Opinion
J-S43005-19 No. 836 MDA 2018
09-20-2019
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOSEPH WILLIAMS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 28, 2018
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000695-2008 BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY GANTMAN, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Joseph Williams, appeals from the order entered in the York County Court of Common Pleas, which denied his first petition brought pursuant to the Post-Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In its opinion, the PCRA court correctly set forth the relevant facts and some of the procedural history of this case. Therefore, we have no need to restate them. We add that this Court affirmed the judgment of sentence on June 10, 2011. Appellant filed a timely petition for allowance of appeal with our Supreme Court. While that petition was pending, on August 31, 2011, Appellant filed a pro se PCRA petition, which the court held in abeyance until Appellant's direct appeal resolved. Our Supreme Court denied petition for allowance of appeal on July 16, 2012. See Commonwealth v. Williams , 31 A.3d 741 (Pa.Super. 2011), appeal denied, 616 Pa. 646, 48 A.3d 1249 (2012).
Appellant filed a pro se PCRA petition on August 14, 2012. After several appointed attorneys had conflicts and could not represent Appellant, the PCRA court finally appointed counsel on December 1, 2016. On March 3, 2017, counsel filed an amended PCRA petition. The PCRA court held evidentiary hearings on June 28, 2017 and August 18, 2017, and denied relief on February 28, 2018.
On March 15, 2018, Appellant timely filed a pro se notice of appeal and a voluntary concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The clerk of courts docketed the notice of appeal and forwarded it to counsel, pursuant to Pa.R.Crim.P. 576(A)(4). On March 22, 2018, counsel filed a petition to withdraw and to have new counsel appointed. On April 12, 2018, the PCRA court held a hearing. During the hearing, counsel moved to reinstate Appellant's appeal rights nunc pro tunc, which the court granted. Appellant timely filed a counseled notice of appeal on Monday, May 14, 2018. On May 17, 2018, the PCRA court ordered Appellant to file a Rule 1925(b) statement. The PCRA court held a Grazier hearing on May 30, 2018; at the conclusion of the hearing, Appellant chose to be represented by counsel, who filed a counseled Rule 1925(b) statement on Appellant's behalf.
Commonwealth v. Grazier , 552 Pa. 9, 713 A.2d 81 (1998).
Appellant's counsel did not file an appellate brief in this Court. On January 18, 2019, this Court remanded the case, for the court to determine if counsel had abandoned Appellant, and retained jurisdiction. The PCRA court held a hearing on February 14, 2019, and determined that counsel had not abandoned Appellant; however, the PCRA court removed counsel at Appellant's request and appointed current counsel for this appeal. Appellate counsel filed a brief in this Court on May 13, 2019.
Appellant raises the following issues for our review:
WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT [APPELLANT'S] REQUEST FOR PCRA RELIEF ON THE BASIS OF AFTER-DISCOVERED EVIDENCE[?](Appellant's Brief at 4).
WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT [APPELLANT'S] REQUEST FOR PCRA RELIEF ON THE BASIS OF INEFFECTIVE ASSISTANCE OF [APPELLANT'S] PRIOR COUNSEL, WHERE COUNSEL: (I) FAILED TO OBJECT TO THE ABSENCE OF THE FINAL INSTRUCTION ON THE SINGLE COUNT OF ROBBERY, (II) FAILED TO INVESTIGATE CERTAIN WITNESSES, (III) FAILED TO REQUEST A JURY INSTRUCTION REGARDING THE DEMONSTRATIVE PURPOSE OF THE HANDGUN, AND (IV) FAILED TO REQUEST A JURY INSTRUCTION SEEKING SEPARATE CONSIDERATION OF THE EVIDENCE PRESENTED BY EACH DEFENDANT[?]
Preliminarily, the timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Hackett , 598 Pa. 350, 956 A.2d 978 (2008). "Jurisdictional time limits go to a court's right or competency to adjudicate a controversy." Id. at 359, 956 A.2d at 983. A PCRA petition must be filed within one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking review." 42 Pa.C.S.A. § 9545(b)(3). A PCRA petition filed during the pendency of a direct appeal is premature, and the court lacks jurisdiction to review it. Commonwealth v. Seay , 814 A.2d 1240, 1241 (Pa.Super. 2003) (reiterating PCRA cannot be invoked until judgment of sentence is final; petition filed during pendency of direct appeal does not constitute first PCRA petition). An appellant may choose to file a PCRA petition or a notice of appeal during the appeal period, but an appellant cannot do both. Commonwealth v. Zeigler , 148 A.3d 849, 852 (Pa.Super. 2016).
Instantly, Appellant filed a pro se PCRA petition on August 31, 2011, while his petition for allowance of appeal was still pending before our Supreme Court. This petition was premature when filed, and the PCRA court should have dismissed it, instead of holding the petition in abeyance. See Seay , supra. After our Supreme Court denied Appellant's petition for allowance of appeal on July 16, 2012, Appellant filed a pro se PCRA petition on August 14, 2012, before his judgment of sentence became final on or about October 14, 2012, upon expiration of the time for filing a petition for writ of certiorari with the U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Because Appellant chose not to pursue further direct review, his August 14, 2012 pro se PCRA related forward to October 14, 2012, and was timely filed. Therefore, the PCRA court had no jurisdictional impediments to its review.
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no similar deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa.Super. 2012). Traditionally, credibility issues are resolved by the trier of fact who had the opportunity to observe the witnesses' demeanor. Commonwealth v. Abu-Jamal , 553 Pa. 485, 527, 720 A.2d 79, 99 (1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). Where the record supports the PCRA court's credibility resolutions, they are binding on this Court. Id.
"An appellate court must assess the jury instructions as a whole to determine whether they are fair and impartial." Commonwealth v. Collins , 546 Pa. 616, 620, 687 A.2d 1112, 1113 (1996).
The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.
* * *
We will not rigidly inspect a jury charge, finding reversible error for every technical inaccuracy, but rather evaluate whether the charge sufficiently and accurately apprises a lay
jury of the law it must consider in rendering its decision.Commonwealth v. Hannibal , 562 Pa. 132, 139-140, 753 A.2d 1265, 1269 (2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2002, 149 L.Ed.2d 1004 (2001) (quoting Commonwealth v. Prosdocimo , 525 Pa. 147, 154, 578 A.2d 1273, 1276 (1990)).
[T]o prevail on a claim of ineffectiveness for failing to call a witness, a [petitioner] must prove, in addition to meeting the three Pierce requirements, that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew or should have known of the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the [witness'] testimony was so prejudicial as to have denied him a fair trial.Commonwealth v. Wright , 599 Pa. 270, 331, 961 A.2d 119, 155 (2008).
To demonstrate...prejudice, a petitioner must show how the uncalled [witness'] testimony would have been beneficial under the circumstances of the case. Thus, counsel will not be found ineffective for failing to call a witness unless the petitioner can show that the [witness'] testimony would have been helpful to the defense. A failure to call a witness is not per se ineffective assistance of counsel for such decision usually involves matters of trial strategy.Commonwealth v. Sneed , 616 Pa. 1, 23, 45 A.3d 1096, 1109 (2012) (internal citations and quotation marks omitted).
Commonwealth v. Pierce , 515 Pa. 153, 157-61, 527 A.2d 975-77 (1987).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Michael E. Bortner, we conclude Appellant's issues merit no relief. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented. ( See PCRA Court Opinion, filed February 28, 2018, at 5-13) (finding: (1) alleged after-discovered evidence is statement from trial witness Joshua Griffith to Eugene Rainey, which could have been obtained prior to trial; Mr. Griffith gave different accounts on whether he actually heard shooting; inculpatory evidence against Appellant was strong, and alleged new evidence showed Mr. Griffith was incredible; Appellant intended this evidence to impeach or undermine credibility of police witnesses; nature and character of alleged new evidence would not have changed verdict; (2) Appellant's claims of ineffective assistance of counsel either lack arguable merit or trial counsel demonstrated decisions were based on reasonable defense strategy; there is no reasonable probability that outcome of trial would have differed). The record supports the PCRA court's rationale. Accordingly, we affirm on the basis of the PCRA court opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/20/2019
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