Opinion
J-S59013-19 No. 3455 EDA 2018
12-03-2019
COMMONWEALTH OF PENNSYLVANIA v. NORMAN WILLIAMS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered November 2, 2018
In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0003573-2015 BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J. MEMORANDUM BY LAZARUS, J.:
Norman Williams appeals from the order, entered in the Court of Common Pleas of Bucks County, dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Upon careful review, we affirm on the basis of the comprehensive opinion authored by the Honorable Diane E. Gibbons.
The charges in this case arise from an incident in which Williams stole a motor vehicle as the owner put air in a tire at a gas station. The owner was ultimately able to regain possession of the vehicle. Williams was charged with robbery of a motor vehicle, theft by unlawful taking, receiving stolen property, recklessly endangering another person ("REAP"), unauthorized use of a motor vehicle, disorderly conduct, and harassment. Trial commenced on September 10, 2015, and, on September 14, 2015, a jury convicted Williams of theft by unlawful taking and receiving stolen property and acquitted him of disorderly conduct. The jury was unable to reach a verdict as to robbery of a motor vehicle, REAP, and unauthorized use of a motor vehicle. The court also found Williams guilty of the summary charge of harassment and declared a mistrial as to the charges on which the jury deadlocked.
The PCRA court sets forth the facts of this matter in detail in its Pa.R.A.P. 1925(a) opinion dated April 17, 2019. See PCRA Court Opinion, 4/17/19, at 4-5. Because we affirm on the basis of that opinion, we will not restate the facts here.
On October 19, 2015, trial commenced on the remaining charges. Prior to jury selection, trial counsel requested a continuance in order to obtain notes of testimony from the first trial and to have more time to prepare for trial. The court declined counsel's request and trial proceeded as scheduled. On October 20, 2015, the jury found Williams guilty of all remaining charges and, on October 30, 2015, the court sentenced him to 10 to 20 years' incarceration for robbery of a motor vehicle, with no further penalty on the remaining counts.
On November 10, 2015, counsel filed an untimely post-sentence motion for reconsideration of sentence; by order dated November 19, 2015, the court agreed to consider the motion as filed nunc pro tunc. After a hearing on March 9, 2016, the trial court granted the motion and resentenced Williams to 6 to 20 years' incarceration for robbery of a motor vehicle and imposed no further penalty on the remaining counts. On March 14, 2016, Williams filed a post-sentence motion for a new trial and for reconsideration of sentence. The court dismissed that motion on June 21, 2016. Williams filed a timely notice of appeal followed by a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The trial court issued a Rule 1925(a) opinion in which it concluded that Williams' appeal was untimely and did not address any of the claims Williams raised in his Rule 1925(b) statement. By order dated July 6, 2017, because there was a material dispute regarding the timeliness of Williams' appeal, this Court remanded the matter to the trial court to address the claims Williams raised in his Rule 1925(b) statement. This Court ultimately affirmed Williams' judgment of sentence on December 21, 2017.
Williams filed a pro se PCRA petition on January 12, 2018. Counsel was appointed and, on May 14, 2018, filed an amended petition. The Commonwealth filed its answer on June 12, 2018. Finding that Williams' petition lacked merit and that no further purpose would be served by further proceedings, the PCRA court issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907 on October 4, 2018. Williams filed a response on October 15, 2018. The PCRA court dismissed his petition without a hearing on November 2, 2018. This timely appeal follows, in which Williams raises the following claim for our consideration:
Did the trial court err in failing to conduct an evidentiary hearing to determine if trial counsel's failure to prepare for the second jury trial in this matter rose to the level of ineffective assistance of counsel when trial counsel admitted that he was unprepared and that he had not obtained transcripts from the first jury trial to utilize during cross-examination in the second trial and when trial counsel's conduct during the second trial clearly demonstrated that counsel was unprepared to zealously litigate the case?Brief of Appellant, at 7 (unnecessary capitalization omitted).
We begin by noting our standard and scope of review of the denial of PCRA relief:
On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error. Our 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 PCRA court level. The PCRA court's credibility determinations, when supported by the record, are binding on this Court. However, this Court applies a de novo standard of review to the PCRA court's legal conclusions.Commonwealth v. Medina , 92 A.3d 1210, 1214-15 (Pa. Super. 2014) (citations, quotation marks and brackets omitted). "[A]s to ineffectiveness claims in particular, if the record reflects that the underlying issue is of no arguable merit or no prejudice resulted, no evidentiary hearing is required." Commonwealth v. Baumhammers , 92 A.3d 708, 726-27 (Pa. 2014). "Thus, to obtain 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 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. D'Amato , 856 A.2d 806, 820 (Pa. 2004).
Williams' claim asserts the ineffectiveness of trial counsel. Accordingly, we begin by noting that counsel is presumed effective, and it is a petitioner's burden to prove otherwise. Commonwealth v. Ousley , 21 A.3d 1238, 1244 (Pa. Super. 2011). In order to prove that counsel was ineffective, a petitioner must plead and prove each of the following: "(1) the underlying legal claim is of arguable merit; (2) counsel's action or inaction lacked any objectively reasonable basis designed to effectuate his client's interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome if not for counsel's error." Commonwealth v. Grove , 170 A.3d 1127, 1138 (Pa. Super. 2017) (citation omitted). A failure to plead or prove any prong will defeat an ineffectiveness claim. Id. Further,
[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 ineffective 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.Commonwealth v. Ligon , 206 A.3d 515, 519 (Pa. Super. 2019) (citation omitted).
Williams' ineffectiveness claim concerns the "use of force" element of the offense of robbery of a motor vehicle. Williams argues:
Williams' claim relates solely to his conviction for robbery of a motor vehicle. A person commits robbery of a motor vehicle if he steals or takes a motor vehicle from another person in the presence of that person or any other person in lawful possession of the motor vehicle. 18 Pa.C.S.A. § 3702(a). The Commonwealth must prove the following elements to establish the commission of this crime: (1) the stealing, taking, or exercise of unlawful control over a motor vehicle; (2) from another person in the presence of that person or any other person in lawful possession of the vehicle; (3) accomplished by the use of force, intimidation, or the inducement of fear in the victim. Commonwealth v. Bonner , 27 A.3d 255, 258 (Pa. Super. 2011), citing Commonwealth v. George , 705 A.2d 916, 920 (Pa. Super. 1998).
During the first trial, the victim testified that there had been a "tussle" between himself and [Williams] in the driver's seat of the car, but there was no mention during the first trial of [Williams]
using his left arm in an attempt to physically prevent the victim from getting into the car and removing the key. No specific use of force was testified to during the first trial and that was the defense theory of the case as demonstrated by trial counsel's closing argument.Brief of Appellant, at 17-18 (quotation marks and citations to record omitted).
Williams argues that counsel was ineffective for failing to obtain the transcripts of the first trial in order to impeach the victim's allegedly more specific testimony regarding Williams' use of force at the second trial. He is entitled to no relief.
Pursuant to Pa.R.E. 613, "[a] witness may be examined concerning a prior inconsistent statement made by the witness to impeach the witness's credibility." Pa.R.E. 613(a). However, "[m]ere dissimilarities or omissions in prior statements . . . do not suffice as impeaching evidence; the dissimilarities or omissions must be substantial enough to cast doubt on a witness' testimony to be admissible as prior inconsistent statements." Commonwealth v. Luster , 71 A.3d 1029, 1043 (Pa. Super. 2013) (citations omitted).
In its opinion, the PCRA court thoroughly reviewed and compared the victim's testimony at the first and second trials and concluded that the victim's testimony at the second trial was not inconsistent with the testimony he offered at the first trial. As such, the earlier testimony could not have been used to impeach the victim at the second trial under Rule 613. Accordingly, the court found Williams' underlying claim, and therefore his ineffectiveness claim, meritless. Grove , supra. Further, because the court's determination as to whether any inconsistency existed in the victim's testimony was controlled by the trial transcript, the PCRA court found that a hearing was not required. See PCRA Court Opinion, 4/17/19, at 10, citing Commonwealth v. Springer , 961 A.2d 1262, 1264 (Pa. Super. 2008) (hearing not necessary if court can determine from record that no genuine issues of material fact exist).
We have reviewed the record, the briefs, and the applicable law, and we concur with the PCRA court's assessment of Williams' claim. Accordingly, we affirm on the basis of Judge Gibbons' thorough and well-written opinion and instruct the parties to attach a copy of that opinion in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/3/19
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