J-S11007-17

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WILLIAM EARL SMITH,

Appellant No. 407 WDA 2016

Appeal from the PCRA Order of March 16, 2016

In the Court of Common Pleas of Fayette County

Criminal Division at No(s): CP-26-CR-0000378-2012

BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED MARCH 17, 2017

Appellant, William Earl Smith, appeals pro se from the order entered 

on March 16, 2016, which dismissed his petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The PCRA court ably summarized the facts underlying Appellant’s 

convictions. As the PCRA court explained:

On the afternoon of December 23, 2011, Malik Muhammed 

[(hereinafter “Victim”)], was picking up food at the Taste of 

Soul restaurant, located at the corner of Searight Avenue 

and Dunlap Street in Uniontown, [Pennsylvania]. Victim 

testified that he observed [Appellant], known to him by the 

nickname “Wee Wee,” inside the restaurant; upon leaving, 

Victim was approached by [Appellant]. After a brief 

exchange, [Appellant] pulled a firearm from his jacket and 

shot Victim once in the right shoulder from a distance of 

approximately two feet. Victim sustained multiple injuries, 

including [injuries to] the right shoulder, [right rib], and 

right lung.
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A great deal of evidence was presented against [Appellant 

during Appellant’s trial]. Victim testified that he knew 

[Appellant] because they lived in neighboring apartment 

complexes. Victim testified that he only knew [Appellant] 

as “Wee Wee.” Detective [Donald] Gmitter testified that[,] 

at the hospital, Victim stated that “Wee Wee” had shot him. 

At trial, Victim was able to positively identify [Appellant] as 

the person who shot him. Dr. Christopher Biwojno, the 

physician that treated Victim at Uniontown Hospital, 

testified that the injury Victim suffered was likely fatal had 

he not sought medical treatment. Susan Atwood, 

Supervisor of the Trace Evidence section of the 

Pennsylvania State Police Crime Laboratory, tested samples 

taken from [Appellant’s] hands in order to detect gunshot 

residue. While no characteristic gunshot residue particles 

were found, Ms. Atwood’s test found indicative particles on 

[Appellant’s] hands. This evidence indicated that one of the 

elements of lead, barium, or antimony was present on 

[Appellant’s] hands. Ms. Atwood testified as to different 

reasons characteristic particles would not be present. The 

Commonwealth presented the indicative gunshot residue 

particles as circumstantial evidence that [Appellant] had 

recently fired a weapon.

PCRA Court Opinion, 3/16/16, at 2-3 (internal citations omitted).

The jury found Appellant guilty of attempted homicide, recklessly 

endangering another person, two counts of aggravated assault, and two 

counts of simple assault.1 On January 10, 2013, the trial court sentenced 

Appellant to serve a term of 18 to 40 years in prison for attempted homicide 

and imposed no further penalty for Appellant’s remaining convictions. This 

Court affirmed Appellant’s judgment of sentence on August 9, 2013; the 

Pennsylvania Supreme Court denied Appellant’s petition for allowance of 

____________________________________________

1 18 Pa.C.S.A. §§ 901, 2705, 2702, and 2701, respectively.
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appeal on February 26, 2014. Commonwealth v. Smith, 83 A.3d 1063 

(Pa. Super. 2013) (unpublished memorandum) at 1-7, appeal denied, 84 

A.3d 1064 (Pa. 2014).

Appellant filed a timely, pro se PCRA petition on January 5, 2015. 

Within Appellant’s petition, Appellant raised the following claims:

1) Whether counsel for defense was ineffective for failing to 

object to judicial misconduct of judge for bias, and leading 

witness. The victim in case. The forensic expert intending 

to establish probability of guilt. Being partial.

2) Whether court [erred] in asking expert questions about 

indicative particles which is inconsistent with gunshot 

residue.

3) Whether counsel was ineffective for failure to request 

mistrial. Due to discovery violation of two other actors 

which was never provided to defense.

4) Whether prosecutor committed prosecutorial misconduct 

by making statements to prejudice the jury in his closing 

argument. Where he stated the reason you didn’t have 

gunshot residue on the defendant is because he washed 

hands. DA also went on to state in his closing concerning 

defendant prior testimony that defendant stated why shoot 

someone he did.

5) Whether counsel was ineffective for not filing posttrial 

motion.

6) Whether counsel prejudice defendant by confusing the 

weight of evidence with the sufficiency of [evidence] on 

appeal.

Appellant’s Pro Se PCRA Petition, 1/5/15, at 3.

The PCRA court appointed counsel to represent Appellant and counsel 

filed an amended petition on Appellant’s behalf. The amended PCRA petition 
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raised two claims: 1) trial counsel was ineffective for “fail[ing] to call Daylan 

McLee as a witness for the defense” and 2) trial counsel was ineffective for 

failing to file a post-sentence motion to challenge the weight of the 

evidence. Appellant’s Amended PCRA Petition, 5/7/15, at 2-3.

On August 24, 2015, the PCRA court held a hearing on Appellant’s 

PCRA petition and, on March 16, 2016, the PCRA court denied the petition. 

PCRA Court Order, 3/16/16, at 1.

Appellant filed a timely notice of appeal and, on March 21, 2016, 

Appellant filed a concise statement of errors complained of on appeal, 

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant 

raised two claims in his Rule 1925(b) statement:

1. Whether trial counsel . . . was ineffective for failing to file 

a motion requesting a new trial based on the weight of the 

evidence?

2. Whether trial counsel was ineffective for failing to call an 

exculpatory witness, Daylan McLee, at trial?

Appellant’s Rule 1925(b) Statement, 3/21/16, at 1.

On April 6, 2016, Appellant filed a “Motion to Proceed Pro Se” with the 

PCRA court. We remanded the case so that the PCRA court could conduct a 

Grazier2 hearing. Order, 4/28/16, at 1. Following the Grazier hearing, the 

PCRA court concluded that Appellant knowingly, intelligently, and voluntarily 

waived his right to counsel during the post-conviction appellate proceedings. 

____________________________________________

2 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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The PCRA court thus granted Appellant’s “Motion to Proceed Pro Se” and 

permitted him to proceed pro se on the current appeal. Trial Court Order, 

7/13/16, at 1-2.

Now on appeal, Appellant raises three claims to this Court:

1) Appellant is actually innocent of the crime he was 

[wrongfully] convicted of[.]

2) Plain error denied Appellant due process of law and a fair 

trial.

3) Appellant has been denied his right to effective 

assistance [of] counsel[] in this matter.

Appellant’s Brief at 4.

As we have stated:

[t]his Court’s standard of review regarding an order 

dismissing a petition under the PCRA is whether the 

determination of the PCRA court is supported by evidence of 

record and is free of legal error. In evaluating a PCRA 

court’s decision, 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 trial level. We may affirm a PCRA court’s decision on 

any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal 

citations omitted).

To be eligible for relief under the PCRA, the petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

resulted from “one or more” of the seven, specifically enumerated 

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). Specifically, Section 

9543(a)(2) declares:
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(a) General rule.--To be eligible for relief under this 

subchapter, the petitioner must plead and prove by a 

preponderance of the evidence all of the following:

. . .

(2) That the conviction or sentence resulted from one or 

more of the following:

(i) A violation of the Constitution of this Commonwealth 

or the Constitution or laws of the United States 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.

(ii) 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.

(iii) A plea of guilty unlawfully induced where the 

circumstances make it likely that the inducement caused 

the petitioner to plead guilty and the petitioner is 

innocent.

(iv) The improper obstruction by government officials of 

the petitioner's right of appeal where a meritorious 

appealable issue existed and was properly preserved in 

the trial court.

. . .

(vi) The unavailability at the time of trial of exculpatory 

evidence that has subsequently become available and 

would have changed the outcome of the trial if it had 

been introduced.

(vii) The imposition of a sentence greater than the lawful 

maximum.

(viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S.A. § 9543.
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Appellant’s first two issues on appeal are not cognizable under the 

PCRA and Appellant did not raise the issues in his Rule 1925(b) statement. 

Therefore, Appellant waived his first two issues on appeal; and, even if the 

claims were not waived, the claims would immediately fail. Pa.R.A.P. 

1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b) s]tatement . . . 

are waived”); 42 Pa.C.S.A. § 9543(a)(2). 

Finally, Appellant claims that he “has been denied his right to effective 

assistance [of] counsel[] in this matter.” Appellant’s Brief at 4. Within 

Appellant’s brief to this Court, Appellant raises two ineffective assistance of 

counsel claims: 1) trial counsel was ineffective for failing “to properly 

investigate the case[,] result[ing] in his failure to recognize the arrest 

warrant and its accompanying affidavit of probable cause were illegal and 

unconstitutional” and 2) trial counsel was ineffective for failing to raise a 

weight of the evidence claim in a post-sentence motion. Id. at 28-31.

Appellant’s first sub-claim is waived because Appellant did not raise 

the claim in his PCRA petition or in his Rule 1925(b) statement. Pa.R.A.P. 

1925(b)(4)(vii); 42 Pa.C.S.A. § 9543(a)(2). Appellant’s second sub-claim 

fails.

One of the statutorily enumerated circumstances in Section 9543(a)(2) 

is the “[i]neffectiveness of counsel which, in the circumstances of the 

particular case, so undermined the truth-determining process that no 
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reliable adjudication of guilt or innocence could have taken place.” 42 

Pa.C.S.A. § 9543(a)(2)(ii).

Counsel is, however, presumed to be effective and “the burden of 

demonstrating ineffectiveness rests on [A]ppellant.” Rivera, 10 A.3d at 

1279. To satisfy this burden, Appellant must plead and prove by a 

preponderance of the evidence that:

(1) his 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 challenged 

proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to 

satisfy any prong of the test for ineffectiveness will require rejection of the 

claim.” Id. 

To establish the reasonable basis prong, we must look to see whether 

trial counsel’s strategy was “so unreasonable that no competent lawyer 

would have chosen that course of conduct.” Commonwealth v. Williams, 

640 A.2d 1251, 1265 (Pa. 1994). An attorney’s trial strategy “will not be 

found to have lacked a reasonable basis unless it is proven that an 

alternative not chosen offered a potential for success substantially greater 

than the course actually pursued.” Commonwealth v. Howard, 719 A.2d 

233, 237 (Pa. 1998). Further, if an appellant has clearly not met the 

prejudice prong, a court may dismiss the claim on that basis alone and need 
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not determine whether the other two prongs have been met. 

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

According to Appellant, he was prejudiced by counsel’s failure to file a 

post-sentence motion and challenge the weight of the evidence because “a 

gunpowder residue test was performed on Appellant by [the] arresting police 

[officer] and an analysis of the evidence collected reveals no trace evidence 

under the SEM test of the evidence that established gunpowder residue upon 

Appellant’s person.” Appellant’s Brief at 30.

Our Supreme Court has held:

a verdict is against the weight of the evidence only when 

the jury’s verdict is so contrary to the evidence as to shock 

one’s sense of justice. It is well established that a weight of 

the evidence claim is addressed to the discretion of the trial 

court. A new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same 

facts would have arrived at a different conclusion. Rather, 

the role of the trial court is to determine that 

notwithstanding all the evidence, certain facts are so clearly 

of greater weight that to ignore them, or to give them equal 

weight with all the facts, is to deny justice. A motion for a 

new trial on the grounds that the verdict is contrary to the 

weight of the evidence concedes that there is sufficient 

evidence to sustain the verdict; thus the trial court is under 

no obligation to view the evidence in the light most 

favorable to the verdict winner.

Significantly, in a challenge to the weight of the evidence, 

the function of an appellate court on appeal is to review the 

trial court’s exercise of discretion based upon a review of 

the record, rather than to consider de novo the underlying 

question of the weight of the evidence. In determining 

whether this standard has been met, appellate review is 

limited to whether the trial judge’s discretion was properly 

exercised, and relief will only be granted where the facts 

and inferences of record disclose a palpable abuse of 
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discretion. It is for this reason that the trial court’s denial of 

a motion for a new trial based on a weight of the evidence 

claim is the least assailable of its rulings. 

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal 

quotations and citations omitted). “An abuse of discretion is not merely an 

error of judgment, but is rather the overriding or misapplication of the law, 

or the exercise of judgment that is manifestly unreasonable, or the result of 

bias, prejudice, ill-will or partiality, as shown by the evidence of record.” 

Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (internal 

quotations and citations omitted).

The PCRA court judge in this case also presided over Appellant’s trial. 

As the PCRA court explained, even if Appellant properly preserved his weight 

of the evidence claim at the trial level, the claim would have failed:

While no characteristic gunshot residue particles were found 

on [Appellant’s] hands, [Susan Atwood, the Supervisor of 

the Trace Evidence section of the Pennsylvania State Police 

Crime Laboratory,] . . . pointed to several factors that could 

contribute to the absence of characteristic particles, 

including the time between the firing of the weapon and 

arrest; washing of the hands; perspiration; and[,] transfer 

to inanimate objects[, including] furniture and clothing. In 

his appeal, [Appellant] pointed to Ms. Atwood’s admission 

that while characteristic particles would indicate a near 

certainty that a defendant had recently discharged a

firearm, indicative particles could originate from other 

sources in the environment. . . . 

Based on the fact that [five] hours elapsed between the 

time of the shooting and [Appellant’s] arrest, the jury could 

reasonably infer that characteristic particles had been 

present at the time of the incident, but deliberately or 

inadvertently removed from [Appellant’s] hands.
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. . .

It is important to note that, in addition to the evidence of 

[indicative particles], the jury heard direct evidence of 

[Appellant’s] guilt at trial. Victim knew [Appellant] because 

they lived in neighboring apartment complexes. Victim 

knew that [Appellant] was known by the nickname of “Wee 

Wee,” and [Appellant] admitted that he has been known as 

“Wee Wee” since he was a child. Victim was able to identify 

[Appellant] at trial as the person who shot him; 

furthermore, Victim identified the shooter as “Wee Wee” to 

Detective Gmitter at the hospital. The jury was entitled to 

believe Victim’s testimony that [Appellant] was the person 

who shot him, and to disbelieve [Appellant’s] testimony. 

. . .

Thus, even if [Appellant had presented a weight of the 

evidence motion to the trial court, the PCRA court] 

conclude[s] that there is no reasonable probability that the 

outcome of the proceedings would have been different. . . . 

PCRA Court Opinion, 3/16/16, at 6-7 and 9-10 (internal citations omitted).

We agree with the PCRA court’s able analysis and conclude that trial 

counsel’s failure to file a post-sentence motion to challenge the weight of the 

evidence did not cause Appellant any prejudice. Therefore, Appellant’s 

ineffective assistance of counsel claim fails.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/17/2017