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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ELLIOTT ZANE RICHARDS, : No. 1780 WDA 2016
:
Appellant :
Appeal from the PCRA Order, October 27, 2016,
in the Court of Common Pleas of Clarion County
Criminal Division at No. CP-16-CR-0000011-2015
BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 26, 2018
Appellant, Elliott Zane Richards, appeals from the October 27, 2016
order of the Court of Common Pleas of Clarion County denying his petition
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546, without a hearing. After careful review, we affirm.
The PCRA court provided the following recitation of the relevant facts:
The Affidavit of Probable Cause included in the record
indicates that on November 28, 2014, the
Pennsylvania State Police responded to a report of an
aggravated assault at the home of Cassey Myers, who
was 33 weeks pregnant. Ms. Myers related to police
that a verbal argument between her and [appellant]
had turned physical when [appellant] slapped her
several times in the face, head, and neck area. She
stated that he had also pushed her down several times
and put his hand over her mouth, chin, and neck area,
and had punched her several times in the abdomen
while making the statement “this baby has to die.”
The police reported that Ms. Myers had sustained a
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bump on her left chin area, a front chin bruise, two
bumps on the back of her head, a bruise on her right
neck area, and a neck strain.
[Appellant] was charged with Aggravated Assault,
Aggravated Assault of Unborn Child; Simple Assault,
Harassment – Subject Other to Physical Contact, and
two counts of Terroristic Threats with Intent to
Terrorize Another.[1] Following a jury trial,
[appellant] was found guilty on all charges. At
sentencing, the [trial] court found that the Simple
Assault charge merged with the Aggravated Assault
charge. [Appellant] was sentenced to 80 to
160 months’ incarceration on the Aggravated Assault
charge, 70 to 140 months on the Aggravated Assault
of an Unborn Child charge, and 12 to 24 months on
each of the Terrorist[ic] Threats charges. The
sentences on the two Aggravated Assault charges
would run consecutively, while the sentences on the
two Terroristic Threats charges would run
concurrently with each other and with the Aggravated
Assault sentences, resulting in an aggregate sentence
of 150 to 300 months.
PCRA court opinion, 1/14/16 at 1-2.
Appellant filed timely post-sentence motions, which were denied by the
trial court on January 14, 2016. No direct appeal to this court was filed. On
July 12, 2016, appellant filed a pro se petition for relief pursuant to the PCRA.
The PCRA court appointed Sara J. Seidle, Esq., to serve as appellant’s counsel
for his PCRA petition. On October 7, 2016, Attorney Seidle filed a no-merit
letter pursuant to Turner/Finley2 and filed a motion to withdraw as counsel.
1 18 Pa.C.S.A. §§ 2702(a), 2606(a), 2701(a), 2709(a)(1), and 2706(a)(1),
respectively.
2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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On October 12, 2016, the PCRA court granted Attorney Seidle’s motion to
withdraw and entered a notice of intent to dismiss appellant’s PCRA petition
without a hearing pursuant to Pa.R.Crim.P. 907. On October 24, 2016,
appellant filed a pro se response to the PCRA court’s Rule 907 notice of intent
to dismiss. The PCRA court dismissed appellant’s PCRA petition on
October 27, 2016.
On November 18, 2016, appellant filed a notice of appeal to this court.
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 appellant
complied on December 12, 2016. The PCRA court filed an opinion pursuant
to Pa.R.A.P. 1925(a) on January 13, 2017.
Appellant raises the following issues for our review:
I. Did the lower court err in finding no merit to the
claims raised in the PCRA petition, and in
denying the petition without a hearing, where
trial counsel was ineffective for failing to request
a jury instruction on self-defense as to all of the
charges against [appellant], and for failing to
make sufficient argument at trial that in light of
all the evidence presented at trial the issue of
self-defense should have been decided by a
jury, and, therefore, [appellant] was entitled to
a self-defense instruction? Further, was PCRA
counsel ineffective for failing to present this
meritorious claim?
II. Did the PCRA court abuse its discretion in
finding no merit to the claims raised in the PCRA
petition, and denying the petition without a
hearing, where [appellant] averred that the
court committed fundamental error by
instructing the jury on voluntary intoxication
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when such instruction was irrelevant to
[appellant’s] defense and such instruction
confused or misled the jury in determining
[appellant’s] guilt? Further, was trial counsel
ineffective for failing to object to the charge
after it had been given by the court, and
previous PCRA counsel ineffective for failing to
raise the issue in an amended PCRA petition?
III. Did both post-sentence counsel and PCRA
counsel provide ineffective assistance when
they failed to challenge the verdict as against
the weight of the evidence presented?
Appellant’s brief at 7.
PCRA petitions are subject to the following standard of review:
“[A]s a general proposition, we review a denial of
PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of
legal error.” Commonwealth v. Dennis, 17 A.3d
297, 301 (Pa. 2011) (citation omitted). 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. Id.
at 305 (citations omitted). To obtain PCRA relief,
appellant must plead and prove by a preponderance
of the evidence: (1) his conviction or sentence
resulted from one or more of the errors enumerated
in 42 Pa.C.S. § 9543(a)(2); (2) his claims have not
been previously litigated or waived, id. § 9543(a)(3);
and (3) “the failure to litigate the issue prior to or
during trial . . . or on direct appeal could not have
been the result of any rational, strategic or tactical
decision by counsel[.] Id. § 9543(a)(4). An issue is
previously litigated if “the highest appellate court in
which [appellant] could have had review as a matter
of right has ruled on the merits of an issue[.]” Id.
§ 9544(a)(2). “[A]n issue is waived if [appellant]
could have raised it but failed to do so before trial, at
trial, . . . on appeal or in a prior state postconviction
proceeding.” Id. § 9544(b).
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Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).
In all three of his issues presented for our review, appellant avers
ineffective assistance of counsel by both his trial counsel and his first PCRA
counsel, Attorney Seidle. Ineffective assistance of counsel claims are
governed by the following standard:
To be entitled to relief on an ineffectiveness claim, a
PCRA petitioner must establish: (1) the underlying
claim has arguable merit; (2) no reasonable basis
existed for counsel’s action or failure to act; and
(3) he suffered prejudice as a result of counsel’s error,
with prejudice measured by whether there is a
reasonable probability that the result of the
proceeding would have been different.
Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa.
2011) (employing ineffective assistance of counsel
test from Commonwealth v. Pierce, 527 A.2d 973,
975-976 (Pa. 1987).[Footnote 5] Counsel is
presumed to have rendered effective assistance.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
Additionally, counsel cannot be deemed ineffective for
failing to raise a meritless claim. Commonwealth v.
Jones, 912 A.2d 268, 278 (Pa. 2006). Finally,
because a PCRA petitioner must establish all the
Pierce prongs to be entitled to relief, we are not
required to analyze the elements of an ineffective
assistance claim in any specific order; thus, if a claim
fails under any required element, we may dismiss the
claim on that basis. Ali, 10 A.3d at 291.
[Footnote 5] Pierce reiterates the
preexisting three-prong test for
ineffective assistance of counsel in
Pennsylvania and holds it to be consistent
with the two-prong performance and
prejudice test in Strickland v.
Washington, 466 U.S. 668 (1984).
Pierce, 527 A.2d at 976-977.
Trieber, 121 A.3d at 444-445.
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“[A]bsent recognition of a constitutional right to
effective collateral review, claims of PCRA counsel
ineffectiveness cannot be raised for the first time after
a notice of appeal has been taken from the underlying
PCRA matter.” Commonwealth v. Ford, 44 A.3d
1190, 1201 (Pa.Super. 2012). A petitioner’s failure to
raise an ineffectiveness of counsel claim after
receiving Rule 907 notice results in waiver of the
claim. Commonwealth v. Pitts, 981 A.2d 875, 880
n.4 (Pa. 2009). See also Commonwealth v. Rigg,
84 A.3d 1080, 1084 (Pa.Super. 2014) (waiving
Appellant’s claim of ineffectiveness of derivative PCRA
counsel for failure to assert it in response to Rule 907
notice).
Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa.Super. 2015), appeal
denied, 136 A.3d 981 (Pa. 2016) (citations omitted). When presenting a
layered claim of ineffective assistance of counsel, a petitioner under the PCRA
is required to develop all three prongs of the Pierce standard as they pertain
to trial counsel. Commonwealth v. Hall, 872 A.2d 1177, 1184 (Pa. 2005),
citing Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003),
Commonwealth v. Rush, 838 A.2d 651, 656 (Pa. 2003). Failure on the part
of the petitioner to develop all three Pierce prongs will result in a failure to
“establish the arguable merit prong of the claim of subsequent counsels’
ineffectiveness.” Hall, 872 A.2d at 1184, citing McGill, 832 A.2d at 1022,
Rush, 838 A.2d at 656.
In the instant appeal, appellant raised the issue of ineffective assistance
of counsel in his response to the PCRA court’s Rule 907 notice to dismiss.
Accordingly, we shall address these claims on their merits.
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In his first issue for our review, appellant avers that trial counsel was
“ineffective for failing to request a jury instruction on self-defense as to all of
the charges against [appellant],” and for failing to “make sufficient argument”
that appellant was entitled to a self-defense instruction. (Appellant’s brief at
13.) Appellant also avers that his initial PCRA counsel was ineffective for
failing to present this claim. (Id.) We disagree.
In order for a defendant to successfully claim self-defense, he or she
must demonstrate the following three elements: (1) the defendant reasonably
believed that he was in imminent danger of death or serious bodily injury and
that the use of deadly force was necessary to prevent such harm; (2) the
defendant did not provoke the incident which resulted in the use of force; and
(3) the defendant did not violate any duty to retreat. Commonwealth v.
Mouzon, 53 A.3d 738, 740 (Pa. 2012) (citations omitted). The
Commonwealth has the burden of disproving self-defense beyond a
reasonable doubt, and may do so by disproving any one of the three
self-defense elements the defendant must meet. Id. at 740-741.
Our cases also hold that a trial court is not required to provide a jury
with instructions pertaining to legal principles that are not relevant to the facts
presented to the jury. Commonwealth v. Buksa, 655 A.2d 576, 583
(Pa.Super. 1995), appeal denied, 664 A.2d 972 (Pa. 1995). Put another
way,
[i]n reviewing a challenge to the trial court’s refusal
to give a specific jury instruction, it is the function of
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this Court to determine whether the record supports
the trial court’s decision. In examining the propriety
of the instructions a trial court presents to a jury, our
scope of review is to determine whether the trial court
committed a clear abuse of discretion or an error of
law which controlled the outcome of the case. A jury
charge will be deemed erroneous only if the charge as
a whole is considered inadequate unless the jury was
palpably misled by what the trial judge said or there
is an omission which is tantamount to fundamental
error. Consequently, the trial court has wide
discretion in fashioning jury instructions. The trial
court is not required to give every charge that is
requested by the parties and its refusal to give a
requested charge does not require reversal unless the
Appellant was prejudiced by that refusal.
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013), quoting
Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa.Super. 2006) (internal
citations, quotation marks, and brackets omitted).
The record reflects that appellant’s trial counsel requested that a
self-defense instruction be provided to the jury only on the simple assault
charge. (See notes of testimony, 8/13/15 at 76-77.) The trial court denied
counsel’s request on the grounds that appellant did not raise any sort of
justification defense. In his post-sentence motions, appellant again averred
that the trial court erred in its refusal to provide the jury with self-defense
instructions. The trial court denied appellant’s post-sentence motion
pertaining to the self-defense instruction, stating that,
no testimony from Cassey Myers, or any other
unspecified “numerous individuals,” established that
the unlawful force allegedly used by [appellant] had
arisen out of an honest, bona fide belief that he was
in imminent danger. Although Cassey Myers testified
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that she struck [appellant], she did not testify that
[appellant] appeared to genuinely fear imminent
death or serious bodily injury, or that [appellant] used
unlawful force against her arising from that fear.
PCRA court opinion, 1/14/16 at 4. Therefore, because the record supports the
trial court’s decision, this claim lacks arguable merit, and appellant’s claim of
ineffective assistance of trial counsel must fail. Accordingly, because appellant
failed to satisfy all three prongs under the Pierce test as they pertain to trial
counsel’s ineffectiveness, appellant’s claim of his initial PCRA counsel’s
ineffectiveness must also fail due to lack of any arguable merit.
In his second issue for our review, appellant avers that the trial court
erred when it provided the jury with an instruction pertaining to voluntary
intoxication, and that appellant’s previous counsel was ineffective for having
failed to object to the instruction, therefore failing to preserve the issue for
review on direct appeal. (Appellant’s brief at 23.) Appellant also avers that
his initial PCRA counsel was ineffective for failing to raise this issue.
Upon review of the record, we find that this claim has been previously
litigated, and therefore is not cognizable under the PCRA. See 42 Pa.C.S.A.
§ 9543(a)(3). In his brief, appellant implausibly avers that prior counsel was
ineffective for failing to object to a voluntary intoxication jury instruction,
before reproducing an excerpt of the record in which his trial counsel makes
that very objection during an on-the-record discussion outside of the jury’s
presence prior to closing arguments. (See appellant’s brief at 23-24.)
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We note that appellant fails to provide any citations to authority that
further develop what appears to be the proposition that raising an objection
to the voluntary intoxication instruction during sidebar prior to closing
arguments was not sufficient to preserve the issue for appellate review. To
the contrary, the Pennsylvania Rules of Criminal Procedure require only that
“specific objections [be] made [to jury instructions] before the jury retires to
deliberate. All such objections shall be made beyond the hearing of the jury.”
Pa.R.Crim.P. 647(C); see also Commonwealth v. Sherwood, 892 A.2d
483, 505 (Pa. 2009), cert. denied, 559 U.S. 1111 (2010); Commonwealth
v. Montalvo, 956 A.2d 926, 935-936 (Pa. 2008), cert. denied, 556 U.S.
1186 (2009).
Further, our supreme court has warned that,
PCRA claims are not merely direct appeal claims that
are made at a later stage in the proceedings, cloaked
in a boilerplate assertion of counsel’s ineffectiveness.
In essence, they are extraordinary assertions that the
system broke down. To establish claims of
constitutional error or ineffectiveness of counsel, the
petitioner must plead and prove by a preponderance
of the evidence that the system failed (i.e., for an
ineffectiveness or constitutional error claim, that in
the circumstances of his case, including the facts
established at trial, guilt or innocence could not have
been adjudicated reliably), that his claim has not been
previously litigated or waived, and where a claim was
not raised at an earlier stage of the proceedings, that
counsel could not have had a rational strategic or
tactical reason for failing to litigate these claims
earlier.
Commonwealth v. Rivers, 786 A.2d 923, 929 (Pa. 2001).
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In the instant appeal, appellant’s second issue appears to be little more
than an attempt to seek appellate review by cloaking the issue in a boilerplate
assertion of previous counsel’s ineffectiveness, which has been belied by the
record. Accordingly, this issue is not cognizable under the PCRA, and we need
not review the merits of the issue.
In his third and final issue for our review, appellant avers through a
layered ineffective assistance of counsel claim that both his post-sentence
counsel and his initial PCRA counsel “failed to challenge the verdict as against
the weight of the evidence presented.” This issue, however, is framed in both
appellant’s pro se PCRA petition and in Attorney Seidle’s Turner/Finley letter
as a sufficiency of the evidence issue. In his brief, appellant, acknowledging
this discrepancy, states that a “careful reading of [appellant’s] arguments
reveal[s] that he was in fact maintaining the weight of the evidence presented
did not support the jury’s verdict.” (Appellant’s brief at 28.) We disagree.
Our supreme court described the critical differences between a
sufficiency of the evidence and a weight of the evidence claim as follows:
A claim challenging the sufficiency of the evidence is
a question of law. Evidence will be deemed sufficient
to support the verdict when it establishes each
material element of the crime charged and the
commission thereof by the accused, beyond a
reasonable doubt. Commonwealth v. Karkaria,
625 A.2d 1167 (Pa. 1993). Where the evidence
offered to support the verdict is in contradiction to the
physical facts, in contravention to human experience
and the laws of nature, then the evidence is
insufficient as a matter of law. Commonwealth v.
Santana, 333 A.2d 876 (Pa. 1975). When reviewing
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a sufficiency claim the court is required to view the
evidence in the light most favorable to the verdict
winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.
Commonwealth v. Chambers, 599 A.2d 630 (Pa.
1991).
A motion for a new trial on the grounds that the
verdict is contrary to the weight of the evidence,
concedes that there is sufficient evidence to sustain
the verdict. Commonwealth v. Whiteman, 485
A.2d 459 (Pa.Super. 1984). Thus, the trial court is
under no obligation to view the evidence in the light
most favorable to the verdict winner. Tibbs v.
Florida, 457 U.S. 31, 38 n. 11 (1982). An allegation
that the verdict is against the weight of the evidence
is addressed to the discretion of the trial court.
Commonwealth v. Brown, 648 A.2d 1177 (Pa.
1994). A new trial should not be granted because of
a mere conflict in the testimony or because the judge
on the same facts would have arrived at a different
conclusion. Thompson v. City of Phila., 493 A.2d
669, 673 (Pa. 1985). A trial judge must do more than
reassess the credibility of the witnesses and allege
that he would not have assented to the verdict if he
were a juror. Trial judges, in reviewing a claim that
the verdict is against the weight of the evidence do
not sit as the thirteenth juror. Rather, the role of the
trial judge is to determine that “notwithstanding all
the facts, certain facts are so clearly of greater weight
that to ignore them or to give them equal weight with
all the facts is to deny justice.” Id.
Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000).
A review of appellant’s pro se PCRA petition reflects that appellant did
not concede that the evidence presented was sufficient to sustain the jury’s
verdict. Indeed, much of appellant’s argument consists of statements
indicating that he lacked the requisite intent to commit aggravated assault.
We will therefore review appellant’s sufficiency of the evidence claim, in order
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to determine whether appellant’s underlying ineffective assistance of counsel
claim has any arguable merit.
The statute defines aggravated assault as when a person “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.” 18 Pa.C.S.A. § 2702(a)(1). Serious
bodily injury is defined as “bodily injury which creates a substantial risk of
death or which causes serious, permanent disfigurement, or protracted loss
or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A.
§ 2301. Our supreme court has further defined aggravated assault as “the
fundamental equivalent of murder in which, for some reason, death fails to
occur.” Commonwealth v. O’Hanlon, 653 A.2d 616, 618 (Pa. 1995).
A lack of serious injuries sustained by a victim, however, does not
necessarily preclude the Commonwealth from charging a defendant with
aggravated assault and being able to present sufficient evidence to warrant a
conviction. “Where the injury actually inflicted did not constitute serious
bodily injury, the charge of aggravated assault can be supported only if the
evidence supports a finding that the blow delivered was accompanied by the
intent to inflict serious bodily injury.” Commonwealth v. Alexander, 383
A.2d 887, 889 (Pa. 1978); see also Commonwealth v. Martuscelli, 54 A.3d
940, 948 (Pa.Super. 2012) (“Where the victim does not suffer serious bodily
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injury, the charge of aggravated assault can be supported only if the evidence
supports a finding of an attempt to cause such injury.”).3
In order to determine intent, the Alexander court established four
factors to consider upon review. When determining whether a defendant
acted with requisite intent to inflict serious bodily injury, we must consider the
following: (1) whether there was a disparity in size and strength between the
defendant and the victim; (2) whether the defendant would have escalated
the attack had he or she not been otherwise restrained; (3) whether the
defendant was in possession of a weapon; and (4) whether the defendant
made any statements indicative of his or her intent to “inflict further injury
upon the victim.” Alexander, 383 A.2d at 889; see also Commonwealth
v. Matthew, 909 A.2d 1254, 1259 (Pa. 2006) (reaffirming the Alexander
test); Commonwealth v. Fortune, 68 A.3d 980, 986 (Pa.Super. 2013)
(en banc), appeal denied, 78 A.3d 1089 (Pa. 2013) (same).
In order to determine whether the Commonwealth presented sufficient
evidence to warrant a conviction of aggravated assault, we must first
determine if the victim suffered serious bodily injury. Should we find that
there is an absence of serious bodily injury, we must then determine whether
appellant intended to inflict serious bodily injury upon the victim.
3“A person commits an attempt when, with intent to commit a specific crime,
he does any act which constitutes a substantial step toward the commission
of that crime.” Alexander, 383 A.2d at 889, quoting Pa.C.S.A. § 901(a).
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Here, the victim did not suffer injuries that constitute the
“serious injuries” contemplated by Section 2301. The victim “sustained a
bump on her left chin area, a front chin bruise, two bumps on the back of her
head, a bruise on her right neck area, and a neck strain.” (PCRA court opinion,
1/14/16 at 2.) None of these injuries rises to the level of injuries enumerated
by the statute, which requires “serious or permanent disfigurement, or
protracted loss or impairment of the function of any bodily member or organ.”
18 Pa.C.S.A. § 2301. Therefore, we must determine whether appellant acted
with the requisite intent to inflict serious bodily injury upon the victim.
In order to determine whether appellant acted with the intent to inflict
serious bodily injury upon the victim, we shall consider the four factors
established by the Alexander court. First, we note that there is a significant
disparity in size and strength between the victim and appellant. Indeed,
appellant was six feet, three inches tall, and weighed over 300 pounds. While
the record does not reflect the victim’s height and weight, the record does
indicate that she was 33 weeks pregnant, and appellant’s brief further states
that the victim was “exhausted and miserable,” at the time of the incident in
question. (Appellant’s brief at 26, 29.) For the second Alexander factor, the
record reflects that appellant escalated the incident by following the victim up
the stairs, thus continuing the altercation. (See notes of testimony, 8/11/15
at 144-145.) The third Alexander factor is inapplicable in this case, as the
record does not indicate that appellant had a weapon in his possession.
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Finally, under the fourth Alexander factor, the record reflects that appellant
stated that the baby “had to die” as he repeatedly punched the victim in the
abdomen. (Id. at 100-102, 173.) We find that this statement indicates an
intent to inflict further injury upon the victim.
After considering the four factors established by the Alexander court,
we, therefore, find that the Commonwealth presented sufficient evidence to
support appellant’s conviction of aggravated assault. Accordingly, appellant’s
underlying claim of ineffective assistance of trial counsel lacks arguable merit,
and must therefore fail under Pierce. Likewise, due to appellant’s failure to
satisfy the three Pierce prongs pertaining to his trial counsel’s representation,
his ineffectiveness claim as it relates to his PCRA counsel must also fail for
lack of arguable merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/26/2018
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Com. v. Richards, E.
Combined Opinion