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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARLAND MOORE
Appellant No. 1247 EDA 2013
Appeal from the PCRA Order April 4, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0016332-2009
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 04, 2015
Appellant, Marland Moore, appeals from the order entered in the
Philadelphia County Court of Common pleas, which denied his petition filed
under the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its opinion, the PCRA court fully set forth the facts of this case.
Therefore, we will only briefly summarize them. On November 25, 2009,
Officer Momme stopped Appellant, whom he recognized from a previous
traffic stop on October 9, 2009, for disregarding a stop sign; when Officer
Momme approached Appellant’s car and asked Appellant to hand over his
license and registration, Appellant put his car in drive and turned the vehicle
toward the officer. Appellant hit the officer with the car, knocking him
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1
42 Pa.C.S.A. §§ 9541-9546.
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backwards. Appellant accelerated away at a high speed and crashed into
several other vehicles.
Procedurally, following a bench trial, the court convicted Appellant of
aggravated assault, simple assault, recklessly endangering another person,
possessing instruments of crime, criminal mischief, fleeing or attempting to
elude police officer, and accidents involving death or personal injury. On
November 8, 2010, the court sentenced Appellant to an aggregate term of
one (1) to two (2) years’ incarceration, followed by one (1) year of
probation. Appellant did not file a direct appeal.
Appellant filed a timely pro se PCRA petition on May 5, 2011. The
PCRA court appointed counsel, who filed an amended petition on July 23,
2012. Following an evidentiary hearing, the PCRA court denied Appellant’s
petition on April 4, 2013. On April 29, 2013, Appellant filed a timely notice
of appeal. The court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely
complied.
Appellant raises two issues for our review:
WAS THE PCRA COURT’S DISMISSAL OF…APPELLANT’S
PCRA PETITION UNSUPPORTED BY THE RECORD AND
BASED ON LEGAL ERROR BECAUSE PRIOR COUNSEL WAS
INEFFECTIVE WHEN COUNSEL FAILED TO OBJECT TO THE
AGGRAVATED ASSAULT VERDICT ON PROPER GROUNDS
AND FAILED TO FILE A POST-TRIAL MOTION ON THOSE
GROUNDS?
WAS THE PCRA COURT’S DISMISSAL OF…APPELLANT’S
PCRA PETITION UNSUPPORTED BY THE RECORD AND
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BASED ON LEGAL ERROR BECAUSE PRIOR COUNSEL WAS
INEFFECTIVE WHEN COUNSEL FAILED TO FILE A NOTICE
OF APPEAL?
(Appellant’s Brief at 4).
In his first issue, Appellant argues the trial court did not specify under
which subsection of the aggravated assault statute (18 Pa.C.S.A. § 2702) it
convicted Appellant. Appellant contends the court’s statements in support of
its verdict implied the conviction fell under subsection (a)(2). Appellant
asserts the court found the evidence was insufficient to prove Appellant
attempted to injure the officer. Appellant likewise submits the court’s
finding of recklessness was insufficient to convict Appellant of aggravated
assault without actual injury to the victim. Appellant also claims the court
could not have convicted him of aggravated assault under subsection (a)(6)
because there was no evidence, or finding by the court, that Appellant put
the officer in fear of imminent serious bodily injury. Appellant argues trial
counsel was ineffective when he failed to challenge the verdict on the ground
that reckless conduct is insufficient to support an aggravated assault
conviction, pursuant to subsection (a)(2), in the absence of serious bodily
injury. Appellant asserts counsel’s inaction was not part of a reasonable
strategy and prejudiced Appellant because it allowed an improper conviction
to stand. Appellant concludes this Court should vacate his aggravated
assault conviction as relief for trial counsel’s ineffectiveness. We disagree.
Our standard of review of the denial of a PCRA petition is limited to
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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, 108 (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, 515 (Pa.Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We owe no deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a post-conviction
court’s credibility determination, it is binding on the appellate court.
Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa.Super. 1999), appeal
denied, 563 Pa. 659, 759 A.2d 383 (2000).
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, a petitioner is required
to make the following showing: (1) the underlying claim is of arguable merit;
(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.
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“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. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal
denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting 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 [a defendant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The defendant
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 defendant 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.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
(2002) (some internal citations and quotation marks omitted).
The following principles of review apply to challenges to the sufficiency
of evidence:
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The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
The Crimes Code defines aggravated assault as follows:
§ 2702. Aggravated assault
(a) Offense defined.—A person is guilty of aggravated
assault if he:
(1) attempts to cause serious bodily injury to
another, or causes such injury intentionally,
knowingly or recklessly under circumstances
manifesting extreme indifference to the value of
human life;
(2) attempts to cause or intentionally, knowingly
or recklessly causes serious bodily injury to any of
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the officers, agents, employees or other persons
enumerated in subsection (c) or to an employee of
an agency, company or other entity engaged in
public transportation, while in the performance of
duty;
(3) attempts to cause or intentionally or knowingly
causes bodily injury to any of the officers, agents,
employees or other persons enumerated in
subsection (c), in the performance of duty;
(4) attempts to cause or intentionally or knowingly
causes bodily injury to another with a deadly
weapon;
(5) attempts to cause or intentionally or knowingly
causes bodily injury to a teaching staff member,
school board member or other employee, including a
student employee, of any elementary or secondary
publicly-funded educational institution, any
elementary or secondary private school licensed by
the Department of Education or any elementary or
secondary parochial school while acting in the scope
of his or her employment or because of his or her
employment relationship to the school;
(6) attempts by physical menace to put any of the
officers, agents, employees or other persons
enumerated in subsection (c), while in the
performance of duty, in fear of imminent serious
bodily injury;
(7) uses tear or noxious gas as defined in section
2708(b) (relating to use of tear or noxious gas in
labor disputes) or uses an electric or electronic
incapacitation device against any officer, employee
or other person enumerated in subsection (c) while
acting in the scope of his employment;
(8) attempts to cause or intentionally, knowingly
or recklessly causes bodily injury to a child less than
six years of age, by a person 18 years of age or
older; or
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(9) attempts to cause or intentionally, knowingly
or recklessly causes serious bodily injury to a child
less than 13 years of age, by a person 18 years of
age or older.
(b) Grading.—Aggravated assault under subsection
(a)(1), (2) and (9) is a felony of the first degree.
Aggravated assault under subsection (a)(3), (4), (5), (6),
(7) and (8) is a felony of the second degree.
(c) Officers, employees, etc., enumerated.—The
officers, agents, employees and other persons referred to
in subsection (a) shall be as follows:
(1) Police officer.
* * *
18 Pa.C.S.A. § 2702.
Instantly, the Commonwealth presented the following evidence at
trial: Officer Momme stopped Appellant, whom he recognized from a
previous traffic stop, for disregarding a stop sign; when Officer Momme
approached Appellant’s car and asked Appellant to hand over his license and
registration, Appellant put his car in drive and turned the vehicle toward the
officer; Appellant hit the officer with the car, knocking him backwards;
Appellant accelerated away at a high speed and crashed into several other
vehicles. Viewed in the light most favorable to the Commonwealth, the
evidence was sufficient to find Appellant attempted by physical menace to
put Officer Momme in fear of imminent serious bodily injury. See Jones,
supra. Therefore, the evidence was sufficient to convict Appellant of
aggravated assault pursuant to 18 Pa.C.S.A. § 2702(a)(6). The charging
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documents charged Appellant generally with aggravated assault. At the end
of trial, the court stated: “I find [Appellant] guilty of aggravated assault
graded as an F2.” (N.T. Trial, 9/27/10, at 55). The sentencing order
likewise indicated that Appellant was convicted of aggravated assault as a
second-degree felony. Aggravated assault under subsection (a)(6) is a
second-degree felony, whereas a conviction under subsection (a)(2) is a
first-degree felony. See 18 Pa.C.S.A. § 2702. Thus, the record belies
Appellant’s claim that he was convicted under subsection (a)(2) rather than
(a)(6). Additionally, in its opinion, the PCRA court confirmed it had
concluded at trial that Appellant had placed Officer Momme in fear of
imminent serious bodily injury by physical menace.2 The evidence presented
at trial was sufficient to convict Appellant of aggravated assault pursuant to
18 Pa.C.S.A. § 2702(a)(6). Accordingly, Appellant’s ineffectiveness claim
fails because he suffered no prejudice from trial counsel’s failure to raise a
sufficiency challenge in a post-trial motion or direct appeal. See Williams,
supra; Chambers, supra.
In his second issue, Appellant argues he asked trial counsel
immediately after trial to file a direct appeal. Appellant asserts counsel
failed to honor that request and file a notice of appeal (or a petition to
withdraw coupled with a brief pursuant to Anders v. California, 386 U.S.
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2
The PCRA jurist was the same person who presided over Appellant’s trial.
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738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)). Appellant disputes trial
counsel’s testimony at the PCRA hearing that counsel was satisfied with the
verdict and Appellant did not at any time request an appeal. Appellant
contends the trial transcript shows counsel was concerned about the legality
of the verdict, corroborating Appellant’s testimony at the PCRA hearing that
counsel said he was going to file an appeal “because the [j]udge did some
illegal stuff.” (Appellant’s Brief at 17 (quoting N.T. PCRA Hearing, 4/4/13, at
4)). Appellant claims the record fails to support the PCRA court’s credibility
findings. Appellant submits trial counsel’s failure to file a notice of appeal
had no reasonable strategic basis and prejudiced Appellant by depriving him
of his fundamental right to effective appellate counsel. Appellant concludes
trial counsel rendered ineffective assistance by failing to file a direct appeal,
and this Court should vacate Appellant’s aggravated assault conviction or, in
the alternative, reinstate Appellant’s direct appeal rights nunc pro tunc. We
disagree.
“Before a court will find ineffectiveness of counsel for failing to file a
direct appeal, the defendant must prove that he requested an appeal and
that counsel disregarded that request.” Knighten, supra at 682 (citing
Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999) (holding
counsel will be deemed ineffective if counsel is unjustified in failing to file
requested direct appeal)). “Mere allegation will not suffice; the burden is on
Appellant to plead and prove that his request for an appeal was ignored or
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rejected by trial counsel.” Commonwealth v. Harmon, 738 A.2d 1023,
1024 (Pa.Super. 1999), appeal denied, 562 Pa. 666, 753 A.2d 815 (2000).
Instantly, Appellant testified at the PCRA hearing that he had asked
trial counsel, at the conclusion of the trial, to file a direct appeal. Appellant
claimed counsel agreed to “put the paperwork in [for the appeal] because
the [j]udge did some illegal stuff.” (N.T. PCRA Hearing at 4). Following
sentence imposition, trial counsel told Appellant: “You have ten days to ask
Your Honor to reconsider her sentence and 30 days to appeal to [the]
Superior Court. Should you wish to do either of those things, if you contact
my office, we will do that for you.” (N.T. Sentencing, 11/8/10, at 8).
Appellant testified he did not ask trial counsel to file a direct appeal after
sentencing, because Appellant had already asked counsel to do so on the
date of trial.
Trial counsel testified that his case file indicated Appellant did not
request a direct appeal at any time. Counsel disputed Appellant’s claim that
counsel said he would file an appeal. Counsel also had no recollection of
telling Appellant the trial court did “illegal stuff.” Counsel acknowledged he
sought clarification of the trial court’s verdict after it was announced, but
was satisfied with the court’s response.
In reviewing Appellant’s claim, the PCRA court stated:
There is nothing in the record indicating [Appellant] asked
[trial counsel] either to file an appeal or for information
about the appellate process during or directly after the trial
or sentencing. The only evidence [Appellant] has brought
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forth to support his assertion that he asked [trial counsel]
to file an appeal is [Appellant’s] own handwritten
statement filed on May 5, 2011,[3] as well as [Appellant’s]
testimony at the Evidentiary Hearing on April 4, 2013.
[Trial counsel] did not recall [Appellant] requesting an
appeal. [Trial counsel] did not indicate that information on
his case file, as is protocol, or in his handwritten notes.
[Trial counsel] did not recall [Appellant] asking in person
or through correspondence for an appeal.
Because there is no documentation to rely on, the court
had to weigh the credibility of [Appellant] and [trial
counsel]. Ultimately, the court found [trial counsel] to be
credible…regarding whether [A]ppellant requested an
appeal.
(PCRA Court Opinion, filed September 23, 2014, at 7) (internal citations to
the record omitted). The record supports the PCRA court’s credibility
determination. See Knighten, supra. Appellant failed to prove he
requested trial counsel to file a direct appeal, and counsel unjustifiably
disregarded that request. See Lantzy, supra; Knighten, supra; Harmon,
supra. Therefore, Appellant’s claim that trial counsel was ineffective for
failing to file a direct appeal merits no relief. See Kimball, supra; Boyd,
supra. Based on the foregoing, we affirm the order denying PCRA relief.
Order affirmed.
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3
This statement was part of Appellant’s original pro se PCRA petition.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/2015
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