Com. v. Williams

Decision Date29 October 2008
Docket NumberNo. 2964 EDA 2006.,2964 EDA 2006.
Citation959 A.2d 1272,2008 PA Super 257
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Lucillious WILLIAMS, Appellant.
CourtPennsylvania Superior Court

Norris E. Gelman, Philadelphia, for appellant.

George M. Green, Asst. Dist. Atty., for Com., appellee.

BEFORE: STEVENS, DONOHUE and FITZGERALD*, JJ.

OPINION BY DONOHUE, J.:

¶ 1 Lucillious Williams appeals from the order entered by the Court of Common Pleas of Delaware County, which denied his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541-9546. Upon our review of the record, we affirm.

¶ 2 After a jury trial commencing on October 8, 2002, Williams was convicted of one count of rape [18 Pa.C.S.A. § 3121], eleven counts of involuntary deviate sexual intercourse [18 Pa.C.S.A. § 3123], fourteen counts of aggravated indecent assault [18 Pa.C.S.A. § 3125], and five counts of corruption of minors [18 Pa.C.S.A. § 6301]. The trial court sentenced Williams to an aggregate term of imprisonment of 22 to 44 years and to lifetime registration and DNA registration requirements under Megan's Law [42 Pa.C.S. § 9791 et seq.].

¶ 3 The trial court set forth the relevant factual background leading to Williams' conviction and sentence as follows:

Williams was a relative and/or family friend of the victims and their mothers. N.T., 10/9/02, pp. 253-254 (T.B.). Multiple child witnesses gave damning testimony against Williams, including N.B., D.B., S.P., C.N., and T.B. All of these children were under thirteen years of age at the time of the incidents; hence their reference to Williams as "Uncle Lou." N.T., 10/9/02, pp. 25, 28-30 (N.B.); 104-06 (D.B.); 165 (S.P.); 209 (C.N.); 250-51, 254 (T.B.).

With the consent of the victims' mothers, Williams functioned as the victims' babysitter by taking them and some of their younger brothers on weekend outings and then to his house. N.T., 10/9/02, pp. 210-11 (C.N.); 254, 257, 260-61 (T.B.). Williams sexually assaulted the victims in his car and his bedroom.

Each time the victims entered Williams' house, he instructed them to take all of their clothes off in the front hallway and gave them a t-shirt to wear while he washed their clothes, even though their clothes were not dirty and did not need to be changed or washed. N.T., 10/9/02, pp. 37-39 (N.B.); 169 (S.P.); 213-14 (C.N.); 261-262 (T.B.). Williams required the girls to take baths with the boys. N.T., 10/9/02, pp. 264-67 (T.B.). He washed the girls' breasts and vaginas and inserted his finger into N.B.'s and C.N.'s vaginas. N.T., 10/9/02, pp. 232-33 (C.N.); 266 (T.B.).

Williams repeatedly sucked, rubbed or touched the girls' breast and vaginas, often in full view of the other victims. N.T., 10/9/02, pp. 118-20 (D.B.) (defendant touched the inside of her vagina); 175-76 (S.P.); 218-19 (C.N.); 267-69, 275-76 (T.B.). He repeatedly forced N.B., D.B., T.B., S.P., C.N. and T.B.'s brother to suck his penis and sometimes required T.B.'s brother to perform fellatio while rubbing N.B.'s genitals. N.T., 10/9/02, pp. 53-59, 62-65, 87-88 (N.B.); 110-13, 117-18, 124-26, 152 (D.B.); 172-77, 179-83 (S.P.); 272-75 (T.B.). He also inserted his penis into T.B.'s vagina while several other girls were present and stuck his penis between N.B.'s legs. N.T., 10/9/02, pp. 44-46 (N.B.); 126 (D.B.); 270-71 (T.B.). No other adult was present when the attacks took place. N.T., 10/9/02, pp. 183-84 (S.P.).

The jury retired to deliberate on the morning of Friday, October 11, 2002. N.T., 10/11/02, p. 122. In the early evening, the jury foreperson wrote the following note to the Court:

Can we have the transcripts of what was said [in] the girls['] testimony in court, i.e., the oral testimony given in court, audio tape would be fine. D.B., T.B., S.P., N.B., C.N. Yes or no would be sufficient. Thank you. N.T., 10/11/02, p. 121. The Court responded:

Yes[.] The time required will be approximately five hours. Do you wish to hear it tonight or reconvene Tuesday or begin tonight and continue Tuesday[?] Courts are closed on Monday.

Id. The jury foreperson replied: "Can we only listen to T.B.'s oral testimony in the jury deliberation room?" N.T., 10/11/02, pp. 121-22. The Court informed the jury that "they could either hear the original in the courtroom or a copy in the deliberation room. Production of a copy might take slightly longer." N.T., 10/11/02, p. 122. The jury elected to listen to the original tape in the courtroom with nobody present. Id.

The Court then "determined that the original tape and a technician will be provided to [the jury] in the jury deliberation room so that they can deliberate while listening to the tape privately." Id.

Defense counsel raised the following objection:

[T]he jury has been deliberating since 11:19. And it is now 8:00 p.m. Approximately forty minutes ago or 45 minutes ago the exchange started with the jury and in their second note they came in to clarify the first note. [T]hey indicate they want to hear the testimony of all the five complaining witnesses, the children. And in response to that you told them it would be at least a five hour duration they would have to listen to. You sent that note back and I believe about twenty minutes later they came back that they only wanted now all of a sudden T.B.'s testimony which is about an hour. My concern is that the jury is feeling some kind of pressure just to resolve this case because of the lateness of the [hour.] It is Friday night, [and] we have a three day holiday weekend coming up, and I am wondering how all of a sudden in that twenty minute period ... they now all of a sudden didn't need to hear the testimony of those girls. I am afraid that the jury may just be feeling pressure, undue pressure. And it is not the court putting undue pressure, nor involving the litigation, it is just the circumstances of the case. N.T., 10/11/02, pp. 122-24.

Counsel requested that "it would probably be best to bring them back Tuesday." N.T., 10/11/02, p. 124.

The Court replied:

That is one of the alternatives presented to them, and they rejected it. So what is your suggestion in lieu of providing them with the testimony that they have now required on the tape? N.T., 10/11/02, pp. 124-25.

Counsel answered: "I don't have one, and my objection is just because of the totality of the circumstances it puts pressure on them to resolve this matter." Id. The Court continued:

[The jury] still [has] choices and they are now very aware of the choices that they have which are to continue today or come back Tuesday or do both. The fact is there aren't any other alternatives unless you have something to suggest. N.T., 10/11/02, p. 126.

Once again, counsel stated: "I don't at this point. I guess the jury is calling the shots here, what they want to do, unless the Court goes through what was said." Id.

The jury continued to deliberate on Friday evening, October 11, 2002, and Tuesday morning, October 15, 2002, before returning their verdict on the afternoon of October 15th.

¶ 4 Williams filed a direct appeal challenging the trial court's failure to give a jury instruction regarding the credibility of child witnesses, the Commonwealth's failure to comply with Williams' request for a bill of particulars, and the trial court's refusal to allow the continuation of jury deliberations and allowing the jury to hear audiotape testimony during jury deliberations. This Court affirmed the judgment of sentence by unpublished memorandum and the Supreme Court denied further review. Commonwealth v. Williams, 860 A.2d 1137 (Pa.Super.2004) (unpublished memorandum), appeal denied, 582 Pa. 717, 872 A.2d 1199 (2005).

¶ 5 On May 1, 2006, Williams filed a counseled PCRA petition, which the PCRA court denied without a hearing. This timely appeal followed. Williams complied with the trial court's order to file a concise statement of the issues on appeal pursuant to Pa.R.A.P.1925(b).1 The trial court issued a written opinion on these issues on July 27, 2007.

¶ 6 Williams presents the following issues for our review:

I. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO PROPERLY OBJECT TO PROCEDURE UTILIZED BY THE TRIAL COURT WHICH DENIED PETITIONER HIS SIXTH AMENDMENT RIGHT TO COUNSEL DURING CRITICAL STAGES OF THE TRIAL, HIS DUE PROCESS RIGHT TO BE PRESENT DURING ALL CRITICAL STAGES OF HIS TRIAL, AND WHICH VIOLATED RULES 602 AND 646?

IS PREJUDICE REQUIRED WHEN AN INEFFECTIVENSS CLAIM RAISES THE DENIAL OF COUNSEL AT A CRITICAL STAGE OF THE PROCEEDINGS, AND IS THE PCRA COURT'S ADDITION OF THE REQUIREMENT OF PREJUDICE IS (sic) CONTRARY TO AND AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED UNITED STATES SUPREME COURT AUTHORITY?

II. IF PREJUDICE IS REQUIRED, CAN [WILLIAMS] DEMONSTRATE PREJUDICE?

III. WERE RULES OF CRIMINAL PROCEDURE 602 AND 646 VIOLATED AND WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO HAVE OBJECTED ON 602 AND 646 GROUNDS AND BECAUSE THE OBJECTION HE DID REGISTER WAS WOEFULLY INADEQUATE TO PRESERVE THE ERRORS?

IV. WAS TRIAL COUNSEL INEFFECTIVE BECAUSE HE FAILED TO REQUEST JURY INSTRUCTIONS PROHIBITING THE JURY FROM USING THE FACT THAT SIX RAPES WERE CONSOLIDATED FOR TRIAL AS PROPENSITY EVIDENCE?

V. WAS TRIAL COUNSEL ALSO INEFFECTIVE FOR FAILING TO OBJECT TO THE COURT'S CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION WHICH ACTUALLY INVITED THE JURY TO USE THE EVIDENCE OF THE HOST OF OTHER SEX CRIMES CUMULATIVELY AND AS PROPENSITY EVIDENCE?

VI. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO RAISE AN OBJECTION TO THE COURT'S JURY INSTRUCTIONS THAT POSITIONED THE CASE SO THAT THE JURY WOULD HAVE TO DETERMINE WHO TO BELIEVE-THEREBY PLACING A BURDEN OF BEING BELIEVED ON [WILLIAMS'] TESTIMONY AND HIS DEFENSE-AND ALSO DEPRIVING HIM OF REASONABLE DOUBTS TO WHICH HE WAS ENTITLED UNDER THE FEDERAL CONSTITUTION?

Appellant's Brief at 9.2

¶ 7 The standard of review for a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of...

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