J-S62039-15

_____________________________

*Retired Senior Judge 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

SHAWN WILMER

Appellant No. 818 WDA 2015

Appeal from the PCRA Order April 24, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0016482-2005

BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 29, 2015

Appellant, Shawn Wilmer, appeals from the order entered in the 

Allegheny County Court of Common Pleas, which denied his petition brought 

pursuant to the Post Conviction Relief Act (“PCRA”).1 For the following 

reasons, we affirm. 

The relevant facts and procedural history of this case are as follows. 

On December 9, 2005, the Commonwealth charged Appellant with criminal 

homicide and criminal conspiracy, in connection with the March 16, 2005, 

shooting death of Keith Watts (“Victim”). Appellant proceeded to a jury trial 

on April 19, 2007. At trial, the Commonwealth presented the testimony of 

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1 42 Pa.C.S.A. §§ 9541-9546. 
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James Jones (“Mr. Jones”). Mr. Jones testified that Appellant had confessed 

to Mr. Jones that Appellant had killed Victim. Mr. Jones also testified that 

Appellant had complained to Mr. Jones that Appellant’s co-defendant was 

trying to take credit for Victim’s death. In response to Mr. Jones’ testimony, 

Appellant presented the testimony of David Tracey (“Mr. Tracey”). Mr. 

Tracey testified he knew both Appellant and Mr. Jones from when they were 

in jail together. Mr. Tracey stated Appellant stopped by Mr. Tracey’s cell in 

October 2006, while Mr. Jones was in Mr. Tracey’s cell. Mr. Tracey further 

testified that after Appellant left Mr. Tracey’s cell, Mr. Jones indicated to Mr. 

Tracey that he planned to use Appellant to get out of jail. In rebuttal to Mr. 

Tracey’s testimony, the Commonwealth presented the testimony of 

Allegheny County Jail Internal Affairs Captain, Thomas Leicht (“Captain 

Leicht”). Captain Leicht testified his review of past jail records revealed that 

Mr. Jones was not in jail in October 2006, when Mr. Jones allegedly told Mr. 

Tracey that Mr. Jones planned to use Appellant to get out of jail. 

Specifically, Captain Leicht testified that Mr. Jones did not enter jail until 

April 11, 2007. 

On May 4, 2007, the jury found Appellant guilty of first-degree murder 

and criminal conspiracy. The trial court deferred sentencing pending the 

preparation of a pre-sentence investigation report. On November 5, 2007, 

the trial court sentenced Appellant to life imprisonment for the first-degree 

murder conviction, and a consecutive term of two-hundred and forty (240) 

to four hundred and eighty (480) months’ imprisonment for the conspiracy 
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conviction. On November 14, 2007, Appellant filed a post-sentence motion, 

and Appellant filed an amended post-sentence motion on March 25, 2008. 

Appellant attached jail records to his post-sentence motions, which 

established that Mr. Tracey and Mr. Jones were both in jail in October 2006. 

These jail records directly contradicted Captain Leicht’s testimony at trial. On 

April 17, 2008, the trial court denied Appellant’s post-sentence motions. 

Appellant timely filed a notice of appeal on May 16, 2008. This Court 

affirmed Appellant’s judgment of sentence on May 11, 2009, and our 

Supreme Court denied allowance of appeal on February 5, 2010. See 

Commonwealth v. Wilmer, 976 A.2d 1218 (Pa.Super. 2009), appeal 

denied, 605 Pa. 674, 989 A.2d 8 (2010). 

On July 16, 2010, Appellant timely filed a pro se PCRA petition, and 

the court appointed counsel on September 10, 2010. On November 19, 

2010, appointed counsel filed an application to withdraw and a “no merit” 

letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 

(1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en 

banc). On January 21, 2011, the PCRA court granted appointed counsel’s 

application to withdraw and issued its notice of intent to dismiss Appellant’s 

petition without a hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907 notice”). 

On February 11, 2011, Appellant filed a pro se response to the PCRA court’s 

Rule 907 notice, and Appellant filed an amended pro se response to the 

PCRA court’s Rule 907 notice on April 20, 2011. The PCRA court denied 

relief on June 15, 2011. Appellant filed a timely pro se appeal to this Court 
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on June 28, 2011. On April 25, 2012, this Court determined appointed 

counsel’s “no-merit” letter was deficient and remanded the case to the PCRA 

court with directions to appoint new counsel. 

On October 26, 2012, the PCRA court appointed new PCRA counsel to 

represent Appellant. Appellant filed an amended PCRA petition on January 

2, 2014, in which Appellant claimed trial counsel and appellate counsel were 

ineffective. On March 9, 2015, the PCRA court issued Rule 907 notice as to 

Appellant’s amended PCRA petition, and the PCRA court denied relief on April 

24, 2015. Appellant timely filed a notice of appeal on May 22, 2015. The 

PCRA court did not order Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant did 

not file one. 

Appellant raises the following issues for our review:

WHETHER THE PROSECUTOR INTRODUCED FALSE 

EVIDENCE IN THE COMMONWEALTH’S REBUTTAL CASE 

WHICH FALSELY PORTRAYED A KEY DEFENSE WITNESS AS 

A LIAR AND SEVERELY PREJUDICED APPELLANT’S CASE?

WHETHER TRIAL COUNSEL GAVE INEFFECTIVE 

ASSISTANCE FOR FAILING TO INVESTIGATE THE 

COMMONWEALTH’S WITNESS, CONCERNING ISSUE I, SO 

AS TO PROVE THAT THE COMMONWEALTH PRESENTED 

FALSE EVIDENCE?

WHETHER APPELLATE COUNSEL GAVE INEFFECTIVE 

ASSISTANCE FOR FAILING TO RAISE ISSUE I ON APPEAL?

WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL 

BASED UPON THE INTEREST OF JUSTICE?

(Appellant’s Brief at 5). 
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For purposes of disposition, we combine Appellant’s issues. Appellant 

argues the only evidence of his involvement in the charged crimes consists 

of statements made by Appellant to Mr. Jones, a self-interested witness. 

Appellant contends Mr. Jones was a biased witness because he was likely to 

receive favorable treatment from the Commonwealth with respect to 

criminal charges pending against him, in exchange for his testimony against 

Appellant. Appellant maintains Mr. Jones exhibited his bias through his 

statement to Mr. Tracey, in which Mr. Jones stated he planned to use 

Appellant to get out of jail. Appellant asserts the Commonwealth’s 

presentation of Captain Leicht’s false testimony, which alleged Mr. Jones was 

not in jail when Mr. Tracey heard Mr. Jones make the self-interested 

statement, made both Appellant and Appellant’s trial counsel appear 

fraudulent. Appellant further avers trial counsel was ineffective because 

counsel failed to investigate the jail records and determine that Captain 

Leicht’s testimony was false. 

Appellant also argues appellate counsel improperly raised the issue of 

Captain Leicht’s false testimony on appeal. Appellant states appellate 

counsel raised an ineffective assistance of counsel claim against trial 

counsel, instead of a presentation of false evidence claim against the 

Commonwealth. Appellant contends appellate counsel’s failure to raise this 

issue properly was prejudicial to Appellant, as there was a reasonable 

probability this Court would have remanded Appellant’s case for a new trial 

based on Captain Leicht’s false testimony. Appellant concludes both trial 
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counsel and appellate counsel were ineffective, and this Court should grant 

Appellant a new trial in the interest of justice. We disagree. 

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s 

determination and whether its decision is free of legal error. 

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the 

findings of the PCRA court if the record contains any support for those 

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal 

denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, 

however, to the court’s legal conclusions. Commonwealth v. Ford, 44 

A.3d 1190, 1194 (Pa.Super. 2012). The PCRA court findings will not be 

disturbed unless the certified record provides no support for the findings. 

Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal 

denied, 597 Pa. 715, 951 A.2d 1163 (2008). There is no right to a PCRA 

hearing; a hearing is unnecessary where the PCRA court can determine from 

the record that there are no genuine issues of material fact. 

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008), appeal 

denied, 598 Pa. 764, 956 A.2d 433 (2008). 

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When 

asserting a claim of ineffective assistance of counsel, the petitioner is 

required to demonstrate that: (1) the underlying claim is of arguable merit, 
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(2) counsel had no reasonable strategic basis for his action or inaction, and, 

(3) but for the errors and omissions of counsel, there is a reasonable 

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

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). 

The failure to satisfy any prong of the test for ineffectiveness will cause the 

claim to fail. Williams, supra. 

“The threshold inquiry in ineffectiveness claims is whether the 

issue/argument/tactic which counsel has foregone and which forms the basis 

for the assertion of ineffectiveness is of arguable merit....” Commonwealth 

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot 

be found ineffective for failing to pursue a baseless or meritless claim.” 

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004). 

Once this threshold is met we apply the ‘reasonable basis’ 

test to determine whether counsel’s chosen course was 

designed to effectuate his client’s interests. If we conclude 

that the particular course chosen by counsel had some 

reasonable basis, our inquiry ceases and counsel’s 

assistance is deemed effective. 

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted). 

Prejudice is established when [an appellant] demonstrates 

that counsel’s chosen course of action had an adverse 

effect on the outcome of the proceedings. The [appellant] 

must show that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable 

probability is a probability sufficient to undermine 

confidence in the outcome. In [Kimball, supra], we held 

that a “criminal [appellant] alleging prejudice must show 

that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.” 
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Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 

(2002) (some internal citations and quotation marks omitted). 

The Pennsylvania Supreme Court set forth the framework for 

consideration of layered ineffective assistance of counsel claims, as follows: 

[A] petitioner must plead in his PCRA petition that his prior 

counsel, whose alleged ineffectiveness is at issue, was 

ineffective for failing to raise the claim that the counsel 

who preceded him was ineffective in taking or omitting

some action. In addition, a petitioner must present 

argument...on the three prongs of the [ineffectiveness] test 

as to each relevant layer of representation. 

Commonwealth v. McGill, 574 Pa. 574, 589, 832 A.2d 1014, 1023 (2003). 

Thus, “[f]or the claim related to appellate counsel’s conduct to have 

arguable merit, a petitioner must prove the underlying claim of trial counsel 

ineffectiveness.” Commonwealth v. Jones, 583 Pa. 130, 138, 876 A.2d 

380, 385 (2005). The inability of a petitioner to prove each prong of the 

ineffective assistance of counsel test with respect to trial counsel’s purported 

ineffectiveness will be fatal to his ineffective assistance of counsel claim 

against appellate counsel on the same issue. Commonwealth v. Tedford, 

598 Pa. 639, 660, 960 A.2d 1, 13 (2008). 

“It is...an established constitutional principle that a conviction obtained 

through the knowing use of materially false testimony may not stand; a 

prosecuting attorney has an affirmative duty to correct the testimony of a 

witness which he knows to be false.” Commonwealth v. Carpenter, 472 

Pa. 510, 520, 372 A.2d 806, 810 (1977) (citing Giglio v. United States, 
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405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Napue v. Illinois, 

360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)). “Further, the 

prosecutor’s office is an entity and knowledge of one member of the office 

must be attributed to the office of the district attorney as an entity.” 

Commonwealth v. Wallace, 500 Pa. 270, 276, 455 A.2d 1187, 1190 

(1983). “[W]here the prosecution obtains a conviction through the use of 

false or perjured testimony, a strict standard of materiality must be applied.” 

Commonwealth v. Romansky, 702 A.2d 1064, 1068 (Pa.Super. 1997), 

appeal denied, 555 Pa. 699, 723 A.2d 670 (1998). “[T]he false testimony is 

considered material if it could in any reasonable likelihood have affected the 

verdict.” Id. When making the materiality determination, “the state of 

mind of the prosecutor is not material, but rather, the important issue is 

whether the accused received a fair trial.” Id. The mere assertion of the 

prosecutor’s complicity in the presentation of false evidence, uncorroborated 

by competent evidence, does not entitle a defendant to a new trial. 

Commonwealth v. Lipscomb, 409 A.2d 857, 859 (Pa.Super. 1979). 

Instantly, with respect to Appellant’s assertions that Captain Leicht’s 

false testimony severely prejudiced Appellant, and that trial counsel was 

ineffective for failure to investigate jail records to determine the falsity of 

Captain Leicht’s testimony, the PCRA court reasoned:

[Appellant] contends that Captain Leicht’s false testimony 

was intentional and deprived him of a fair trial. 

[Appellant] does not, allege, however, that the prosecutor 

knew that the testimony was false when it was presented 
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or at any time during the trial. Accordingly, there is no 

material dispute of fact, and, based on the facts alleged by 

[Appellant] in his [PCRA] [p]etition and which are 

established in the record, this [c]ourt concludes that 

[Appellant’s] claims are without merit as a matter of law...

In [Commonwealth v. Hallowell, 477 Pa. 232, 383 A.2d 

909 (1978)], our Supreme Court awarded a new trial 

because the prosecution failed to correct a Commonwealth 

witness[’] false testimony that he was not promised 

leniency in pending charges in exchange for his testimony. 

[Our Supreme Court] held that it did not matter whether 

the prosecutor trying the case was aware of the promises 

made to the witness; that knowledge of the promises of 

leniency would be attributed to the office of the District 

Attorney as an entity. [Appellant’s] reliance on 

[Hallowell, supra] is misplaced. 

[Appellant] claims that in this case it does not matter 

whether the trial prosecutor knew that [Captain] Leicht’s 

testimony was false or erroneous; that the fact that such 

testimony was offered is enough to warrant a new trial. 

First, it is not clear from the record of the trial or from 

anything [Appellant] offered with his PCRA [petition] that 

Captain Leicht intentionally offered false testimony. 

[Appellant’s] reference to a newspaper article that 

reported that Captain Leicht had been fired due to 

“inconsistencies and misrepresentations” found during an 

investigation is woefully insufficient to establish that his 

testimony in this matter was intentionally false. The 

inconsistencies concern statements [Captain] Leicht made 

about his background that were determined to be false. 

He claimed in a federal court hearing that he had been 

certified as a police officer when, in fact, he had not; and 

that he was previously employed as a police officer, when, 

in fact, he had only worked as a dispatcher. This 

newspaper article, involving false statements made three 

years after this trial, certainly did not establish that 

Captain Leicht intentionally lied when he testified in this 

matter. 

More importantly, however, even if [Captain] Leicht 

intentionally misled the jury, there is nothing to indicate 

that the district attorney prosecuting this case had any 
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reason to know that the information conveyed by Captain 

Leicht was not accurate or that anyone else in the 

Allegheny County District Attorney’s Office knew. This fact 

distinguishes this case from those cited by [Appellant]. 

In [Hallowell, supra, our] Supreme Court held that 

because another Assistant District Attorney knew of the 

promises of leniency made to the witness, that knowledge 

would be attributable to the office of the District Attorney, 

regardless of what the assistant district attorney 

prosecuting [the defendant] knew. Here, even if [Captain] 

Leicht’s testimony was false and known by him to be false, 

there is nothing establishing that anyone in the District 

Attorney’s Office knew, or should have known of the 

inaccuracy of the testimony. 

Each of the other cases cited by [Appellant] in his [PCRA] 

[p]etition similarly deal with the failure to disclose a 

promise of leniency made by the prosecution to a 

cooperating witness. In [Giglio v. United States, 405 

U.S. 150, 92. S.Ct. 763, 31 L.Ed.2d 104 (1972)], the 

prosecutor failed to disclose an alleged promise made to 

its key witness that he would not be prosecuted if he 

testified for the government[,] and in [Napue v. Illinois, 

360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)], the 

prosecutor elicited testimony from a witness that falsely 

claimed that he had not been offered a reduced sentence 

in exchange for his testimony. The Supreme Court held in 

these cases that a prosecuting office could not receive the 

benefit of testimony secured with a promise of leniency 

without disclosing that promise to the defendant. 

Here, however, there is nothing in [Appellant’s PCRA] 

[p]etition or in the record that establishes that the 

prosecution had any involvement in eliciting testimony it 

knew or suspected was false; nor is there any evidence 

that anyone associated with the district attorney’s office 

had any reason to question the truthfulness and accuracy 

of the testimony from Captain Leicht. In the absence of 

proof that the prosecution knew or should have known 

about the false testimony, this claim must fail. 

[Appellant’s] second claim is that trial counsel was 

ineffective for failing to impeach Captain Leicht with the 
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jail records that would have shown his testimony to be 

false or in error. This [c]ourt addressed this very issue in 

its September [23], 2008 [o]pinion addressing the claim 

that [Appellant] raised in his [c]oncise [s]tatement. 

Because the Superior Court declined to address the 

ineffectiveness claims on appeal pursuant to 

[Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 

(2002)], this claim cannot be considered previously 

litigated. There is no reason, however, for this [c]ourt to 

reanalyze this claim. This [c]ourt wrote:

...Regardless of whether [trial] counsel was 

ineffective in not obtaining the [evidence to impeach 

Captain Leicht] that [appellate] counsel did obtain, 

[Appellant] was not prejudiced. First of all, nothing 

in the materials submitted by [Appellant] with his 

[a]mended [p]ost[-s]entence [m]otion supports the 

claim that the Commonwealth intentionally 

presented false testimony. At best, the witness was 

mistaken. 

More importantly, had the evidence showing that 

[Mr.] Jones was, in fact, in jail with [Mr.] Tracey 

been introduced, it would not have affected the 

outcome of the trial. [Mr.] Tracey’s testimony did 

not establish that anything that [Mr.] Jones said 

about his conversations with [Appellant] was false. 

All that [Mr.] Tracey reports [Mr.] Jones saying is 

that he could use [Appellant] to get out of jail. [Mr.] 

Tracey did not testify that [Mr.] Jones said he would 

lie to do so or that anything he said about 

[Appellant] was anything but the truth. In fact, 

[Mr.] Jones testified on direct that, in essence, he 

was using the information he had about [Appellant] 

to try to get out of jail, or, at least, to lessen the 

sentences he faced for his new charges. 

[Appellant]’s trial counsel even asked [Mr.] Jones 

whether he would be helping the police if he had 

[not] been arrested in September 2006 and needed 

their help and he said that he would not. All that 

[Mr.] Tracey’s testimony did was corroborate what 

the witness [Mr.] Jones himself admitted: that he 

was cooperating only because he knew it would 

benefit him in resolving his pending criminal charges. 
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Because [Appellant] was not prejudiced by the 

failure of trial counsel to impeach the 

Commonwealth’s rebuttal witness, this claim must 

fail. [(Trial Court Opinion, filed September 23, 2008, 

at 20-21).]

In addition, [trial counsel] also presented testimony from 

Charles White [“Mr. White”], another fellow inmate of [Mr.] 

Jones, regarding [Mr.] Jones’ statements that he would 

cooperate with the Commonwealth against [Appellant] to 

secure a better deal for himself. [Mr.] White’s claim to 

have been on the same pod as [Mr.] Jones was not 

disputed by the Commonwealth. Accordingly, [Appellant] 

did present a witness who was not impeached who put 

before the jury the question of whether [Mr.] Jones’ 

testimony was influenced by a desire to secure better 

treatment from the prosecution. Given [Mr.] Jones’ 

admission that he was testifying in order to secure better 

treatment from the Commonwealth and the un-impeached 

testimony of [Mr.] White that largely corroborated [Mr.] 

Tracey’s testimony regarding [Mr.] Jones’ statements, it is 

clear that [Appellant] suffered no prejudice from the failure 

of counsel to secure and present the mail records proving 

that Leicht’s testimony was false or inaccurate. 

(PCRA Court Opinion, filed May 29, 2015, at 3-9) (emphasis in original) 

(internal footnote omitted). The record supports the court’s sound 

reasoning. See Chambers, supra. 

Finally, Appellant’s ineffective assistance of counsel claim against 

appellate counsel for failure to raise the issue of Captain Leicht’s false 

testimony properly fails because Appellant failed to establish that trial 

counsel’s treatment of that issue caused Appellant prejudice. Appellant 

cannot argue a layered ineffective assistance of counsel claim against 

appellate counsel successfully without first showing that trial counsel was 

ineffective for mishandling the same issue. See Tedford, supra; Jones, 
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supra. Therefore, Appellant’s issues on appeal have no merit. Accordingly, 

we affirm. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/2015