J-S19006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER M. WILLIAMS                    :
                                               :
                       Appellant               :   No. 2344 EDA 2018

               Appeal from the PCRA Order Entered July 10, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0004715-2011


BEFORE:      LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                                FILED MAY 02, 2019

       Christopher M. Williams appeals from the order, entered in the Court of

Common Pleas of Philadelphia County, denying his petition filed pursuant to

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

appeal, PCRA counsel has filed an “Anders Brief” and an application to

withdraw.1     Based on our review of the record, we deny PCRA counsel’s

application to withdraw, vacate and remand for a hearing.



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1Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
apparently under the mistaken belief that an Anders brief is required where
counsel seeks to withdraw on appeal from the denial of PCRA relief.
A Turner/Finley no-merit letter, however, is the appropriate filing. See
Commonwealth v. Turner, 544 A.2d 927 (1988); Commonwealth v.
Finley, 550 A.2d 213 (1988). However, because an Anders brief provides
greater protection to a defendant, this Court may accept an Anders brief in


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        We summarize the procedural history on this matter as follows. On April

5, 2011, Williams was arrested on numerous charges related to the violent

robbery of a hearing-impaired man. On March 9, 2012, a jury found Williams

guilty of robbery,2 conspiracy to commit robbery,3 and burglary.4 On May 16,

2012, the trial court sentenced Williams to an aggregate term of ten to thirty

years’ incarceration.      Williams filed a direct appeal to this Court, which

affirmed his judgment of sentence on June 20, 2013. See Commonwealth

v. Williams, 1526 EDA 2012 (Pa. Super. June 20, 2013) (unpublished

memorandum decision).           The Supreme Court of Pennsylvania denied his

petition for allowance of appeal on December 3, 2013. See Commonwealth

v. Williams, 370 EAL 2013 (Pa. 2013).

        On December 8, 2014, Williams filed a pro se PCRA petition. The PCRA

court appointed counsel, J. Matthew Wolfe, Esquire, who filed an amended

PCRA petition on July 22, 2016. In the amended petition, Williams argued

that trial counsel was ineffective for failing to obtain surveillance videos from

the crime area that would have shown that Williams was not involved in the



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lieu of a Turner/Finley letter. Commonwealth v. Widgins, 29 A.3d 816,
817 n.2 (Pa. Super. 2011).

2   18 Pa.C.S.A. § 3701(a)(1)(ii).

3   18 Pa.C.S.A. § 903.

4   18 Pa.C.S.A. § 3502(a).


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crimes of which he was accused. Williams also requested discovery to allow

him to obtain copies of the surveillance videos, either from the District

Attorney or via subpoena, as well as a hearing to examine Williams and trial

counsel, Public Defender Krista Quinn, on the record. PCRA counsel attached

certifications to the amended petition. The certifications aver that Williams

would testify at a PCRA hearing that he told his trial counsel of the videotape

evidence, and that trial counsel would testify “as to her knowledge of the

existence of the videotapes, her efforts to obtain them and the reasons why she

did not present said evidence.”

      The record does not contain an order granting or denying discovery.

However, in response to the PCRA court’s directive, in a letter dated June 6,

2018, the Assistant District Attorney stated that she found nothing in the

Commonwealth’s “trial file” to suggest the Commonwealth ever possessed any

surveillance videos. The Commonwealth filed a motion to dismiss on May 9,

2018. Williams did not respond to the motion. On July 6, 2018, the PCRA

court dismissed the petition without first issuing a notice of intent to dismiss

pursuant to Pa.R.Crim.P. 907. PCRA counsel filed a notice of appeal and a

statement pursuant to Pa.R.A.P. 1925(c), stating his intent to file an Anders

brief. The PCRA court did not issue a Rule 1925(a) opinion.

      On appeal, we examine the record to determine if the PCRA court erred

in denying relief without a hearing. Commonwealth v. Burton, 121 A.3d

1063, 1067 (Pa. Super. 2015). Counsel has requested to withdraw, therefore,


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we must independently review the record to determine whether there exist

any potentially meritorious issues. Commonwealth v. Pitts, 981 A.2d 875,

876 n. 1 (Pa. 2009). Here, we find possible merit to the raised issue, because

the record shows genuine issues of material fact were not addressed by

counsel or the trial court.   Therefore, we must remand for an evidentiary

hearing.

      A petitioner’s right to an evidentiary hearing is not absolute. “It is within

the PCRA court’s discretion to decline to hold a hearing if the petitioner’s claim

is patently frivolous and has no support either in the record or other evidence.”

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (quoting

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007) (internal

citations omitted)). For a PCRA court to deny relief without a hearing, there

must be no genuine issue of material fact. See Pa.R.Crim.P. 907.

      Williams’ issue concerns whether trial counsel was ineffective.          We

presume counsel was effective, and it is Williams’ burden to prove otherwise.

See Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). To prevail on

an ineffectiveness claim, Williams’ must establish:

      (1) the underlying claim has arguable merit; (2) no reasonable
      basis existed for counsel’s actions or failure to act; and (3)
      [appellant] suffered prejudice as a result of counsel’s error such
      that there is a reasonable probability that the result of the
      proceeding would have been different absent such error.

Commonwealth v. Lesko, 15 A.3d 345, 373-74 (Pa. 2011). Williams must

prove each element; merely alleging each element is not sufficient.           See


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Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015). A reasonable

basis does not require that counsel chose the most logical course of action,

but that the decision had some reasonable basis. Commonwealth v. Bardo,

105 A.3d 678, 684 (Pa. 2014). “To demonstrate prejudice, a petitioner must

show that there is a reasonable probability that, but for counsel’s actions or

inactions, the result of the proceeding would have been different.” Mason,

130 A.3d at 618 (citing Strickland v. Washington, 466 U.S. 668, 684

(1984)).

         If Williams is able to show that his trial counsel was aware of

surveillance video that showed he was not involved in the crime, he would

have a successful ineffective assistance of counsel claim.         PCRA counsel

certified that Williams would testify that Williams told trial counsel of the video

surveillance before the trial. Trial counsel did not offer such evidence at trial.

Williams has clearly pled sufficient facts to raise a genuine issue concerning

the first two elements of his claim of ineffective counsel. The last element,

prejudice, is unclear from the facts. Nevertheless, PCRA counsel has failed to

explain why there was no basis for PCRA relief.5        Out of an abundance of


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5 PCRA counsel asserts that because the video was not in the Commonwealth’s
trial file there was “no longer any basis for PCRA relief.” Anders Brief, at 11.
However, the Commonwealth not having the video is not dispositive of
effectiveness of William’s trial counsel. We are unable to determine from the
Anders brief and certified record how counsel came to such a conclusion.
Such uncertainty is compounded by the fact that the PCRA court never issued



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caution, we require an evidentiary hearing to give Williams an opportunity to

satisfy the Strickland elements.

         On remand, the PCRA trial court should determine, on the record: 1)

whether Williams informed trial counsel of the existence of the surveillance

videos; 2) if trial counsel was informed, why she chose not to investigate the

surveillance videos; and 3) if there are surveillance videos, can Williams prove

the surveillance video’s absence prejudiced him. The third prong will require

Williams to prove, by a preponderance of the evidence, that if the surveillance

video had been viewed by the jury, there is a reasonable probability that the

outcome of the trial would have been different.

       Order vacated.       Petition to withdraw denied.   Case remanded for

proceedings consistent with the dictates of this memorandum. Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/19



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a Pa.R.Crim.P. 907 notice. Without the Rule 907 notice, we do not know the
basis of the PCRA court’s dismissal.


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