Com. v. Willis, S. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHAHEEM WILLIS :
:
Appellant : No. 1555 EDA 2018
Appeal from the Judgment of Sentence April 9, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005238-2009.
BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 15, 2019
Shaheem Willis appeals pro se from the order denying his first petition
for relief pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§
9541-9546. We affirm.
The PCRA court summarized the pertinent facts as follows:
At 3:30 p.m. on February 25, 2009, [Willis] stood on the
6100 block of Spruce Street in Philadelphia with two
brothers, Christian and Deshaoun Williams, when they saw
a car passing by which contained the stepmother and
brother of Antwoine Saunders, who previously had shot
Deshaoun. The victim in this case, Antwoine Saunders’
brother, twelve-year-old J.S., arrived in a car driven by his
mother, Tamika Anderson. As Anderson circled the block
looking for a parking place, J.S. noticed that either [Willis]
or one of the Williams brothers was pointing at the car.
Once the car was parked on the corner of 60th and Spruce
Streets, J.S. waited in the front-passenger seat while his
mother entered the school to pick up his sister.
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Soon after his mother exited, J.S. observed [Willis] and
Christian Williams approaching in the rearview mirror.
[Willis] drew an unlicensed, 9mm Luger handgun and fired
through the car window at J.S. shooting him in the chest.
[Willis] than ran up to the car, firing a second shot at J.S.
from only two feet away that struck J.S. in the hand. [Willis]
fled toward 60th Street. As Anderson exited the school, J.S.
exited the car and said, “Mom, they shot me.” She helped
J.S. lie down on the sidewalk and looked up to see [Willis]
secreting a gun into his pocket while he fled. Anderson
chased [Willis] but lost him in the crowd.
A nearby paratransit bus driver, Jonathan McGill, heard
the gunshots and observed [Willis] running from the scene
of the crime. McGill called police and gave them a physical
description of [Willis]. Crime scene investigators secured
the area and recovered five 9mm fired cartridge casings at
the scene of the shooting. Investigators determined that all
five casings had been ejected from the same gun.
J.S. spent two and a half weeks in the hospital, sustaining
what was described as grave, life threatening injuries that
required extensive surgery to all of his vital organs,
including removal of part of his lung. He had multiple scars
from the surgeries and bullet wounds. After being
discharged from the hospital, J.S. then spent several
months recovering from his injuries before he could resume
some of his normal activities.
On March 3, 2009, J.S. was shown a photo array. He
identified [Willis] as the shooter and Christian and Deshaoun
Williams as his companions.
Acting pursuant to a warrant, police arrested Deshaoun
Williams at his home, recovering from Deshaoun a cell
phone that contained a photo of him brandishing two
firearms. One of those firearms was the same type used to
shoot J.S. The cell phone also had [Willis] listed as one of
Deshaoun’s contacts, under [Willis’] nickname in the
neighborhood, “Shy.” In addition, police were directed by
Williams’ mother to a live bullet that matched the bullet
casings found at the crime scene. This bullet was found in
a room shared by the Williams brothers.
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On July 20, 2010, [Willis] was found guilty by a jury of
attempted murder, aggravated assault [and related
charges].
PCRA Court Opinion, 11/30/18, at 2-3 (footnote omitted).
On October 8, 2010, the trial court imposed an aggregate term of twenty
to forty years of imprisonment and a consecutive twelve-year probationary
term. Willis filed a timely post-sentence motion that was denied by operation
of law. Thereafter, Willis filed a timely appeal to this Court in which he
challenged the discretionary aspects of his sentence. Finding no merit to this
claim, we affirmed his judgment of sentence on June 12, 2011.
Commonwealth v. Willis, 53 A.3d 928 (Pa. Super. 2011) (unpublished
memorandum). On March 12, 2013, our Supreme Court denied Willis’ petition
for allowance of appeal. Commonwealth v. Willis, 63 A.3d 777 (Pa. 2013).
On October 7, 2013, the United States Supreme Court denied Willis’ petition
for writ of certiorari. Willis v. Pennsylvania, 571 U.S. 866 (2013).
The PCRA court summarized the subsequent procedural history as
follows:
On March 10, 2014, [Willis] filed the instant PCRA
petition. [Willis] filed an amended petition on August 29,
2014. On September 15, 2014, [Willis] filed a motion to
remove counsel and proceed pro se. On February 9, 2016,
a hearing was held pursuant to Commonwealth v.
Grazier, 552 Pa. 9 (Pa. 1998) and [Willis] was permitted to
proceed pro se for PCRA review. On April 25, 2016, [Willis]
filed a pro se Amended PCRA Petition and filed a
Supplemental Amended PCRA Petition on May 6, 2016. On
January 25, 2017, the Commonwealth filed a Motion to
Dismiss. [Willis] filed several responses to the
Commonwealth’s Motion to Dismiss on February 9, 2017,
April 21, 2017, June 23, 2017, and August 7, 2017. On
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March 8, 2017, the Commonwealth filed an Amended Motion
to Dismiss. On August 9, 2017, the Commonwealth filed a
Response to [Willis’] Third Supplemental PCRA Petition. One
of the issues raised was whether [Willis] was sentenced to
an illegal mandatory sentence pursuant to Alleyne v.
United States, 570 U.S. 99 (2013).
On April 9, 2018, a resentencing hearing was held. After
hearing testimony and reviewing the record and all
documents provided, this Court reimposed [Willis’] original
sentence and clarified [Willis’] sentence was not influenced
by any mandatory minimums.
On April 10, 2018, this Court sent [Willis] a 907 Notice of
Intent to Dismiss for lack of merit on [Willis’] remaining
PCRA claims. On May 1, 2018, [Willis] filed a response. On
May 4, 2018, following an independent review of the record,
and [Willis’] reply to the 907 Notice, this Court dismissed
[Willis’] PCRA Petition without a hearing for lack of merit.
PCRA Court Opinion, 11/30/18, at 4-5. This timely appeal followed.1 Although
the PCRA court did not require Willis to comply with Pa.R.A.P. 1925(b), the
court filed an opinion pursuant to Rule 1925(a).
Willis now raises the following issues:
A) Did not the [PCRA] court err and abuse its discretion in
regards to several issues such as: 1) failing to consider
sentencing factors set forth in 42 Pa.C.S. section
9721(b); 2) failing to adequately state on the record
reasons for the sentence imposed, including reasons for
the grossly disparate sentences between codefendants;
and 3) focusing solely upon the seriousness of the
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1 On February 7, 2019, Willis filed an “Application For Leave to File Post-
Submission Communication And Motion To Stay Proceedings For Remand To
The Trial Court For Full Evidentiary Hearing And Frye Hearings Pursuant To
PA.R.A.P. 2501.” In an order filed March 11, 2019, we deferred Willis’ request
to this panel for disposition. We deny Willis’ application for remand as moot.
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offense, resulting in a manifestly excessive and clearly
unreasonable sentence?
B) Did not the [PCRA] court err and abuse its discretion by
dismissing [Willis’] PCRA petition without an evidentiary
hearing to determine [trial] counsel’s reasonableness for
failing to impeach [J.S.] with prior sworn testimony and
inadequately cross examining this witness?
C) Did not [the] prosecution commit a fraud upon the court
and the [PCRA] court err and abuse its discretion by
failing to grant a new trial, dismissing [Willis’] PCRA
petition, not deeming [trial] counsel constitutionally
ineffective for failing to investigate and challenge the
false evidence on any grounds, constituting a complete
miscarriage of justice?
D) Did not the [PCRA] court err and abuse its discretion by
dismissing [Willis’] PCRA petition when [trial] counsel
was per se ineffective for failing to prepare for trial, while
his failure to investigate and call two eyewitnesses, and
his performance during trial supports counsel’s own
admission to his unpreparedness?
E) Did not the [PCRA] court err by confusing and misstating
[Willis’] codefendant with someone else; and abuse its
discretion by dismissing [Willis’] PCRA petition without an
evidentiary hearing to determine [trial] counsel’s reason
for failing to seek a jury instruction to limit the scope of
evidence that was only admissible against the
codefendant?
F) Did not the [PCRA] court err and abuse its discretion in
its disposition that [trial] counsel’s errors did not
constitutionally deprive [Willis] of his right to [the]
effective assistance of counsel?
Willis’ Brief at 4 (excess capitalization omitted). We will address Willis’ issues
in the order presented.
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record of the
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PCRA court's hearing, viewed in the light most favorable to the
prevailing party. Because most PCRA appeals involve questions
of fact and law, we employ a mixed standard of review. We defer
to the PCRA court's factual findings and credibility determinations
supported by the record. In contrast, we review the PCRA court's
legal conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
When the PCRA court has dismissed a petitioner’s PCRA
petition without an evidentiary hearing, we review the PCRA
court’s decision for an abuse of discretion. Commonwealth v.
Roney, 79 A.2d 595, 604 (Pa. 2013). The PCRA court has
discretion to dismiss a petition without a hearing when the court
is satisfied that there are no genuine issues concerning any
material fact, the defendant is not entitled to post-conviction
collateral relief, and no legitimate purpose would be served by
further proceedings. Id. To obtain a reversal of a PCRA court’s
decision to dismiss a petition without a hearing, an appellant must
show that he raised a genuine issue of material fact which, if
resolved in his favor, would have entitled him to relief, or that the
court otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).
In his first issue, Willis challenges the discretionary aspects of his new
sentence. Willis preserved his sentencing claims by filing a timely post-
sentence motion, upon which the court did not rule. See generally
Commonwealth v. Rodriguez, 174 A.2d 1130 (Pa. Super. 2017);
Pa.R.Crim.P. 720(A)(2)(b) (providing that, [if] the defendant files a timely
post-sentence motion, the notice of appeal shall be filed . . within 30 days of
the entry of the order denying the motion by operation of law in cases in which
the judge fails to decide the motion”). However, Willis did not appeal from his
judgment of sentence; instead, he raises a discretionary aspect challenge as
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part of his PCRA appeal. Given these circumstances, Willis’ sentencing claim
is not properly before us. See Commonwealth v. Fowler, 930 A.2d 586,
593 (Pa. Super. 2007) (explaining that challenges to the discretionary aspects
of sentencing are not cognizable under the PCRA).2
In his remaining claims, Willis alleges the ineffective assistance of trial
counsel. To obtain relief under the PCRA premised on a claim that counsel
was ineffective, a petitioner must establish, by a preponderance of the
evidence, that counsel's ineffectiveness so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).
“Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) counsel’s
act or omission prejudiced the petitioner. Id. at 533.
As to the first prong, “[a] claim has arguable merit where the factual
averments, if accurate, could establish cause for relief.” Commonwealth v.
Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts
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2Even had Willis filed a direct appeal of his new sentence we would have found
his discretionary challenge to be meritless, given that the trial court provided
ample reasons for its sentencing choice. See PCRA Court Opinion, 11/30/18,
at 20-22.
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rise to the level of arguable merit is a legal determination.’” Id. (citing
Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).
As to the second prong of this test, trial counsel's strategic decisions
cannot be the subject of a finding of ineffectiveness if the decision to follow a
particular course of action was reasonably based and was not the result of
sloth or ignorance of available alternatives. Commonwealth v. Collins, 545
A.2d 882, 886 (Pa. 1988). Counsel's approach must be "so unreasonable
that no competent lawyer would have chosen it." Commonwealth v. Ervin,
766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted).
As to the third prong of the test for ineffectiveness, “[p]rejudice is
established if there is a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different." Stewart, 84 A.3d at
707. “A reasonable probability ‘is a probability sufficient to undermine
confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899
A.2d 365, 370 (Pa. Super. 2006).
Finally, when considering an ineffective assistance of counsel claim, the
PCRA court “is not required to analyze these [prongs] in any particular order
of priority; instead if a claim fails under any necessary [prong] of the
ineffectiveness test, the court may proceed to that [prong] first.”
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).
In particular, when it is clear that the petitioner has failed to meet the
prejudice prong, the court may dispose of the claim on that basis alone,
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without a determination of whether the first two prongs have been met.
Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).
In his second issue, Willis contends that the PCRA court erred in
dismissing, without first holding an evidentiary hearing, his claim that trial
counsel was ineffective for failing to impeach the shooting victim, J.S.,
regarding J.S.’s allegedly prior inconsistent testimony at the preliminary
hearing and in otherwise cross-examining him. According to Willis, trial
counsel “failed to review the preliminary hearing transcripts,” and was thus
“unprepared for the victim’s inconsistencies concerning the most crucial
factors of the case.” Willis’ Brief at 7.
In its Rule 1925(a) opinion, the PCRA court explained that J.S.’s
preliminary hearing testimony was not inconsistent with his trial testimony
and that trial counsel effectively cross-examined J.S. regarding his
identification of Willis as the shooter. The court explained:
[Willis’] primary defense at trial was misidentification.
[He] claimed Trial Counsel failed to impeach J.S. properly
regarding whether he was able to identify the person who
shot him after broken glass fell in his face and he used his
hand to cover his face. On this basis, [Willis] argued that
as a result of Trial Counsel’s failure to question J.S.
regarding identification, “the jury remained unaware of
circumstances of which a fact-finder could reasonably infer
the possibility of a misidentification.”
“A failure to impeach a key witness is considered
ineffectiveness in the absence of a reasonable strategic
basis for not impeaching.” Commonwealth v. Treiber,
121 A.3d 435, 485 (Pa. 2015). [Willis] argued that J.S.’s
testimony at the preliminary hearing supported [Willis’]
misidentification defense, but that Trial Counsel failed to
question J.S. at trial on his ability to identify [him].
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However, J.S.’s testimony at trial and the preliminary
hearing were consistent. At the preliminary hearing . . . J.S.
never testified that he could not see because of any glass in
his face. J.S. merely testified that the first gunshot broke
the passenger window of the car and cut his face. Moreover,
to the contrary, J.S. was cross-examined at length at trial
about his ability to identify [Willis] during the shooting. J.S.
consistently and steadfastly identified [Willis] as the shooter
on cross-examination by [Trial] Counsel[.]
The weight and credibility of the identification was for the
jury to decide. After hearing all the facts of the case, the
jury clearly determined that J.S.’s identification was
credible, therefore this claim fails.
PCRA Court Opinion, 11/30/18, at 8-10 (citations omitted).
Our review of the record supports the PCRA court’s conclusions. To
support his claim, Willis cites to a portion of the preliminary hearing transcript
wherein J.S. testified that he used his hand to cover his head. See Willis’ Brief
at 17. However, even if J.S’s account of how the shooting took place at the
preliminary hearing and trial were not identical—whether he used his hand to
cover his head or only his chest—Willis has not demonstrated prejudice from
counsel’s lack of cross-examination on this issue, given J.S.’s clear and
unequivocal trial testimony that he was able to identify Willis as the person
who shot him. See Commonwealth v. Rios, 920 A.2d 790, 805 (Pa. 2007)
(explaining that prior counsel will not be found ineffective for failing to
impeach a witness with regard to minor inconsistencies). Thus, Willis’ second
issue fails.
In his third issue, Willis asserts that the Commonwealth committed a
fraud upon the court and, for that reason, he should be granted a new trial.
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In addition, Willis asserts that trial counsel was ineffective for failing to
“investigate and/or challenge the false evidence on any grounds,” because it
listed a different last name for the patient on some of the documents. Willis’
Brief at 22 (excess capitalization omitted).
Initially, Willis did not raise the fraud claim in his amended petition or
any supplement thereto. Instead, he first raised this claim in one of his several
responses to the PCRA court’s Rule 907 notice. Thus, we will not consider it
further. See Commonwealth v. Burton, 936 A.2d 521, 527 (Pa. Super.
2007) (explaining that claims not raised in the PCRA petition are waived).
The PCRA court rejected Willis’s claim that trial counsel was ineffective
for failing to object to the use of the J.S.’s medical records at trial. The Court
explained:
[Trial] counsel stipulated to the authenticity and content
of the medical records during trial. In this case, some of the
medical records would have been admissible because
statements made for medical diagnosis or treatment are an
exception to hearsay. Pa.R.E. 803(4). Under the
Pennsylvania Rules of Evidence, hospital records have been
admitted without witness testimony to show the fact of
hospitalization, treatment [prescribed], and symptoms
found. Commonwealth v. Xiong, 630 A.2d 446, 451-52
(Pa. Super. 1993). The stipulation merely avoided forcing
the Commonwealth to call medical personnel to authenticate
the medical records. The actual testimony would have
included greater detail regarding the extent of the victim’s
injuries, which the defense had reason not to highlight.
[Trial] counsel’s decision to stipulate to the [medical]
records was strategic.
PCRA Court Opinion, 11/30/18, at 16 (some citations omitted).
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In addition, the PCRA court concluded J.S.’s testimony at trial provided
ample evidence that, as a result of the shooting, he was seriously injured:
As proof of serious bodily injury, J.S. testified that he was
in the hospital for three weeks as a result of being shot in
the chest and hand. He testified that it took approximately
three months before he could resume normal activities and
that he has scars on his hand and chest as a result of the
shooting. J.S. showed the jury the scars on his hand, chest,
and abdomen as a result of the shooting and resulting
surgeries. J.S. testified that he gets tired faster as a result
of his injuries from the shooting. Furthermore shooting
someone is enough to demonstrate serious bodily injury.
Therefore, an abundance of evidence was presented to
demonstrate that, given the totality of the circumstances,
the victim was shot and sustained serious bodily injury as a
result.
Id. at 17 (citations omitted).
Our review of the record supports the PCRA court’s conclusion that Willis
has not established his ineffectiveness claim. Initially, Willis has failed to
proffer any documentation to support his claim that some of the medical
records used at trial did not belong to J.S. Without such a proffer, he cannot
establish ineffectiveness and the need for an evidentiary hearing. See
Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008) (explaining that, in
the absence of a sufficient proffer, a petitioner’s bare assertions would
inappropriately convert an evidentiary hearing into a “fishing expedition” for
possible exculpatory evidence).
Moreover, even if such records exist, Willis cannot establish how he was
prejudiced. As summarized by the PCRA court above, J.S. provided ample
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evidence that the shooting incident caused him to be seriously injured. Thus,
Willis’s third issue fails.
In his fourth issue, Willis asserts that trial counsel was ineffective for
failing to investigate and then call two eyewitnesses at trial. According to
Willis, trial counsel’s pre-trial investigation of the case was “non-existent,” and
he contends that trial counsel acknowledged on the record that he was
unprepared for trial. Willis further refers to his prior issues regarding the
preliminary hearing transcript and the medical records to further support this
claim of ineffectiveness.
Initially, we note that, although trial counsel stated that he was
unprepared for trial, this statement must be read in the context of when it
was made—the trial court denied trial counsel’s request to present expert
testimony regarding the reliability of eyewitness identifications. See N.T.,
7/12/10, at 15. This statement cannot be read to infer, as Willis suggests,
that trial counsel had completed no other pre-trial investigation. Indeed, our
review of the trial transcript reveals trial counsel was prepared for trial and
continued to present a misidentification defense.
The two eyewitnesses that Willis contends trial counsel should have
called were Corey Bell, the paratransit driver who was with his co-worker, Mr.
McGill, and Davida Dixon, a passenger in the paratransit bus. In order to
establish that trial counsel was ineffective for failing to investigate and/or call
a witness at trial, a PCRA petitioner must demonstrate that:
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(1) the witness existed; (2) the witness was available; (3)
trial counsel was informed of the existence of the witness or
should have known of the witness’s existence; (4) the witness
was prepared to cooperate and would have testified on
appellant’s behalf; and (5) the absence of the testimony
prejudiced appellant.
Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005).
The PCRA court concluded that Willis did not proffer sufficient evidence
to support his claim of ineffectiveness:
As required under the PCRA, [Willis] failed to provide any
affidavits or signed certifications from any proposed
witnesses demonstrating that they were available and
willing to testify on his behalf at trial. [Willis] attached
statements to his PCRA petition and stated without any
further support that these witnesses were available and
would have testified. [Willis’] unsupported assertion is
insufficient to warrant an evidentiary hearing.
PCRA Court Opinion, 11/30/18, at 13 (citations omitted). Once again, our
review of the record supports the trial court’s conclusion that Willis did not
proffer sufficient information to warrant an evidentiary hearing. Clark,
supra.
In addition, the PCRA court concluded that Willis could not establish
prejudice. The court explained:
Furthermore, [Willis] cannot demonstrate that there was a
reasonable probability that the outcome of the trial would
have been different if trial counsel had presented [the]
testimony of Bell and Davida. Neither witness could identify
the shooter’s face, however, both described the shooter’s
age, weight and clothing as being similar to the description
given by J.S. Significantly, the testimony from Bell and
Davida actually could have bolstered J.S.’s identification of
[Willis] as the shooter by providing a description similar to
J.S.’s description. At the very least, these witnesses could
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not have demonstrated that J.S. did not see the shooter, as
[Willis] asserted, because each of these witnesses had very
different vantage points. J.S. stated that he was sitting in
the passenger seat of his mother’s car and watched while
[Willis] approached his vehicle from the rearview mirror,
thus getting a full frontal view of [Willis]. This observation
was made after J.S. had also seen [Willis] standing on the
corner as someone pointed at the vehicle as it circled the
block. Given J.S.’s unequivocal identification of [Willis] as
the shooter, it was unlikely that the inability of other
possible witnesses in different vantage points to see the
shooter’s face would have caused a different outcome at
trial.
PCRA Court Opinion, 11/30/18, at 13-14.
Our review of the record supports the PCRA court’s conclusion that Willis
did not establish prejudice. Moreover, our review of the trial testimony
refutes Willis’ assertion that “these witnesses’ accounts of events clearly aided
counsel’s defense strategy of misidentification.” Willis’ Brief at 27. Even if
these witnesses testified at trial consistent with their statements to police,
their testimony would not discredit J.S.’s identification of Willis as the shooter,
given the differing circumstances described above by the PCRA court.
In his fifth issue, Willis claims that he was entitled to an evidentiary
hearing to determine whether trial counsel was ineffective for failing to seek
a jury instruction “to limit the scope of evidence that was only admissible
against the codefendant.” Willis’ Brief at 28 (excess capitalization). 3 In
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3 Christian Williams was Willis’ co-defendant and the jury convicted him on
similar charges. However, the Commonwealth did not charge Christian with
attempted murder. Although the record is not clear, it appears that all charges
originally filed against Deshaoun Williams involving this incident were later
dismissed.
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support of this issue, Willis first asserts that, because the PCRA court
misidentified which Williams brother was his co-defendant, the PCRA court’s
“disposition to this claim was based upon misinformation which was crucial in
determining whether [trial] counsel was ineffective[.]” Id. Willis then
contends that trial counsel’s failure to seek such an instruction “caused
damaging spill-over prejudice” to him. Id. We disagree.
At trial, the Commonwealth introduced into evidence a live 9mm bullet
that was found in the bedroom of Christian and Deshaoun Williams. The
Commonwealth also introduced a picture of Deshaoun Williams holding a
firearm that matched the description of the weapon used in this case.
Although misidentifying Willis’ co-defendant in its Rule 1925(a) opinion,
the PCRA court properly found this claim to be meritless. The court explained:
[Willis] argued that since he was not in the picture, the
jury could not consider it as evidence against him. To the
contrary, [Willis] was charged with criminal conspiracy
along with Deshaoun Williams [sic]. Therefore, the live
round was relevant and probative of [Willis’] involvement in
the conspiracy to commit attempted murder and aggravated
assault.
While [Willis] labeled his ineffective assistance of counsel
argument as a failure to request a limiting instruction,
[Willis] framed the argument as a failure to file a motion to
sever his case from his co-defendant. [Willis] claimed that
the evidence introduced against co-defendant Williams was
confusing and he suffered prejudice as a result. However,
as stated above, given the fact that [Willis] was charged
with conspiring with co-defendant Williams, there was great
weight against severing the co-defendants.
As a result, evidence that co-defendant Deshaoun
Williams [sic] possessed a firearm of the same make and
model as the one [Willis] used to shoot [J.S.] could be used
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as evidence of [Willis’] participation in the conspiracy as
well. Commonwealth v. Brewington, 740 A.2d 247, 252
(Pa. Super. 1999). Therefore, a limiting instruction was not
warranted and trial counsel could not be ineffective for
failing to raise a meritless objection. Commonwealth v.
Hannibal, 99 A.3d 197, 207 (Pa. 2016).
PCRA Court Opinion, 11/30/18, at 14-15.
In addition, the PCRA court concluded that Willis could not establish
prejudice:
Moreover, even if Trial Counsel was ineffective for failing
to request a limiting instruction, [Willis] was not prejudiced
by his failure. Given the substantive evidence introduced
against him at trial, including the identification by [J.S.], it
was unlikely that the jury would have arrived at a different
verdict even if this Court specifically instructed the jury that
the photograph of co-defendant Williams [sic] holding a gun
and the 9mm bullet found in co-defendant Williams’s
bedroom could only be used against Williams.
Commonwealth v. Spotz, 84 A.3d 294, 314, 317 (Pa.
2014) (finding that the court must analyze the nature of the
alleged violation “against the strength of the prosecution’s
case at trial” to determine suffered prejudice and that
“where there was overwhelming evidence of guilt, outcome
of the trial would not have been different had trial counsel”
pursued a different action or strategy).
PCRA Court Opinion, 11/30/18, at 14-15.
Our review of the record supports the PCRA court’s conclusion. Although
Willis no longer argues severance, the fact that he and Christian Williams were
charged with conspiracy renders his claim meritless. In addition, as the PCRA
court stated, given the overwhelming evidence of guilt, Willis cannot establish
prejudice. Spotz, supra. Thus, Willis’ fifth issue fails.
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In his sixth and final issue, Willis asserts that trial counsel “was
undoubtedly ineffective” because each of his preceding issues had merit.
Willis’ Brief at 30. As noted above, we agree with the trial court’s contrary
conclusion that none of the issues had merit. As the court explained:
In the case at bar, none of [Willis’] individual claims have
merit. Moreover, [Willis] also failed to demonstrate
prejudice as a result of any of the individual claims. As a
result, there is no collection of errors to analyze to find that
either Trial Counsel or Appellate Counsel rendered deficient
performance. Accordingly, this claim fails.
PCRA Court Opinion, 11/30/18, at 19-20. As noted supra, our review of the
record supports the PCRA court’s assessment of Willis’ final ineffective
assistance claim. See Commonwealth v. Tedford, 960 A.2d 1, 56 (Pa.
2008) (explaining “no number of failed claims may collectively warrant relief
if they fail to do so individually”).
In sum, Willis’ sentencing claim is not properly before us and otherwise
without merit. Additionally, because he has not established his ineffective
assistance of counsel claims, the PCRA could did not err in denying Willis’
petition without a hearing. Blakeney, supra. We therefore, affirm the order
denying Willis post-conviction relief.
Application for Remand denied. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/19
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