Com. v. Washington, T., Sr. ( 2017 )

J-S64044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
TRAVIS TAIA WASHINGTON, SR.
Appellant No. 1870 MDA 2016
Appeal from the PCRA Order October 20, 2016
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0006836-2011
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 16, 2017
Appellant, Travis Taia Washington, Sr., appeals from the order entered
in the York County Court of Common Pleas denying his first petition filed
pursuant to the Post Conviction Relief Act1 (“PCRA”). Appellant contends plea
counsel was ineffective for failing to investigate possible witnesses and
defenses. We affirm.
The relevant facts and procedural history of this case are as follows.
Appellant shot his wife during a domestic dispute. On June 26, 2012,
Appellant entered an open guilty plea to attempted criminal homicide 2 and
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S §§ 9541-9546.
2 18 Pa.C.S. §§ 901(a), 2502(a).
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terroristic threats.3 The trial court sentenced Appellant on August 27, 2012,
to an aggregate term of ten to twenty years’ imprisonment. Thereafter,
Appellant filed a pro se motion to withdraw his guilty plea. Following a hearing
on Appellant’s motion, the court denied it on February 27, 2013. Appellant
timely appealed, and this Court affirmed his judgment of sentence on January
28, 2014. See Commonwealth v. Washington, 96 A.3d 1094 (Pa. Super.
2014) (unpublished memorandum).
Appellant timely filed a pro se PCRA petition on August 18, 2014, as well
as a subsequent amended petition, in which he raised claims of ineffective
assistance of plea counsel for, inter alia, failing to investigate possible
witnesses and defenses. The PCRA court appointed counsel and conducted a
hearing on the motion during which both plea counsel and Appellant testified.
Following the hearing, the PCRA court denied Appellant’s motion on October
20, 2016. Appellant timely filed a notice of appeal on November 15, 2016.
The PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
complied.
Appellant raises the following issues for our review:
1. Whether the PCRA court erred in denying the Petition for
Post-Conviction Relief for ineffective assistance of counsel
on the basis that [] Appellant’s [plea] counsel failed to
reasonably investigate potential defenses to be raised at
3 18 Pa.C.S. § 2706(a)(1).
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trial before advising [] Appellant to enter an open guilty
plea?
2. Whether the PCRA court erred in denying the Petition for
Post-Conviction Relief for ineffective assistance of counsel
on the basis that [] Appellant’s [plea] counsel failed to
introduce [] Appellant’s mental health records as mitigation
evidence at sentencing?4
Appellant’s Brief at 4.
Appellant argues plea counsel was ineffective for failing to investigate
witnesses that would have supported a claim of self-defense. Appellant
contends plea counsel ignored his request to investigate the claim and this
failure forced Appellant to plead guilty. Specifically, Appellant alleges he
asked plea counsel to investigate several witnesses who were familiar with the
victim’s history and her propensity for aggression and violence. Appellant
claims that by interviewing these witnesses, plea counsel would have been
able to develop a claim of self-defense for trial. Appellant maintains plea
counsel’s actions lacked any reasonable basis, and had he investigated this
claim Appellant would not have pled guilty. Appellant concludes this Court
should reverse the PCRA court’s denial of his petition and remand for a trial.
No relief is due.
The standards for reviewing the PCRA court’s denial of a PCRA claim are
as follows:
[A]n appellate court reviews the PCRA court’s findings of
fact to determine whether they are supported by the record,
4 Appellant has withdrawn the second issue raised in his brief for lack of
support in the record. Therefore, we will not address it.
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and reviews its conclusions of law to determine whether
they are free from legal error. The scope of review is limited
to the findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at
the trial level.
Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super. 2014)
(some citations omitted).
[C]ounsel is presumed to have provided effective
representation unless the PCRA petitioner pleads and proves
that: (1) the underlying claim is of arguable merit; (2)
counsel had no reasonable basis for his or her conduct; and
(3) [a]ppellant was prejudiced by counsel’s action or
omission. To demonstrate prejudice, an appellant must
prove that a reasonable probability of acquittal existed but
for the action or omission of trial counsel. A claim of
ineffective assistance of counsel will fail if the petitioner
does not meet any of the three prongs. Further, a PCRA
petitioner must exhibit a concerted effort to develop his
ineffectiveness claim and may not rely on boilerplate
allegations of ineffectiveness.
Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (quotation
marks and citations omitted).
Instantly, the PCRA court concluded:
[F]or this claim to succeed, [a d]efendant is required to
show: 1) favorable witnesses existed; 2) the witnesses were
available; 3) counsel knew or should have known of the
existence of the witnesses; 4) the witnesses would have
testified on his behalf; and 5) the absence of the testimony
prejudiced him. Commonwealth v. Gonzalez, 608 A.2d
528, 532 (Pa. Super. 1992). [Appellant] has established
none of these things.
* * *
[Appellant] gave his own testimony [at the PCRA hearing]
that he may have been able to argue self-defense based on
witnesses . . . that could have shown the victim was
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aggressive and unstable. But that was it. [Appellant] never
provided the names of any witnesses, showed they would
have been willing and available to testify for him, or
explained how their testimony would have helped him. This
was woefully insufficient to establish ineffectiveness. See
Commonwealth v. Crawley, 663 A.2d 676, 680 (Pa.
1995) (rejecting similar claim because “the only evidence
which [a]ppellant offered to prove this claim was his
uncorroborated testimony at the evidentiary hearing”).
PCRA Ct. Order & Supporting Mem., 10/20/16, at 9-11. The record supports
the PCRA court’s findings, and we discern no error in the court’s legal
conclusion.5 See Perry, 959 A.2d at 936.
Thus, we agree with the PCRA court that Appellant did not establish his
claim that plea counsel was ineffective for failing to investigate possible
witnesses and affirm the order denying Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2017
5Furthermore, we note that plea counsel testified at the PCRA hearing that he
did not think it would advance Appellant’s case to talk to any witnesses
because, based on the police report and the statements of three independent
witnesses who saw the crime occur, Appellant chased the victim, his wife, out
of the back door of the house and shot at her as she was running away from
Appellant. N.T., 2/23/16, at 11-13. Plea counsel stated his strategy was
effective due to the circumstances of the crime and the details surrounding it
as well as the discovery from the Commonwealth’s witnesses. Id. at 17.
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