Com. v. Boone, R. ( 2014 )

J-S49005-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RASHON BOONE
Appellant No. 1544 EDA 2013
Appeal from the PCRA Order May 17, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0506921-2006
BEFORE: OLSON, OTT and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 25, 2014
Appellant, Rashon Boone, appeals from the order entered on May 17,
2013, dismissing his first petition filed under the Post-Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court has provided us with a thorough and well-written
summary of the underlying facts and procedural posture. As the PCRA court
explained:
On October 15, 2003[,] at approximately 9:28 a.m.,
[Appellant] approached Joseph Jackson (hereinafter
southwest corner of
Chadwick and Cumberland Streets in Philadelphia,
Pennsylvania[. Appellant] asked [Joseph] for some weed.
[Appellant] pulled an automatic weapon, pointed it at
pocket. Immediately thereafter, a man known as Butter,
walked to the southwest corner of Chadwick and
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Cumberland Streets. [Appellant] turned, fired one shot at
James, fled on Cumberland Street, and turned onto Bancroft
Street. Joseph chased [Appellant] and saw him get into a
black [Chevrolet] that subsequently sped away.
approximately 9:23 a.m. on October 15, 2003, she was
standing on the 2400 block of Chadwick Street when
girlfriend, drove up in a black [Chevrolet] Celebrity.
Monique warned her
walked up Chadwick Street, turned west on to Cumberland
Street, and walked toward 17th Street. Aisha passed
[Appellant] as he walked in the opposite direction on
Cumberland Street and turned onto Chadwick Street.
Approximately [one] minute later, Aisha heard gunshots;
she turned and saw [Appellant], chased by Joseph, run from
Chadwick Street, turn east on to Cumberland Street, and
[Chevrolet] Celebrity and they sped away.
Before Aisha testified, Monique testified that she had no
memory of any of the events on October 15, 2003. She
denied that she spoke to Aisha, participated in a robbery, or
drove [Appellant] away from the crime scene.
However, [Appellant] testified that Monique dropped him off
at the intersection of York and Chadwick Streets so he could
buy some marijuana. Unable to find a seller at York Street,
[Appellant] proceeded to Cumberland Street. He passed
Aisha on Cumberland Street and asked her if there was
anyone selling marijuana nearby[.] Aisha turned and
pointed to Joseph and James on the corner of Chadwick and
Cumberland Streets. [Appellant] met with Joseph at the
corner of Chadwick and Cumberland Streets, and got into
an argument over the purchase of some marijuana. James
of here . . . [because he was] drawing th
a gun. [Appellant] admitted that he turned towards James,
drew his gun, and shot him. He stated that he ran to
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car.
Police responded to reports of a shooting, arrived at the
corner of Chadwick and Cumberland Streets within minutes
and found James lying on the street. James was
transported to Temple University Hospital where he was
pronounced dead at 10:45 a.m. The medical examiner
testified that the cause of death was homicide. James
sustained a single [gunshot] wound to the lower abdomen
and suffered extensive blood loss; the bullet penetrated and
damaged the bowel, the right common iliac artery, and
exited the left buttock.
A black [Chevrolet] Celebrity owned by Monique was located
on the 2100 block of North 20th Street and [the police
searched the vehicle]. A [nine-millimeter, 14-round]
capacity gun, loaded with two rounds of Remington brand
ammunition and three rounds of Federal brand ammunition,
was recovered from under the glove compartment. The
firearms expert determined that the fired Speer brand
[nine-millimeter] cartridge case recovered 45 feet from the
corner of Chadwick and Cumberland Streets and the bullet
recovered from the stretcher used to transport James to the
hospital were fired from that gun. . . .
Police attempts to locate [Appellant] in Philadelphia after
the shooting were unsuccessful. [Appellant] fled
Philadelphia and was subsequently found with Monique in
Richmond, Virginia on January 31, 2005.
...
On May 15, 2007, following a bench trial . . . , [Appellant]
was convicted of [second-degree murder, robbery, criminal
conspiracy, and possessing instruments of crime.1]
Sentencing was deferred until July 10, 2007, on which date
[Appellant] was sentenced to the mandatory term of life
imprisonment. . . . [Appellant] filed a timely notice of
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1
18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 903(a)(1), and 907(a),
respectively.
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judgment of sentence on June 25, 2008. [Commonwealth
v. Boone, 959 A.2d 457 (Pa. Super. 2008) (unpublished
memorandum), at 1-12, vacated in part, Commonwealth
v. Boone, ___ A.2d ___, 398 EAL 2008 (Pa. 2009).
Appellant] filed a petition for allowance of appeal, which our
Supreme Court granted in part[] and denied in part on
January 2, 2009.[fn.1]
[fn.1] . . . The case was summarily disposed on
[January 2, 2009]; as to the sole issue upon which the
petition for allowance of appeal was granted
sentence for robbery, as it had merged with the
sentence for second-degree murder pursuant to
Commonwealth v. Tarver, 426 A.2d 569, 573 (Pa.
-degree
murder, conspiracy[, and possessing instruments of
crime] remained, the Supreme Court did not remand the
case for [resentencing. Commonwealth v. Boone,
___ A.2d ___, 398 EAL 2008 (Pa. 2009)].
On December 24, 2009, [Appellant] filed a timely pro se
[PCRA] petition. . . . On July 15, 2011, [Appellant privately
retained] Sondra Rodrigues, Esquire [as his counsel]. Ms.
Rodrigues filed a consolidated amended PCRA petition and
memorandum of law on April 20, 2012.
After the Commonwealth [filed] a motion to dismiss . . . ,
[the PCRA] court scheduled an evidentiary hearing solely as
advising [Appellant] not to accept favorable offers to plead
guilty. The evidentiary hearing took place on December 19,
2012, and continued on December 28, 2012.
On December 28, 2012, at the conclusion of the evidentiary
hearing, [the PCRA] court permitted Ms. Rodrigues to
withdraw as counsel for health reasons. On that same date,
[the PCRA] court informed [Appellant] that [new] counsel
would be appointed for the purpose of reviewing an
additional claim [Appellant] wanted to raise, as well as for
the purpose of representing him on appeal.
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On December 28, 2012, [the PCRA] court [concluded] that
advise [him] of favorable plea bargain offers was without
merit, and [the PCRA court] informed [Appellant] of such in
op
claims and conducting an independent review, on April 16,
2013, [the PCRA] court sent [Appellant] notice pursuant to
Pa.R.Crim.P. 907 [] of its intent to deny and dismiss
ant] did not respond to [the
On May 23, 2013, [Appellant filed a timely notice of
appeal].
PCRA Court Opinion, 11/25/13, at 1-4 (internal citations omitted) (some
internal capitalization and footnotes omitted).
Appellant raises two claims on appeal.
[1.] Did the [PCRA] court [] err in denying PCRA relief
where the testimony at the evidentiary hearing established
that trial counsel was ineffective for failing to fully
communicate plea offers to Appellant and by advising him
to go to trial rather than accept any of the favorable pleas
offered by the Commonwealth?
[2.] Did the PCRA court err in not granting a full evidentiary
hearing and in denying relief after Appellant and trial
counsel testified and before all relevant testimony was
heard?
isted above.
Commonwealth v. Liebel,
825 A.2d 630, 632 (Pa. 2003).
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To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden,
Appellant must plead and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not
have some reasonable basis designed to effectuate his
interests; and, (3) but for
a reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton
satisfy any prong of the test for ineffectiveness will require rejection of the
Id.communicate plea offers to Appellant and [for] advising [Appellant] to go to
trial rather than accept any of the favorable pleas offered by the
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-7. However, within the argument
ineffective for failing to a
offer in the case: that Appellant plead guilty to murder and, in exchange,
the Commonwealth would recommend that the trial court impose a 25 to 50
lawyer who failed
to urge his client to take the proffered plea, however onerous, was not doing
2
Id. at 27. We will consider the claim that Appellant has
raised in the argument section of his brief. However, since Appellant has
failed
waived on appeal. Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa.
Super. 1998) ( llant's counsel. When issues are
not properly raised and developed in briefs, when briefs are wholly
inadequate to present specific issues for review, a court will not consider the
).
ng to advise him
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2
We note that, in Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012)
and Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012), the United
States Supreme Court held that defendants have a Sixth Amendment right
to effective assistance of counsel during the plea process.
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trial counsel testified that, prior to trial, he informed Appellant that
Appellant, himself, was responsible for making the final decision as to
N.T. PCRA Hearing, 12/19/12, at 22-23. Appe
testified that, when he provided Appellant with the above advice, he
chances Id.that:
beyond a reasonable doubt [] first degree murder[,] that
second degree murder was certainly something more viable
to the Commonwealth, that either/or had a potential of a
mandatory life sentence; that anything less than life is
something that should be considered.
Id.ony, Appellant never
testified that his trial counsel failed to properly consult with him as to the
Id. at 8.
Finally, after hearing the testimony in the case, the PCRA court
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more than 50 years [of] imprisonment, that trial counsel discussed the offer
with [Appellant], and that [Appellant] reje
Opinion, 11/25/13, at 8.
Given the above testimony and the factual findings of the PCRA court,
rial counsel consulted
with Appellant and advised Appellant of the advantages and disadvantages
was withi
on appeal fails.
relief after Appellant and trial counsel testified and before all relevant
argument on this issue. Instead, with respect to this issue
consists solely of legal statements and quotations. See
27-
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (
appellate brief fails to . . . develop the issue in any [] meaningful fashion
capable of review, that claim is waived. It is not the obligation of [an
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2014
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