Com. v. Williams

• Decision Date: 15 June 1995
• Citation: 442 Pa.Super. 590,660 A.2d 614
• Parties: COMMONWEALTH of Pennsylvania v. Anthony Spence WILLIAMS, Appellant.
• Court: Pennsylvania Superior Court

Page 614

660 A.2d 614

442 Pa.Super. 590

COMMONWEALTH of Pennsylvania v. Anthony Spence WILLIAMS, Appellant.

Superior Court of Pennsylvania.

Submitted April 17, 1995.

Filed June 15, 1995.

Anthony S. Williams, appellant, pro se.

Robert L. Steinberg, Dist. Atty., Allentown, for Com., appellee.

Before HUDOCK, SAYLOR and HESTER, JJ.

HESTER, Judge:

Anthony S. Williams appeals pro se from the March 14, 1994 order denying him PCRA relief. We hold that three of appellant's issues can be entertained in this second post conviction proceeding. Those issues include one raising a claim of innocence, one involving an allegation that appellant's plea agreement was breached which would constitute a manifest injustice that no civilized society could tolerate, and one involving the legality of appellant's sentence. However, in examining the merits of those three claims, we have determined that there is no genuine issue of material fact and that appellant is not entitled to PCRA relief. Accordingly, we affirm denial of appellant's second PCRA petition without a hearing.

Appellant was charged with one count each of attempted murder, theft, receiving stolen property, aggravated assault, and conspiracy and with three counts of robbery. On May 6, 1985, appellant tendered a nolo contendere plea to one count of robbery and one count of conspiracy. The record indicates that the Commonwealth, through the testimony of the victim, would have established the following:

[O]n October 15th, 1983, [at] approximately 2:15 in the morning hours, the victim in this case, an Anthony Parker, was at the intersection of Seventh and Chew.

He had made a phone call, and then he had proceeded over to the Friendly Tavern....

And a car pulled up over by the phone booth.... The car pulled up and .... there [were] two people in it, the passenger, which was the Defendant and a driver.

They yelled over does anyone know where we can get some smoke? The victim went over to the car and said, I think I know where I can get some smoke. And he said can you give me a lift, I'll give you some money.

The occupants in the car then said how much money do you have? Let me see it. The victim then showed him the money he had in his pocket, four 20's, $80. They then let him into the car.

They were going to proceed down to the NCA Club at the 300 block of Ridge Avenue....

So then as soon as the victim in this case got into the back seat of the car, Your Honor, the car made a quick right into Pollard's lot.

At that time the passenger, who was [appellant] pulled out a gun, a .38 caliber gun, pointed it at the victim in this case, who was in the back seat. And they said give me your money.

At that time the victim didn't want to give up his money. He was saying it's my mother's money, it's whatever. He didn't want to give it up.

[Appellant] and the driver then rustled through his pockets. They took some Hershey Park coins, Timesaver card, and also sunglasses that were in the jacket of the victim.

And he was fighting with him. He didn't want to give up his money. Then after a few moments the car pulled back out onto Seventh Street, went down Seventh Street, over the Eighth Street Bridge.

....

The victim Anthony Parker figured they were going to take him down and dump him into Trout Creek and shoot him....

At that time he then kicked the seat of the car up onto [appellant] and grabbed the hand that had the gun in it....

[T]he gun then went off. A bullet was lodged in the roof of the vehicle....

Mr. Parker was kicking at [the driver] while at the same time wrestling with the gun and which was being held by the Defendant in this case. While they were wrestling again the gun went off again and blew out the right passenger side window.

[T]he victim ... then climbed out through the window....

[H]e was in a hysterical mood or state of mind ... as the first bullet that went off grazed his temple area....

Mr. Richard Troxell ... had heard the two shots. He came out, saw Tony was in hysterics and bleeding profusely from the head and hand, grabbed him, took him into the house.

He gave him a towel for his head ... and then called the police....

. . . . .

[Police] had a description of the car. And they also had a description of the Defendant from this incident and other incidents that occurred.

. . . . .

[After appellant was arrested,] he gave a statement to Detective Stevens.... [H]e said he had borrowed the car from Bob in New York, that he thought it to be stolen.

He went to the K-Mart lot to buy cigarettes on Wednesday night. This would have been October 12th, 1983. Two men that he didn't get a look at put a gun to his head and took his car. They then shot out his window.

Yesterday he found the car parked on a lot right by where he was living. And he never did try to call police because he was intimidated. And he said the car was gone for six days....

Notes of Testimony ("N.T."), 5/6/85, at 27-32.

On July 22, 1985, appellant was sentenced to seven and one-half to twenty years imprisonment. Appellant filed an appeal to this court, which was dismissed based on the failure to file a brief. Dismissal was without prejudice to appellant to pursue a post conviction petition raising the same issues. The Supreme Court denied review, again without prejudice to appellant's post conviction rights.

On January 7, 1987, appellant filed a pro se petition under the now-repealed Post Conviction Hearing Act. Counsel was appointed and eventually filed an amended petition. On September 8, 1989, a hearing was held and a second hearing was scheduled on November 14, 1989, since testimony was not complete. At the November 14, 1989 hearing, appellant withdrew his PCHA petition and the supplemental, counseled petition.

On November 27, 1989, appellant filed a pro se petition to reinstate the prior petitions which he had voluntarily withdrawn at the November 14, 1989 hearing. The November 27, 1989 petition was denied on January 16, 1990. Appellant appealed the January 16, 1990, but that appeal also was dismissed.

Appellant then filed on January 16, 1992, and January 21, 1992, respectively, a post conviction petition and supplemental post conviction petition. The petitions were denied based on the fact that appellant no longer was in custody. We reversed, noting that appellant was serving parole which rendered him eligible for post conviction relief, and we remanded for consideration of the merits of the 1992 petitions. See 42 Pa.C.S.A. § 9543(a)(1)(i). A hearing was scheduled, and both appellant and his appointed counsel failed to appear at the hearing. The January, 1992 petitions then were dismissed, and this pro se appeal followed.

Appellant alleges that he was unable to attend the hearing on the January, 1992 petitions because he could not secure permission from his New York parole officer. He also alleges that he told counsel to appear. Appellant contends that this latest dismissal is a violation of our prior order.

We first note that the January, 1992 petitions initiated appellant's second post conviction proceeding. Appellant's first post conviction proceeding occurred in 1987, when he filed a PCHA petition, withdrew it, moved to reinstate it, appealed denial of reinstatement, and the appeal was dismissed.

With this in mind, we examine the issues raised in the 1992 petitions. In those petitions, appellant alleged: 1) the plea agreement was not adhered to by the district attorney; 2) the Commonwealth lacked jurisdiction to prosecute him since he could not be identified as the perpetrator; 3) his sentence was excessive since it was two and one-half times that recommended in the sentencing guidelines; 4) his speedy trial rights were violated; 5) he was not informed of the elements of the offenses to which he was entering a nolo contendere plea; 6) his plea was induced unlawfully by promises of a lesser sentence; 7) appellant was given inaccurate information about the maximum possible sentence; and 8) his sentence was unlawful since it included a deadly weapon enhancement imposed pursuant to sentencing guidelines which were invalidated by the Pennsylvania Supreme Court.

To be eligible for relief under the PCRA, a PCRA petitioner must plead and prove the existence of four factors. 42 Pa.C.S. §§ 9543(a)(1), (a)(2), (a)(3), and (a)(4). We examine the third one first. Under section 9543(a)(3)(i) a PCRA petitioner must establish that the issues have not been waived. Waiver is defined in section 9544(b) which provides in relevant part, "[A]n issue is waived if the petitioner failed to raise it and if it could have been raised ... on appeal ... or in a prior proceeding actually initiated under this subchapter." (Emphasis added). Since all of appellant's issues could have been raised both on direct appeal and in the 1987 proceedings initiated under the prior post conviction proceeding act, they have been waived under section 9544(b).

Appellant nevertheless will be eligible for relief under the PCRA if one of the two exceptions to waiver contained in section 9543(a)(3) applies. Section 9543(a)(3) provides that an allegation of error that has been waived can be entertained under two conditions:

(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.

(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.

42 Pa.C.S. § 9543(a)(3).

Since these are appellant's second post conviction proceedings, Commonwealth v. Ryan, 394 Pa.Super. 373, 575 A.2d 949 (1990), provides that 42 Pa.C.S. § 9543(a)(iii) does not apply. In Ryan, we held:

In the present case, appellant could have raised all of the issues presented herein in his prior PCHA petition. Accordingly, the issues have been waived under section 9544. The waiver...