Com. v. Willet, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANJOHNITO WILLET :
:
Appellant : No. 1263 WDA 2020
Appeal from the PCRA Order Entered October 20, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001222-2014
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED: December 7, 2021
Appellant, Anjohnito Willet, appeals pro se from an order entered on
October 20, 2020 that denied his first petition for collateral relief filed pursuant
to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
Previously, this Court set forth the history underlying the instant appeal
as follows:
On November 13, 2013, as four students were leaving Brashear
High School in Pittsburgh, Pennsylvania, shots rang out from a hill
in the woods across the street from the school. Two of the
students sustained head wounds from the shooting. The injured
students were able to retreat back into the school as police
responded to the scene. An eyewitness reported seeing a male
wearing a red hooded sweatshirt on the hill across from Brashear
High School, watching students running away. Upon further
investigation, police learned that the targeted students had been
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* Retired Senior Judge assigned to the Superior Court.
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involved in a physical altercation with [Appellant] a month prior
to the incident[,] and [Appellant] told a security guard that he was
going to come back and shoot one of them.
Investigating officials were dispatched to a duplex building, in the
Beechview section of Pittsburgh, to execute a search warrant
where [Appellant] was thought to reside. Police arrested
[Appellant] and interviewed him along with two other men,
Antoine Lewis [(“Lewis”)] and Tyron Harris [(“Harris”)], who were
with [Appellant] before and after the shootings and were at the
duplex when police arrived. [Appellant] and Harris lived next door
to each other in the duplex. Lewis had been living with Harris.
Harris told police that he and [Appellant] walked through the
woods towards Brashear High School around dismissal time on the
day of the incident and that he witnessed [Appellant] fire shots
towards students. Lewis told police that, after the shooting,
[Appellant] and Harris asked him to dispose of a gun and bullet
magazine wrapped in a towel. Lewis told police that he put the
gun and magazine into a book bag and took it to his great
grandmother's house. At trial, however, Harris and Lewis
recanted their statements to police.
The following evidence was also adduced at trial. Police conducted
tests on [Appellant], Lewis, and Harris for gunshot residue shortly
after the shooting. All three men tested positive, but only
[Appellant] had traces of residue on both of his hands. Upon
executing the search warrant at the duplex, police recovered
evidence that [Appellant] resided in a bedroom on one side of the
duplex. From that bedroom, they recovered eight .357 caliber
bullets in a bag next to the bed. On the other side of the duplex,
Harris'[s] residence, police recovered two red hooded sweatshirts,
two smartphones, brass knuckles, ten packets of heroin, and an
unfired .22 caliber bullet. Upon analyzing one of the recovered
cellular telephones, police discovered photos of one of the
shooting victims taken hours before a physical altercation that
occurred in October 2013 and 23 photos of [Appellant], including
a “selfie.” There was only one contact listed on that phone and it
was for Harris. At trial, the Commonwealth entered the telephone
into evidence and police testified that they believed it belonged to
[Appellant]. Police also recovered a book bag from the residence
where Harris'[s] great-grandmother lived. The bag contained a
.357 magnum Ruger revolver and a magazine containing .22
caliber bullets. Finally, police recovered three .22 caliber bullets
from the shooting victims. At trial, the Commonwealth presented
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a firearm expert who opined that all of the bullets recovered from
the victims were fired from the same gun, but that it was not
possible to fire a .22 caliber bullet from a .357 magnum firearm.
On February 2, 2016, a jury convicted [Appellant] of one count of
[c]riminal [a]ttempt-[h]omicide, three counts of [a]ggravated
[a]ssault, one count of possession of a firearm by a minor, and
four counts of recklessly endangering another person (“REAP”).
[See 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 6110.1(a), 2705.]
[Appellant] was found not guilty on two other counts of criminal
attempt-homicide. On May 4, 2016, [the trial court] sentenced
[Appellant] to an aggregate term of incarceration of twelve to
thirty years with two years of probation consecutive to
confinement.
[This Court affirmed Appellant’s judgment of sentence on January
30, 2018. Appellant thereafter filed a pro se PCRA petition on
January 29, 2019. Counsel was appointed but subsequently filed
a petition to withdraw. The PCRA court issued notice of its intent
to dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907.
Before the PCRA court dismissed Appellant’s petition, however,
Appellant filed a pro se response to the notice raising additional
issues. On July 31, 2019, the PCRA court formally dismissed
Appellant’s petition and granted counsel's request to withdraw
from representation. Appellant filed a notice of appeal on August
16, 2019 and a concise statement of errors complained of on
appeal on September 9, 2019. In its October 17, 2019 opinion,
the PCRA court asked that this case be remanded to address
issues raised pro se after PCRA counsel requested leave to
withdraw. On June 9, 2020, this Court issued a remand order
directing counsel to address the issues Appellant raised pro se.
Counsel thereafter filed a second “no merit” letter on September
21, 2020 and the PCRA court dismissed Appellant’s petition on
October 20, 2020. Appellant filed a notice of appeal on November
20, 2020 and a concise statement on December 10, 2020.1]
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1 We shall treat Appellant’s notice of appeal as timely filed pursuant to the
prisoner mailbox rule. See Commonwealth v. Jones, 700 A.2d 423, 426
(Pa. 1997).
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Commonwealth v. Willet, 183 A.2d 1095 (Pa. Super. 2018) (unpublished
memorandum at 1-4).
Appellant presents the following claims for our review:
1. Was pre-trial counsel ineffective in failing to file a motion
seeking habeas corpus relief before trial alleging that the
Commonwealth failed to establish a prima facie at Appellant’s
preliminary hearing?
2. Was trial counsel ineffective for failing to introduce exculpatory
evidence prior to trial and in failing to file a motion to suppress
Tyron Harris’s initial statement to investigating authorities?
3. Was PCRA counsel ineffective for failing to amend Appellant’s
initial PCRA petition to include the issues set forth above?
4. Did the PCRA court err in granting PCRA counsel’s motion to
withdraw and in deeming Appellant’s PCRA petition meritless
since pre-trial counsel was ineffective for failing to file a motion
for habeas corpus prior to trial?
Appellant’s Brief at 2-3 (cleaned up).
Appellant challenges an order that dismissed his petition filed pursuant
to the PCRA. We evaluate such orders pursuant to a well-settled standard of
review.
We must determine whether the findings of the PCRA court are
supported by the record and whether the court's legal conclusions
are free from error. The findings of the PCRA court and the
evidence of record are viewed in a light most favorable to the
prevailing party. The PCRA court's credibility determinations,
when supported by the record, are binding; however, this court
applies a de novo standard of review to the PCRA court's legal
conclusions. We must keep in mind that the petitioner has the
burden of persuading this Court that the PCRA court erred and
that such error requires relief. Finally, this Court may affirm a
valid judgment or order for any reason appearing of record.
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Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations
omitted).
Moreover, Appellant’s claims turn largely on his assertion that trial
counsel was ineffective. Counsel is presumed to be effective and “the burden
of demonstrating ineffectiveness rests on [the] appellant.” Commonwealth
v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).
To satisfy this burden, an appellant must plead and prove by a
preponderance of the evidence that[ ] (1) his underlying claim is
of arguable merit; (2) the particular course of conduct pursued by
counsel did not have some reasonable basis designed to effectuate
his interests; and, (3) but for counsel's ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceeding would have been different. Failure to satisfy any prong
of the test will result in rejection of the appellant's ineffective
assistance of counsel claim.
Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal
citations and quotation marks omitted).
Appellant argues in his first issue that the Commonwealth relied
exclusively on hearsay evidence and that it therefore failed to establish a
prima facie case at his preliminary hearing. Because of this, Appellant claims
that trial counsel was ineffective in failing to file a habeas corpus motion
seeking his release from custody. This claim merits no relief.
Our review of the record reveals that, by the time Appellant’s
preliminary hearing commenced, several eyewitnesses in this matter,
including the victims, declined to cooperate with the Commonwealth or elected
to recant their original statements to police. As a result, the investigating
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detectives who testified on behalf of the Commonwealth offered several
out-of-court statements relayed to them by Harris and Lewis. Counsel for
Appellant at the preliminary hearing (who did not serve as Appellant’s trial
counsel) objected throughout the proceedings to references to out-of-court
statements. See N.T. Preliminary Hearing, 1/22/14, at 29, 30, 31, 33, and
48. Nevertheless, the investigating detectives confirmed that they recovered
a firearm and ammunition from the precise location where Lewis told them
these items would be located. This testimony corroborated Lewis’s original,
out-of-court statement to the police that he disposed of a gun and magazine
in accordance with a post-shooting request by Appellant and Harris. The
substance of Lewis’s declaration, together with the corroborating
circumstances confirmed by investigating authorities, established Lewis’s
utterance as a statement against his penal interest, which fell within an
exception to the rule against hearsay.2 See Pa.R.E. 804(b)(3). Thus, the
issuing authority’s finding that the Commonwealth established a prima facie
case against Appellant was not exclusively based upon inadmissible hearsay
statements.
The use of hearsay testimony at a preliminary hearing is addressed in
Pa.R.Crim.P. 542(E). It provides that
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2 Even if we viewed Lewis’s statement as an example of hearsay within
hearsay because it referred to out-of-court declarations made by Appellant
and Harris, those statements too would be subject to the hearsay exception
applicable to statements against penal interest.
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[h]earsay[,] as provided by law[,] shall be considered by the
issuing authority in determining whether a prima facie case has
been established. Hearsay evidence shall be sufficient to establish
any element of an offense, including, but not limited to, those
requiring proof of the ownership of, non-permitted use of, damage
to, or value of property.
Pa.R.Crim.P. 542(E).
Our Supreme Court addressed the operation of Rule 542(E) within the
context of a claim asserting that the Commonwealth’s exclusive reliance upon
hearsay evidence to establish a prima facie case at a preliminary hearing
constituted a violation of due process. In Commonwealth v. McClelland,
233 A.3d 717 (Pa. 2020), the Court concluded that Rule 542(E) cannot be
construed to mean that hearsay alone is sufficient to establish a prima facie
case at a preliminary hearing. Id. at 734. The Court observed that a
preliminary hearing is a critical stage of the criminal process to which due
process rights attach. Id. at 736. Due process, as a flexible concept, “allows
some use of hearsay,” id. at 735, but “does not permit hearsay evidence alone
to establish all elements of all crimes for purposes of establishing a prima facie
case at a defendant's preliminary hearing.” Id. at 734. Appellant cites
McClelland in support of his claim.
In this case, while the issuing authority may have relied in part on
hearsay in determining that the Commonwealth established a prima facie
case, it is equally clear that hearsay evidence was not used to establish all of
the elements for each offense with which Appellant was charged. “[A]
preliminary hearing seeks to prevent a person from being imprisoned or
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required to enter bail for a crime which was never committed, or for a crime
with which there is no evidence of his connection.” Id. at 736. No one
contends in this case that a crime was not committed, and the Commonwealth
came forward at the preliminary hearing with admissible, non-hearsay
evidence (or hearsay subject to an exception) which connected Appellant to
the instant offenses. Accordingly, no due process violation is established by
the record and trial counsel was not ineffective in failing to file a motion
seeking habeas corpus relief based upon alleged deficiencies in the preliminary
hearing record.3, 4
In his second claim, Appellant asserts that trial counsel was ineffective
for failing to move to suppress statements made by Harris and for failing to
introduce Harris’s recantation letter at trial. The PCRA court has adequately
addressed this claim in its opinion, and we adopt its reasoning as our own.
For the reasons expressed by the PCRA court, we deny relief on this claim.
See PCRA Court Opinion, 1/27/21, at 4-5.
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3 Since Appellant’s fourth issue rests on the same substantive basis as his first
issue, we conclude that Appellant’s fourth claim also merits no relief. We need
not further discuss Appellant’s fourth claim.
4 McClelland, which arguably clarified the scope of permissible uses of
hearsay under Rule 542(E) at preliminary hearings, was decided in 2020 and,
thus, offers little to no support for a claim of ineffectiveness predicated upon
the actions of counsel between 2014 and 2016. See Commonwealth v.
Dennis, 950 A.2d 945, 978 (Pa. 2008) (trial counsel not ordinarily held
ineffective for failing to anticipate changes in the law).
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Finally, Appellant asserts in his third issue that PCRA counsel was
ineffective for failing to amend his initial PCRA petition to include the first and
second issues set forth above. As we have concluded that both of Appellant’s
claims are without merit, this contention fails.
Because we rely in part on the PCRA court’s January 27, 2021 opinion,
any future filings related to this appeal shall include a copy of said opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2021
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