Com. v. Hill, L. ( 2014 )

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37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. :
:
LOUIS HILL, : No. 3387 EDA 2012
:
Appellant :
Appeal from the PCRA Order, November 20, 2012,
in the Court of Common Pleas of Delaware County
Criminal Division at Nos. CP-23-CR-0000494-2008,
CP-23-CR-0002291-2009, CP-23-CR-0002303-2009,
CP-23-CR-0004875-2008, CP-23-CR-0000493-2008
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 08, 2014
Appellant appeals from the order denying his first petition filed
§§ 9541-9546. Finding no error, we affirm.1
On September 24, 2009, a jury found appellant guilty of attempted
murder, aggravated assault, and possessing a firearm without a license in
connection with an incident in Darby Township on October 22, 2007, during
which appellant repeatedly shot the victim following an earlier quarrel with
1
ket
number CP-23-CR-0000493-
docket number and conviction. Appellant improperly added these additional
docket numbers to a later pleading.
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On November 18, 2009, the trial court sentenced appellant to an
a 20 to 40-year sentence for attempted murder. On February 28, 2011, this
court affirmed the judgment of sentence, and on July 7, 2011, our supreme
court denied appeal. Commonwealth v. Hill, 24 A.3d 468 (Pa.Super.
2011) (unpublished memorandum), appeal denied, 24 A.3d 362(Pa. 2011). On August 8, 2011, appellant timely filed the instant PCRA
petition. Counsel was appointed, but was subsequently permitted to
withdraw on October 16, 2012, following the filing of a motion to withdraw
- Turner-Finley practice.2 By that same
order, the PCRA court issued notice, pursuant to Pa.R.Crim.P., Rule 907,
42 Pa.C.S.A., of its intention to dismiss the petition without hearing. On
October 23, 2012, appellant filed a response, and on November 20, 2012,
the PCRA court denied the petition. This timely appeal followed.
Appellant raises the following issues on appeal:
1. WHETHER TRIAL COUNSEL WAS INEFFECTIVE
FOR FAILURE TO: (A) OBJECT TO EVIDENCE
OF DEFENDANT'S PRIOR BAD ACTS, MOVE FOR
A MISTRIAL, AND GIVE A PROPER JURY
INSTRUCTION REGARDING THE EVIDENCE OF
DEFENDANT'S PRIOR BAD ACTS; and
(B) OBJECT TO THE COMMONWEALTH'S
EVIDENCE RELATING TO HEARSAY TESTIMONY
AND MOVE FOR A MISTRIAL?
2
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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2. WHETHER PCRA COUNSEL WAS INEFFECTIVE
FOR FAILING TO RAISE TRIAL COUNSEL AND
DIRECT APPEAL COU
INEFFECTIVENESS?
3. WHETHER THE COURT ERRED IN DISMISSING
DEFENDANT'S FIRST PCRA PETITION ON THE
-
AND GRANTING COUNSEL'S APPLICATION TO
WITHDRAW APPEARANCE?
4. WHETHER DEFENDANT IS ENTITLED TO THE
APPOINTMENT OF COUNSEL?
5. WHETHER THE MANDATORY SENTENCES
IMPOSED ON THE DEFENDANT ARE EXCESSIVE
AND UNCONSTITUTIONAL;
6. WHETHER DEFENDANT IS ENTITLED TO A
HEARING PURSUANT TO COMMONWEALTH-v-
GRANT; and
7. WHETHER DEFENDANT IS ENTITLED TO AN
EVIDENTIARY HEARING.
3
Ap
review of the record, the briefs of the parties, the applicable law, and the
well-reasoned opinion of the trial court, it is our determination that there is
no meri -page
opinion, filed on August 28, 2013, thoroughly discusses and properly
disposes of the questions presented. We will adopt it as our own and affirm
on that basis with the following additional analysis.
3
treating the cover page as page 1.
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In discussing issue 3, the trial court erroneously states that superior
-8.)
withdraw. (See Order, 10/16/12; Record Document No. 11.) Aside from
that error, the analysis is otherwise correct.
In Issue 5, appellant argues that his sentence was excessive which the
trial court correctly dismisses because challenges to the discretionary
aspects of sentence not cognizable under the PCRA. However, within his
brief appellant makes claims that his sentence is improper because nowhere
in the statutes of Pennsylvania is there a provision criminalizing attempted
murder, nor is there a provision setting the penalty for attempted murder.
-month
sentence for attempted murder.
Legislature has provided for murder as a crime at 18, Pa.C.S.A. § 2502,
while criminal attempt is provided for at 18 Pa.C.S.A. § 901. The crime of
attempted murder results from the interplay of these statutes. Under
Section 901, if a defendant takes an action constituting a substantial step
toward murder with the intent to commit murder, as appellant did when he
pumped bullet after bullet into his helpless victim, he is guilty of attempted
murder. As for the statute setting the penalty for attempted murder, it is
found here:
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§ 1102. Sentence for murder, murder of
unborn child and murder of law enforcement
officer
(c) Attempt, solicitation and conspiracy.--
Notwithstanding section 1103(1) (relating to
sentence of imprisonment for felony), a person
who has been convicted of attempt, solicitation
or conspiracy to commit murder, murder of an
unborn child or murder of a law enforcement
officer where serious bodily injury results may
be sentenced to a term of imprisonment which
shall be fixed by the court at not more than
40 years. Where serious bodily injury does not
result, the person may be sentenced to a term
of imprisonment which shall be fixed by the
court at not more than 20 years.
18 Pa.C.S.A. § 1102(c). Because the victim suffered serious bodily injury,
Accordingly, finding no merit to the issues raised on appeal, we will
affirm the order below.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2014
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