Com. v. Hill, L.

J. S23010/14 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : LOUIS HILL, : No. 3387 EDA 2012 : Appellant : Appeal from the PCRA Order, November 20, 2012, in the Court of Common Pleas of Delaware County Criminal Division at Nos. CP-23-CR-0000494-2008, CP-23-CR-0002291-2009, CP-23-CR-0002303-2009, CP-23-CR-0004875-2008, CP-23-CR-0000493-2008 BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND WECHT, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 08, 2014 Appellant appeals from the order denying his first petition filed §§ 9541-9546. Finding no error, we affirm.1 On September 24, 2009, a jury found appellant guilty of attempted murder, aggravated assault, and possessing a firearm without a license in connection with an incident in Darby Township on October 22, 2007, during which appellant repeatedly shot the victim following an earlier quarrel with 1 ket number CP-23-CR-0000493- docket number and conviction. Appellant improperly added these additional docket numbers to a later pleading. J. S23010/14 On November 18, 2009, the trial court sentenced appellant to an a 20 to 40-year sentence for attempted murder. On February 28, 2011, this court affirmed the judgment of sentence, and on July 7, 2011, our supreme court denied appeal. Commonwealth v. Hill, 24 A.3d 468 (Pa.Super. 2011) (unpublished memorandum), appeal denied, 24 A.3d 362 (Pa. 2011). On August 8, 2011, appellant timely filed the instant PCRA petition. Counsel was appointed, but was subsequently permitted to withdraw on October 16, 2012, following the filing of a motion to withdraw - Turner-Finley practice.2 By that same order, the PCRA court issued notice, pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intention to dismiss the petition without hearing. On October 23, 2012, appellant filed a response, and on November 20, 2012, the PCRA court denied the petition. This timely appeal followed. Appellant raises the following issues on appeal: 1. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO: (A) OBJECT TO EVIDENCE OF DEFENDANT'S PRIOR BAD ACTS, MOVE FOR A MISTRIAL, AND GIVE A PROPER JURY INSTRUCTION REGARDING THE EVIDENCE OF DEFENDANT'S PRIOR BAD ACTS; and (B) OBJECT TO THE COMMONWEALTH'S EVIDENCE RELATING TO HEARSAY TESTIMONY AND MOVE FOR A MISTRIAL? 2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). -2- J. S23010/14 2. WHETHER PCRA COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE TRIAL COUNSEL AND DIRECT APPEAL COU INEFFECTIVENESS? 3. WHETHER THE COURT ERRED IN DISMISSING DEFENDANT'S FIRST PCRA PETITION ON THE - AND GRANTING COUNSEL'S APPLICATION TO WITHDRAW APPEARANCE? 4. WHETHER DEFENDANT IS ENTITLED TO THE APPOINTMENT OF COUNSEL? 5. WHETHER THE MANDATORY SENTENCES IMPOSED ON THE DEFENDANT ARE EXCESSIVE AND UNCONSTITUTIONAL; 6. WHETHER DEFENDANT IS ENTITLED TO A HEARING PURSUANT TO COMMONWEALTH-v- GRANT; and 7. WHETHER DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING. 3 Ap review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court, it is our determination that there is no meri -page opinion, filed on August 28, 2013, thoroughly discusses and properly disposes of the questions presented. We will adopt it as our own and affirm on that basis with the following additional analysis. 3 treating the cover page as page 1. -3- J. S23010/14 In discussing issue 3, the trial court erroneously states that superior -8.) withdraw. (See Order, 10/16/12; Record Document No. 11.) Aside from that error, the analysis is otherwise correct. In Issue 5, appellant argues that his sentence was excessive which the trial court correctly dismisses because challenges to the discretionary aspects of sentence not cognizable under the PCRA. However, within his brief appellant makes claims that his sentence is improper because nowhere in the statutes of Pennsylvania is there a provision criminalizing attempted murder, nor is there a provision setting the penalty for attempted murder. -month sentence for attempted murder. Legislature has provided for murder as a crime at 18, Pa.C.S.A. § 2502, while criminal attempt is provided for at 18 Pa.C.S.A. § 901. The crime of attempted murder results from the interplay of these statutes. Under Section 901, if a defendant takes an action constituting a substantial step toward murder with the intent to commit murder, as appellant did when he pumped bullet after bullet into his helpless victim, he is guilty of attempted murder. As for the statute setting the penalty for attempted murder, it is found here: -4- J. S23010/14 § 1102. Sentence for murder, murder of unborn child and murder of law enforcement officer (c) Attempt, solicitation and conspiracy.-- Notwithstanding section 1103(1) (relating to sentence of imprisonment for felony), a person who has been convicted of attempt, solicitation or conspiracy to commit murder, murder of an unborn child or murder of a law enforcement officer where serious bodily injury results may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years. Where serious bodily injury does not result, the person may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 20 years. 18 Pa.C.S.A. § 1102(c). Because the victim suffered serious bodily injury, Accordingly, finding no merit to the issues raised on appeal, we will affirm the order below. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/8/2014 -5- Circulated 08/26/2014 03:11 PM Circulated 08/26/2014 03:11 PM Circulated 08/26/2014 03:11 PM Circulated 08/26/2014 03:11 PM Circulated 08/26/2014 03:11 PM --- Circulated 08/26/2014 03:11 PM Circulated 08/26/2014 03:11 PM