Commonwealth v. Williams

• Decision Date: 08 October 2019
• Docket Number: No. 544 MDA 2019,544 MDA 2019
• Citation: 220 A.3d 1086
• Parties: COMMONWEALTH of Pennsylvania v. Tirrell WILLIAMS, Appellant
• Court: Pennsylvania Superior Court

220 A.3d 1086

COMMONWEALTH of Pennsylvania

v.Tirrell WILLIAMS, Appellant

No. 544 MDA 2019

Superior Court of Pennsylvania.

Submitted July 22, 2019

Filed October 8, 2019

Reargument Denied December 10, 2019

Tirrell Williams, appellant, pro se.

Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER,^* J.

OPINION BY LAZARUS, J.:

Tirrell Williams appeals pro se¹ from the trial court's order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546. After careful review, we affirm.

In November 2012, Williams was charged with robbery, conspiracy, theft by unlawful taking, and simple assault. After a jury trial, he was convicted of one count each of robbery² (threatens/fear of immediate serious bodily injury), robbery (inflicts bodily injury),³ theft by unlawful taking,⁴ and simple assault.⁵ The trial court set forth the following factual and procedural history of this case as follows:

On the night of January 5, 2012, Michael Stewart (Stewart) met Amy Baird (Baird) at a bar, where Stewart had two pitchers of beer and Baird had more than three drinks. After spending some time at the bar, Stewart and Baird went to Baird's house. At the house, Baird told Stewart that she wanted marijuana, and Stewart gave Baird money to pay for marijuana. Baird used Stewart's phone to order marijuana. An individual, who was not [Williams], came to Baird's house and sold Baird a bag of drugs. About thirteen minutes later, Baird and Stewart realized that the bag contained a drug that was not marijuana. Baird again used Stewart's phone to call the individual who had originally delivered the drugs. Baird asked the individual to come back to the house with marijuana. When the individual came back, he was with [Williams] and two other people. The individual, [Williams], and the two other people will be referred to as the group.

Baird testified that she and [Williams] went to the upstairs of the house. A short time later, they returned downstairs, where they saw the three others in the group and Stewart in the kitchen. Baird testified that she again went upstairs, this time alone. Baird testified that while she was upstairs, she heard a commotion downstairs. Therefore, she went downstairs, where she saw the group stomping and punching Stewart, while he was on the kitchen floor. As mentioned above, the group included [Williams].

Stewart testified that the group surrounded him while he was in the kitchen cleaning up hot oil. He testified that while he was talking with one member of the group, another member would start talking to him. Stewart testified that he was talking to [Williams] when he heard another member of the group say, "Yo partner, let me talk to you." Stewart testified that he turned to talk to the member who made the "partner" comment and was then struck in the back of the head by [Williams]. Stewart testified that the group beat him and punched him. One member of the group hit him in the head with a glass bottle, which caused him to fall to the floor. Stewart testified that he did not know which member hit him with the bottle. Stewart testified that while he was on the floor, the group kicked him and stomped him all over his body. Stewart testified that he rolled up into the fetal position to protect himself.

Stewart testified that[,] while he was on the floor, one member of the group said, "Stand this [MF] up, so I can shoot him." Stewart did not know which member said this, but he felt the members trying to grab his arms to stand him up. Stewart testified that he did not let the group stand him up because he was scared that he would be shot and killed. Stewart testified that one member of the group poured hot oil on him. Stewart testified that he did not know which member poured the oil on him. After feeling the hot oil, Stewart got up and ran into the living room.

Stewart testified that[,] while he was on the floor, he could feel members of the group going through the pockets of his pants. He testified that[,] before the incident, he had his wallet and cell phone in his pockets. Stewart testified that after the incident, he no longer had his wallet and cell phone.

After the incident, Baird called [the] police. Officer Mark Lindauer (Lindauer) of the Williamsport Bureau of Police responded to the call. Lindauer noticed that there was grease and broken glass on the kitchen floor.

Stewart was taken to the hospital by ambulance. As a result of the incident, he had a one[-]inch laceration on his head and a headache for three to four days. In addition, he was bruised and stiff for a week.

On October 24, 2013, a jury found [Williams] guilty of [c]ount 1 [ ( [r]obbery) ] (threaten another with or intentionally put another in fear of immediate serious bodily injury), [c]ount 3 [ ( [r]obbery) ] (inflicting bodily injury), [t]heft by [u]lawful [t]aking, and [s]imple [a]ssault. On March 27, 2014, this [c]ourt sentenced [Williams] to a minimum of six years and a maximum of twelve years in a state correctional institution. The [c]ourt also sentenced [Williams] to eight years of supervision under the Pennsylvania Board of Probation and Parole[,] to run consecutively to the prison term.

Trial Court Opinion on Post-Sentence Motions, 7/28/14, at 1-3 (footnotes omitted).

Williams filed post-sentence motions that were denied. He filed a direct appeal and our Court affirmed Williams' judgment of sentence. Commonwealth v. Williams , No. 1434 MDA 2014, 2015 WL 7433534 (Pa. Super. filed March 20, 2015) (unpublished memorandum). On April 15, 2016, Williams filed a pro se PCRA petition; counsel was appointed and filed a petition to withdraw pursuant to Turner / Finley . After an independent review of the record and a conference, the court denied the petition and granted counsel's petition to withdraw. Williams filed a collateral appeal; our Court vacated the PCRA court's order finding that the court failed to give Williams notice of its intent to dismiss his PCRA petition pursuant to Pa.R.Crim.P. 907. Our Court remanded the matter to the trial court and "direct[ed] the PCRA court to serve a new Rule 907 notice on [Williams], and permit him 20 days to respond, raising any challenges to PCRA counsel's Turner / Finley , claims of PCRA counsel's ineffectiveness, and/or arguments regarding the merits of his underlying issues." Commonwealth v. Williams , No. 431 MDA 2018, at 7-8, 2018 WL 4997992 (Pa. Super. filed Oct. 16, 2018) (unpublished memorandum).

On November 2, 2018, the court issued Rule 907 notice to Williams; counsel filed another motion to withdraw. On March 6, 2019, Williams received another Rule 907 notice to which he filed a response. On March 28, 2019, the PCRA court dismissed Williams' petition. Williams filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On appeal, Williams presents the following issues for our consideration:

(1) Did the PCRA [c]ourt and [c]ounsel commit an error as a matter of law, wherein they claimed that [Williams'] following issues did not contain any merit

(a) Trial counsel's failure to file a [m]otion to [s]uppress[;]

(b) Trial counsel's failure to object and move for a new jury pool[;]

(c) Trial counsel's failure to present evidence of [p]olice[ ]reports and other prior testimonies [sic] at trial[;]

(d) Trial counsel's failure to question the Commonwealth's witnesses about the possibility of leniency at trial[;] and

(e) Trial counsel's failure to present the proper insufficient evidence claim or challenge all [of Williams'] convictions on direct appeal.

Appellant's Brief, at 5 (emphasis deleted).

The standard of review of an order dismissing a PCRA petition is whether that determination is supported by the evidence of record and is free of legal error. Commonwealth v. Johnston , 42 A.3d 1120, 1126 (Pa. Super. 2012). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id.

We first address a procedural issue, namely waiver, concerning this appeal. Pursuant to Pa.R.A.P. 1925(b)(4)(ii) :

[An appellant's Rule 1925(b) ] Statement shall concisely identify each error that the appellant intends to assert with sufficient detail to identify the issue to be raised for the judge . The judge shall not require the citation to authorities or the record; however, appellant may choose to include pertinent authorities and record citations in the Statement.

Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). Williams' Rule 1925(b) statement sets forth, in relevant part, the following issues: (1) "Counsel's failure to present witnesses' police reports at tr[ia]l" [; and] (2) "Counsel's failure to question [C]ommonwealth's witnesses about leniency." Pa.R.A.P 1925(b) Concise Statement of Matters Complained of on Appeal, 4/25/19. The trial court has not addressed the police report issue in its Rule 1925(a) opinion due to the vagueness of Williams' concise statement⁶ .

Thus, we find it waived. Moreover, Williams' issue regarding failure to question witnesses about leniency similarly fails where it does not identify exactly which witnesses he is referencing. The trial court only addresses the issue as it relates to witness Baird; thus we find only that portion of the issue preserved for appeal purposes.⁷

We now turn to the merits of Williams' preserved claims. Because each of his claims involves the ineffective assistance of counsel, we note that to succeed on such a claim, Williams must demonstrate by a preponderance of the evidence that:

(1) [the] 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 proceedings would have been different.

Commonwealth v. Ali , 608 Pa. 71, 10 A.3d 282, 291 (2010).

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