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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 BRUCE WILLIAMS, JR.                      :
                                          :
                    Appellant             :     No. 1123 MDA 2019

            Appeal from the PCRA Order Entered June 12, 2019
  In the Court of Common Pleas of York County Criminal Division at No(s):
                         CP-67-CR-0000390-2012


BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED MARCH 24, 2020

      Bruce Williams, Jr., appeals from the post-conviction court’s June 12,

2019 order denying his timely-filed petition under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546.            Appellant raises two claims of

ineffective assistance of counsel. We affirm.

      Briefly, Appellant was convicted of third-degree murder and carrying a

firearm without a license based on evidence that he shot Jesse Heverling on

November 10, 2011, following an altercation at a crack house in York,

Pennsylvania. Appellant was 17 years old at the time of the shooting, but was

charged and tried as an adult. His jury trial commenced in August of 2013.

At the close thereof, Appellant was convicted of the above-stated charges. He

was sentenced on December 19, 2013, to a term of 17 to 40 years’

incarceration for his murder conviction, and a consecutive term of 3 to 6 years’
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incarceration for the firearms charge. He filed a timely post-sentence motion

challenging his sentence. The trial court denied that motion after a hearing.

      Appellant then filed an untimely direct appeal, which this Court quashed.

However, his direct appeal rights were reinstated after he filed a PCRA

petition. In Appellant’s nunc pro tunc appeal, he contended, inter alia, that

the jury’s verdict was against the weight of the evidence. Although Appellant

had raised this claim in his Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, and the trial court addressed it in its Rule 1925(a)

opinion, this Court deemed the claim waived because Appellant had failed to

raise it at sentencing, in his post-sentence motion, or during the hearing on

that motion.    See Commonwealth v. Williams, No. 1036 MDA 2015,

unpublished memorandum at 3 (Pa. Super. filed March 23, 2016).

Accordingly, we affirmed Appellant’s judgment of sentence. He did not file a

petition for allowance of appeal.

      Appellant thereafter filed a PCRA petition alleging, inter alia, that his

counsel acted ineffectively by not seeking an appeal with our Supreme Court.

The PCRA court appointed counsel for Appellant and ultimately granted that

aspect of his petition, permitting Appellant to file a nunc pro tunc petition for

allowance of appeal. Appellant filed that petition, which our Supreme Court

denied on January 11, 2018.

      On October 4, 2018, Appellant filed the pro se PCRA petition underlying

the present appeal.      Therein, he alleged, in pertinent part, that the

Commonwealth had committed prosecutorial misconduct at trial by permitting

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one of its witnesses, Elwood Gladfelter, to offer perjured testimony, and that

his trial counsel was ineffective for not objecting to this misconduct. 1 The

PCRA court appointed counsel, who filed an amended petition on Appellant’s

behalf, adding that his trial counsel was ineffective for failing to preserve a

weight-of-the-evidence claim for appellate review.      On June 12, 2019, the

court issued an order denying Appellant’s petition.2

       Appellant filed a timey notice of appeal, and he complied with the PCRA

court’s order to file a Rule 1925(b) statement. The court thereafter issued a

Rule 1925(a) opinion, stating that it was relying on the rationale set forth in

its June 12, 2019 order denying Appellant’s petition, as well as the Rule

1925(a) opinion it had filed during his direct appeal. Herein, Appellant states

one issue for our review:

       [I.] Did the [PCRA c]ourt err in finding that Appellant failed to
       meet his burden for ineffective assistance of [c]ounsel as his
       counsel failed to raise a weight[-]of[-]the[-]evidence claim as well
       as argue prosecutorial misconduct?

Appellant’s Brief at 4.

       Preliminarily, we recognize that “[t]his Court’s standard of review from

the grant or denial of post-conviction relief is limited to examining whether
____________________________________________


1 Appellant raised other claims in his pro se petition that he abandons on
appeal. Thus, we do not address those additional issues.

2 We note that the court did not issue a Pa.R.Crim.P. 907 notice of its intent
to dismiss Appellant’s petition without a hearing. However, he has not
objected to that omission on appeal and, thus, it is waived.              See
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (“The failure
to challenge the absence of a Rule 907 notice constitutes waiver.”) (citation
omitted).

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the lower court’s determination is supported by the evidence of record and

whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d 516,

520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4

(Pa. 1995)). Where, as here, a petitioner claims that he received ineffective

assistance of counsel, our Supreme Court has directed that the following

standards apply:

     [A] PCRA petitioner will be granted relief only when he proves, by
     a preponderance of the evidence, that his conviction or sentence
     resulted from the “[i]neffective assistance of counsel which, in the
     circumstances of the particular case, so undermined the truth-
     determining process that no reliable adjudication of guilt or
     innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
     “Counsel is presumed effective, and to rebut that presumption,
     the PCRA petitioner must demonstrate that counsel’s performance
     was deficient and that such deficiency prejudiced him.”
     [Commonwealth v.] Colavita, … 993 A.2d [874,] 886 [(Pa.
     2010)] (citing Strickland [v. Washington, 466 U.S. 668 ...
     (1984)]). In Pennsylvania, we have refined the Strickland
     performance and prejudice test into a three-part inquiry. See
     [Commonwealth v.] Pierce, [527 A.2d 973 (Pa. 1987)]. Thus,
     to prove counsel ineffective, the petitioner must show that: (1)
     his underlying claim is of arguable merit; (2) counsel had no
     reasonable basis for his action or inaction; and (3) the petitioner
     suffered actual prejudice as a result. Commonwealth v. Ali, …
     10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any of
     these prongs, his claim fails.” Commonwealth v. Simpson, …
     66 A.3d 253, 260 ([Pa.] 2013) (citation omitted). Generally,
     counsel’s assistance is deemed constitutionally effective if he
     chose a particular course of conduct that had some reasonable
     basis designed to effectuate his client’s interests. See Ali, supra.
     Where matters of strategy and tactics are concerned, “a finding
     that a chosen strategy lacked a reasonable basis is not warranted
     unless it can be concluded that an alternative not chosen offered
     a potential for success substantially greater than the course
     actually pursued.” Colavita, … 993 A.2d at 887 (quotation and
     quotation marks omitted).         To demonstrate prejudice, the
     petitioner must show that “there is a reasonable probability that,
     but for counsel’s unprofessional errors, the result of the

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      proceedings would have been different.” Commonwealth v.
      King, … 57 A.3d 607, 613 ([Pa.] 2012) (quotation, quotation
      marks, and citation omitted). “‘[A] reasonable probability is a
      probability that is sufficient to undermine confidence in the
      outcome of the proceeding.’” Ali, … 10 A.3d at 291 (quoting
      Commonwealth v. Collins, … 957 A.2d 237, 244 ([Pa.] 2008)
      (citing Strickland, 466 U.S. at 694….)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

      Here, Appellant’s single issue encompasses two distinct sub-claims of

trial counsel’s ineffectiveness, which we will address separately.    First, he

contends that counsel erred by not preserving a weight-of-the-evidence claim

in his post-sentence motion, thereby waiving that issue on direct appeal.

Notably, Appellant offers no discussion of why a challenge to the weight of the

evidence would have been successful had counsel preserved it. Instead, he

merely claims that he “had the right to have that issue go before the [trial

c]ourt and if then denied, … to have that issue reviewed by the Superior

Court.” Appellant’s Brief at 16.

      Appellant’s argument is insufficient to demonstrate ineffectiveness, as

he fails to explain why the jury’s verdict was contrary to the weight of the

evidence. It is well-settled that “[c]ounsel will not be deemed ineffective for

failing to raise a meritless claim.” Commonwealth v. Spotz, 896 A.2d 1191,

1210 (Pa. 2006) (citation omitted). Here, the PCRA court noted that, in its

Rule 1925(a) opinion authored in response to Appellant’s direct appeal, it

provided a lengthy analysis of his weight-of-the-evidence claim and concluded

that it was meritless. See PCRA Court Order, 6/12/19, at 7; see also Trial

Court Opinion, 7/17/15, at 3-12. Appellant does not discuss why this Court


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would have deemed the trial court’s decision an abuse of discretion, had

counsel properly preserved the weight claim for our review.                  See

Commonwealth v. Luster, 71 A.3d 1029, 1049 (Pa. Super. 2013) (“When a

challenge to the weight of the evidence is raised on appeal, our role … is not

to consider the underlying question of whether the verdict is against the

weight of the evidence, but is limited to determining whether the trial court

abused its discretion in ruling on the weight[-]of[-]the[-]evidence claims.”)

(citation and internal quotation marks omitted). Therefore, because Appellant

offers no analysis of the merits of his weight-of-the-evidence claim, he has

not proven that counsel was ineffective for failing to preserve it.

      Second, Appellant contends that his trial counsel was ineffective for not

objecting when the Commonwealth presented the ostensibly perjured

testimony of Elwood Gladfelter. By way of background, Gladfelter testified

both at an omnibus pre-trial hearing, and at trial, that Appellant had confessed

to Gladfelter that he had shot two people. More specifically, at trial, Gladfelter

explained that he was Appellant’s cellmate for approximately 4 months in

2012 and, during that time, Appellant talked to him about the murder. N.T.

Trial, 8/12/13-8/13/13, at 319-21. In this regard, Gladfelter testified:

      [The Commonwealth:] What did he say about why he was there
      that night?

      [Gladfelter:] He robbed a dude and shot somebody in the hand
      and shot the other guy on the shoulder.

      [The Commonwealth:] Did he say who it was who he shot in the
      shoulder?



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      [Gladfelter:] No, he didn’t say who it was.

      [The Commonwealth:] Did he say why he shot the guy in the
      shoulder?

      [Gladfelter:] The guy wanted to buy crack but I think he was there
      to rob him. He said something about calling Ike or something and
      calling this guy Jesse got there or something like that, you know,
      so.

      [The Commonwealth:] Did he say anything more than he shot
      him? Did he do anything else that night?

      [Gladfelter:] I guess when the dude ran out of there, he went
      down there and took money out of his pockets. I guess Ike was
      holding him on the street or something. He went down and took
      his money out of his pockets.

Id. at 321-22.

      Appellant now argues that Gladfelter’s testimony was clearly perjured

because only one person was shot, not two as Gladfelter claimed. He also

contends that Gladfelter testified incorrectly about other facts of the case.

Appellant insists that the prosecutor committed misconduct by presenting

Gladfelter’s perjured testimony, and that his defense counsel was ineffective

for not objecting.

      Appellant      has   failed   to   demonstrate   arguable   merit   to   this

ineffectiveness claim. Gladfelter testified about what Appellant told him; he

never claimed to have personal knowledge of the facts of the shooting.

Therefore, any inconsistencies between his testimony and the facts, as proven

by other evidence in the case, does not prove perjury on his part, as Appellant

might simply have relayed incorrect facts to Gladfelter. Therefore, the record

does not establish that Gladfelter committed perjury. Consequently, Appellant



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has not demonstrated arguable merit to his claim that trial counsel should

have objected to Gladfelter’s testimony and alleged prosecutorial misconduct.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/24/2020




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