J-S39026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL WILLIS

Appellant No. 2766 EDA 2014

Appeal from the Order Entered August 22, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1000571-2005

BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED October 6, 2015

Michael Willis appeals the order entered August 22, 2014, in the 

Philadelphia County Court of Common Pleas denying his first petition filed 

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. 

Willis seeks relief from the judgment of sentence of an aggregate 10 to 20 

years’ imprisonment, imposed on March 16, 2007, following his jury 

conviction of robbery and possession of an instrument of crime (“PIC”).1 On 

appeal, Willis argues the PCRA court erred in denying his claim of 

ineffectiveness of counsel without first conducting an evidentiary hearing. 

For the reasons that follow, we affirm.

____________________________________________

1 18 Pa.C.S. §§ 3701(a)(1) and 907(a), respectively.
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The relevant facts and procedural history were summarized by the 

Pennsylvania Supreme Court in a prior appeal as follows: 

At approximately 2:15 a.m. on April 29, 2005, David Thomas 

was walking along 6th Street in Philadelphia when two men 

approached him and pushed him. One of the men pulled a gun 

from his pocket and pointed it at Thomas’ face, telling Thomas 

“give us your money or we’ll blow your head off.” N.T. Trial, 

10/31/06, at 46–47. Thomas gave the gunman approximately 

$40, and his assailants then fled. Although it was dark at the 

time of the incident, Thomas was able to see his assailants by 

the light of the streetlamps. Id. at 45–46, 68.

Approximately one hour later, after returning home, 

Thomas called the police to report what had happened. When 

the police arrived at Thomas’ home, he initially told them he 

would be unable to identify the men who robbed him because he 

was nervous and overwhelmed. Eventually, however, he gave 

police a description, describing the man with the gun as between 

5′9′′ and 6′ tall, with dark skin and a goatee, and wearing a 

puffy black coat. Thomas described the other man as lightskinned, clean-shaven, and wearing tan pants and a hockey 

jersey. At approximately 4:15 am., Thomas accompanied the 

officers to the police station, where he gave a formal statement 

and description.

Nearly two weeks later, on May 12, 2005, police again 

went to Thomas’ house and showed him a photo array of eight 

individuals. From the photo array, Thomas identified Michael 

Willis ... as the gunman who had robbed him. Thereafter, Willis 

and his accomplice, Richard Peoples, were arrested and charged 

with robbery and [PIC]. On August 17, 2005, Thomas picked 

Willis out of a line-up, again identifying Willis as one of his 

attackers. Thomas also identified Willis as the gunman both at 

his preliminary hearing on August 18, 2005, and at trial.

On November 1, 2006, Willis was convicted by a jury of 

the aforementioned charges. Prior to sentencing, Willis filed a 

motion challenging the verdict as against the weight and 

sufficiency of the evidence. Willis also filed a motion for a new 

trial on the basis of an alleged Brady violation by the 

Commonwealth. Specifically, Willis alleged that Peoples had 

made a deal with the Commonwealth prior to trial, whereby he 
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agreed to plead guilty to certain unrelated charges in exchange 

for the Commonwealth’s nolle pros of certain other charges, 

including the robbery of Thomas. Willis averred that, in the 

course of his discussions with police, Peoples indicated that he 

committed the Thomas robbery with someone other than Willis, 

namely, a man named Robert Richardson a/k/a Woodard 

(hereinafter “Woodard”). The statement was inadvertently 

omitted from documents produced by the Commonwealth prior 

to trial, and was discovered by the prosecutor in her file 

following trial. The statement was brought to the trial court’s 

attention, and the court offered to allow the victim to view 

another photo array containing a photo of Woodard, but Willis’ 

counsel refused.

Peoples was subpoenaed to testify at a hearing on Willis’ 

Brady claim, but was not transported from state prison to court

because, according to a statement made by the prosecutor to 

the trial judge at the hearing, Peoples’ attorney told the 

prosecutor that he would advise Peoples to invoke his Fifth 

Amendment rights and refuse to testify regarding the robbery. 

Willis’ counsel did not object to the prosecutor’s statement, nor 

did she request that Peoples be brought to court to confirm on 

the record that he would invoke the Fifth Amendment if asked to 

testify about the robbery.

In his opinion for the trial court, the Honorable Glenn B. 

Bronson acknowledged that Peoples’ statement, which identified 

someone other than Willis as the person who robbed Thomas, 

“plainly was exculpatory and should have been provided to the 

defense.” Commonwealth v. Willis, CP–51–CR–1000571–

2005, unpublished memorandum at 5 (Phila. Cty. filed Sept. 4, 

2007). Nevertheless, the trial court concluded that Peoples’ 

statement was not material within the meaning of Brady

because disclosure of the statement could not have affected the 

outcome of the case. Specifically, the trial court reasoned that 

Peoples’ out-of-court statement was inadmissible hearsay, and 

that, based on the prosecutor’s statement that Peoples’ attorney 

told her he would advise Peoples not to testify, Peoples’ 

statement would never have been introduced to the jury. In 

addition, the trial court noted “the evidence at the hearing 

established that Woodard did not resemble [Willis], thereby 

making it improbable that the complaining witness confused 

[Willis] for Woodard and made a misidentification.” Id. at 6. 

Accordingly, on March 16, 2007, the trial court denied Willis’ 

motion for a new trial based on the Commonwealth's alleged 
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Brady violation, and sentenced Willis to an aggregate term of 10 

to 20 years incarceration.[2]

Following the denial of his post-trial motions, Willis 

appealed his judgment of sentence to the Superior Court. On 

May 14, 2008, the Superior Court vacated Willis’ judgment of 

sentence and remanded for a new trial. Commonwealth v. 

Willis, 1024 EDA 2007, unpublished memorandum, 954 A.2d 44 

(Pa. Super. filed May 14, 2008). In doing so, the Superior Court 

relied on [the Supreme] Court’s decision in Commonwealth v. 

Green, [640 A.2d 1242 (Pa. 1994)], for the proposition that 

Brady does not require an analysis of the admissibility of 

evidence before such evidence can be deemed material. 

Specifically, the Superior Court noted that Peoples’ statement 

“goes directly to the potential innocence of Willis;” that there 

was no proof that Peoples would have refused to testify; and 

that, “even if the statement were not admissible, it is not the 

Commonwealth’s role to determine how defense counsel shall 

use such evidence.” Willis, 1024 EDA 2007, at 6.

Commonwealth v. Willis, 46 A.3d 648, 651-652 (Pa. 2012).

Thereafter, the Commonwealth petitioned the Pennsylvania Supreme 

Court for review. The Court granted the appeal, and, on May 30, 2012, in a 

plurality decision,3reversed the decision of this Court and reinstated Willis’ 

judgment of sentence. Id. In the Opinion Announcing the Judgment of the 

Court (“OAJC”), Justice Todd, joined by Justice Baer, held that “nondisclosed 

____________________________________________

2 Because Willis’ robbery conviction was his second conviction of a crime of 

violence, the trial court imposed a mandatory minimum sentence, pursuant 

to 42 Pa.C.S. § 9714(a)(1), of 10 to 20 years’ imprisonment for the robbery 

count, and a concurrent term of one and one-half to three years’ for the PIC 

count. See N.T., 3/16/2007, at 13-14, 25-26. We note the mandatory 

minimum sentencing provision at Section 9714 does not implicate the United 

States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 

2151, (U.S. 2013). See Commonwealth v. Reid, 117 A.3d 777, 785 (Pa. 

Super. 2015).

3 All of the Justices agreed the decision of this Court was incorrect.
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favorable evidence which is inadmissible at trial may be considered material 

for purposes of Brady, as long as there is a reasonable probability that, had 

the evidence been disclosed to the defense, the result of the proceeding 

would have been different.” Id. at 650. Further, Justice Todd emphasized 

that to satisfy the “reasonable probability” standard, “a defendant 

necessarily must identify specific evidence or information that would have 

been uncovered, and explain how that evidence or information would have 

changed the result of the proceeding.” Id. at 670. Nevertheless, because 

Justice Todd concluded Willis failed to “establish there was a reasonable 

probability that, had the evidence withheld by the Commonwealth been 

disclosed, there would have been a different outcome at trial,” she reversed 

the order of this Court and reinstated Willis’ judgment of sentence. Id. 

In a Concurring Opinion, then Chief Justice Castille, joined by Justices 

Eakin and McCaffery, agreed Willis failed to prove “the undisclosed evidence 

at issue satisfied the materiality standard established by Brady v. 

Maryland, 373 U.S. 83 (1963), and its progeny.” Id. at 674 (Castille J., 

Concurring). However, Justice Castille disagreed with the OAJC’s discussion 

of and reliance on the Supreme Court’s prior decision in Green, supra.

4

 

____________________________________________

4

In Green, the Supreme Court reversed the defendant’s death sentence for 

the murder of a police officer and remanded for a new trial based upon a 

Brady violation. Green, supra, 640 A.2d at 1243. Specifically, the Court 

found the Commonwealth failed to disclose to the defense an exculpatory 

statement by a witness who claimed that after the murder, Green’s codefendant told him she had killed a cop. Id. at 1244. The Court determined 

(Footnote Continued Next Page)
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Similarly, in another concurring opinion, Justice Saylor joined in the OAJC, 

except for its treatment of Green, supra, which he described as “too cryptic 

to provide a useful platform for clarification.” Id. at 684-685 (Saylor, J., 

Concurring). 

(Footnote Continued) _______________________

the statement was relevant and material to the both the guilt and penalty 

phases of the trial. Specifically, with regard to the guilt phase, the Court 

opined:

First, [the witness’s] statements to the police in no way 

implicated [Green] in the murder. Instead, they implicated only 

[his co-defendant]. Moreover, knowledge of [the codefendant’s] statement to [the witness] certainly would have 

opened another avenue of investigation for the defense that may 

well have led to further exculpatory evidence. Had the defense 

been aware of [the witness’s] statements, it may also have 

altered its trial strategy, especially in regards to [Green’s] 

decision not to testify since [the witness’s] statements were 

consistent with [Green’s] own statements to the police.

Id. at 1245-1246. Further, the Court concluded that the United States 

Supreme Court’s decision in Brady “in no way mandates that the 

[undisclosed] evidence first be admissible before it can be deemed ‘material’ 

to the defense.” Id. at 1246.

In his Concurring Opinion in Willis, Chief Justice Castille took issue 

with the Green Court’s holding that “[i]n determining the materiality of the 

omitted evidence we must, therefore, consider any adverse effect that the 

prosecutor’s failure to disclose might have had on not only the presentation 

of the defense at trial, but the preparation of the defense as well.” 

Willis, supra, 46 A.3d at 674 (Castille, C.J., Concurring) (emphasis in 

original and citation omitted). Rather, the Chief Justice stated he would 

overrule Green, and require “that the derivative, admissible evidence be 

specifically identified, with an explanation of why it is difference-making 

under the reasonable probability standard.” Id. at 684 (Castille, C.J., 

Concurring). 
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Thereafter, on July 28, 2012, Willis filed a timely, pro se PCRA petition. 

Counsel was appointed, and filed an amended petition on February 11, 

2014, which (1) challenged the ineffective assistance of all prior counsel for 

failing to properly preserve the issue of materiality with respect to his Brady

claim, and (2) requested permission “to subpoena Peoples to the Courtroom 

so that the PCRA Court could determine, once and for all, whether Peoples is 

a viable witness.” Amended Post Conviction Relief Act Petition, 2/11/2014, 

at 9-10. In response, the Commonwealth filed a motion to dismiss the 

petition.

On May 5, 2014, the PCRA court sent Willis notice, pursuant to 

Pa.R.Crim.P. 907, of its intent to dismiss his petition without first conducting 

an evidentiary hearing. Willis submitted a pro se response, and, on August 

22, 2014, the court dismissed his PCRA petition. This timely appeal 

followed.5

On appeal, Wilis focuses his claim on the PCRA court’s failure to grant 

him an evidentiary hearing. Specifically, he asserts trial counsel was 

ineffective when she declined the trial court’s offer to show a photo array to 

the victim, which included a photo of Woodard, the “real” co-conspirator 

according to Peoples’ police statement. Willis claims “that was the only way 

____________________________________________

5 On September 23, 2014, the PCRA court ordered Willis to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Willis complied with the court’s directive and filed a concise statement on 

October 15, 2014. 
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to have demonstrated that the Brady exclusion was material.” Willis’ Brief 

at 13. Rather, he argues, counsel “took a chance of winning on a procedural 

right ... where there was no real reason to believe that the right would be 

vindicated.” Id. Further, Willis contends the PCRA court should have 

granted him permission to subpoena Peoples. He states, “If the witness 

Peoples would not be claiming a Fifth Amendment privilege, he would be 

available to the defense.” Id. To that end, Willis also requested assistance 

from the District Attorney’s Office to provide “at the very least, the last 

known address for Peoples.” Id. at 14.

When reviewing an order dismissing a PCRA petition, we must 

determine whether the PCRA court’s findings of fact are supported by the 

record, and whether its legal conclusions are free from error. 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “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.” 

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

omitted).

Where, as here, the claims raised on appeal challenge the 

effectiveness of counsel, our review is well-settled: 

We begin our analysis of ineffectiveness claims with the 

presumption that counsel is effective. To prevail on his 

ineffectiveness claims, Appellant must plead and prove, by a 

preponderance of the evidence, three elements: (1) the 

underlying legal claim has arguable merit; (2) counsel had no 

reasonable basis for his action or inaction; and (3) Appellant 

suffered prejudice because of counsel’s action or inaction. With 
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regard to the second, i.e., the “reasonable basis” prong, we will 

conclude that counsel’s chosen strategy lacked a reasonable 

basis only if Appellant proves that “an alternative not chosen 

offered a potential for success substantially greater than the 

course actually pursued.” To establish the third, i.e., the 

prejudice prong, Appellant must show that there is a reasonable 

probability that the outcome of the proceedings would have been 

different but for counsel’s action or inaction.

Commonwealth v. Spotz, 18 A.3d 254, 259-260 (Pa. 2011) (internal 

citations omitted). “Failure to establish any prong of the test will defeat an 

ineffectiveness claim.” Commonwealth v. Keaton, 45 A.3d 1050, 1061 

(Pa. 2012) (citations omitted).

Further, with regard to a petitioner’s right to an evidentiary hearing, it 

is well-settled that:

The PCRA court has the discretion to dismiss a petition without a 

hearing when the court is satisfied “that there are no genuine 

issues concerning any material fact, the defendant is not entitled 

to post-conviction collateral relief, and no legitimate purpose 

would be served by further proceedings.” Commonwealth v. 

Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011) (quoting 

Pa.R.Crim.P. 909(B)(2)). “To obtain reversal of a PCRA court’s 

decision to dismiss a petition without a hearing, an appellant 

must show that he raised a genuine issue of fact which, if 

resolved in his favor, would have entitled him to relief, or that 

the court otherwise abused its discretion in denying a hearing.” 

Id. (quoting Commonwealth v. D'Amato, 579 Pa. 490, 856 

A.2d 806, 820 (2004)). We stress that an evidentiary 

hearing “is not meant to function as a fishing expedition 

for any possible evidence that may support some 

speculative claim of ineffectiveness.” Commonwealth v. 

Jones, 571 Pa. 112, 811 A.2d 994, 1003 n. 8 (2002) (citation 

omitted). In Jones, we declined to remand for an evidentiary 

hearing when the appellant merely asserted that counsel did not 

have a reasonable basis for his lack of action but made no 

proffer of evidence as to counsel’s lack of action. 
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Commonwealth v. Roney, 79 A.3d 595, 604-605 (Pa. 2013) (emphasis 

added), cert. denied, 135 S. Ct. 56 (U.S. 2014). Indeed, “if the court can

determine without an evidentiary hearing that one of the [ineffectiveness] 

prongs cannot be met, then no purpose would be advanced by holding an 

evidentiary hearing.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. 

Super. 2008), appeal denied, 956 A.2d 433 (Pa. 2008).

Here, the PCRA court concluded that Willis failed to establish both the 

reasonable basis and prejudice prongs of his ineffectiveness claim. First, the 

court determined Willis failed to demonstrate trial counsel had no reasonable 

basis for declining the trial court’s offer to show a second photo array to the 

victim, which included a photo of Woodard. Rather, the PCRA court found 

counsel had an “eminently reasonable strategy,” concluding it “would not 

have been fair to [Willis] to allow the victim to view a photo array with [his] 

photo in it” since the victim had already identified Willis “on a number of 

occasions and was in his presence during court proceedings.” PCRA Court 

Opinion, 12/11/2014, at 6. Instead, counsel chose to argue on appeal that 

“the trial court incorrectly interpreted the law governing the materiality 

requirement for Brady violations.” Id. The PCRA court emphasized this 

strategy was at least initially successful, since the Superior Court granted 

Willis a new trial. Id. Second, the PCRA court determined Willis failed to 

demonstrate he was prejudiced by counsel’s actions. Specifically, the court 

found Willis failed to establish that, had the victim been shown the photo 

array with Woodard in it, he would have identified Woodard as the gunman. 
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Id. The court also noted that evidence presented during the post-trial 

hearing “established that Woodard did not resemble the defendant, thereby 

making it improbable that the complaining witness confused the defendant 

for Woodard and made a misidentification.” Id. at 7, citing N.T., 2/16/2007, 

at 12. 

We agree with the conclusion of the PCRA court that Willis failed to 

demonstrate his right to relief. First, as noted by the PCRA court, trial 

counsel had a reasonable strategic basis for her decision to forgo a second 

photo array. The victim had already identified Willis on a number of 

occasions both prior to and during trial, and a second photo array would be 

superfluous. As such, counsel’s decision to focus on the trial court’s 

purported error of law was reasonable. Moreover, we agree that Willis failed 

to demonstrate he was prejudiced by counsel’s omission. Indeed, counsel’s 

failure to accept the trial court’s offer to show the victim a second photo 

array would be prejudicial only if the victim identified Woodard, rather than 

Willis, as his attacker. Therefore, Willis’ failure to plead in his PCRA petition 

that the victim would provide such testimony at a hearing defeats his claim. 

Accordingly, we find no abuse of discretion on the part of the PCRA court in 

denying Willis’ ineffectiveness claim without first conducting an evidentiary 

hearing.

Willis also asserts the PCRA court should have conducted an 

evidentiary hearing, and permitted him to subpoena Peoples “so that the 

PCRA court could determine, once and for all, whether Peoples is a viable 
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witness.” Willis’ Brief at 13. Willis does not aver, however, that Peoples 

would provide any testimony helpful to his defense.6 See id. at 13-14 (“If 

the witness Peoples would not be claiming a Fifth Amendment privilege, he 

would be available to the defense”) (emphasis added). We remind Willis 

“that an evidentiary hearing ‘is not meant to function as a fishing expedition 

for any possible evidence that may support some speculative claim of 

ineffectiveness.’” Roney, supra, 79 A.3d at 605 (citation omitted). 

Therefore, Willis’ failure to establish that Peoples may be a viable witness 

who could provide exculpatory testimony defeats his claim.

____________________________________________

6 We note that Section 9545(d) requires a petitioner requesting an 

evidentiary hearing to include “a signed certification as to each intended 

witness stating the witness's name, address, date of birth and substance of 

testimony and shall include any documents material to that witness's 

testimony.” 42 Pa.C.S. § 9545(d)(1). Although the failure to include a 

certification is fatal to the claim, this Court has refused to “affirm a PCRA 

court's decision on the sole basis of inadequate witness certifications where 

the PCRA court did not provide notice of the alleged defect.” 

Commonwealth v. Pander, 100 A.3d 626, 642 (Pa. Super. 2014), appeal 

denied, 109 A.3d 679 (Pa. 2015). Further, when a PCRA court has not 

provided a petitioner with the opportunity to amend his petition to comply 

with section 9545(d)(1), and the petitioner’s claim “potentially has arguable 

merit,” we have remanded the matter to provide the petitioner the 

opportunity to comply with the statute and secure an evidentiary hearing. 

Commonwealth v. Lippert, 85 A.3d 1095, 1101 (Pa. Super. 2014), appeal 

denied, 95 A.3d 277 (Pa. 2014). We decline to remand the matter in the 

present case because (1) it is evident Willis is only speculating that the 

substance of Peoples’ proposed testimony, and (2) as noted supra, his claim 

fails on the merits.
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Nevertheless, the PCRA court explained that even assuming Peoples 

were available to testify, Willis failed to demonstrate Peoples’ testimony 

“would have changed the outcome of the trial if it had been introduced.” 42 

Pa.C.S. § 9543(a)(vi). The court opined:

Here, the evidence demonstrates clearly that Peoples[’] 

testimony would, on balance, strengthen, rather than weaken, 

the Commonwealth’s case. It is true, ... that Peoples stated that 

he committed the Thomas robbery with Woodard. However, if 

Peoples were called as a witness for the defense, the remainder 

of his statement would become admissible to impeach his 

recollection of that robbery. In particular, Peoples stated that he 

had committed too many robberies to count, that [Willis] was his 

accomplice in at least four of these robberies, and that [Willis] 

possessed the weapon that was used to threaten the robbery 

victims on three of those four occasions. Peoples covered 17 

specific robberies in his statement, all in the area where Peoples 

lived. Given the extensive number of robberies committed by 

Peoples, and the strength of Thomas’ repeated identification of 

[Willis] as one of his assailants, it is extremely likely that the 

jury would have concluded that Peoples was simply confusing 

one robbery with another. Indeed, the Court cannot imagine 

any reasonable factfinder, after hearing Peoples’ statement, 

concluding that Thomas was in error, and it was merely a 

coincidence that Thomas identified [Willis] as the robber when, 

according to Peoples, [Willis] had committed four other armed 

robberies with Peoples in the same general area. On balance, 

the inculpatory effect of identifying [Willis] as the perpetrator of 

four armed robberies in the area would outweigh the exculpatory 

effect of Peoples thinking that Woodard was his accomplice on 

the night Thomas was robbed.

PCRA Court Opinion, 12/11/2014, at 8-9. We find no reason to disagree.
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Accordingly, because we conclude Willis has failed to establish the 

PCRA court abused its discretion in denying his petition without first 

conducting an evidentiary hearing, we affirm the order on appeal.7

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/6/2015

____________________________________________

7 To the extent Willis argues the court erred in granting relief “on the 

papers,” we conclude that such claim is waived. Willis’ Brief at 14. Willis 

asserts, in a three-sentence conclusory paragraph, (1) his first claim was 

“properly briefed” in his “Amended Post Conviction Relief Act Brief[;]” (2) he 

was entitled to relief “[o]n the papers[;]” and (3) the PCRA court “had no 

good legal reason for the denial of such relief[.]” Id. Therefore, he claims 

he is entitled to a new trial. This argument, which contains no analysis or 

citation to authority, is insufficient to warrant relief. See Commonwealth 

v. Spotz, 896 A.2d 1191, 1250 (Pa. 2006) (“[B]oilerplate, undeveloped 

argument respecting the ineffectiveness of all prior counsel is insufficient to 

establish an entitlement to post-conviction relief.”). Moreover, as we 

explained with regard to the first claim, Willis has failed to demonstrate trial 

counsel provided ineffective assistance.
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