evidence at [Williams’]
           suppression hearing rendering the outcome a foregone
           denial. c) Failed to request a continuance at trial, raise in
           post-sentence motion, or raise on direct appeal the
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       8
         See Commonwealth v. Spotz, 870 A.2d 822, 832 (Pa. 2005)
(“Objections sometimes highlight the issue for the jury, and curative
instructions always do.”); Commonwealth v. LaCava, 666 A.2d 221, 230
(Pa. 1995) (noting that “an objection would have served only to highlight
this fleeting reference which otherwise cannot be reasonably be said to have
deprived appellant of a fair trial”).


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         outrageous     government      misconduct     regarding   the
         presentation of inadmissible cell phone evidence at
         [Williams’] trial. d) [Williams] was denied due process by
         the combined effect of the foregoing errors of [ineffective
         assistance of counsel] which rendered [his] trial
         fundamentally unfair. 2) Prior PCRA Counsel provided
         ineffective assistance . . . [s]pecifically where counsel: a)
         Failed to, after request from [Williams], raise the claim of
         after-discovered evidence which is predicated upon the
         affidavit of witness Gregory Graham recanting his prior
         testimony given at [Williams’] trial.

Williams’ Br. at 22. Williams, however, fails to develop any of these claims

in the argument section of his brief.         His only substantive argument with

respect to these claims is that each “provides a showing of merit and

prejudice that insued [sic] due to the error, [and] therefore, counsel had no

reasonable basis for failing to raise these claims and [Williams] was

prejudiced by counsel’s deficient performance.” Id. at 24.

      We     will    not    accept   a   petitioner’s    boilerplate   allegations   of

ineffectiveness without any discussion of the three required prongs of an

ineffectiveness claim.      See Commonwealth v. Paddy, 15 A.3d 431, 443

(Pa. 2011) (“[B]oilerplate allegations and bald assertions of no reasonable

basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove

that counsel was ineffective.”); Commonwealth v. Steele, 961 A.2d 786,

801-02     (Pa.     2008)   (rejecting   appellant’s    undeveloped    allegations   of

ineffective assistance of counsel in his brief).            Therefore, Williams has

waived these claims of PCRA counsel’s ineffectiveness.

      Order affirmed.




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     Judge Bowes joins in the memorandum.

     PJE Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2017




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