J-S50042-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AKIM PIERRE
Appellant No. 3026 EDA 2014
Appeal from the PCRA Order September 25, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003339-2010
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 29, 2015
Appellant Akim Pierre appeals from the order entered in the Bucks
County Court of Common Pleas, which dismissed his petition filed for relief
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The trial court, which was the same as the PCRA court, previously set
forth the underlying facts of this appeal as follows:
On Monday, March 29, 2010, Claire Forte [(“Victim”)]
opened the door to her garage, placed her purse and scarf
on the passenger seat of the car, closed the door and
started to walk around to the driver’s side of her vehicle.
As she rounded the rear of her vehicle, she realized that
she forgot her umbrella and opened the trunk of her car to
retrieve one. As she was doing this, she heard a noise to
her left and turned around. Three men, including
[Appellant], were standing behind her and suddenly ran
toward her.
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1
42 Pa.C.S. §§ 9541-9546.
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The men charged at her and Appellant punched her in the
face as she attempted to turn away. After hearing the
men say “get her in the trunk,” [Victim] reached up and
pushed a button on the inside of the trunk lid that caused
it to close automatically. She was then pushed to the
ground and Appellant held her down and stuffed his hand
in her mouth to keep her from screaming. Appellant
clawed the inside of her mouth with his hand as she
attempted to scream.
Appellant proceeded to place his hands around [Victim’s]
neck and squeeze. After that, another attacker sat on
[Victim’s] hips to hold her down as Appellant went back to
“digging and scratching” in her mouth. [Victim] continued
to struggle and scream. At some point, one of the
attackers dragged [Victim] away from the car to the other
side of the garage. She then watched as her Mercedes
was backed down her driveway. Still located in the
Mercedes was [Victim’s] purse, wallet, and cell phone.
During the entire ordeal, the exterior garage door was
open and [Victim’s] husband was sleeping inside of the
home.
[Victim] watched as the two men remaining in the garage
sprinted down the street to a silver Range Rover.
Following the attack, [Victim’s] husband contacted 911.
Officer Fabrizio Catoni of the Lower Makefield Township
Police Department heard the radio broadcast describing
two vehicles leaving the scene of a crime in Newtown
Borough. As Officer [Catoni] positioned his vehicle at the
intersection of Route 332 and Interstate 95, he observed a
silver Range Rover matching the broadcast description.
The car was traveling eastbound on Route 332. Officer
[Catoni] followed the vehicle and made a vehicle stop in
Ewing, New Jersey within 15 minutes of the broadcast.
Appellant was sitting ¡n the passenger seat of the vehicle
when the vehicle was stopped.
When the vehicle was searched, nylon rope was located
between the driver’s seat and passenger seat and a BB
gun was found on the backseat. A pair of black gloves was
found next to the gun. Another pair of gloves was found in
the passenger door compartment. The pair of gloves
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located in the passenger door were identified at trial by
Co-Defendant [Jerry] Laventure as the gloves worn by
Appellant during the attack on [Victim]. DNA testing also
showed that Appellant’s DNA was on both pairs of gloves.
[Victim] informed the police that approximately one week
prior to the attack, she had observed a silver Range Rover
on the Newtown bypass. As the car passed her, she
noticed a parking pass for Princeton Junction train station
hanging from the rearview mirror. [Victim] recognized the
pass because she had the same one hanging from her
mirror. She remembered the car because she thought it
unusual to see another car driving to Newtown from
Princeton Junction. When shown a picture of the vehicle
[in which her attackers were apprehended, Victim]
recognized this car to be the same car she saw her
attackers flee to and the same car she observed on the
Newtown bypass.
During trial, Co-Defendant Laventure testified that March
29, 2010 was not the group’s first attempt at stealing
[Victim’s] car. Prior to this attack, Appellant and his two
co-defendants stole two vans from Philadelphia and
attempted to block [Victim’s] car [on] her block. When
one of the vans would not start, the plan was aborted. On
another occasion, the three men parked outside of
[Victim’s] home. Co-defendant Laventure exited the
vehicle, but Co-Defendant [Troy] Dillard apparently could
not get his door open. According to Co-Defendant
Laventure, [they had made] at least four attempts [to
steal Victim’s car] prior to the attack of March 29, 2010.
Trial Court Opinion, filed March 22, 2012, at 3-6 (citations to the record and
some capitalization omitted).
The PCRA court set forth the procedural history of this appeal:
Following a waiver trial held on November 15 and 16,
2010, Appellant was found guilty of robbery (threat of
immediate serious bodily injury), robbery of motor vehicle,
criminal attempt (at kidnapping to facilitate the
commission of a felony), theft by unlawful taking (movable
property), simple assault, burglary, and criminal
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conspiracy (to commit robbery).3 Sentencing was deferred
for a pre-sentence investigation and on February 10, 2011,
Appellant was sentenced to serve an aggregate term of not
less than 13 nor more than 28 years’ confinement in a
State Correctional Institution.4
3
18 Pa.C.S. § 3701(a)(1)(ii), 3702(a), 901(a),
3921(a), 2701(a)(1), 3502(a), and 903(a)(1),
respectively.
4
Appellant was sentenced as follows: four to ten
years’ imprisonment for the robbery conviction;
three to six years’ imprisonment for the attempted
kidnapping conviction; three to six years’
imprisonment for the burglary conviction; and, three
to six years’ imprisonment for the conspiracy to
commit robbery conviction. The trial court ordered
that “each of those [sentences] is to run consecutive
to one another and not concurrent.” N.T.,
Sentencing, 2/ 10/2011, p. 21.
On May 5, 2011, Appellant filed a timely PCRA petition
alleging ineffective assistance of counsel for failure to file a
direct appeal to the Superior Court and claiming that the
trial court imposed an excessive sentence. Stuart Wilder,
Esq. was appointed to represent Appellant and a PCRA
hearing was held on October 3, 2011. Following the
hearing, the PCRA court granted Appellant’s PCRA petition
and reinstated Appellant’s right to file both a post-
sentence motion and a direct appeal nunc pro tunc. PCRA
Court Order, 10/17/11, p. 1.
Appellant then filed a Motion for Reconsideration of
Sentence on October 13, 2011 claiming that the trial court
imposed an unreasonable and unjust sentence and that
the court failed to take into account and give proper
weight to mitigating factors. Motion for Reconsideration of
Sentence, 10/13/2011, p. 1-2. Following a hearing held
on December 15, 2011, the trial court denied Appellant’s
motion. Appellant then filed [a] notice of appeal to the
Superior Court on January 17, 2012, and the Superior
Court affirmed Appellant’s sentence on October 31, 2012.
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Appellant then flled a PCRA Petition with [the PCRA] court
on August 26, 2013. Appellant was appointed counsel and
subsequently filed Amended PCRA Petitions on December
10, 2013 and August 28, 2014. [The PCRA court] held a
hearing on Appellant’s amended PCRA petition on August
29, 2014. Appellants PCRA petition was finally denied on
September 25, 2014[.]
PCRA Court Opinion, filed February 6, 2015, at 3-4.
On October 24, 2014, Appellant timely filed a notice of appeal. On
November 3, 2014, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b),
and he timely complied on November 24, 2014.
Appellant raises the following issues for our review:
WHETHER PREVIOUS COUNSEL WAS INEFFECTIVE FOR
FAILING TO FILE A REQUESTED PETITION FOR
ALLOWANCE OF APPEAL[?]
WHETHER THE TRIAL COURT ERRED BY SENTENCING
APPELLANT TO CONSECUTIVE TERMS OF IMPRISONMENT
IN VIOLATION OF TITLE 18 PA.C.S. SECTION 906[?]
WHETHER APPELLANT’S CRIMES OF CRIMINAL ATTEMPT,
KIDNAPPING, AND CRIMINAL CONSPIRACY TO COMMIT
ROBBERY, BURGLARY, AND THEFT INVOLVE THE SAME
CRIMINAL INTENT[?]
Appellant’s Brief at 4.
Our well-settled standard of review for orders denying PCRA relief is
“to determine whether the determination of the PCRA court is supported by
the evidence of record and is free of legal error. The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
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certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-192
(Pa.Super.2013) (internal quotations and citations omitted).
To be eligible for PCRA relief, a petitioner must plead and prove, by a
preponderance of the evidence, that his conviction or sentence was the
result of one or more of the following:
* * *
(ii) Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication
of guilt or innocence could have taken place.
* * *
(vii) The imposition of a sentence greater than the
lawful maximum.
* * *
42 Pa.C.S. § 9543(a)(2).
In his first issue, Appellant argues his appellate counsel was ineffective
for failing to file a petition for allowance of appeal to our Supreme Court. He
claims that his challenge to the court’s imposition of consecutive sentences,
in the aggravated range, without consideration of mitigating factors, was a
challenge to the legality of his sentence. He contends that he requested
appellate counsel file the petition to challenge the legality of his sentence
and that appellate counsel’s failure to do so was per se ineffective. We
disagree.
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This Court follows the Pierce2 test adopted by our Supreme Court to
review claims of ineffective assistance of counsel:
When a petitioner alleges trial counsel’s ineffectiveness in
a PCRA petition, he must prove by a preponderance of the
evidence that his conviction or sentence resulted from
ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place. We have
interpreted this provision in the PCRA to mean that the
petitioner must show: (1) that his claim of counsel’s
ineffectiveness has merit; (2) that counsel had no
reasonable strategic basis for his action or inaction; and
(3) that the error of counsel prejudiced the petitioner-i.e.,
that there is a reasonable probability that, but for the error
of counsel, the outcome of the proceeding would have
been different. We presume that counsel is effective, and it
is the burden of Appellant to show otherwise.
Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal
denied, 889 A.2d 87 (Pa.2005) (internal citations and quotations omitted).
The petitioner bears the burden of proving all three prongs of this test.
Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001). “If an
appellant fails to prove by a preponderance of the evidence any of the
Pierce prongs, the Court need not address the remaining prongs of the
test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009),
appeal denied, 990 A.2d 727 (Pa.2010) (citation omitted).
Our Supreme Court has held that:
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2
Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
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in presenting a PCRA claim of ineffective assistance of
counsel for failing to file a requested petition for allowance
of appeal, an appellant need not show that the petition
would likely have been granted, but merely that the appeal
was requested and counsel failed to act. In these
situations, the Supreme Court has effectively held that the
prejudice prong of the test for ineffective assistance has
been established per se.
Commonwealth v. Bath, 907 A.2d 619, 622 (2006), appeal denied, 918
A.2d 741 (Pa.2007) (internal citations omitted).
However, this Court has declined to find counsel per se ineffective for
failing to file a requested petition for allowance of appeal where the only
claim involves “challenging the merits of an upheld-on-the-merits
discretionary sentencing challenge to a guideline sentence”.
Commonwealth v. Rigg, 84 A.3d 1080, 1089-90 (Pa.Super.2014). In
Rigg, this Court found that, “because the Pennsylvania Supreme Court is
generally statutorily precluded from reviewing a defendant’s discretionary
sentencing claim, counsel was not per se ineffective in not seeking a
discretionary appeal after this Court affirmed Appellant’s sentence where
that was the lone issue Appellant wished to be reviewed.” Id.
Here, this Court affirmed Appellant’s judgment of sentence on direct
appeal. See Commonwealth v. Pierre, No. 317 EDA 2012, filed
September 10, 2012 (unpublished memorandum). Appellant claims he
requested his appellate counsel file a petition for allowance of appeal to our
Supreme Court and that counsel did not act upon this request. See N.T.
PCRA Hearing, 8/29/2014, at 11. Before we deem counsel per se
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ineffective, however, we must determine whether Appellant’s question on
appeal was one that challenged only the discretionary aspects of his
sentence.
The sole question Appellant raised in his Pa.R.A.P. 1925(b) statement
for his direct appeal was:
[WHETHER] THE COURT ERRED IN IMPOSING
CONSECUTIVE SENTENCES, AND SENTENCES IN THE
AGGRAVATED RANGE, BECAUSE [APPELLANT’S] PRIOR
CRIMINAL RECORD DID NOT JUSTIFY IT, HE HAD
SUPPORT FROM HIS FAMILY, AND HE WAS
REMORSEFUL[?]
Appellant’s Pa.R.A.P. 1925(b) Statement, filed January 26, 2012.
Appellant’s challenge to the trial court’s imposition of consecutive
sentences and failure to consider mitigating factors are challenges to the
discretionary aspects of his sentence, not challenges to the legality of his
sentence. See Commonwealth v. Mastromarino, 2 A.3d 581, 585
(Pa.Super.2010), appeal denied, 14 A.3d 825 (Pa.2011) (appellant’s claim
imposition of consecutive sentences was excessive challenged the
discretionary aspects of sentencing); Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014)
(appellant’s claim court failed to consider mitigating factors challenged
discretionary aspects of sentencing). After finding that his challenge to the
discretionary aspects of his sentence failed on the merits, this Court affirmed
Appellant’s judgment of sentence. Thus, counsel was not per se ineffective
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for failing to file a petition for allowance of appeal to the Supreme Court
after this Court affirmed his judgment of sentence.
Likewise, Appellant fails to establish the prongs of ineffective
assistance of counsel under Pierce. Specifically, Appellant cannot prove he
was prejudiced by counsel’s failure to file the petition because the
Pennsylvania Supreme Court does not have jurisdiction to consider
challenges to the discretionary aspects of a sentence that this Court has
already addressed. See Commonwealth v. Mouzon, 812 A.2d 617, 622
(Pa.2002) (“Pursuant to § 9781(f) of the Sentencing Code, ‘[n]o appeal of
the discretionary aspects of the sentence shall be permitted beyond the
appellate court that has initial jurisdiction for such appeals.’ 42 Pa.C.S. §
9781(f). As a result, this Court lacks jurisdiction to consider challenges to
the discretionary aspects of sentences that the Superior Court has already
reviewed.”). Therefore, Appellant’s first issue merits no relief.
In his second and third issues, Appellant argues the court erred by
sentencing him to consecutive terms of imprisonment for two inchoate
crimes. Specifically, he contends his crimes of criminal attempt, kidnapping
and criminal conspiracy to commit robbery, burglary and theft involve the
same criminal intent. He concludes that, by sentencing him to consecutive
terms for the same criminal attempt, the court imposed an illegal sentence,
in violation of 18 Pa.C.S. § 906. Again, we disagree.
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“Issues relating to the legality of a sentence are questions of law. Our
standard of review over such questions is de novo and our scope of review is
plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa.Super.2014),
appeal granted, ___ A.3d ___, No. 63 MAL 2015, 2015 WL 4755651 (Pa.
Aug. 12, 2015) (internal quotations and citations omitted).
18 Pa.C.S. § 906 provides:
§ 906. Multiple convictions of inchoate crimes barred
A person may not be convicted of more than one of the
inchoate crimes of criminal attempt, criminal solicitation or
criminal conspiracy for conduct designed to commit or to
culminate in the commission of the same crime.
18 Pa.C.S. § 906.
This Court has observed:
Under section 906, “inchoate crimes merge only when
directed to the commission of the same crime, not merely
because they arise out of the same incident.”
Commonwealth v. Graves, 508 A.2d 1198 ([Pa.]1986)
(emphasis added). See e.g., Commonwealth v. Brown,
486 A.2d 441, 445 ([Pa.Super.]1984) (finding that
appellant’s sentences for attempted burglary and
conspiracy to commit burglary violate section 906, because
they arise from conduct directed to the commission of the
same crime); Commonwealth v. Ford, 461 A.2d 1281,
1289 ([Pa.Super.]1983) (stating that appellant’s sentences
for attempted murder, conspiracy to commit murder and
possession of an instrument of crime are barred under
section 906, because the facts of the case demonstrated
“that the offenses were perpetrated with one objective in
mind-the (attempted) killing” of the victim).
Commonwealth v. Welch, 912 A.2d 857, 859 (Pa.Super.2006).
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Appellant was convicted of criminal attempt (kidnapping to facilitate
the commission of a felony) and criminal conspiracy (to commit robbery).
Appellant argues the conspiracy to commit robbery encompassed the
kidnapping of Victim. He supports this proposition by directing our attention
to the rope found in his vehicle when he was apprehended for these, as well
as other, crimes. Appellant lied at trial and denied having any involvement
with the conspiracy to steal the car or the attempted kidnapping. See N.T.,
11/16/10, at 48-71. However, Appellant later admitted to agreeing with co-
defendants to attempt to steal Victim’s car. N.T., 12/15/11, at 30. He
denied trying to stuff Victim in the trunk, and denied knowing the rope was
in his vehicle. Id. at 32-33.
The trial court reasoned:
[I]n Appellant’s case, the evidence adduced at trial
established that Appellant and two co-defendants entered
into a conspiracy to commit robbery by planning and
coordinating the theft of [Victim’s] automobile. That
conspiracy was not designed to culminate in the attempted
kidnapping of [Victim]. Instead, the attempted kidnapping
merely arose from the co-defendants[’] initial failure to
achieve the goal of the conspiracy. Appellant and his
codefendants only developed the criminal intent to kidnap
[Victim] when [she] fought back, at which point one of the
attackers exclaimed, “Get the bitch ¡n the trunk” and one
or more of the co-defendants attempted to push [Victim]
into the trunk of the car. … [T]he attempted kidnapping
exceeded the scope of the conspiracy to steal [Victim’s]
car. The attempted kidnapping and the conspiracy to
commit robbery were thus independent crimes; the
objective of the conspiracy was to steal [Victim’s] car,
while the objective of the attempted kidnapping was to
kidnap [Victim].
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Trial Court Opinion, filed February 6, 2015, at 9.
Based on the evidence adduced at trial, we agree with the trial court
that the conspiracy to commit robbery by planning and coordinating the
theft of Victim’s automobile was not designed to culminate in the attempted
kidnapping of Victim. Thus, although these two inchoate crimes arose out of
the same incident, they do not merge because they were not directed to the
commission of the same crime. See Welch, supra. The determination of
the PCRA court is supported by the evidence of record and is free of legal
error. Appellant’s issues merit no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2015
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