Com. v. McCullough, K.

J-S52033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KHARYEE MCCULLOUGH :
:
Appellant : No. 2277 EDA 2017

Appeal from the PCRA Order June 13, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009669-2010

BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 10, 2019

Kharyee McCullough appeals from the order dismissing his petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as

meritless. Counsel filed in this Court a Turner/Finley1 no-merit letter and a

petition to withdraw as counsel. We grant counsel’s petition to withdraw and

affirm the order.

The trial court previously set forth the facts as follows:

On June 1, 2010, thirty-four (34) year-old Raymond Berry
(decedent) was shot by [McCullough] and an unknown
accomplice on the 3000 block of West Dakota Street in
Philadelphia. The decedent died from multiple gunshot
wounds. Video surveillance obtained by police from cameras
at a nearby business captured the crime. In a formal
statement, [McCullough] identified himself as one of the

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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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shooters in the video. He declined to provide the identity of
his accomplice.

In the video, the decedent is observed running.
[McCullough] and his accomplice chase the decedent on
bicycles in the same direction. The two men separate.
Gunshot flashes are observed. Consistent with trace blood
evidence at the scene, the unarmed decedent falls by a
nearby vehicle, rises to his feet, and limps as he continues
to run for his life. [McCullough] continues to shoot at the
decedent before turning his bike around. Then, off camera,
[McCullough’s] accomplice approaches from the other end
of the street to deliver the fatal shots. [McCullough]
admitted to hearing gunshots as he rode away from the
crime scene.

During collection of ballistic and trace blood evidence, six
(6) .380 caliber semi-automatic fired cartridge casings []
were recovered at the scene of the shooting, all stamped
with the same manufacturer[’s name]. [McCullough] stated
he was shooting a .380 [caliber firearm], but that he only
had four shots in his gun. The medical examiner, Dr. Aaron
Rosen, observed four gunshot wounds to the body, two to
the head and neck area, one to the back and one to the right
arm. The wound to the right forearm was the first wound
that [the decedent] received. Based on the evidence
presented at trial, the decedent would not have died from
the shot to the right arm that was fired by [McCullough].

Officer Brian Stark testified that the gunpowder was visible
around each of the bullet holes. Gamal Emira, criminalist for
the Philadelphia Police Department, testified that the
discoloration around the hole in the back of decedent’s t-
shirt and the presence of high particles of gunshot residue
indicate the gun was fired in close proximity [to] or touching
the clothing at the time it was fired. Detective Edward
Nelson and Dr. Rosen testified that the gunshot wound to
the [decedent’s] forehead was consistent with a contact
wound, evident from the tearing of decedent’s skin.
[McCullough’s] accomplice delivered the coup de grâce[, a]
contact gunshot wound to his forehead [and a] contact
gunshot wound to his back.

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Trial Court Opinion, filed Sept. 23, 2014, at 2-3 (record citations, quotations,

and original brackets omitted).

Following a bench trial, the trial court found McCullough guilty of third-

degree murder, conspiracy to commit murder, firearms not to be carried

without a license, carrying firearms on public streets in Philadelphia, and

possession of instrument of crime.2 The trial court sentenced McCullough to

25 to 50 years’ imprisonment. The trial court re-instated McCullough’s direct

appeal rights, and he appealed to this Court. He argued that the

Commonwealth presented insufficient evidence to support the third-degree

murder and conspiracy convictions. We affirmed the judgment of sentence.

McCullough filed a petition for allowance of appeal, which the Supreme Court

denied on August 19, 2015.

McCullough filed a timely counseled PCRA petition arguing that counsel

was ineffective because, although he challenged the sufficiency of the

evidence on direct appeal, he asserted the wrong legal theory. McCullough

claimed that counsel was ineffective for failing to argue that the evidence

supported only a finding of first-degree murder by the other assailant and,

because the trial court allegedly found McCullough did not have an intent to

kill, he would have to be acquitted of murder. He claimed that, if the murder

was first-degree murder, it could not also be third-degree murder. Petition for

Post Conviction Relief, filed Sept. 9, 2016, at ¶¶ 33-35. He stated:

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2 18 Pa.C.S.A. §§ 2502(c), 903, 6106(a)(1), 6108, and 907, respectively.

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[T]he victim was killed with specific intent and not with mere
hardness of h[eart], and therefore any crimes the defendant
is found guilty of must be satisfied by those findings: these
convictions for third degree murder and conspiracy to
commit homicide, were both not satisfied by the findings of
the trial court.

Id. at ¶ 39. He concluded he should have been charged with aggravated

assault, not homicide. Id. at ¶ 40. In the PCRA petition, McCullough also

claimed counsel was ineffective for failing to request a specific charge as to

what degree of homicide the fact finder should consider.

The PCRA court held a hearing, at which it stated its reasons for finding

the counsel ineffectiveness claims meritless. N.T., 5/12/17, at 1-12. That

same day, it issued Notice Pursuant to Pennsylvania Rule of Criminal

Procedure 907 of its intent to dismiss the petition without an evidentiary

hearing. The PCRA court subsequently dismissed the petition. McCullough filed

a timely Notice of Appeal.

McCullough’s counsel then filed a motion to withdraw with this Court.

We granted the motion and directed the PCRA court to determine whether

McCullough was eligible for counsel, and, if so, to appoint counsel for this

appeal. The PCRA court appointed counsel. With the PCRA court’s permission,

appointed counsel filed a Rule 1925(b) statement, raising only whether

counsel was ineffective for asserting the wrong argument in support of the

sufficiency claim. We twice remanded to the PCRA court for determinations as

to whether counsel had abandoned McCullough. Following the second remand,

the PCRA court removed counsel, and appointed new counsel. New counsel

filed a no-merit Turner/Finley letter and a petition to withdraw as counsel.

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We review the petition to withdraw prior to reaching the merits of

McCullough’s claims. See Commonwealth v. Wrecks, 931 A.2d 717, 721

(Pa.Super. 2007). Counsel requesting to withdraw from PCRA representation

must file a “no merit” brief that conforms to the requirements of Turner and

Finley. See Commonwealth v. Muzzy, 141 A.3d 509, 510-11 (Pa.Super.

2016). A Turner/Finley brief must detail “the nature and extent of counsel’s

diligent review of the case, listing the issues which petitioner wants to have

reviewed, explaining why and how those issues lack merit, and requesting

permission to withdraw.” Id. Counsel must send the petitioner a copy of the

brief, a copy of counsel's petition to withdraw, and “a statement advising

petitioner of the right to proceed pro se or by new counsel.” Id. at 511

(quoting Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012)). If

counsel fulfills these requirements, then this Court must conduct its own

review of the case, and, if the claims are without merit, permit counsel to

withdraw. Id. (quoting Doty, 48 A.3d at 454).

Here, counsel detailed the nature and extent of his diligent review of the

case, listed the issue McCullough wanted to have reviewed, explained why the

issue lacked merit, and requested permission to withdraw. He also sent

McCullough a copy of the brief and petition to withdraw, and advised

McCullough of his right to proceed pro se or with new counsel. We conclude

counsel has complied with the procedural requirements of Turner/Finley.

We next review the issue raised in the Turner/Finley letter, which was

the issue raised in the Rule 1925(b) statement:

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The lower court erred when it ruled there was no basis for a
PCRA claim because it found that a conspiracy existed
between the codefendants. The evidence in the trial did not
prove any preexisting conspiracy was present and trial
counsel should have argued there was no conspiracy at all,
instead of arguing there was no conspiracy to commit
criminal homicide.

Turner/Finley Br. at 4.

“Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.” Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa.Super. 2003) (en banc).

Ineffective assistance is a cognizable claim under the PCRA. See 42

Pa.C.S.A. § 9543(a)(2)(ii). “Counsel is presumed effective, and [a petitioner]

has the burden of proving otherwise.” Commonwealth v. Brown, 161 A.3d

960, 965 (Pa.Super. 2017). To overcome this presumption, a petitioner must

plead and prove that: “(1) the underlying claim has arguable merit; (2)

counsel had no reasonable basis for his or her action or inaction; and (3) the

petitioner suffered prejudice because of counsel’s ineffectiveness.”

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). Failing to satisfy

even one of these factors requires this Court to reject the claim.

Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).

Here, the claim underlying the ineffectiveness claim is a claim the

evidence was insufficient to support the verdict. When reviewing a challenge

to the sufficiency of the evidence, we view the facts in the light most favorable

to the Commonwealth as verdict winner, with all reasonable inferences in the

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Commonwealth’s favor. Commonwealth v. Sweitzer, 177 A.3d 253, 257

(Pa.Super. 2017). Our standard of review is de novo and our scope of review

is plenary. Commonwealth v. Edwards, 177 A.3d 963, 969 (Pa.Super.

2018).

To sustain a conviction for third-degree murder, the Commonwealth

must prove beyond a reasonable doubt two elements: (1) that the defendant

killed another person, and (2) that the defendant did so with malice

aforethought. Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013).

Malice is present where there is “not only a particular ill-will, but ... [also a]

wickedness of disposition, hardness of heart, recklessness of consequences,

and a mind regardless of social duty . . . .” Id. (quoting Commonwealth v.

Santos, 876 A.2d 360, 363 (Pa. 2005)) (alteration in Fisher). Further, the

“absence of specific intent to kill is not an element of third-degree murder.”

Id. Rather, third-degree murder “is an intentional act, characterized by

malice, that results in death, intended or not.” Id. A person is liable as an

accomplice where, “(1) with the intent of promoting or facilitating the

commission of the offense, he: . . . (ii) aids or agrees or attempts to aid such

other person in planning or committing it.” 18 Pa.C.S.A. § 306(c)(1)(ii).

“[T]o prove the existence of a criminal conspiracy, the Commonwealth

must demonstrate that the defendant: ‘(1) entered an agreement to commit

or aid in an unlawful act with another person or persons, (2) with a shared

criminal intent and, (3) an overt act was done in furtherance of the

conspiracy.’” Commonwealth v. Chambers, 188 A.3d 400, 409-10 (Pa.

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2018) (quoting Commonwealth v. Rios, 684 A.2d 1025, 1030 (Pa. 1996)).

If the Commonwealth established a conspiracy beyond a reasonable doubt, “a

conspirator can be convicted of both the conspiracy and the substantive

offense that served as the illicit objective of the conspiracy.” Id. at 410

(quoting Commonwealth v. Miller, 364 A.2d 886, 887 (Pa. 1976)). “Proving

the existence of such an agreement is not always easy, and is rarely proven

with direct evidence.” Id. (citing Commonwealth v. Spotz, 716 A.2d 580,

592 (Pa. 1998)). The Commonwealth may prove a conspiracy “inferentially by

showing the relation, conduct, or circumstances of the parties, and the overt

acts of alleged co-conspirators are competent as proof that a criminal

confederation has in fact been formed.” Id. (quoting Commonwealth v.

Kennedy, 453 A.2d 927, 930 (Pa. 1982)).

We first note that trial counsel did raise on direct appeal a challenge to

the sufficiency of the evidence. Counsel cannot be found ineffective for failing

to raise a claim he did in fact raise. To the extent the sufficiency argument

raised in his PCRA petition differs from the sufficiency claim raised on direct

appeal, we conclude that the PCRA court did not err in finding the underlying

sufficiency of the evidence claim lacks merit and therefore finding counsel was

not ineffective.

Here, the PCRA court concluded the evidence was sufficient to support

the third-degree murder and conspiracy conviction, noting that the fact that

McCullough left the scene before the fatal shot was fired did not relieve him

of responsibility for homicide. The PCRA court also noted that the fact that the

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court convicted him of third-degree murder, rather than first-degree murder,

does not mean that a conspiracy to commit murder did not occur:

In the instant case, [McCullough], while riding his bike, fired
six shots from a semi-automatic pistol at the decedent who
was running away from [McCullough]. [McCullough] was
with another individual. [McCullough] was shown a video
wherein, I believe, both individuals, the shooters, because
there are two shooters in this case, were captured on video.
[McCullough] identified himself. You couldn’t really see the
two of them. [McCullough] identifies himself as the shooter
on the bike that fires first.

From the testimony at trial, it was concluded that the first
shot went into the victim’s arm because of the blood spatter
along, I think, the fence where he ran and then on the video,
you see the bike rider, who shot him first and fired off six
shots, then turn and go the other way, leave the scene,
basically, when a second bike rider comes in, follows
[McCullough] down a narrow street, that is not captured on
video but the [medical examiner] testified that the decedent
was shot at close range and the gun was right on top of him
at that point and it was a different gun obviously. So we
know what gun the first bike rider was carrying only because
he pointed himself out on camera and we know that the shot
in the arm was the first shot fired.

So, [McCullough’s] complaint is that he should have only
been charged -- this is off the top of my head -- he should
have only been charged with aggravated assault because he
fired off one shot and then left and so he can’t be complicit
in anything that happened afterward because he didn’t go
in for the kill shot, basically.

So intentionally aiming a gun and firing at another exhibits
that type of cruel and wanton conduct of which legal malice
is made for third degree murder. The act of [McCullough],
in combination with his accomplice, led to the murder of the
decedent.

This Court found that they were accomplices and
coconspirators. To convict a defendant of criminal
conspiracy, you could use wholly circumstantial evidence.
Two bike riders on a bike, chasing down this decedent, who

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was running for his life. [McCullough] fires first. He fires off
all of those shots, six shots with the intent -- the Court could
have found first degree murder in this case, basically -- it
was with the intent to kill. Just because he missed his target
in an essential area that would have led to death does not
mean that he is off the hook. Just because the Court found
him guilty of third degree murder and gave him that break
doesn’t mean he can come in now and complain that he
shouldn’t have even been found guilty of third degree
murder. The conduct and circumstances surrounding the
two men’s actions show an agreement to hunt down, shoot
and kill the decedent.

So, therefore, Counsel can’t be found ineffective for failing
to raise a frivolous issue. This was a waiver trial and Counsel
well knew [McCullough] could have been found guilty of
conspiracy to commit first degree murder.

N.T., 5/12/17, at 4-7. The PCRA court’s conclusions are supported by the

record, and it did not err. McCullough’s claim that his counsel was ineffective

for failing to assert a different theory to support a sufficiency of the evidence

challenge lacks merit.

Although not raised in his Rule 1925(b) statement or the Turner/Finley

letter, we will also address the second claim raised in McCullough’s PCRA

petition—counsel ineffectiveness for failing to request a specific charge as to

what degree of homicide the fact finder should consider.

Where “a case is tried to the court rather than a jury, we will presume

that the court applied proper legal standards.” Commonwealth v. Hunter,

554 A.2d 550, 558 (Pa.Super. 1989). Here, the PCRA court concluded:

It is presumed under the law that the Trial Court applied the
proper, legal standards. Under the case law, a Judge is
imbued with the knowledge of the law that she would have
given in a formal charge to the jury.

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The Court charges itself on every charge there is. The Court
is very aware of the various homicide charges that the Court
can find and the Court looks at the evidence with a view to
deciding whether the facts meet from first degree murder to
not guilty and that includes voluntary manslaughter,
involuntary manslaughter, third degree murder and first
degree murder and for certain, the Court would never find
[McCullough] guilty of aggravated assault because a death
occurred. An aggravated assault which death occurs is third
degree murder.

So these allegations of ineffective assistance of [c]ounsel
clearly lack arguable merit.

N.T., 5/12/17, at 8-9. The PCRA court did not err in finding the underlying

claim lacked merit and therefore the counsel ineffectiveness claim lacked

merit.

Therefore, the claims raised in McCullough’s PCRA petition lack merit.

Further, following an independent review of the record, we have found no

claims of arguable merit.3

Order affirmed. Petition to Withdraw granted.

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3 McCullough filed a counseled “Motion to Remand to Trial Court for New Trial
or Alternatively, for an Evidentiary Hearing on a Newly-Evidence [sic] Claim,”
claiming a police detective fabricated evidence and falsified McCullough’s
statement. This motion is denied without prejudice to McCullough’s right to
raise such a claim in a PCRA petition, for which he would have to plead and
prove an exception to the time-bar. See Commonwealth v. Lark, 746 A.2d
585, 588 (Pa. 2000) (holding where a PCRA appeal is pending, subsequent
PCRA petition “cannot be filed until the resolution of review of the pending
PCRA petition by the highest state court in which review is sought, or upon
the expiration of the time for seeking such review,” and if subsequent petition
is not filed within one year of date when judgment became final then the
petitioner must plead and prove one of the three exceptions to the time-bar
and comply with time limit set forth in 42 Pa.C.S.A. § 9545(b)(2)).

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Judge Kunselman joins the Memorandum.

Judge Ott concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/10/19

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