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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MARQUIS JACKSON
Appellant No. 735 EDA 2019
Appeal from the PCRA Order entered March 1, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0007141-2011
BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED MAY 11, 2020
Appellant, Marquis Jackson, appeals from the March 1, 2019 order
entered in the Court of Common Pleas of Philadelphia County, denying his
request for collateral relief pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.
The PCRA court provided the following factual background from the trial
court’s Rule 1925(a) opinion:
[O]n May 31, 2011, at approximately 9:40 p.m. [the complainant,
Donzel Murril] was sitting in a parked vehicle with his girlfriend
near the 7400 block of Edmund Street, Philadelphia. The
complainant was sitting in the driver’s seat and his girlfriend,
Verdell Goodman, was positioned in the passenger seat. The
complainant observed [Appellant] emerge from an alleyway and
walk to a nearby corner. Street lights illuminated the area and
[Appellant] was not wearing clothing around his head or face.
[Appellant] then walked to the driver’s side of the complainant’s
vehicle, holding a firearm in his hand. The complainant verbally
greeted [Appellant], whom he knew for five or six years.
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[Appellant] then discharged his firearm multiple times, striking
the complainant in the leg, back and elbow. The complainant then
started his vehicle and drove briefly before stopping to permit Ms.
Goodman to assume control. When presented with a photo-array
at the hospital, the complainant identified [Appellant].
. . . Ms. Goodman subsequently made a photo-array identification
of [Appellant].
The Commonwealth also presented evidence relating to the
intimidation of witnesses. The complainant’s mother, Ms. Dolly
Evans testified that she was approached by two individuals on
June 30, 2011 at a store located at Loring and Torresdale Avenue,
Philadelphia. Ms. Evans recognized one of the individuals and
knew him as “Rob.” After a brief verbal exchange, the second
individual struck Ms. Evans on the jaw, stating “take this message
to your son.” . . . The complainant testified that he was also
approached by Rob on the same date and at the same location.
The complainant knew Rob as a local resident and frequently
observed him in [Appellant’s] company. The complainant further
characterized Rob as [Appellant’s] “right-hand man.” Rob
inquired “why you go to court on my young boy?” and followed
up, stating “suppose I come and shoot your house up.”
PCRA Court Opinion, 6/28/19, at 2 (quoting Trial Court Rule 1925(a) Opinion,
12/18/13, at 2-3).1
A jury found Appellant guilty on January 17, 2013 of attempted murder,
aggravated assault, simple assault, recklessly endangering another person,
possession of instrument of a crime (PIC), and carrying a firearm in public in
Philadelphia. Id. The trial judge sentenced Appellant to a term of 18 to 36
years in prison for attempted murder, and concurrent terms of two and a half
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1 Following the retirement of the trial court judge, the Honorable Earl W. Trent,
Jr., the Honorable Genece E. Brinkley was assigned to the PCRA proceedings.
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to five years each for PIC and for carrying a firearm in public in Philadelphia.
No additional penalties were imposed. Id.
On April 16, 2013, Appellant filed a post-sentence motion seeking a new
trial based on weight of the evidence and arguing the trial court imposed an
excessive sentence. On April 29, 2013, the trial court denied the motion. Id.
Appellant filed an appeal to this Court and complied with the trial court’s
directive to file a Rule 1925(b) statement of errors. Appellant later requested,
and was granted, the opportunity to file an amended Rule 1925(b) statement.
On May 29, 2015, we affirmed Appellant’s judgment of sentence. Our
Supreme Court denied his petition for allowance of appeal on October 7, 2015.
Id.
On September 8, 2016, Appellant filed a pro se PCRA petition.
Appointed counsel filed an amended petition followed by a second amended
petition. The Commonwealth filed a motion to dismiss and, on January 29,
2019, the PCRA court issued a notice of intent to dismiss pursuant to
Pa.R.Crim.P. 907. Appellant did not file a response. On March 1, 2019, the
PCRA court dismissed the petition as meritless. This timely appeal followed.
The PCRA court did not order a Rule 1925(b) statement but did issue a Rule
1925(a) opinion on June 28, 2019 explaining that the court properly dismissed
Appellant’s PCRA petition without an evidentiary hearing based on lack of
merit.
On appeal, Appellant presents two issues for our consideration:
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I. Is appellant entitled to appeal nunc pro tunc from the
judgment of sentence when appellate defense counsel in the
appeal from the judgment of sentence waived all issues on
appeal except an issue that was moot?
II. Did the [PCRA] court err in denying an evidentiary hearing
in this case because [Appellant] raised a material issue of
fact that trial defense counsel was ineffective in failing to
request a motive/lack of motive charge from the trial court
when the prosecutor in argument when addressing the lack
of motive evidence told the jury that it does not have to
prove motive?
Appellant’s Brief at 2.
As this Court reiterated in Commonwealth v. Beatty, 207 A.3d 957
(Pa. Super. 2019):
Our standard of review of the denial of a PCRA petition is limited
to 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 (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 (Pa. Super. 2007), appeal denied, 593 Pa.
754, 932 A.2d 74 (2007).
Id. at 960-61.
In his first issue, Appellant contends the PCRA court erred in denying
Appellant the opportunity to file a direct appeal nunc pro tunc in light of direct
appeal counsel’s waiver of “all issues on appeal except an issue that was
moot.” Appellant’s Brief at 2. Appellant first raised this issue in his Amended
PCRA Petition filed on June 12, 2017. In that amended petition, Appellant
alleged:
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[Appellant’s] appellate defense counsel was ineffective because
counsel raised no issue on appeal because counsel filed a vague
1925(b) statement and did not cite to the record as a result of this
failure all issues were waived. As a result of this [Appellant] lost
[his] state constitutional right to appeal the judgment of sentence
in the above matters.
Amended PCRA Petition, 6/12/17, at ¶ 4a. He included a prayer for relief,
which we repeat here verbatim, requesting “that his post sentence rights
including the right file motion to post sentence motions and to appeal be
reinstated nunc pro tunc or that he be granted an evidentiary hearing.” Id.
at 2.
Our review of the memorandum opinion issued by this Court on direct
appeal reveals that Appellant raised two issues. The first claimed trial court
errors for granting a motion to consolidate Appellant’s trial with that of
Robinson (referred to as “Rob” in the quoted excerpt from the trial court’s
Rule 1925(b) opinion) and for admitting evidence that Robinson approached
the complainant in an attempt to intimidate him. Commonwealth v.
Jackson, 1292 EDA 2013, unpublished memorandum at 5 (Pa. Super. filed
May 29, 2015). This Court found the claimed error regarding consolidation
was moot because Robinson pled guilty before trial. Id. at 5-6. The Court
then found the intimidation evidence issue waived for failure to provide record
citations to demonstrate that any evidence was erroneously admitted. Id. at
6-7. The Court then considered Appellant’s second issue, which challenged
the sufficiency of evidence to support his six convictions. The Court
determined that Appellant’s Rule 1925(b) statement failed to specify the
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elements of the crimes he was challenging and, therefore, his sufficiency
claims were waived. Id. at 8-9. Having concluded “Appellant’s issues are
devoid of merit or waived,” the Court affirmed Appellant’s judgment of
sentence. Id. at 9.
As mentioned above, on appeal from denial of Appellant’s petition, the
PCRA court did not direct Appellant to file a Rule 1925(b) statement of errors
complained of on appeal. Therefore, even though Appellant asserted
entitlement to a direct appeal nunc pro tunc in his amended PCRA Petition,
the PCRA court did not address the issue. Regardless, Appellant is not entitled
to a direct appeal nunc pro tunc.
As this Court recognized in Commonwealth v. Pulanco, 954 A.2d 639
(Pa. Super. 2008),
It is well settled that when direct appeal counsel files a
Pa.R.A.P.1925(b) statement that fails to preserve any issues for
appellate review, the PCRA court may reinstate the petitioner’s
direct appeal rights nunc pro tunc. Commonwealth v. Johnson,
889 A.2d 620, 623 (Pa. Super. 2005) (citing Commonwealth v.
Hernandez, 755 A.2d 1, 8–9 n. 4 (Pa. Super. 2000) (finding that
a PCRA petitioner is entitled to a direct appeal nunc pro tunc where
prior counsel caused his sole direct appellate claim to be waived),
affirmed in part, 572 Pa. 477, 817 A.2d 479 (2003)). However,
in the case sub judice, Appellant has had appellate review of
some, albeit not all, of his issues. There is no right to the
reinstatement of appellate rights nunc pro tunc in this instance.
Commonwealth v. Halley, 582 Pa. 164, 173, 870 A.2d 795, 801
(2005) (citing Hernandez, 755 A.2d at 9 n. 4 (“[A] PCRA
petitioner is entitled to an appeal nunc pro tunc where prior
counsel’s actions, in effect, entirely denied his right to a direct
appeal, as opposed to a PCRA petitioner whose prior
counsel’s ineffectiveness may have waived one or more,
but not all, issues on direct appeal.”) (emphasis added)).
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Accordingly, because Appellant did have a direct appeal
addressing some of his issues, he was not entitled to the
reinstatement of his direct appeal rights nunc pro tunc.
Appellant’s PCRA petition could not be considered as a petition for
a nunc pro tunc appeal, and he was required to avail himself of
the PCRA process. Hernandez, 755 A.2d at 9 n. 4. Thus, the
trial court was required to conduct a PCRA analysis as to the
merits of the issues raised in his petition. Where some but not all
of the petitioner’s issues have been addressed, “the PCRA
petitioner’s right to a direct appeal was not entirely denied by
counsel’s ineffectiveness, and, therefore, he must establish that
counsel’s ineffectiveness so undermined the truth-determining
process so as to render unreliable the adjudication of guilt or
innocence.” Id.
Id. at 642.
When analyzing claims of ineffectiveness under the PCRA,
we begin with the presumption counsel is effective.
Commonwealth v. Robinson, 623 Pa. 345, 82 A.3d 998, 1005
(2013). To prevail on an ineffectiveness claim, appellant must
satisfy, by a preponderance of the evidence, the performance and
prejudice standard set forth in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In
Pennsylvania, we have applied Strickland by looking to three
elements an appellant must establish: (1) the underlying claim
has arguable merit; (2) no reasonable basis existed for counsel’s
actions or failure to act; and (3) appellant 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. See Commonwealth v. Pierce, 515
Pa. 153, 527 A.2d 973, 975 (1987).
Commonwealth v. Hannibal, 156 A.3d 197, 206-07 (Pa. 2016). “A court is
not required to analyze the elements of an ineffectiveness claim in any
particular order of priority; if a claim fails under any necessary element of the
Strickland test, the court may proceed to that element first.” Id. at 207.
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The failure to satisfy any prong of the ineffectiveness test defeats the claim.
Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011).
While we cannot state with any certainty why the PCRA court did not did
discuss Appellant’s request for reinstatement of appeal rights nunc pro tunc,
under Pulanco, it is clear that Appellant was not entitled to a nunc pro tunc
appeal. Therefore, the PCRA court was required to conduct a PCRA analysis
as to the merits of Appellant’s issues. Here, the PCRA court did exactly that.
The court addressed Appellant’s claim that an allegedly vague Rule 1925(b)
statement on direct appeal resulted in waiver of all issues on appeal. Based
on its review of the record from the direct appeal, the PCRA court concluded
the claim lacked arguable merit and determined Appellant was unable to
establish he was prejudiced by direct appeal counsel’s actions. PCRA Court
Opinion, 6/28/19, at 6-8.
With respect to the claims involving intimidation by “Rob,” the court
explained that even with citations to evidence regarding intimidation, the
claim was first raised on appeal. “Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302. Id.
at 9. Regarding the sufficiency claims, this Court on direct appeal determined
that Appellant failed to specify which elements of the various crimes Appellant
was challenging. However, as the PCRA court explained, even if Appellant had
specified the element, he would not be entitled to relief. Id. The PCRA court
considered the trial court’s analysis of Appellant’s sufficiency claims, see id.
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at 9-10, and concluded the trial court’s “opinion make clear that the evidence
presented at trial was sufficient to support finding [Appellant] guilty on all
charges and even if appellate counsel had specified the elements and charges
being challenged, his argument would be without merit.” Id. at 10 (some
capitalization omitted).
Based on our review, we find the evidence of record supports the PCRA
court’s determination and conclude its disposition of Appellant’s first issue is
free of legal error. Appellant was not entitled to reinstatement of his direct
appeal rights nunc pro tunc. Further, he failed to establish that his claim had
arguable merit or that he was prejudiced as a result of counsel’s actions.
Appellant’s first issue fails.
In his second issue, Appellant argues the trial court erred in denying an
evidentiary hearing to address trial counsel’s failure to request a motive/lack
of motive jury instruction. As our Supreme Court explained in Hannibal:
We preliminarily note the PCRA court has discretion to dismiss a
petition without a hearing when the court is satisfied “‘there are
no genuine issues concerning any material fact, the defendant is
not entitled to post-conviction collateral relief, and no legitimate
purpose would be served by further proceedings.’”
Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595, 604 (2013),
quoting Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431,
442 (2011), quoting Pa.R.Crim.P. 909(B)(2). “To obtain reversal
of a PCRA court’s decision to dismiss a petition without a hearing,
an appellant must show that he raised a genuine issue of fact
which, if resolved in his favor, would have entitled him to relief,
or that the court otherwise abused its discretion in denying a
hearing.” Roney, 79 A.3d at 604–05, quoting Commonwealth
v. D'Amato, 579 Pa. 490, 856 A.2d 806, 820 (2004).
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Id., 156 A.3d at 207. The PCRA court’s decision to deny a request for an
evidentiary hearing “is within the discretion of the PCRA court and will not be
overturned absent an abuse of discretion.” Commonwealth v. Mason, 130
A.3d 601, 617 (Pa. 2015) (citation omitted).
Appellant argues the PCRA court should have conducted an evidentiary
hearing to consider his claim of trial counsel ineffectiveness based on failure
to request a jury instruction. The instruction at issue is Pennsylvania
Suggested Jury Instruction, Criminal, § 3.13., which provides:
1. In my instructions, I have given you the legal definition of the
crime charged. Motive is not a part of that definition. The
Commonwealth is not required to prove a motive for the
commission of the crime charged.
2. However, you should consider the evidence of motive or lack
of motive. Knowledge of human nature tells us that an ordinary
person is more likely to commit a crime if he or she had a
motive than if he or she has none. You should weigh and
consider the evidence tending to show [motive] [absence of
motive] along with all the other evidence in deciding whether
the defendant is guilty or not guilty. It is entirely up to you to
determine what weight should be given the evidence
concerning motive.
Pa. SSJI (Crim.) 3.13 (2016).
The PCRA court rejected Appellant’s jury instruction claim, noting:
First, [Appellant] failed to show that his underlying claim has any
merit. The text of the jury instruction makes clear that motive
need not be proved in order for the Commonwealth to meet its
burden in proving that [Appellant] committed the charged
offenses. Second, since the Commonwealth did not have to prove
motive, trial counsel had a reasonable basis for not requesting the
jury instruction. Third, and similarly, since the Commonwealth
did not need to prove motive, a request for the instruction from
trial counsel would not have reasonably changed that outcome of
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trial. Commonwealth v. Bond, 819 A.2d 33 (Pa. 2002). This is
especially true given the evidence admitted at trial establishing
that [Appellant] was the person who shot Murill, regardless of the
motivation behind the offense. Thus, trial counsel was not
ineffective for not requesting a jury instruction for motive.
PCRA Court Opinion, 6/28/19, at 12 (some capitalization omitted).
As noted above, the failure to prove any prong of the ineffectiveness
test will defeat a claim of ineffectiveness. Here, the PCRA court determined
not only that the jury instruction claim lacked merit, but also that counsel had
a reasonable basis for not requesting the instruction and that a request for an
instruction would not have changed the outcome of the trial. Appellant did
not raise a genuine issue of fact entitling him to relief, and failed to prove that
the court abused its discretion in denying an evidentiary hearing. Because
the evidence of record supports the PCRA court’s determination and because
the court did not abuse its discretion when it dismissed Appellant’s petition
without an evidentiary hearing, Appellant is not entitled to relief on his second
issue.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/20
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