J-S52012-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LAMAR WILLIAMS,

Appellant No. 1817 WDA 2014

Appeal from the PCRA Order October 29, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0017932-2009

BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 30, 2015

Appellant, Lamar Williams, appeals from the order denying his petition 

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. 

§§ 9541-9546. We affirm.

The PCRA court summarized the facts of this case as follows:

Briefly, the evidence presented at trial established that on 

July 30, 2009, narcotics division Detectives Goob and Fallert and 

Sergeant Snyder were detailed to the North Side of the City of 

Pittsburgh in an unmarked vehicle when they observed a 2009 

Pontiac G6 run a stop sign at the intersection of Federal Street 

and Lafayette Street. The detectives began to follow the car, 

and observed it run another stop sign at the intersection of 

Federal Street and Perrysville Avenue. The detectives then 

activated their lights and the car gave chase, swerving around a 

PAT bus, crossing a double yellow line and reaching speeds of 

60-65 mph in [a] 25 mph zone. Eventually the car attempted a 

sharp turn and lost control, striking another vehicle and coming 

to a stop. The detectives pulled up to the driver’s side of the 

wrecked Pontiac so that the driver was unable to exit the 

driver[’s] side door of the vehicle. However, the driver climbed 
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over the seat, jumped out of the passenger side door and began 

to run. He was chased by Sgt. Snyder and Detective Goob. 

During the chase, Sgt. Snyder observed [Appellant] reach into 

his pocket and toss an object out as he ran. Shortly thereafter, 

Sgt. Snyder and Det. Goob caught up with [Appellant] and after 

a short struggle, placed him under arrest. Sgt. Snyder then 

retrieved the object that [Appellant] had thrown and discovered 

it to be a wrapped brick containing 250 stamp bags of heroin 

with a street value of $2500.

PCRA Court Opinion, 4/28/15, at 2-3.

On January 6, 2011, at the conclusion of trial, a jury convicted 

Appellant of fleeing or attempting to elude a police officer, recklessly 

endangering another person, possession of a controlled substance with the 

intent to deliver, and possession of a controlled substance. In addition, the 

trial judge found Appellant guilty of one count of driving while operating 

privileges were suspended or revoked, three counts of violating duties at a 

stop sign, and one count of reckless driving. On April 5, 2011, the trial court 

sentenced Appellant to serve an aggregate term of incarceration of five to 

ten years.

Appellant filed post-sentence motions, which were denied. On July 6, 

2012, this Court affirmed Appellant’s judgment of sentence, and the 

Pennsylvania Supreme Court denied Appellant’s petition for allowance of 

appeal on July 2, 2013. Commonwealth v. Williams, 1558 WDA 2011, 55 

A.3d 125 (Pa. Super. filed July 6, 2012) (unpublished memorandum), appeal 

denied, 69 A.3d 602 (Pa. 2013).
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On August 19, 2013, Appellant filed a timely pro se PCRA petition. 

PCRA counsel was appointed and filed an amended PCRA petition. The PCRA 

court held an evidentiary hearing on June 25, 2014. On October 29, 2014, 

the PCRA court denied Appellant’s PCRA petition. This timely appeal 

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 

1925.

Appellant presents the following issues for our review:

1. Whether the trial court erred in finding that trial counsel’s 

failure to request the No Adverse Inference jury instruction was 

harmless when the record shows that [Appellant] was prejudiced 

by Attorney Rabner’s error?

2. Whether the trial court erred in finding trial counsel effective 

when the record shows that Attorney Rabner presented 

testimony from a witness that he failed to adequately interview, 

whose testimony damaged the defense?

Appellant’s Brief at 3.

Our standard of review of an order denying PCRA relief is whether the 

record supports the PCRA court’s determination and whether the PCRA 

court’s determination is free of legal error. Commonwealth v. Phillips, 31 

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 

A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be 

disturbed unless there is no support for the findings in the certified record. 

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 

2001)).
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We observe that each of Appellant’s claims challenges the effective 

assistance of his trial counsel. In order to succeed on a claim of ineffective 

assistance of counsel, an appellant must demonstrate (1) that the 

underlying claim is of arguable merit; (2) that counsel’s performance lacked 

a reasonable basis; and (3) that the ineffectiveness of counsel caused the 

appellant prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 

2001).

We have explained that trial counsel cannot be deemed ineffective for 

failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 

125, 132 (Pa. Super. 2003) (en banc). Moreover, with regard to the second 

prong, we have reiterated that trial counsel’s approach must be “so 

unreasonable that no competent lawyer would have chosen it.” 

Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000) 

(quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).

Our Supreme Court has long defined “reasonableness” as follows:

Our inquiry ceases and counsel’s assistance is deemed 

constitutionally effective once we are able to conclude that the 

particular course chosen by counsel had some reasonable basis 

designed to effectuate his client’s interests. The test is not 

whether other alternatives were more reasonable, employing a 

hindsight evaluation of the record. Although weigh the 

alternatives we must, the balance tips in favor of a finding of 

effective assistance as soon as it is determined that trial 

counsel’s decision had any reasonable basis.
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Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting 

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa. 

1967)) (emphasis in original).

In addition, we are mindful that prejudice requires proof that there is a 

reasonable probability that, but for counsel’s error, the outcome of the 

proceeding would have been different. Pierce, 786 A.2d at 213. “A failure 

to satisfy any prong of the ineffectiveness test requires rejection of the claim 

of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus, 

when it is clear that a petitioner has failed to meet the prejudice prong of an 

ineffective assistance of counsel claim, the claim may be disposed of on that 

basis alone, without a determination of whether the first two prongs have 

been met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 

2005).

It is presumed that the petitioner’s counsel was effective, unless the 

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167, 

1177 (Pa. 1999). We are bound by the PCRA court’s credibility 

determinations where there is support for them in the record. 

Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing 

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).

Furthermore, claims of ineffective assistance of counsel are not selfproving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002). 
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“[A] post-conviction petitioner must, at a minimum, present argumentation 

relative to each layer of ineffective assistance, on all three prongs of the 

ineffectiveness standard....” Commonwealth v. D’Amato, 856 A.2d 806, 

812 (Pa. 2004). “[A]n underdeveloped argument, which fails to 

meaningfully discuss and apply the standard governing the review of 

ineffectiveness claims, simply does not satisfy Appellant’s burden of 

establishing that he is entitled to relief.” Commonwealth v. Bracey, 795 

A.2d 935, 940 n.4 (Pa. 2001).

In his first issue on appeal, Appellant argues that trial counsel was 

ineffective for failing to request a “no adverse inference” jury instruction. 

Appellant’s Brief at 10-12. Appellant contends that trial counsel was 

obligated to insure that the jury acted properly during deliberations by 

requesting the instruction and that Appellant’s right to remain silent was 

upheld.

“A ‘no adverse inference’ instruction directs the jury that they may not 

draw any adverse inference from the defendant’s failure to testify in his own 

defense, because the defendant has the absolute right not to testify if he so 

chooses.” Commonwealth v. Stanley, 830 A.2d 1021, 1022 n.1 (Pa. 

Super. 2003). “Pursuant to both the Fifth Amendment to the United States 

Constitution and Article I, Section 9, of the Pennsylvania Constitution, a 

criminal defendant is entitled to receive, upon timely request, a specific 

instruction which informs the jury that it may draw no adverse inference 
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from the fact that the defendant did not testify at trial.” Commonwealth v. 

Khamphouseane, 642 A.2d 490, 497 (Pa. Super. 1994). As our Supreme 

Court explained in Commonwealth v. Thompson, 674 A.2d 217 (Pa. 

1996), the “no adverse inference” instruction must be given unless the 

defendant expressly waives his right to the instruction in an on-the-record 

colloquy. Id. at 221.

More recently, in Commonwealth v. Perez, 103 A.3d 344 (Pa. 

Super. 2014), appeal denied, 116 A.3d 604 (Pa. 2015), this Court reiterated 

that pursuant to Stanley, “a failure to request a colloquy with respect to 

waiver of the instruction . . . cannot constitute prejudice per se . . . .” 

Perez, 103 A.3d at 349. Therefore, the “standard three-part ineffectiveness 

test should govern the analysis . . . .” Id. Furthermore, “[a]s this claim is 

premised upon trial counsel’s inaction, [the] appellant must establish that he 

suffered prejudice as a result of counsel’s failure to act to such a 

degree that absent counsel’s error the outcome of the verdict would 

have been different.” Thompson, 674 A.2d at 221 (emphasis added).

Our review of the record reflects that there was no on-the-record 

colloquy of Appellant expressly waiving the no adverse inference charge. 

Appellant’s trial counsel, Attorney Rabner, testified at the PCRA hearing that 

he did not request the “no adverse inference” instruction, and that it was an 

apparent oversight on his part. Specifically, the following transpired at the 

PCRA hearing:
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[PCRA COUNSEL]: Did [Appellant] testify during the trial?

[TRIAL COUNSEL]: He did not.

[PCRA COUNSEL]: Are you familiar through your practice with 

the no adverse inference jury instruction?

[TRIAL COUNSEL]: I am familiar with it.

[PCRA COUNSEL]: Before this morning, did you have an 

opportunity to review the transcript of those proceedings?

[TRIAL COUNSEL]: At the last time this was listed for Court I 

did, in fact, review the bulk of the transcript. Yes.

[PCRA COUNSEL]: Based on that review, is it your understanding 

that you requested the no adverse inference jury instruction?

[TRIAL COUNSEL]: After reading it, I absolutely did not ask for 

the jury instruction.

[PCRA COUNSEL]: Do you have any reason today to dispute the 

accuracy of that transcript?

[TRIAL COUNSEL]: No. It clearly seems that that was an 

oversight by me.

N.T., 6/25/14, at 5-6.

Thus, by trial counsel’s own admission, he failed to request a “no 

adverse inference” charge be given to the jury. Interestingly, trial counsel 

alludes to the fact that the “no adverse inference” instruction would have 

been requested, but for his oversight of the matter. Assuming for the sake 

of argument that trial counsel did not, in fact, request a “no adverse 

inference” charge or appropriate colloquy on the record, we presume that 

Appellant’s claim of ineffective assistance has arguable merit. Thompson. 

However, such oversight by trial counsel does not amount to prejudice per 
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se. Therefore, our inquiry is not at an end. Rather, Appellant must also 

establish that trial counsel’s failure to request a “no adverse inference” 

charge prejudiced him to such a degree that the adjudication of guilt was 

unreliable. See Commonwealth v. Howard, 645 A.2d 1300 (Pa. 1994) 

(holding that defense counsel’s failure to request a “no adverse inference” 

instruction was not per se ineffective and that the defendant had to 

establish that he was prejudiced by the fact that the charge was not given).

Our review of the certified record reflects that, although the trial court 

did not give a “no adverse inference” instruction in its closing charge to the 

jury, it did unequivocally instruct the jury at the beginning of Appellant’s trial 

that they may not draw any adverse inference against Appellant for failing to 

testify, as follows:

THE COURT: It is very important at that juncture in the trial that 

you have a complete understanding that, in our criminal justice 

system, a person accused of a crime has absolutely no obligation 

whatsoever to offer any evidence on his or her own behalf.

A person accused of a crime is presumed to be innocent, and the 

sole burden of proof lies with the Commonwealth of Pennsylvania 

to prove that person guilty beyond a reasonable doubt with 

regard to each and every element of each and every crime 

charged.

Therefore, if the Defendant does not present a defense or 

testify, you must understand that, as the fact-finders in 

this case, you must not draw any adverse inference 

whatsoever against the Defendant.

The reason is simple: Anyone accused of a crime is presumed to 

be innocent. The sole burden of proof rests with the 

Commonwealth of Pennsylvania to prove that person guilty 
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beyond a reasonable doubt. A person accused of a crime need 

do nothing.

N.T., 1/5-6/11, at 11-12 (emphasis added).

Furthermore, while the trial court did not give the “no adverse 

inference” instruction at the time of its closing instructions to the jury, it did 

instruct the jury that the Commonwealth has the burden of proof, and 

Appellant is not required to present any evidence in his defense, as follows:

The fundamental principle of our criminal justice system is 

that a person accused of a crime, the Defendant, is presumed to 

be innocent. The mere fact that the Defendant was arrested and 

accused of a crime is not any evidence against the Defendant.

In addition, there is no inference of guilt created by the 

fact that there was a criminal information, criminal complaint, or 

even a trial. Furthermore, the Defendant is presumed innocent 

throughout the trial unless and until you conclude, based on 

careful and impartial consideration of the evidence, that the 

Commonwealth of Pennsylvania has proven the Defendant guilty 

beyond a reasonable doubt.

It is not the Defendant’s burden to prove the Defendant is 

not guilty. Instead, it is the Commonwealth that always has the 

burden of proving each and every element of the crime or crimes 

charged beyond a reasonable doubt.

The person accused of a crime is not required to 

present evidence or prove anything in his or her own 

defense. If the Commonwealth fails to meet its burden, then 

your verdict must be not guilty. On the other hand, if the

Commonwealth does prove beyond a reasonable doubt that the 

Defendant is guilty, then your verdict should be guilty.

N.T., 1/5-6/11, at 232-233 (emphasis added).

Thus, although not presented as a “no adverse inference” charge at 

the end of trial, the record reveals that the trial court gave sufficient 
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instructions to the jury equivalent to the “no adverse inference” charge. 

“The law presumes that the jury will follow the instructions of the court.” 

Commonwealth v. Brown, 567 Pa. 272, 289, 786 A.2d 961, 971 (2001); 

see also Commonwealth v. O'Hannon, 732 A.2d 1193, 1196 (Pa. 1999) 

(stating that “[a]bsent evidence to the contrary, the jury is presumed to 

have followed the trial court’s instructions”). There is no evidence that the 

jury ignored the instructions, and “absent evidence to the contrary, the jury 

is presumed to have followed the court’s instructions.” O'Hannon, 732 A.2d 

at 1196. Accordingly, we conclude Appellant has failed to demonstrate that 

he suffered prejudice from counsel’s failure to request a “no adverse 

inference” instruction in the closing jury charge.

Furthermore, Appellant has failed to establish the prejudice prong of 

the ineffective assistance of counsel test because, even if a “no adverse 

inference” instruction had been given, there is no reasonable probability that 

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

determined in Appellant’s direct appeal that there was sufficient evidence to 

uphold Appellant’s various convictions. Commonwealth v. Williams, 1558 

WDA 2011, 55 A.3d 125 (Pa. Super. filed July 6, 2012) (unpublished 

memorandum). It is unlikely that a “no adverse inference” instruction would 

have changed the outcome of the trial. Although trial counsel should have 

requested a “no adverse inference” colloquy and “no adverse inference” 

instruction, Appellant has failed to demonstrate how he was prejudiced by 
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counsel’s failure to request that the trial court give the instruction at the end 

of trial.

In summary, in the context of the trial court’s precautionary “no 

adverse inference” instruction and the sufficiency of the evidence presented 

at trial, we cannot say that the jury would have been so swayed by such an

instruction at the end of trial that the verdict would have been different. 

Therefore, Appellant has failed to demonstrate prejudice, and his claim of 

ineffective assistance in this regard fails.

Appellant next argues that trial counsel was ineffective for failing to 

adequately interview a defense witness. Appellant’s Brief at 12-13. 

Specifically, Appellant claims that defense counsel did not adequately 

interview Mr. Morris Richardson, the co-director of a work-release program 

with which Appellant had been involved at the time of the incident.

In addressing Appellant’s claim, the PCRA court offered the following 

analysis:

2. Failure to Interview Witness

Next, [Appellant] argues that trial counsel was ineffective 

for “presenting testimony from a witness that he failed to 

adequately interview, whose testimony damaged the defense[.”] 

A review of the record reveals that this claim is meritless.

At trial, [Appellant] presented the testimony of Morris 

Richardson, the Work Release Program Coordinator at the 

Renewal Center, where [Appellant] was living at the time of the 

instant offenses. Mr. Richardson testified regarding the 

conditions of [Appellant’s] work release from the facility and the 

details and hours of his employment with Two Cousins Cleaning. 

Mr. Richardson testified that [Appellant] passed random checks 
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with his employer and never failed to make his curfew except on 

the night he was arrested.

At the [PCRA] hearing, [trial counsel] testified that Mr. 

Richardson’s testimony was intended to coordinate with that of 

another witness [trial counsel] intended to call:

Q. [PCRA COUNSEL]: During the course of the trial 

did you present testimony from a man named Norris 

[sic] Richardson?

A. [TRIAL COUNSEL]: If I recall, that was the fellow 

who was in the halfway house who was in charge of 

people who leave the halfway house to work 

assignments.

Q. What was the purpose of Mr. Richardson’s 

testimony during the trial?

A. His testimony was largely intended to basically 

dovetail with a witness that my client had guided me 

towards who was supposed to validate that he, not 

[Appellant], was driving at the time of the collision. 

So their testimony was to be integrated as far as I 

understood our theory of the case.

Q. Did the other witness appear to testify?

A. What happened is the witness [from] Renewal 

testified first. Then there was a break.

[The Assistant District Attorney] brought to our 

attention that the witness who had told me that he 

was driving the car was, in fact, in a juvenile facility 

and had lied to me.

Once we brought that to the - well, [the Assistant 

District Attorney] brought it to my attention. We 

then brought it to the Judge’s attention. At that 

point I ceased to have any desire to call him for 

basically a fraudulent, seemingly, witness.

Q. Focusing on Mr. Richardson, the witness who did 

testify.
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A. Yes.

Q. Did you conduct an interview of that witness 

before trial?

A. I know that I subpoenaed him. I know that I 

knew he was coming. I knew the gist of what he 

was saying.

Can I recall the specific interview? No. But I believe 

I was aware of him and talked to him and knew 

generally what he would say. He testified 

consistently with what I thought he would testify to.

Q. Can you tell us where the interview took place 

then with this witness? Was it here in the Court 

House [sic] before trial?

A. I have no independent recollection of where I 

spoke to him. But I would never present a witness 

blindly on the witness stand without having spoken 

to him either on the phone, in the hall or a 

combination thereof. He would not have been 

somebody to come to my office. I certainly could 

have gone to the Renewal. But it probably would 

have been discussions and then verification of the 

discussions in the hallway setting.

([N.T., 6/25/14, at] p. 6-8).

Contrary to [Appellant’s] argument, there is no indication 

anywhere on the record that [trial counsel] failed to adequately 

interview Mr. Richardson prior to his testimony. [Trial counsel] 

testified that although he could not recall the specifics of the 

interview, he did speak with Mr. Richardson prior to his 

testimony and Mr. Richardson testified as expected.

Moreover, this Court can discern nothing damaging in Mr. 

Richardson’s testimony. Mr. Richardson testified that [Appellant] 

appeared for work as scheduled and never missed curfew. 

Presumably, this testimony was intended to show that 

[Appellant] did not have time to be involved in drug dealing, and 

to that extent it was positive testimony. Insofar as this 
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testimony was clearly not damaging to [Appellant], there is no 

argument that counsel was ineffective for failing to properly 

interview Mr. Richardson prior to trial. This claim is meritless.

PCRA Court Opinion, 4/28/15, at 6-8. In light of the fact that trial counsel 

testified that he did interview the defense witness, we agree with the PCRA 

court that there is no merit to Appellant’s allegations pertaining to this claim 

of trial counsel ineffective assistance.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/30/2015