J-S45045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. RANDY WILLIAMS, A/K/A TRAVIS LEE MORIARTY Appellant No. 195 WDA 2016

Appeal from the PCRA Order January 7, 2016 in the Court of Common Pleas of Allegheny County Criminal Division at No.: CP-02-CR-0009320-2006

BEFORE: OLSON, J., DUBOW, J., and PLATT, J. * MEMORANDUM BY PLATT, J.: FILED AUGUST 19, 2016 Appellant, Randy Williams, a/k/a Travis Lee Moriart y, 1 appeals from the order denying his timely, counseled first petit ion filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546. Appellant

claims ineffective assistance of trial counsel and an illegal sentence. We

affirm.

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* Retired Senior Judge assigned to the Superior Cour t.

1 The original caption conflates two names Appellant uses, Randy Williams and Travis Lee Moriarty. To avoid further confusio n, we have revised the caption to conform to the prior naming usage. In h is direct appeal, and periodically in this record, Appellant’s name is gi ven as Randy Williams, with an alternate name of Travis Lee Moriarty. We have amended the caption accordingly.J-S45045-16

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We derive the facts pertinent to our review of Appe llant’s properly preserved collateral claims from our independent re view of the certified

record. On June 15, 2006, uniformed Pittsburgh police offic ers Chalene McGinty and Farquar Holland, on routine patrol in a marked police vehicle, observed Appellant sitting in a blue Sebring at the corner of Shadeland Avenue and Woodland Avenue, described as a high dru g traffic area. ( See N.T. Trial, 3/24/09, at 45-49). The Sebring was in the roadway, partially obstructing traffic. Appellant sat in the front pa ssenger seat. The police observed him in a suspicious hand-to-hand transacti on involving the exchange of currency for an unknown substance with an unidentified male outside the vehicle. ( See id. at 48). When the police approached to investigate, Appellan t abandoned the owner of the car, his friend and drug supplier, Gar y Pettus, and led them on a high speed chase through several neighborhoods in volving two separate stolen vehicles. When he crashed the first car, be longing to Pettus, the police attempted unsuccessfully to restrain him by use of a Taser, and with a black jack. A private citizen, Eugene Toomer, tried to interven e, but Appellant subdued him, stole his car, and resumed his attempt ed escape. Mr. Toomer testified he heard one of the police officers yelli ng, “I tased him, but it didn’t [faze] him.” ( Id. at 116).J-S45045-16

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The police finally captured Appellant with the assi stance of canines when they surrounded a house he had broken into bel onging to a woman named Joyce Cager. Once Appellant was in custody, police recovered 146 bags of heroin from his front pants pocket, $37.00, a cellphone, and in the vehicle, a pistol. Independently of this case, but related to an issue on appeal, Officer Holland was later terminated from the Pittsburgh po lice department over charges apparently involving claims that he was inv olved in unsworn falsification and forgery stemming from a claim for retirement benefits. At the time of Appellant’s trial, Officer Holland’s ca se was pending. ( See id. at 8-9). The trial court granted the Commonwealth’s m otion in limine, prohibiting reference to Holland’s pending charges, subject to “revisiting it for good cause shown.” ( Id. at 10). At trial, Ms. Cager, who had originally told police that Appellant held her in a headlock, testified that “[h]e had his arm around my neck, but not forcibly. Just like hugging me.” (N.T. Trial, 3/2 6/09, at 187). Ms. Cager further testified that although she did not know Ap pellant, she realized at the courthouse that she knew his mother. ( See id. at 189-90). Appellant

testified in his own defense. A jury convicted Appellant of two counts of robber y of a motor vehicle, possession with intent to deliver (PWID), resisting arrest, fleeing andJ-S45045-16

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eluding, unlawful restraint, and related offenses. 2 On October 7, 2009, the trial court imposed an aggregate sentence of not le ss than nine nor more than eighteen years of incarceration. ( See N.T. Sentencing, 10/07/09, at 37). This Court affirmed the judgment of sentence on dir ect appeal. ( See Commonwealth v. Randy Williams, a/k/a Travis Lee Mo riarty , 55 A.3d 130 (Pa. Super. 2012)). Our Supreme Court den ied allowance of appeal on January 4, 2013. ( See Commonwealth v. Williams , 60 A.3d 536 (Pa. 2013)). Appellant filed a timely pro se PCRA petition on October 2, 2013. The PCRA court appointed counsel who filed a mended petitions. The court dismissed the petition, after due notice purs uant to Pennsylvania Rule of Criminal Procedure 907, on January 7, 2016. See Pa.R.Crim.P. 907(1). This timely appeal followed. 3 Appellant presents four questions on appeal: I. Whether trial counsel gave ineffective assistanc e by failing to attack the credibility of [f]ormer Polic e Officer Faquar Holland? II. Whether trial counsel gave ineffective assistan ce for failing to request a justification instruction?

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2 Appellant was acquitted of aggravated assault, and various VUFA charges.

3 February 6, 2016 fell on a Saturday. The PCRA cou rt did not order a statement of errors complained of on appeal. On Fe bruary 11, 2016, the court filed an order referencing its Notice of Inte nt to Dismiss, filed and dated December 4, 2015, for the reasons of its deci sion. See Pa.R.A.P. 1925.J-S45045-16

- 5 - III. Whether trial counsel gave ineffective assista nce for failing to fully cross-examine Joyce Cager? IV. Whether the PCRA [c]ourt erred by failing to gr ant relief when Appellant was sentenced to an illegal s entence? (Appellant’s Brief, at 5).

Our standard and scope of review for the denial of a PCRA petition is well-settled. [A]n appellate court reviews the PCRA court’s findi ngs of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whe ther they are free from legal error. The scope of revie w is limited to the findings of the PCRA court and the e vidence of record, viewed in the light most favorable to the p revailing party at the trial level. Commonwealth v. Spotz , ––– Pa. ––––, 84 A.3d 294, 311 (2014) (citations and internal quotation marks omit ted). To establish trial counsel’s ineffectiveness, a pet itioner must demonstrate: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for the course of action or inaction chosen; and (3) counsel’s action or ina ction prejudiced the petitioner. See Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984 ); Commonwealth v. Pierce , 515 Pa. 153, 527 A.2d 973 (1987).

Id. at 303 n.3. Furthermore, [A] PCRA petitioner will be granted relief only whe n he proves, by a preponderance of the evidence, that hi s conviction or sentence resulted from the ineffectiv e assistance of counsel which, in the circumstances o f the particular case, so undermined the truth-determinin g process that no reliable adjudication of guilt or i nnocence could have taken place. 42 Pa.C.S. § 9543(a)(2)(ii ). Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate t hatJ-S45045-16

- 6 - counsel’s performance was deficient and that such deficiency prejudiced him.

Id. at 311–12 (most case citations, internal quotation marks and other punctuation omitted). “Counsel’s assistance i s deemed constitutionally effective once this Court determines that the defendant has not established any one of the prongs of the ineffectiveness test.” Commonwealth v. Rolan , 964 A.2d 398, 406 (Pa. Super. 2008) (citations and internal quota tion marks omitted) (emphasis in original).

Commonwealth v. Freeland , 106 A.3d 768, 775 (Pa. Super. 2014). Here, in his first issue, Appellant maintains that trial counsel was ineffective in not attacking the credibility of for mer police officer Holland

“ through Toomer. ” (Appellant’s Brief, at 20) (emphasis added). We disagree. First, and foremost, Officer Holland did not testif y. So he could not be impeached. Secondly, Appellant’s argument depends on an incorrect premise of fact. Mr. Toomer did not identify Officer Holland as saying, “I tased him, but it didn’t [f]aze him.” (N.T. Trial, 3/24/09, at 116). Mr. Toomer only referred to one of the police. ( See id. ). Appellant improperly and incorrectly conflates the statement at issue with Mr. Toomer’s later testimony. Mr. Toomer test ified that Officer Holland was the only police officer involved in his scuffle with Appellant that he could identify by name, not that former Officer Holland said “I tased him, but it didn’t [f]aze him.” ( See Appellant’s Brief, at 18; (citing N.T. Trial, 3/25 /09, at 118)).J-S45045-16

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To the contrary, the record supports the opposite c onclusion. Officer Holland hit Appellant with a “black jack” or slap j ack. Officer McGinty Tasered him. ( See N.T. Trial, 3/27/09, at 350-51; see also Commonwealth’s Brief, at 26). More substantively, because there is no dispute tha t Appellant was tased, and Appellant himself testified that he was tased, there is no conceivable prejudice to Appellant that could arise from the statement that he was tased, whoever said it. Simply put, there w as nothing in the statement to impeach. Similarly, the fact that Appellant continued to try to evade the police even after he was tased is supported by the record, and not subject to dispute.

Prosecutor:

Q. Did [Appellant] ever attempt to surrender himse lf? Officer McGinty: A. No. Q. Was he repeatedly beaten on the face and head a rea? A. I tasered him, and like I testified before, at that time, Officer Holland did use a slap jack in order to try and subdue him and place him under arrest. Q. Beyond that, any force used against him by your self or Officer Holland? A. No. Other than Officer Holland after he tried t o, I believe get him out of the vehicle, he went to Mr. Toomer’s car. (N.T. Trial, 3/27/09, at 350-51). We view the evid ence of record in the light most favorable to the Commonwealth as the prevailin g party at the trial

level. See Spotz

, supra at 311.J-S45045-16

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Moreover, nothing in the record even remotely sugge sts, as Appellant advocates, that Holland could be impeached through any conceivable testimony by Mr. Toomer. ( See Appellant’s Brief, at 20). Specifically, nothing in the record suggests Mr. Toomer had perso nal knowledge of Officer Holland’s separate legal difficulties, or w as otherwise competent to testify about them. Finally, Appellant’s cited authority does not suppo rt his argument. Specifically, Appellant relies on Commonwealth v. Dawson , 702 A.2d 864, 866-67 (Pa. Super. 1997), appeal denied , 724 A.2d 348 (Pa. 1998), for the proposition that “a remand for an evidentiary heari ng was required concerning ineffective assistance as to counsel’s f ailure to properly crossexamine a witness[.]” (Appellant’s Brief, at 22). It bears noting that Dawson was a direct appeal. Defense counsel sought to impeach a Commonwealth witness who gave i ncriminating testimony while she had pending charges in another county, about her expectation of leniency in her own case. See Dawson , supra at 866-67. Contrary to Appellant’s explicit assertion, ineffec tive assistance was not at issue. Here, Holland, who did not testify, could n ot be impeached about the expectation of leniency in his own case for favorab le testimony he had never given in the first place. Furthermore, leaving that aside, Appellant neglects to add that the

Dawson Court nevertheless concluded that the error was ha rmless whereJ-S45045-16

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the additional cross-examination sought by the appe llant was cumulative

and would not have affected the verdict. See id. at 867. Appellant fails to prove ineffectiveness. His first claim does not me rit relief. In his second claim, Appellant argues that trial co unsel provided ineffective assistance by failing to request a just ification instruction. ( See Appellant’s Brief, at 26-28). Appellant contends, in effect, that his flight was justified because he feared he was in clear and imm inent danger. ( See id. at 28). We disagree. As in his first claim, Appellant relies on direct a ppeal caselaw to support his ineffectiveness argument on collateral appeal. ( See Appellant’s Brief, at 27-28 (citing Commonwealth v. Billings , 793 A.2d 914 (Pa. Super. 2002), appeal denied , 805 A.2d 519 (Pa. 2002))).

In order to be entitled to an instruction on justif ication by necessity as a defense to a crime charged, Appellan t must offer evidence to show: (1) that (he) was faced with a clear and imminent h arm, not one which is debatable or speculative; (2) that (he) could reasonably expect that (his) ac tions would be effective in avoiding this greater harm; (3) that there is no legal alternative which will b e effective in abating the harm; and (4) that the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue. As with any offer of proof, it is essential that th e offer meet a minimum standard as to each element of the d efense so that if a jury finds it to be true, it would suppor t the affirmativeJ-S45045-16

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defense-here that of necessity. This threshold req uirement is fashioned to conserve the resources required in con ducting jury trials by limiting evidence in a trial to that dire cted at the elements of the crime or at affirmative defenses ra ised by the defendant. Where the proffered evidence supporting one element of the defense is insufficient to sustain t he defense, even if believed, the trial court has the right to deny use of the defense and not burden the jury with testimony supp orting other elements of the defense. Billings , supra at 916 (citation omitted). Here, Appellant maintains that “[t]here is a reason able probability that but for counsel’s failure to request the instructio n, the verdict concerning robbery of Toomer’s vehicle, resisting arrest and b urglary would have been different.” (Appellant’s Brief, at 28). We disagr ee. Appellant’s reliance is misplaced. [A] defendant [raising a claim of ineffective assis tance of counsel] is required to show actual prejudice ; that is, that counsel’s ineffectiveness was of such magnitude tha t it ‘could have reasonably had an adverse effect on the outcom e of the proceedings.’ This standard is different from the harmless error analysis that is typically applied when determining whether the trial court erred in taking or failing to take cert ain action. The harmless error standard, as set forth by this Court in Commonwealth v. Story , 476 Pa. [391], 409, 383 A.2d [155], 164 [ (1978) ] (citations omitted), states that “[w ]henever there is a ‘ reasonable possibility’ that an error ‘might have contributed to the conviction,’ the error is not harmless.” Th is standard, which places the burden on the Commonwealth to show that the error did not contribute to the verdict beyond a re asonable doubt, is a lesser standard than the Pierce prejudice standard, which requires the defendant to show that counsel’s conduct had an actual adverse effect on the outcome of the proceedings. Spotz , supra at 315 (some citations omitted) (emphases added).J-S45045-16

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Furthermore, it bears noting that the Billings Court decided that the defense of justification by necessity was not met. See Billings , supra at 916-17. It is not met here, either. Appellant had no justification to flee from the pol ice. “We cannot state it any more clearly: there does no t exist in Pennsylvania a right to resist arrest, under any ci rcumstances.” Commonwealth v. Biagini , 655 A.2d 492, 499 (Pa. 1995). Here, as already noted, Officer McGinty testified t hat Appellant never even attempted to surrender himself. ( See N.T. Trial, 3/27/09, at 350). When Appellant testified at trial he candidly conce ded that his motivation in fleeing was not clear and imminent da nger, but to avoid

arrest: [T]he reason I jumped into the driver’s seat of my [sic] car and pulled off was because for one, I didn’t want to ge t caught with it (heroin) and for two, I didn’t want him (Pettus, his supplier) to get caught with it neither. I figured if I got away with these drugs and neith er one of us got caught with them, they never seen them, I wi ll get to keep them, pay for them, and he would tell me you g ot away, I stopped him from getting in trouble and I am stoppi ng me from getting in trouble from doing it, too. (N.T. Trial, 3/27/09, at 314-15). Appellant was not entitled to a jury instruction on the defense of justification by necessity. “[I]t is axiomatic tha t [trial] counsel will not be considered ineffective for failing to pursue meritl ess claims.”J-S45045-16

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Commonwealth v. Pursell , 724 A.2d 293, 304 (Pa. 1999), cert. denied , 528 U.S. 975 (1999). Appellant’s second claim lack s merit. Next, Appellant totally fails to address, develop a ny argument, or provide pertinent authority in support of his third claim, alleging ineffective cross-examination of Joyce Cager by defense counsel . ( See Appellant’s Brief, at 28-29). It is not the role of this Court to develop an argument for a litigant. Accordingly, his third claim is waived. 4 See Pa.R.A.P. 2119(a), (b). Finally, in his fourth claim, Appellant claims he r eceived an illegal sentence. ( See Appellant’s Brief, at 29-31). Appellant maintains that a mandatory minimum sentence for PWID is illegal unde r Alleyne v. United

States , 133 S. Ct. 2151 (2013), and Commonwealth v. Newman , 99 A.3d 86 (Pa. Super. 2014), appeal denied , 121 A.3d 496 (Pa. 2015). However, this Court has concluded that Alleyne is not entitled to

retroactive effect on collateral review. See Commonwealth v. Riggle , 119 A.3d 1058, 1067 (Pa. Super. 2015).

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4 Moreover, our independent review of the record con firms that defense counsel not only cross-examined but re- cross-examined Ms. Cager. ( See N.T. Trial, 3/26/09, at 192-95, 196). Her testimon y was favorable to Appellant. The sentencing court acknowledged that Ms. Cager had softened her testimony from her statement to the police. ( See N.T. Sentencing, 10/07/09, at 35). Defense counsel had no need to c ross-examine further. “Where counsel has made a strategic decision after a thorough investigation of law and facts, it is virtually unchallengeable[. ]” Commonwealth v. Rolan , 964 A.2d 398, 406 (Pa. Super. 2008) (citations om itted).J-S45045-16

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Appellant suggests the possibility of a future chan ge in the law. ( See Appellant’s Brief, at 31). However, this Court con tinues to follow controlling precedent as long as a decision has not been overtu rned by our Supreme

Court. See Dixon v. GEICO , 1 A.3d 921, 926 (Pa. Super. 2010) (citing

Marks v. Nationwide Ins. Co. , 762 A.2d 1098, 1101 (Pa. Super. 2000)). Appellant’s fourth claim does not merit relief. Appellant fails to overcome the presumption of effe ctiveness. His claim of an illegal sentence is not reviewable retr oactively on PCRA review.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/19/2016