J-S46042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

KYLE J. WILLIAMS, :

:

Appellant : No. 3176 EDA 2014

Appeal from the PCRA Order entered on October 31, 2014

in the Court of Common Pleas of Philadelphia County,

Criminal Division, No. CP-51-CR-0401451-2005

BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 31, 2015

Kyle J. Williams (“Williams”) appeals from the dismissal of his first 

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

In 2006, following a jury trial, Williams was convicted of murder of the 

first degree, criminal conspiracy, carrying a firearm without a license, 

possessing an instrument of crime, and persons not to possess firearms.1 

The trial court sentenced Williams to life in prison without the possibility of 

parole.

 

1 Williams was 17 years old at the time he committed the murder. The 

victim died of two gunshot wounds to the back of the head. Williams 

subsequently confessed to his involvement in the shooting, and stated that 

he had killed the victim because the victim had robbed him of a couple 

hundred dollars.
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Williams filed a timely Post-Sentence Motion, which was denied. This 

Court affirmed the judgment of sentence, and the Pennsylvania Supreme 

Court denied Williams’s Petition for Allowance of Appeal. Commonwealth 

v. Williams, 954 A.2d 44 (Pa. Super. 2008) (unpublished memorandum), 

appeal denied, 964 A.2d 2 (Pa. 2009).

On January 4, 2010, Williams filed a timely, pro se, PCRA Petition. 

Subsequently, the PCRA court appointed Richard Moore, Esquire (“Moore”), 

as counsel, who filed an Amended Petition. After Moore passed away, J. 

Scott O’Keefe, Esquire, took over Williams’s representation, but was later 

appointed to the bench. Thereafter, the PCRA court appointed Mitchell Scott 

Strutin, Esquire, as counsel, who filed another Amended PCRA Petition. 

Following a protracted procedural history not relevant to this case, the PCRA 

court issued a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907. The 

PCRA court then dismissed Williams’s Petition. Williams filed a timely Notice 

of Appeal.

On appeal, Williams raises the following issues for our review:

1) Is [Williams] entitled to post-conviction relief in the form of a 

new trial or a remand for an evidentiary hearing as a result 

of the ineffective assistance of trial counsel for failing to 

interview alibi witnesses and present their testimony at trial?

2) Is [Williams] entitled to post-conviction relief in the form of a 

new trial or a remand for an evidentiary hearing as a result 

of the ineffective assistance of trial counsel for failing to 

present Williams’s testimony at trial?

3) [Whether] the life sentence imposed on [Williams], a juvenile 

at the time of the incident, is illegal pursuant to the recent 
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United States Supreme Court cases of [Miller v. Alabama, 

132 S. Ct. 2455 (2012),] since the life sentence constitutes 

cruel and unusual punishment in violation of the Eighth 

Amendment to the United States Constitution and Article I, 

Section 13 of the Pennsylvania Constitution, and is a basis 

for relief under the PCRA and 42 Pa.C.S.A. § 6501 et seq?

Brief for Appellant at 4.

This Court’s standard of review regarding a PCRA court’s 

order is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Great deference is granted to the findings of the PCRA court, and 

these findings will not be disturbed unless they have no support 

in the certified record. Moreover, a PCRA court may decline to 

hold a hearing on the petition if the PCRA court determines that 

a petitioner’s claim is patently frivolous and is without a trace of 

support in either the record or from other evidence.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations 

and quotation marks omitted).

In his first claim, Williams asserts that his counsel was ineffective for 

failing to interview alibi witnesses, Tracy Barnes (“Tracy”) and Shawntay 

Barnes (“Shawntay”), and present their testimony at trial. Brief for 

Appellant at 15-16, 23, 27-28. Williams argues that counsel’s failure to 

interview the alibi witnesses or file a notice of alibi pursuant to Pa.R.Crim.P. 

567, prejudiced him. Id. at 23-24. Williams specifically argues that it is 

counsel’s duty to investigate all avenues leading to the facts of relevant 

guilt, even if counsel thinks that the particular avenue offers little chance of 

success. Id. at 26. Williams claims that the PCRA court should have held a 

hearing on this claim. Id. at 28-29.
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To succeed on an ineffectiveness claim, Williams must demonstrate by 

the 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, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy 

any prong of the test for ineffectiveness will require rejection of the claim. 

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel is 

presumed to be effective, and the burden is on the appellant to prove 

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

In seeking to establish that counsel was ineffective for failing to call or 

investigate the alibi witnesses, Williams must show, 

(1) the witness existed; (2) the witness was available to testify 

for the defense; (3) counsel knew of, or should have known of, 

the existence of the witness; (4) the witness was wiling to testify 

for the defense; and (5) the absence of the testimony of the 

witness was so prejudicial as to have denied the defendant a fair 

trial. 

Commonwealth v. Sneed, 45 A.2d 1096, 1108-09 (Pa. 2012). Further, for 

an alibi defense to be valid, it must be “a defense that places the defendant 

at the relevant time in a different place than the scene involved and so 

removed therefrom as to render it impossible for him to be the guilty party.” 

Commonwealth v. Roxberry, 602 A.2d 826, 828 (Pa. 1992) (citation 

omitted).
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Here, the evidence established that the murder occurred on January 

29, 2005, at approximately 2:20 a.m. See N.T., 9/14/06, at 129-40. In her 

affidavit, Tracey stated that Williams was at her house from 6:45 p.m., on 

January 28, 2005, until 9:00 a.m. the following morning. Affidavit of Tracey 

Barnes, 10/24/11. Tracey also stated that at 3:00 a.m., she saw Williams 

asleep with her daughter. Id. Shawntay stated that, Williams was in her 

presence from 6:45 p.m., on January 28, 2005, until 9:00 am the following 

morning, and that Williams was unable to leave the house because Tracey 

locked the house up for the night. Affidavit for Shawntay Barnes, 10/24/11. 

Shawntay stated that they slept in the same bed that night from 12:30 a.m. 

until 9:00 a.m. See id. 

Based upon the proffered affidavits, the alibi does not completely 

support an alibi defense because Williams could have left the residence while 

Tracey and Shawntay were sleeping, therefore, it fails to present a version 

of events that made it impossible for Williams to commit the murder. See 

Roxberry, 602 A.2d at 828 (stating that an alibi defense is valid if it makes 

it impossible for the defendant to have committed the crime). Indeed, the 

murder occurred at approximately 2:20 a.m., a time which neither Tracey 

nor Shawntay could account for Williams. 

Moreover, even if Williams had presented such evidence, it would not 

have changed the outcome of the proceeding due to the overwhelming 

evidence of Williams’s guilt, including a detailed confession, eyewitness 
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testimony, and fingerprint analysis. See N.T., 9/15/06, at 91-125; see also

Trial Court Opinion, 7/20/07, at 2-5, 7-9; Commonwealth v. Bishop, 936 

A.2d 1136, 1140 (Pa. Super. 2007) (stating that in light of overwhelming 

evidence of appellant’s guilt, there was no prejudice). Accordingly, because 

the claim is without support from the record, the PCRA court properly 

dismissed the Petition without an evidentiary hearing. See Carter, 21 A.3d 

at 682. Thus, Williams’s first claim is without merit.

In his second claim, Williams argues that counsel was ineffective for 

failing to present his testimony at trial. Brief for Appellant at 30, 34, 38. 

Williams contends that trial counsel never informed him of his right to testify 

at trial, and Williams was not aware of the full extent of his right to testify at 

trial. Id. at 30, 34-36. Also, Williams asserts that trial counsel never 

discussed the advantages and disadvantages of testifying. Id. Williams 

claims that the PCRA court should have held an evidentiary hearing on this 

issue. Id. at 30, 37-38. 

In order to support his ineffectiveness claim for failing to present 

Williams’s testimony, Williams must demonstrate either that “(1) counsel 

interfered with [Williams’s] freedom to testify, or (2) counsel gave specific 

advice so unreasonable as to vitiate a knowing and intelligent decision by 

[Williams] not to testify in his own behalf.” Commonwealth v. Thomas, 

783 A.2d 328, 334 (Pa. Super. 2001) (citation omitted).
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Williams waived his right to testify at trial during a colloquy by the trial 

court. N.T., 9/18/06, at 96. The trial court explained to Williams that even 

if his attorney advised him not to testify, Williams must make the ultimate 

decision. Id. at 97. Williams confirmed that he did not wish to testify 

during the colloquy. Id. at 98-99. 

Based on the foregoing, the record supports the PCRA court’s 

determination that Williams made a knowing, voluntary, and intelligent 

waiver of his right to testify. See Commonwealth v. Lawson, 762 A.2d 

753, 753 (Pa. Super. 2000) (stating that a defendant who made a knowing, 

voluntary, and intelligent waiver of testimony may not later claim ineffective 

assistance of counsel for failure to allow defendant to testify); see also 

Commonwealth v. Schultz, 707 A.2d 513, 520 (Pa. Super. 1997) (stating 

that while appellant may believe that the failure to testify on her own behalf 

prejudiced her, counsel was not ineffective where appellant knowingly 

waived her right to testify). The record reflects that Williams has failed to 

prove that his trial counsel interfered with his freedom to testify or gave him 

specific unreasonable advice so as to vitiate a knowing and intelligent 

decision to testify on his own behalf. Moreover, as noted above, Williams 

cannot demonstrate prejudice in light of the overwhelming evidence of his 

guilt. Further, because the claim is patently frivolous and without support 

from the record, the PCRA court properly dismissed the Petition without an 
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evidentiary hearing. Carter, 21 A.3d at 682. Thus, Williams’s second claim 

is without merit.

In his third claim, Williams argues that his life sentence without parole 

was rendered unconstitutional by Miller. Brief for Appellant at 39-63. 

Williams specifically argues that Miller created a new substantive rule that 

should be applied retroactively. Id. at 48. Williams argues that the 

Supreme Court’s decision in Commonwealth v. Cunningham, 81 A.3d 1 

(Pa. 2013), holding that Miller would not be applied retroactively and 

precluding relief, was wrongly decided. Brief for Appellant at 46.

Here, Williams’s judgment of sentence became final in 2009, over 

three years prior to the June 2012 Miller decision. The Pennsylvania 

Supreme Court held that Miller does not apply retroactively to juveniles in 

Pennsylvania whose judgments of sentence were final at the time Miller was 

decided. See Cunningham, 81 A.3d at 10; see also Commonwealth v. 

Seskey, 86 A.3d 237, 243 (Pa. Super. 2014) (stating that this Court is 

confined by the Cunningham decision).2 Thus, Williams’s final claim is 

without merit.

Order affirmed. 

 

2 The United States Supreme Court granted certiorari in Montgomery v. 

Louisiana, 135 S. Ct. 1546 (2015), to determine whether Miller applies 

retroactively. However, until this decision is issued, Cunningham remains 

binding. See Commonwealth v. Cristina, 114 A.3d 419, 424 n.1 (Pa. 

Super. 2015) (Mundy, J., concurring).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/31/2015