J-S45040-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MALCOLM WILLIAM 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 586 EDA 2022

Appeal from the Order Entered February 22, 2022

In the Court of Common Pleas of Philadelphia County

Criminal Division at CP-51-CR-0000733-2016

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED MARCH 7, 2023

Malcolm William (Appellant) appeals from the order dismissing his 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. 

§§ 9541–9546. We affirm.

The PCRA court summarized the procedural history as follows:

On January 6, 2016, police arrested and charged 

[Appellant]... with numerous offenses stemming from a shooting 

incident that occurred on December 30, 2015. On December 1, 

2016, a jury found [Appellant] guilty of Third-Degree Murder (F1), 

[persons not to possess firearms] (F2), and [possession of an 

instrument of crime] (M1). On May 23, 2017, the court sentenced 

[Appellant] to an aggregate sentence of 24-50 years of 

incarceration. [Appellant] filed a timely notice of appeal on July 

8, 2017. On May 9, 2019, the Superior Court affirmed the court’s 

judgment of sentence. [Commonwealth v. William, 217 A.3d 

383 (Pa. Super. 2019) (unpublished memorandum).] On June 7, 

2019, a Petition for Allowance of Appeal was filed at the Supreme 

Court and ultimately denied on October 29, 2019.

[Commonwealth v. William, 218 A.3d 1203 (Pa. 2019).] On 

November 20, 2020, [Appellant] filed a PCRA Petition. On January 

18, 2021, there was a Motion for Leave to Amend the pending 
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PCRA petition which was granted and counsel filed an Amended 

PCRA on August 10, 2021. On January 25, 2022, after considering 

all filings, the court filed a Notice Pursuant to Pennsylvania Rule 

of Criminal Procedure 907 formally dismissing [Appellant’s] PCRA 

petition, without a hearing. On February 22, 2022, the court filed 

an order dismissing the PCRA Petition. [Appellant] filed a timely 

notice of appeal on February 25, 2022. On March 1, 2022, the 

court ordered [Appellant], pursuant to Pa. R.A.P. 1925(b), to file 

with the court a Concise Statement of Matters Complained of on 

Appeal. On March 12, 2022, [Appellant] filed a Statement of 

Errors Complained of on Appeal pursuant to the court’s order.

PCRA Court Opinion, 6/7/22, at 1-2 (footnote omitted).

Appellant presents two questions for our review:

1. Did the PCRA court err in dismissing Appellant’s PCRA Petition 

without a hearing because trial counsel was ineffective for 

failing to present a self-defense defense?

2. Did the PCRA court err in dismissing Appellant’s PCRA Petition

without a hearing because prior counsel w[as] ineffective for 

failing to argue and preserve the issue associated with a 

mistrial because of a biased juror and [] counsel was ineffective 

[f]or not arguing that excusing the juror also would have been 

an appropriate remedy?

Appellant’s Brief at 4.

We review the dismissal of a PCRA petition to “determine whether the 

ruling of the PCRA court is supported by the evidence and free of legal error. 

The PCRA court’s factual findings will not be disturbed unless there is no 

support for the findings in the certified record.” Commonwealth v. Webb, 

236 A.3d 1170, 1176 (Pa. Super. 2020) (citation omitted).

The PCRA court has 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. [See Pa.R.Crim.P. 
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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.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations 

omitted).

With respect to Appellant’s claim of ineffective assistance of counsel:

It is well-established that to succeed on a claim asserting the 

ineffective assistance of counsel, the petitioner must plead and 

prove, by a preponderance of the evidence, three elements: (1) 

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

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

petitioner suffered prejudice as a result of counsel’s action or 

inaction. Commonwealth v. Pierce, 527 A.2d 973, 975–76 (Pa. 

1987). If a petitioner fails to satisfy any of the three prongs of 

the ineffectiveness inquiry, his claim fails. Commonwealth v.

Brown, 196 A.3d 130, 150–51 (Pa. 2018).

Commonwealth v. Parrish, 273 A.3d 989, 1003 n.11 (Pa. 2022).

In his first issue, Appellant argues trial counsel was ineffective “because 

trial counsel did not present a self-defense theory of the case and request and 

argue for a self-defense charge.” Appellant’s Brief at 9. Appellant references 

his trial testimony that “four people ... were attacking” him during an 

“escalating violent situation,” and “the gun went off during a struggle.” Id.

at 11. Appellant claims he “acted in self-defense and trial counsel should have 

held the Commonwealth to its burden by arguing self-defense and requesting 

an appropriate jury charge.” Id. at 12. Appellant thus concludes he “suffered 

prejudice and did not receive a fair trial.” Id.

Conversely, the Commonwealth argues:
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[Appellant] has not met his burden to establish ineffective 

assistance of trial counsel. [Appellant’s] bald assertions that 

counsel lacked a reasonable basis for not raising self-defense are 

insufficient and contradicted by the record. Counsel’s strategic 

reason for not pursuing self-defense is clear, since it would have 

conflicted with [Appellant’s] testimony that the gun went off 

during an unintentional accident. [Appellant] similarly cannot 

meet his burden to establish prejudice in light of the three 

eyewitnesses who testified that he was the aggressor who started 

a fight before shooting the victim. It is unlikely that an 

unsupported and contradictory self-defense claim would have 

resulted in a different outcome at trial.

Commonwealth Brief at 5. We agree with the Commonwealth.

“Pursuant to Section 505 of the Crimes Code, self-defense is established 

and the use of force is justifiable ‘when the actor believes that such force is 

immediately necessary for the purpose of protecting himself against the use 

of unlawful force by such other person on the present 

occasion.’” Commonwealth v. Busanet, 54 A.3d 35, 51 (Pa. 2012) (citation 

omitted). The use of deadly force “is not justifiable if the actor provoked the 

use of force against him or could have avoided the necessity of using force by 

retreating.” Id. (citation omitted). Before self-defense may be invoked, there 

must be evidence presented to justify a finding of self-defense. 

Commonwealth v. Webster, 416 A.2d 491, 492 (Pa. 1980).

Here, Appellant’s trial testimony did not support a claim of self-defense. 

The PCRA court explained:

There was certainly a reasonable basis for trial counsel declining 

to [request a jury charge on self-defense], given that such an 

instruction would have been in direct conflict with [Appellant’s]

testimony that it was not him who shot the firearm, but the victim 

who shot himself by accident while the two of them were engaged 
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in a struggle. (N.T. 11/30/16, 81, 93). As this court explained, 

“[Appellant]’s argument to the jury is not that he did it but it’s 

excusable, it’s he never did it. It was ... an unfortunate accident 

that happened as a result of [the victim]’s actions.” (Id. at 135-

136). Therefore, like [the defendant in Commonwealth v.] 

Webster, [416 A.2d 491 (Pa. 1980), Appellant]’s “testimony only 

showed, at best, that the killing was unintentional,” and 

[Appellant]’s trial counsel clearly “realized that an assertion of 

self-defense was in no way compatible with the testimony of his 

client, and it would have been an empty gesture to object to the 

court’s charge.”

PCRA Court Opinion, 6/7/22, at 8.

Thus, the PCRA court concluded:

Any argument by trial counsel that [Appellant] acted in selfdefense would [have] serve[d] as an admission to the jury that 

he doubted his client’s testimony, which is more likely to rise to 

the level of ineffective assistance of counsel. Accordingly, trial 

counsel’s chosen strategy was reasonable. In choosing to present 

a consistent defense to the jury that stood behind [Appellant’s] 

version — i.e., that he was not the person who shot the firearm 

— counsel was well within the prevailing norms of what constitutes 

effective assistance of trial counsel. (N.T. 11/30/16, 155). The 

court also recognized the potential consequence of not pursuing 

such a tactic. (Id. at 143-145). Counsel reasonably decided to 

present a consistent defense to the jury that stood behind 

[Appellant]’s story that he was not the person who fired the 

weapon. (Id. at 155-164).

As noted above, because [Appellant] negated the deadly 

force element of self-defense when he testified that he did not pull 

the trigger, trial counsel’s decision to forego a strategy that would 

conflict with his own client’s testimony was reasonable. 

Therefore, [Appellant] did not meet his burden of showing trial 

counsel was ineffective under the second prong of the Pierce test

[(requiring petitioner to show that counsel had no reasonable 

basis for his action or inaction)].

Id. at 9.
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As the record and law support the PCRA court’s analysis, Appellant’s first 

issue does not merit relief.

In his second issue, Appellant argues that prior counsel were ineffective 

“for failing to argue and preserve the issue associated with a mistrial because 

of a biased juror....” Appellant’s Brief at 8. Appellant claims he suffered 

prejudice because “[t]rial counsel was ineffective for failing to properly argue

for a mistrial and direct appeal counsel was ineffective for not arguing the 

issue on direct appeal.” Id. at 12.

The record demonstrates that during trial, Juror #6 expressed her 

concern to court staff that the trial court was in some way biased toward the 

Commonwealth; Juror #6 also expressed her lack of “confidence in trial 

counsel’s capabilities.” See PCRA Court Opinion, 6/7/22, at 11. 

Consequently, the trial court met with Juror #6, and “ultimately dismissed” 

her from the panel “at the request of [Appellant].” Id. at 12; see also

Commonwealth Brief at 5 (stating Appellant’s “argument that counsel should 

have argued to have the juror removed is meritless and moot because the 

court did remove the juror and replaced her with an alternate.”).

Appellant’s argument contains inaccuracies. He claims:

Juror #6 stated [s]he thought that the trial judge was biased 

against defense counsel and the remainder of the jury was 

questioned as to taint but this juror was not removed. NT, 

11/29/2016, at 208-244. While the ADA said that the juror 

was generally prejudiced, no one else faced decades in prison 

other than Appellant. NT, 11/29/2016, at 210. Also, the [trial 

c]ourt limited examination of the prejudiced juror. NT, 

11/29/2016, at 213.
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There was no formal Motion for a Mistrial. NT, 11/29/2016, 

at 215. The issue was not litigated on direct appeal. 

Commonwealth v. William, 2204 EDA 2017 (Sup. Ct., filed May 

9, 2019).

***

The trial ADA properly labeled Juror #6 an 

“obstructionist.” NT, 11/29/2016, at 218-220. Trial counsel 

never properly moved for a mistrial. NT, 11/29/2016, at 214. 

The issue was abandoned on direct appeal. Commonwealth v. 

William, 2204 EDA 2017 (Sup. Ct. filed May 9, 2019).

Appellant’s Brief at 15-16 (inaccurate statements in bold).

The PCRA court and Commonwealth correctly refute Appellant’s 

characterization of what transpired with Juror #6. For example, the assistant 

district attorney (ADA) did not refer to Juror #6 as an obstructionist. See id.

(“The trial ADA properly labeled Juror #6 an ‘obstructionist.’”). The ADA

referred to Appellant as an obstructionist. In discussing Juror #6 with 

the trial court and Appellant’s counsel, the ADA opined: “He just wants to be 

an obstructionist .... If he thinks the juror is unfair to him and he wants a 

mistrial, then fine. ... But he can’t then say he wants to keep her.” N.T., 

11/29/16, at 218 (emphasis added).

The Commonwealth correctly observes that Appellant “appears to be 

under the incorrect belief that the juror was not removed from the case.” 

Commonwealth Brief at 11. The Commonwealth confirms the trial court 

removed Juror #6 and replaced her with alternate Juror #13. Id. at 11-12

(citing N.T., 11/29/16, at 242). The Commonwealth states that Appellant’s

“counsel moved for a mistrial, and [direct appeal] counsel had no basis to 
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raise the issue on appeal because the motion was properly denied.” Id. at 10

(citing N.T., 11/29/16, at 214-17, 222, 224); id. (Commonwealth claiming, 

“No mistrial was warranted because the court removed and replaced the juror 

and determined that no taint had occurred after interviewing every remaining 

juror.”).

Likewise, the PCRA court explained:

At [Appellant’s] trial, Juror No. 6 expressed concern that the 

court was in some way biased towards the Commonwealth, and 

that the juror lacked confidence in trial counsel’s capabilities. 

Juror No. 6 assured the court that [she] did not share [this]

concern with the other jur[y] members. (N.T. 11/29/16, 209-

213). [Appellant] himself agreed during the trial that the court 

had not exhibited any bias towards the Commonwealth. (Id. at 

220-223). Nonetheless, [Appellant] requested a mistrial because 

he felt that Juror No. 6 had “tainted” the remaining jurors. (Id.

at 221-224). ... [T]he court did a thorough investigation. Despite

Juror No. 6 assuring the court [she] had not shared [her] beliefs 

with any of the other jurors, the court individually polled each 

juror out of an abundance of caution. (Id. at 229-243).

Each juror was asked whether any beliefs or comments were 

shared with them by Juror No. 6 regarding anything going on in 

the courtroom with any of the lawyers, staff, witnesses, or the 

Judge herself. Id. Each juror’s response was no. Id. Juror No. 

6 was ultimately dismissed from the panel at the request 

of [Appellant], and Juror No. 13 was placed as the 

alternate. (Id. at 242-244).

... As indicated [], “trial counsel cannot be found ineffective 

for failing to pursue a trial strategy that is in direct conflict with 

his client’s sworn testimony.” [Commonwealth v.] Laird, 726 

A.2d 346, [] 354 [(Pa. 1999).] Moreover, when the court 

questioned the jurors about their conversations with Juror No. 6, 

they “looked like they knew nothing of what [the court] spoke

about.” (N.T., 11/29/16, 244).

PCRA Court Opinion, 6/7/22, at 11-12 (footnotes omitted, emphasis added).
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Upon review, we agree there is no support for Appellant’s issue. The 

record confirms Juror #6 communicated concerns to court staff during trial. 

The trial court then met with Juror #6 in the “robing room”; Appellant’s 

counsel and the ADA were present. The following discussion occurred:

THE COURT: Hi, so you’re Juror No. 6.

JUROR NO. 6: I am.

THE COURT: It’s for the record, I know who you are.

My staff brought to my attention the fact that 

you felt it was important that you call to the 

attention of the [c]ourt that you felt that things 

were not fair and that I was being biased in the 

courtroom.

Is that an accurate recitation of your concern?

JUROR NO. 6: I said that -- sort of, yes. I said that the nonverbal communication that exists between you 

and your staff here in the court and also with 

the prosecutor because there seems – I’m 

assuming you guys work together often. That 

in combination with the apparent –

THE COURT: You said ignorance.

JUROR NO. 6: Of the Defense attorney, it does come across as 

showing some type of bias in a non-verbal way.

THE COURT: Okay.

JUROR NO. 6: And I didn’t know if that was something that I 

see—

THE COURT: I haven’t been aware of it at all. My staff and I 

work together all the time ... we work together 

every day so these are folks I’m very close with. 

So we talk about things all day long obviously 
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that have nothing to do with this case. And I 

felt like my head has been down the entire trial. 

I don’t know what exactly I’ve done and

counsel, they don’t even know of anything I’ve

done. 

Have you discussed this with other jurors?

JUROR NO. 6: I have not.

THE COURT: Okay. Is there anything else?

[ADA]: No.

[APPELLANT’S COUNSEL]: I don’t have any questions.

N.T., 11/29/16, at 208-09.

The trial court conferred with counsel, and Appellant’s counsel conferred 

with Appellant. Appellant’s counsel advised that Appellant “either wants to 

keep [Juror #6] or a mistrial.” Id. at 214-15. The following exchange 

occurred between the ADA and the trial court:

[ADA]: I think there’s no way to go on with [Juror #6]. I 

don’t see how she makes the determination [regarding Appellant’s 

guilt or innocence] on the evidence because she doesn’t think the 

evidence is being elicited properly.

THE COURT: The thing I’m worried about and I’m going to tell 

you is she’s formed such a strong opinion ... so strong that she felt 

the need to reach out to the staff and say what her opinions are. 

And ultimately this is what I can do. I mean, you know, I would

prefer to keep her in some ways and then it’s not an issue to worry 

about. I would only keep her if I talked to her and asked her what 

effect is this going to have on your ability to be a fair juror? Like, 

are you going to hold it against the Defense, are you going to hold 

it against the Commonwealth that you think, you know -- I mean, 

I can ask her more details about how she thinks I’m being biased.

I can ask details about how she thinks [defense counsel is] being

ignorant.

Id. at 215-16.
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Appellant’s counsel then advised that Appellant wanted a mistrial, and 

the trial court responded, “I will deny it on the record.” Id. at 217 (Appellant’s 

counsel stating the request was “so I’m protected.”).1

For the above reasons, we reject Appellant’s second issue claiming trial

counsel’s ineffectiveness for failing to argue for a mistrial, and appeal 

counsel’s ineffectiveness for not raising the issue on appeal. See, e.g.,

Commonwealth v. Rivera, 199 A.3d 365, 374 (Pa. 2018) (stating counsel 

cannot be ineffective for failing to raise a meritless claim).

In conclusion, the PCRA court did not abuse its discretion because its 

findings of fact are supported by the record, and its legal conclusions are free 

of error.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/7/2023

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1 Appellant’s counsel also stated, “I can tell you this[,] no matter [what] 

happened here he’s going to file a PCRA.” Id. at 219.