Commonwealth v. Watts

1

COMMONWEALTH OF PENNSYLVANIA v. SHANNON ROBERT WATTS Appellant

No. 1723 MDA 2022

No. J-S27040-23

Superior Court of Pennsylvania

January 24, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered November 22, 2022 In the Court of Common Pleas of Franklin County Criminal Division at No(s) CP-28-CR-0001071-2017

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

MEMORANDUM

SULLIVAN, J.

Shannon Robert Watts ("Watts") appeals from the dismissal following a hearing, of his first petition filed under the Post Conviction Relief Act ("PCRA").^[1] We affirm.

In a prior decision, we detailed the underlying facts:

On October 24, 2016, Allen Chapman [("the victim")] invited his friend, Forrest Miller [("Miller")], and Miller's family over to his apartment, where he lived with his wife and daughter. While there, [the victim] drank alcohol and Miller smoked marijuana.

Later, [the victim] and Miller went to Watts'[s] house to buy prescription narcotics. After each bought 4 pills from Watts, Miller crushed 2 and snorted them. [The victim] did the same with all 4 pills he purchased from Watts. After leaving Watts'[s] house, [the victim] and Miller briefly stopped at a bar and then a store to buy beer and cigarettes.

[The victim] and Miller later returned to the apartment. [The victim] was irritated, acted a bit crazy, and argued with his wife. He appeared high and spacey, had trouble talking, stumbled around, and needed help with eating. Shortly after Miller and his family left, [the victim] fell asleep on the sofa.

The next morning, [the victim's] wife found him still asleep on the sofa, snoring. She shook his shoulder to try to wake him, and his head [slipped] off the arm of the sofa. [The victim] then went silent and stopped breathing.

When the paramedics arrived, [the victim] was not breathing and had no pulse. The paramedics used a defibrillator and started CPR on [the victim]. On the way to the hospital, the paramedics continued to try to resuscitate [the victim] but could not keep his heart beating. The paramedics pronounced [the victim] dead.

The next day, the police interviewed Miller about what occurred the night before. Miller and his girlfriend had consumed the other 2 pills he got from Watts. The police set up a controlled buy using Miller as a confidential informant to buy drugs from Watts.

Miller met Watts and bought 3 oxymorphone pills from him. As a result, the police arrested Watts and interviewed him about [the victim]. Watts admitted that he sold pills to Miller . . . and watched Miller and [the victim] snort them. Watts was charged with [the victim's] death.

Following trial, a jury convicted Watts of [drug delivery resulting in death "DDRD"] and other related offenses [filed under a separate docket number but consolidated for trial]. The trial court sentenced Watts to 78 months to 240 months of incarceration. Watts filed a post-sentence motion, which the trial court denied. No appeal was filed.

After an amended PCRA petition, the court reinstated Watts' direct appellate rights. Watts filed [a] timely appeal.

Commonwealth v. Watts, 1468 MDA 2020 (Pa. Super. 2021) (unpublished memorandum at 1-3).

This Court affirmed the judgment of sentence. See id. at 1. Watts did not seek leave to appeal to the Pennsylvania Supreme Court.

Watts, through retained counsel, filed the instant, timely PCRA petition, which included a request for discovery. See PCRA Petition, 4/28/22, at 4 (unnumbered). The PCRA petition included the dockets numbers in both cases. See id. at 1 (unnumbered). Subsequently, Watts filed, without seeking leave of court, two "addendums" to his PCRA petition. The first, filed prior to the evidentiary hearing the PCRA court granted, sought reconsideration of the PCRA court's decision denying discovery. See Addendum to PCRA Petition, 9/7/22, at 1-2 (unnumbered). The second, filed after the evidentiary hearing, sought to supplement the PCRA petition by adding a new claim of ineffective assistance of trial counsel. See Second Addendum to PCRA Petition, 10/14/22, at 1-3 (unnumbered).

The PCRA court held an evidentiary hearing at which Watts, Attorney Eric J. Weisbrod ("trial counsel"), and Dr. Michael Baden ("Dr. Baden"), an expert in forensic pathology, testified. The PCRA court denied the petition. See Order, 11/22/22 at 1 (unnumbered). The instant, timely appeal followed. Watts and the trial court complied with Pa.R.A.P. 1925.^[2] See Notice of Appeal, 12/22/22, at 1 (unnumbered). Watts raises four issues on appeal.

1. Did the [PCRA] court err in denying [Watts's PCRA petition] . . . where [Watts's] trial counsel was ineffective for failing to consult with and procure an expert in pathology to aid the defense and, as a result, rendered himself unable to convey expert information to the jury - of crucial importance to the defense in relation to causation . . . [?]

2. Did the [PCRA] court err in denying [Watts's PCRA petition], in conjunction with its denial of [Watts's] request to engage in discovery, as set forth in [the PCRA petition]?

3. Did the [PCRA] court err in denying [Watts's PCRA petition], in conjunction with its refusal to consider [Watts's] second request to engage in discovery as set forth in [Watts's] addendum to [PCRA petition] in which [Watts] request[ed] that the [PCRA c]ourt reconsider its denial of his request to engage in discovery?

4. Did the [PCRA] court err by refusing to consider [Watts's] alternative claim for [PCRA] relief set forth in [Watts's] Second Addendum to [PCRA petition], where it became evident based upon testimony provided at the hearing held on September 30, 2022, that trial counsel provided ineffective assistance of counsel in failing to object to damaging statements contained in the prosecutor's closing arguments that were utterly unsupported by evidence submitted at trial[?]

Watts's Brief at 9-10 (some dates and transcript cites omitted).

In his first claim, Watts asserts he received ineffective assistance of trial counsel. See Watts's Brief at 19-35. We review ineffectiveness claims under the following standard:

Appellate review of a PCRA court's dismissal of a PCRA petition is limited to the examination of whether the PCRA court's determination is supported by the record and free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. In contrast, we review the PCRA court's legal conclusions de novo.

Commonwealth v. Maxwell, 232 A.3d 739, 744 (Pa. Super. 2020) (en banc) (internal citations and quotation marks omitted). Further, a "PCRA court's credibility findings are to be accorded great deference, and where supported by the record, such determinations are binding on a reviewing court." Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016) (internal citations omitted).

With respect to claims in ineffective assistance of counsel,

counsel is presumed to have been effective and [] the petitioner bears the burden of proving counsel's alleged ineffectiveness. To overcome this presumption, a petitioner must establish that: (1) the underlying substantive claim has arguable merit; (2) counsel did not have a reasonable basis for his or her act or omission; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance, that is, a reasonable probability that but for counsel's act or omission, the outcome of the proceeding would have been different. A PCRA petitioner must address each of these prongs on appeal. A petitioner's failure to satisfy any prong of this test is fatal to the claim.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (internal citations omitted). "Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007) (citation omitted).

"To establish ineffective assistance of counsel for the failure to present an expert witness, [an] appellant must present facts establishing that counsel knew or should have known of the particular witness." Commonwealth v. Millward, 830 A.2d 991, 994 (Pa. Super. 2003) (citation omitted). Further, "the [appellant] must articulate what evidence was available and identify the witness who was willing to offer such evidence." Commonwealth v. Bryant, 855 A.2d 726, 745 (Pa. 2004) (citations omitted).

Watts claims trial counsel was ineffective for failing to retain an expert pathologist to counter the testimony of the Commonwealth's expert pathologist concerning the victim's cause of death. See Watts's Brief at 19-35. As noted above, Watts did present the testimony of Dr. Baden, an expert pathologist, at the evidentiary hearing. See Watts's Brief at 21. Watts highlights various parts of Dr. Baden's testimony which he believes either supported testimony from fact witnesses and contradicted the Commonwealth's medical evidence, demonstrated a lack of thoroughness in the Commonwealth's expert pathologist's investigation, or cast doubt on that expert's scientific findings. Lastly, Watts argues trial counsel, who consulted with an expert toxicologist prior to trial,^[3] had no reasonable basis for failing to consult an expert pathologist. See id. at 27-31.

The PCRA court disagreed with Watts, finding trial counsel articulated a reasonable basis for not retaining an expert pathologist, and Watts had not shown prejudice. PCRA Court Opinion, 11/22/22, at 8-10. The PCRA court stated:

Trial counsel testified that when he examined the Commonwealth's expert report, he noted the expert identified the obvious, serious, and

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