Com. v. Murray, A. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
ANDRE MURRAY, :
:
Appellant : No. 3512 EDA 2014
Appeal from the PCRA Order November 3, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0011666-2008
BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 04, 2015
Appellant, Andre Murray (“Murray”), appeals pro se from the order
entered on November 3, 2014 by the Court of Common Pleas of Philadelphia
County, Criminal Division, denying his petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The trial court summarized the relevant facts of this case as follows:
On May 27, 2008, at about 4:00 p.m., Dana
Treadwell, his wife, two of his children, and two of
his step-nieces were walking near the area of 18th
and Gerritt Streets in Philadelphia when they were
nearly hit by a “greenish gray” car later described by
Treadwell as either a 2005 Chevy Malibu or a 2004
Mitsubishi Gallant. Treadwell then got into a heated
argument with the driver of the car, codefendant
Rayti Myers, who he recognized from the
neighborhood. The passenger of the car joined the
argument and Treadwell was told to wait there until
they returned. The car drove away and Treadwell
walked his family home.
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After being at his house for about three minutes,
Treadwell walked to a corner store at 18th and Reed
Streets, which is one block north of 18th and Gerritt
Streets. As Treadwell approached that intersection,
he looked across a vacant lot and saw Myers driving
the same car in his direction. The car eventually
pulled over near where Treadwell was standing and
Treadwell heard Myers say, “there he goes, get him,”
whereupon [Murray] fired several shots at Treadwell.
Treadwell hid behind a van, but was shot once in the
elbow before the car drove away.
After a few minutes, Treadwell ran home and
asked a neighbor to call the police. The police took
Treadwell to the hospital where he was treated for a
gunshot wound and discharged that same night.
Treadwell’s gunshot wound required surgery and left
Treadwell unable to perform his job as a trash
collector for several months.
Trial Court Opinion, 8/31/10, at 2-4 (record citations and footnote omitted).
The PCRA court further provided the following procedural history for
this case:
On November 17, 2009, [Murray] was convicted
of attempted murder (18 Pa.C.S. §§ 901(a), 2502),
aggravated assault (18 Pa.C.S. § 2702(a)(1)),
criminal conspiracy (18 Pa.C.S. § 903(a)), and
possessing an instrument of crime (18 Pa.C.S. §
907(a)). On February 17, 2010, the [c]ourt imposed
a sentence of twenty to forty years [of] incarceration
on the charge of attempted murder and a concurrent
sentence of one to two years [of] incarceration on
the charge of possessing an instrument of crime.
Due to merger, no judgment was entered on the
conviction for aggravated assault, and due to the
statutory prohibition against multiple convictions of
inchoate crimes (18 Pa.C.S. § 906), no judgment
was entered on the conviction for criminal
conspiracy. The [c]ourt denied [Murray]’s post-
sentence motions on March 26, 2010.
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[Murray]’s sentence was affirmed by the Superior
Court on November 21, 2011. The Pennsylvania
Supreme Court denied [Murray]’s petition for
allowance of appeal on August 15, 2012. [Murray]
was represented at trial and on appeal by Troy H.
Wilson, Esquire [(“Trial/Appellate Counsel”)].
[Murray] subsequently filed a pro se [PCRA petition]
on July 26, 2013. Janis Smarro, Esquire [(“PCRA
Counsel”)] was appointed to represent [Murray] on
January 18, 2014.
On July 28, 2014, pursuant to Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988), [PCRA
Counsel] filed a letter stating there was no merit to
[Murray]’s claims for collateral relief. On September
16, 2014, the [c]ourt issued notice pursuant to
Pa.R.Crim.P. 907 [] of its intent to dismiss [Murray]’s
PCRA [p]etition without an evidentiary hearing.
[Murray] filed a pleading entitled “In Response to the
Letter of No-Merit …” [] on September 26, 2014.
[PCRA Counsel] filed a [r]eply to [Murray’s]
[r]esponse to [l]etter of [n]o-[m]erit [] on October
7, 2014. On November 3, 2014, the [c]ourt formally
dismissed [Murray]’s PCRA [p]etition and granted
[PCRA Counsel]’s motion to withdraw her
appearance.
PCRA Court Opinion, 2/20/15, at 1-2 (record citations omitted).
On December 1, 2014, Murray filed a timely pro se notice of appeal.
On appeal, Murray raises the following issues for our review and
determination:
(1) Whether [Trial/Appellate Counsel] denied
[Murray] the [r]ight to [c]ounsel and the [r]ight to
[e]ffective [a]ssistance of [c]ounsel, where
[Trial/Appellate Counsel] “entirely fails to subject the
prosecution’s case to meaningful adversarial testing”
during critical stages of his representation, and
where the [trial court] invited [Trial/Appellate
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Counsel] to submit a written request for curative
instruction, and no instruction was submitted[?]
(2) Whether there was constructive denied [sic] of
counsel where [a]ttorney-[c]lient [r]elationship was
so poor, [Trial/Appellate Counsel] was unable to
prepare for trial or penalty phase (sentencing)[?]
(3) Did [Trial/Appellate Counsel], exhibit lack of
knowledge as to the legal issues involved in the
case, where he fail [sic] to raise any arguable issues
in the appellate brief depriving [Murray] of effective
assistance of counsel on appeal which created
prejudice and the presumption of prejudice[?]
(4) Whether [PCRA Counsel] was ineffective for
failing to raise [Trial/Appellate Counsel]’s
ineffectiveness and fail[ing] to properly investigate
[his] deficient representation[?]
(5) Did the [sentencing court err] when it merged
[a]ggravated [a]ssault and [a]ttempted [m]urder of
the [f]irst [d]egree when both crimes require a
different specific intent to bring different specific
result, because [l]esser [i]ncluded [o]ffense [sic]
cannot be higher-graded felonies than crimes in
which they are supposedly included[?]
Murray’s Brief at 4.
We begin by acknowledging that “[o]ur standard of review regarding a
PCRA court’s order is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.”
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). “The
PCRA court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Id.-4-
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For his first issue on appeal, Murray argues that Trial/Appellate
Counsel denied him the right to counsel and the right to effective assistance
of counsel, asserting that Trial/Appellate Counsel “entirely fail[ed] to subject
the prosecution’s case to meaningful adversarial testing during critical stages
of his representation[.]” Murray’s Brief at 10 (quotations omitted). Murray
contends that he was prejudiced by Trial/Appellate Counsel’s failure to
submit written curative instructions, after being invited to do so by the trial
court, following inflammatory remarks made by the prosecutor during his
opening statement. See id.We conclude that Murray has waived his first issue on appeal. It is
well settled that any PCRA claims not raised in a petitioner’s pro se PCRA
petition, in an amended petition, or in response to a PCRA court’s Rule 907
notice are waived. Commonwealth v. Rigg, 84 A.3d 1080, 1084-85 (Pa.
Super. 2014). Here, Murray raises his first issue for the first time on appeal
and consequently, has waived it. See id.; see also Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”).
For his second issue on appeal, Murray argues that he was
constructively denied the effective assistance of counsel due to his poor
attorney-client relationship with Trial/Appellate Counsel and because
Trial/Appellate Counsel did not adequately prepare for trial. See Murray’s
Brief at 11-13. Murray complains that Trial/Appellate Counsel did not
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sufficiently communicate with him regarding his defense strategy, pursue
any alternative defense strategies than the one employed at trial, or
investigate and substantiate any of the facts surrounding Murray’s case.
See id.Like his first issue, we conclude that Murray has waived his second
issue on appeal. Murray did not raise this issue in his pro se PCRA petition,
in an amended petition, or in response to the PCRA court’s Rule 907 notice
to dismiss and raises it now for the first time on appeal. Accordingly, Murray
has also waived his second issue on appeal. See Rigg, 84 A.3d at 1084-85;
Pa.R.A.P. 302(a).
For his third issue on appeal, Murray argues that Trial/Appellate
Counsel was ineffective because “he failed to raise any arguable issues in
the [a]ppellate brief depriving [him] of effective assistance of counsel on
appeal[,] which created prejudice and the presumption of prejudice.”
Murray’s Brief at 13. Murray asserts that the memorandum deciding his
direct appeal stated that all his arguments were without merit, which made
the appeal “[f]rivolous and counsel ineffective.” Id.In deciding ineffective assistance of counsel claims, we begin with the
presumption that counsel rendered effective assistance. Commonwealth
v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that
presumption, the petitioner must establish that: “(1) the underlying claim
has arguable merit; (2) no reasonable basis existed for counsel’s action or
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failure to act; and (3) the petitioner 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.” Id.(citation omitted). To demonstrate prejudice in an ineffective assistance of
counsel claim, “the petitioner must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Commonwealth v. King, 57 A.3d
607, 613 (Pa. 2012). If the petitioner fails to prove any of these prongs, the
claim is subject to dismissal. Bomar, 104 A.3d at 1188.
We conclude that the ineffective assistance of counsel claim underlying
Murray’s third issue is without arguable merit. Murray provides no
explanation as to how Trial/Appellate Counsel was ineffective in handling his
direct appeal or how Trial/Appellate Counsel’s ineffectiveness resulted in
prejudice to him. See Murray’s Brief at 13-14. Murray essentially argues
that Trial/Appellate Counsel was ineffective merely because Murray lost his
direct appeal. See id. Although each of Murray’s direct appeal claims
failed, this alone does not prove that no reasonable basis existed for
Trial/Appellate Counsel’s actions or that Murray suffered prejudice because
of Trial/Appellate Counsel’s errors. “It should be emphasized that lack of
merit in an appeal is not the legal equivalent of frivolity.” Commonwealth
v. Edwards, 906 A.2d 1225, 1231 (Pa. Super. 2006) (quotations and
citations omitted). While Murray does briefly reference this Court finding
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some of the issues he raised in his direct appeal waived, this Court
ultimately conducted a merits review of each of those issues despite Murray
having waived them. See Commonwealth v. Murray, 1035 EDA 2010, at
6-16 (Pa. Super. Nov. 21, 2011) (unpublished memorandum). Accordingly,
Murray’s third issue does not entitle him to any relief.
For his fourth issue on appeal, Murray argues that PCRA Counsel was
ineffective for failing to raise any issues relating to Trial/Appellate Counsel’s
ineffectiveness. See Murray’s Brief at 14-16. Murray lists several perceived
examples of Trial/Appellate Counsel’s ineffectiveness that he contends PCRA
Counsel should have raised, including, but not limited to: Trial/Appellate
Counsel’s failure to object to the prosecutor’s opening statement,
Trial/Appellate Counsel’s lack of communication with Murray, and
Trial/Appellate Counsel’s failure to raise any arguable issues on appeal. Id.
at 15.
We conclude that Murray has waived this issue on appeal. This Court
has held “that issues of PCRA counsel effectiveness must be raised in a serial
PCRA petition or in response to a notice of dismissal before the PCRA court.
Commonwealth v. Ford, 44 A.3d 1190, 1200 (Pa. Super. 2012). Thus,
“when counsel files a Turner/Finley no-merit letter to the PCRA court, a
petitioner must allege any claims of ineffectiveness of PCRA counsel in a
response to the court’s notice of intent to dismiss.” Id. at 1198. Here,
Murray did not raise the issue of PCRA Counsel’s ineffectiveness in his
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response to the PCRA court’s Rule 907 notice. See Response to No-Merit
Letter, 9/26/14. Instead, in his response to the PCRA court’s Rule 907
notice, Murray merely claimed that the PCRA counsel was ineffective for
filing a Turner/Finley letter. See id. at 4. Murray made no reference to
any instances of Trial/Appellate Counsel’s ineffectiveness that PCRA Counsel
should have raised. See id. Therefore, Murray has waived his claim that
PCRA Counsel was ineffective for failing to raise claims of Trial/Appellate
Counsel’s ineffectiveness on appeal.
For his final issue on appeal, Murray argues that the trial court erred in
merging his aggravated assault and attempted murder convictions for
purposes of sentencing. A claim involving the merger of convictions for
purposes of sentencing is a challenge to the legality of the sentence and is
therefore not waivable. Commonwealth v. Quintua, 56 A.3d 399, 400
(Pa. Super. 2012). “[O]ur standard of review is de novo and our scope of
review is plenary.” Id.Section 9765 of the Pennsylvania Sentencing Code states the following
regarding the merger of crimes for purposes of sentencing:
No crimes shall merge for sentencing purposes
unless the crimes arise from a single criminal act and
all of the statutory elements of one offense are
included in the statutory elements of the other
offense. Where crimes merge for sentencing
purposes, the court may sentence the defendant
only on the higher[-]graded offense.
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42 Pa.C.S.A. § 9765. Therefore, merger is appropriate only when two
specific criteria are satisfied: (1) “all of the statutory elements of one of the
offenses are included within the statutory elements of the other”; and (2)
“the crimes arise from a single criminal act[.]” Commonwealth v.
Jenkins, 96 A.3d 1055, 1056 (Pa. Super. 2014), appeal denied, 104 A.3d 3(Pa. 2014).
Here, Murray was convicted of attempted murder pursuant to sections
901(a)1 (criminal attempt) and 2502(a)2 (first-degree murder) of the Crimes
Code and aggravated assault under section 2702(a)(1)3 of the Crimes Code.
See Docket, 2/23/15, at 5-6; PCRA Court Opinion, 2/20/15, at 1. In
Commonwealth v. Anderson, 650 A.2d 20 (Pa. Super. 1994), our
Supreme Court determined that all of the statutory elements of aggravated
assault, as defined under 18 Pa.C.S.A. § 2702(a)(1), are included within the
statutory elements of attempted murder, as defined under 18 Pa.C.S.A. §§
1
Section 901(a) of the Crimes Code defines criminal attempt as follows: “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.” 18 Pa.C.S.A. § 901(a).
2
Section 2502(a) of the Crimes Code provides: “A criminal homicide
constitutes murder of the first degree when it is committed by an intentional
killing.” 18 Pa.C.S.A. § 2502(a).
3
Section 2702(a)(1) of the Crimes Code states that “a person is guilty of
aggravated assault if he … 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).
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901(a), 2502(a). Anderson, 650 A.2d at 20 n.1, 24. The Supreme Court
explained:
It is clear that the offense of aggravated assault is
necessarily included within the offense of attempted
murder; every element of aggravated assault is
subsumed in the elements of attempted murder.
The act necessary to establish the offense of
attempted murder – a substantial step towards an
intentional killing – includes, indeed, coincides with,
the same act which was necessary to establish the
offense of aggravated assault, namely, the infliction
of serious bodily injury. Likewise, the intent
necessary to establish the offense of attempted
murder – specific intent to kill – is greater than and
necessarily includes the intentional, knowing, or
reckless infliction of serious bodily injury, the intent
required for aggravated assault. It is tautologous
that one cannot kill without inflicting serious bodily
injury. 18 Pa.C.S. § 2301. Inasmuch as aggravated
assault, the lesser offense, contains some, but not all
the elements of the greater offense, attempted
murder, the two offenses merge for purposes of
sentencing.
Id. at 24. Accordingly, Murray’s attempted murder and aggravated assault
convictions satisfied the first criteria for merger.
Murray’s attempted murder and aggravated assault convictions also
satisfied the second criteria for merger, as they arose from a single criminal
act. The Commonwealth indicated that Murray’s attempted murder and
aggravated assault charges stemmed from Murray firing several gunshots in
Treadwell’s direction, one of which hit Treadwell’s elbow. See Affidavit of
Probable Cause, 6/18/08, at 2-3. Indeed, the certified record reflects that
this single act is lone occurrence in which Murray attempted to cause and
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succeeded in causing bodily injury to Treadwell. See N.T., 11/12/09 (Vol.
1), at 66-71. Therefore, we conclude that the trial court did not err in
merging Murray’s attempted murder and aggravated assault convictions for
purposes of sentencing.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2015
4
We note that it is perplexing that Murray, a criminal defendant, would
raise this issue. The merger of Murray’s aggravated assault and attempted
murder convictions for purposes of sentencing did not increase his sentence
and likely served to benefit Murray by reducing his total sentence. See 42
Pa.C.S.A. § 9765 (“Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.”). Had we
determined the trial court erred in merging his aggravated assault and
attempted murder convictions and remanded for resentencing, the trial court
could have potentially resentenced Murray on both his attempted murder
and aggravated assault charges, as opposed to just his attempted murder
charge, thereby potentially leading to an increase in his sentence.
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