Com. v. Lucas, W. ( 2020 )


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  • J-A24009-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellant               :
    :
    :
    v.                             :
    :
    :
    WELDON LUCAS                               :   No. 2248 EDA 2018
    Appeal from the Order Entered July 2, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0016035-2008
    BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*
    MEMORANDUM BY BENDER, P.J.E.:                          Filed: February 7, 2020
    The Commonwealth appeals from the post-conviction court’s July 2,
    2018 order granting Appellee, Weldon Lucas, a new trial based on the
    ineffectiveness of his trial counsel. After careful review, we reverse the court’s
    order and reinstate Lucas’s judgment of sentence.
    This Court previously set forth the facts and procedural history of Lucas’s
    underlying convictions, as follows:
    On October 7, 2008, Lucas intervened to protect his friend
    Shonda when she was being threatened by her boyfriend,
    Hamski, who had beaten her on earlier occasions. Lucas
    and Hamski got into a fight that ended when others pulled
    the two men apart. The complaining witness in this case,
    Alvin Morris…, was a friend of Hamski’s and saw the fight.
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    J-A24009-19
    The following day, after Lucas finished work…, he went to
    his sister Tonya’s house where he waited in his car for her
    to get home safely. He was concerned for Tonya’s safety,
    fearing potential retaliation for the fight of the previous day.
    He talked with his friend, Ricky Myers, while he waited.
    Lucas heard a noise and noticed bright flickering lights in
    Tonya’s house. Both men rushed inside, discovered a
    number of homemade Molotov cocktails had been lit and
    thrown in through the window, and quickly put them out so
    the house would not go up in flames. Lucas and Ricky Myers
    immediately went in search of the culprit. Moments later,
    Ricky Myers encountered Alvin Morris in an area near
    Tonya’s house and shouted to Lucas to come over to where
    they were standing. Lucas subsequently shot Morris eleven
    times.
    Trial Court Opinion, 5/3/11, at 1-2.
    Lucas was arrested and charged with attempted murder,
    conspiracy to commit murder, aggravated assault, reckless
    endangerment, possession of instruments of crime (“PIC”),
    firearms not to be carried without a license, possession of a
    firearm by a person prohibited, and carrying a firearm on the
    public streets of Philadelphia. Lucas pled not guilty and proceeded
    to a jury trial.
    During the jury’s deliberations, the trial judge, the
    Honorable Lisa M. Rau, was called away to fulfill a longstanding
    teaching obligation in San Francisco. As a result, the Honorable
    Ramy Djerassi filled in for her for the purpose of responding to
    any questions presented by the jury. On May 24, 2010, the jury
    asked the following question: “Is Charge Number 2 ‘Criminal
    conspiracy F-1’ synonymous with ‘conspiracy to commit murder’?”
    Having consulted with Judge Rau, and [having] received the
    agreement of both counsel, Judge Djerassi instructed the jury, in
    pertinent part, as follows:
    The defendant is charged with conspiracy to commit murder
    and/or aggravated assault. So any suggestion otherwise on
    Paragraph One of the written jury charges was a
    typographical error. So it is conspiracy to commit murder
    and/or aggravated assault.
    N.T. Trial, 5/24/10, at 12.
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    Lucas was found guilty of reckless endangerment, carrying
    a firearm without a license, carrying a firearm on the public streets
    of Philadelphia and criminal conspiracy. The jury did not specify
    whether the conspiracy conviction related to murder or
    aggravated assault. Lucas was acquitted of the remainder of the
    charges, including attempted murder and aggravated assault.
    Commonwealth v. Lucas, 368 EDA 2011, unpublished memorandum at 1-3
    (Pa. Super. filed Feb. 8, 2012) (brackets omitted).
    At Lucas’s subsequent sentencing hearing, the Commonwealth sought
    application of a 10-year, mandatory-minimum sentence for Lucas’s conspiracy
    offense under 42 Pa.C.S. § 9714(a)(1) (requiring a 10-year, mandatory-
    minimum sentence for any person convicted of a second “crime of violence”).
    Although defense counsel conceded that the mandatory term was applicable,
    the trial court refused to apply that sentence, instead imposing a term of 11½
    to 23 months’ incarceration for Lucas’s conspiracy conviction.                The
    Commonwealth timely appealed, and this Court vacated Lucas’s sentence and
    remanded for the court to impose the mandatory term required by section
    9714(a)(1). The trial court did so on September 9, 2016.
    Lucas then filed a timely direct appeal, asserting several challenges to
    the court’s jury instructions, including a claim that the trial court erred by
    instructing the jury that he could be found guilty of conspiracy to commit
    aggravated assault, when he had only been charged with conspiracy to
    commit murder. Notably, the trial court agreed with Lucas that it had erred
    in providing this instruction, and that a new trial was warranted. See Trial
    Court Opinion, 12/30/16, at 4-5.          Nevertheless, this Court affirmed,
    concluding that Lucas had waived his jury instruction claims because his
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    counsel never objected to the at-issue instructions. See Commonwealth v.
    Lucas, No. 3011 EDA 2016, unpublished memorandum at 4-6 (Pa. Super.
    filed Jan. 26, 2018).
    On March 5, 2018, Lucas filed a timely PCRA petition, contending that
    his trial counsel was ineffective for failing to object to two errors in the court’s
    jury instructions: (1) the court’s failure “to specify, in its [c]onspiracy charge,
    that in order to find [Lucas] guilty[,] the jury must find that he ‘intentionally
    and with malice attempted to cause the death of another person’”; and (2)
    the court’s improper instruction to the jury that Lucas was “charged with
    conspiracy to commit murder and/or aggravated assault.”             PCRA Petition,
    3/5/18, at 3 (unnumbered). On May 14, 2018, the Commonwealth filed an
    answer to Lucas’s petition.     Lucas and the Commonwealth agreed that no
    evidentiary hearing was necessary. On July 2, 2018, the trial court granted
    the petition, vacated Lucas’s judgment of sentence, and ordered a new trial.
    The Commonwealth filed a timely notice of appeal, as well as a Pa.R.A.P.
    1925(b) concise statement of errors complained of on appeal. On September
    26, 2018, the PCRA court filed a Rule 1925(a) opinion.                 Herein, the
    Commonwealth states one issue for our review: “Did trial counsel, the
    Defender Association of Philadelphia, commit constitutionally ineffective
    assistance by agreeing to charge the jury on the lesser-included offense of
    conspiracy to commit aggravated assault, where [Lucas] was fully apprised of
    the applicable evidence and elements, and where the charge succeeded in
    reducing [Lucas’s] potential liability?” Commonwealth’s Brief at 2.
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    Preliminarily, we observe that,
    “[o]n appeal from the denial of PCRA relief, our standard and
    scope      of review is  limited    to   determining       whether
    the PCRA court’s findings are supported by the record and without
    legal error.” Commonwealth v. Edmiston, 
    65 A.3d 339
    , 345
    (Pa. 2013) (citation omitted). “[Our] scope of review is limited to
    the findings of the PCRA court and the evidence of record, viewed
    in the light most favorable to the prevailing party at
    the PCRA court level.” Commonwealth v. Koehler, … 
    36 A.3d 121
    , 131 ([Pa.] 2012) (citation omitted). “The PCRA court’s
    credibility determinations, when supported by the record, are
    binding on this Court.” Commonwealth v. Spotz, 
    610 Pa. 17
    ,
    
    18 A.3d 244
    , 259 (2011) (citation omitted). “However, this Court
    applies a de novo standard of review to the PCRA court’s legal
    conclusions.” 
    Id. Commonwealth v.
    Medina, 
    92 A.3d 1210
    , 1214–15 (Pa. Super. 2014) (en
    banc).
    Additionally, where, as here, a petitioner claims that he received
    ineffective assistance of counsel, our Supreme Court has stated that:
    [A] PCRA petitioner will be granted relief only when he proves, by
    a preponderance of the evidence, that his conviction or sentence
    resulted from the “[i]neffective assistance of counsel which, in the
    circumstances of the particular case, so undermined the truth-
    determining process that no reliable adjudication of guilt or
    innocence could have taken place.”             Generally, counsel’s
    performance is presumed to be constitutionally adequate, and
    counsel will only be deemed ineffective upon a sufficient showing
    by the petitioner. To obtain relief, a petitioner must demonstrate
    that counsel’s performance was deficient and that the deficiency
    prejudiced the petitioner. A petitioner establishes prejudice when
    he demonstrates “that there is a reasonable probability that, but
    for counsel’s unprofessional errors, the result of the proceeding
    would have been different.” … [A] properly pled claim of
    ineffectiveness posits that: (1) the underlying legal issue has
    arguable merit; (2) counsel’s actions lacked an objective
    reasonable basis; and (3) actual prejudice befell the petitioner
    from counsel’s act or omission.
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    Commonwealth v. Johnson, 
    966 A.2d 523
    , 532-33 (Pa. 2009) (citations
    omitted).
    Here, the PCRA court concluded that Lucas is entitled to a new trial
    based on his counsel’s failure to object to following three errors committed by
    the trial court: (1) the erroneous instruction “that [] Lucas could be found
    guilty of conspiracy to commit aggravated assault when he was never charged
    or arraigned on that crime[;]” (2) the court’s failure “to properly instruct the
    jury on the specific intent required to find [Lucas] guilty of either conspiracy
    to commit murder or conspiracy to commit aggravated assault[;]” and (3) the
    court’s “recording the verdict when the jury did not specify the underlying
    crime that [] Lucas conspired to commit.” PCRA Court Opinion, 12/30/16, at
    4-5 (footnotes omitted). For the reasons that follow, we disagree with the
    PCRA court that any of these purported errors necessitates a new trial.
    First, the PCRA court found that a new trial is warranted because Lucas’s
    counsel acted ineffectively by failing to object to the instruction that Lucas
    could be convicted of conspiracy to commit murder and/or aggravated
    assault.    In his petition, Lucas contended that this instruction improperly
    permitted the jury to convict him of an offense for which he was not charged,
    thereby prejudicing him by depriving him of notice and the opportunity to
    defend against that charge.     See PCRA Petition at 4 (unnumbered).         On
    appeal, he elaborates that his “trial strategy was geared toward defending
    against the allegation that he [c]onspired to [m]urder the victim[,]” not that
    he conspired to commit aggravated assault. Lucas’s Brief at 9. Therefore,
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    Lucas insists that the court’s adding the conspiracy to commit aggravated
    assault charge, without any objection by his counsel, “rendered his trial
    strategy ineffective….” 
    Id. Accordingly, Lucas
    argues that the PCRA court
    correctly concluded that his counsel acted ineffectively, and properly granted
    him a new trial.
    In response, the Commonwealth maintains that Lucas failed to
    demonstrate any error in the court’s instruction, nor that he was prejudiced
    by counsel’s failure to object to it. The Commonwealth stresses that,
    “[t]he settled law in Pennsylvania has been that a defendant may
    be convicted of an offense that is a lesser-included offense of the
    crime actually charged.” Commonwealth v. Sims, 
    919 A.2d 931
    , 938 (Pa. 2007). “As long as the conviction is for a lesser-
    included offense, the defense will have been put on notice of the
    charges against him and can adequately prepare a defense.”
    Commonwealth v. Reese, 
    725 A.2d 190
    , 191 (Pa. Super. 1999)
    (citation omitted). Conspiracy to commit aggravated assault [is]
    a lesser-included offense of conspiracy to commit murder. See
    Commonwealth v. Anderson, 
    650 A.2d 20
    , 24 (Pa. 1994)
    (aggravated assault is a lesser-included offense of attempted
    murder).
    Commonwealth’s Brief at 17-18.
    The Commonwealth’s argument is convincing. In Sims, our Supreme
    Court upheld Sims’ conviction for the uncharged offense of attempted escape,
    concluding it was a lesser-included offense of the charged crime of escape.
    The Court explained that permitting convictions for uncharged, lesser-included
    offenses “promotes judicial economy, avoids inconsistent results, and
    enhances the quality of jury deliberations by assuring that factfinders,
    informed of the option of convicting of related offenses, focus their attention
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    on the presence or absence of those elements that distinguish the greater or
    lesser offenses.”   
    Sims, 919 A.2d at 938
    (internal citations and quotation
    marks omitted).     However, the Sims Court recognized that, “[a]lthough
    Pennsylvania has consistently approved of the doctrine, the more difficult
    question has always been determining what constitutes a lesser-included
    offense.” 
    Id. To this
    end, the Court adopted the Model Penal Code’s definition
    of ‘lesser-included offense,’ which “identifies three situations in which a
    defendant may be convicted of an offense included in the offense charged….”
    
    Id. at 940.
    The Model Penal Code states:
    (4) Conviction of Included Offense Permitted. A defendant
    may be convicted of an offense included in an offense charged in
    the indictment [or the information]. An offense is so included
    when:
    (a) it is established by proof of the same or less than all the
    facts required to establish the commission of the offense
    charged; or
    (b) it consists of an attempt or solicitation to commit the
    offense charged or to commit an offense otherwise included
    therein; or
    (c) it differs from the offense charged only in respect that a
    less serious injury or risk of injury to the same person,
    property or public interest or a lesser kind of culpability
    suffices to establish its commission.
    MODEL PENAL CODE § 1.07(4) (alteration in original).
    
    Id. In the
    present case, the crime of conspiracy to commit aggravated
    assault constitutes a lesser-included offenses of conspiracy to commit murder
    under the ‘statutory elements approach’ of section 1.07(4)(a).             See 
    id. -8- J-A24009-19
    (stating that section 1.07(4)(a) “reflects the statutory element approach” to
    defining a lesser-included offense).    Both offenses require proof of: “1) an
    agreement, 2) shared criminal intent, and 3) an overt act.” Commonwealth
    v. Johnson, 
    180 A.3d 474
    , 479 (Pa. Super. 2018) (citation omitted). While
    the criminal intent between the two crimes differs, our Supreme Court has
    held that “the intent necessary to establish the offense of … 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.” 
    Anderson, 650 A.2d at 24
    . Thus, because the crime of
    conspiracy to commit aggravated assault is proven by evidence of the same
    or less than all the facts required to establish the commission of conspiracy to
    commit murder, it constitutes a lesser-included offense under section
    1.07(4)(a).
    Alternatively, we also find the definition set forth in section 1.07(4)(c)
    to be applicable to the at-issue offenses. Specifically, conspiracy to commit
    aggravated assault differs from conspiracy to commit murder only in the
    respect that a less serious injury or risk of injury to the victim (serious bodily
    injury, rather than death) suffices to establish the commission of conspiracy
    to commit aggravated assault. In addition, conspiracy to commit aggravated
    assault differs from conspiracy to commit murder only in the fact that a lesser
    culpability can establish its commission. See 
    id. Accordingly, conspiracy
    to
    commit aggravated assault also meets the definition of a lesser-included
    offense of conspiracy to commit murder under section 1.07(4)(c).
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    In sum, we conclude that the court did not err by instructing the jury
    that it could convict Lucas of the lesser-included offense of conspiracy to
    commit aggravated assault. Thus, Lucas’s claim that his counsel should have
    objected to that charge lacks arguable merit.
    Additionally, Lucas’s contention that he was prejudiced because he did
    not have notice or an opportunity to defend against the charge of conspiracy
    to commit aggravated assault clearly fails under the rationale of Sims. See
    
    Sims, 919 A.2d at 940-41
    (“The defendant does not need separate notice to
    defend against [a lesser-included offense under section 1.07(4)(a)] because
    the defense that he prepares against the offenses charged will necessarily
    attempt to refute the Commonwealth’s evidence of the lesser offenses.”); 
    id. at 941-42
    (“[B]y charging [a defendant] with the more serious offense, the
    Commonwealth has given the defendant the information that he needs to
    choose and tailor his defense strategy.      Accordingly, [s]ection 1.07(4)(c)
    likewise is consistent with a defendant’s right to due process.”). Moreover, as
    the Commonwealth points out, Lucas’s actual “defense to the shooting of Mr.
    Morris in no way depended on the legal distinction between conspiracy to
    commit    murder    and    conspiracy   to   commit    aggravated     assault.”
    Commonwealth’s Brief at 20. The Commonwealth explains:
    From opening to closing, and from [Lucas’s] own mouth on the
    witness stand, the defense claim was that it was [Lucas’s] friend
    who was the shooter, that [Lucas] had gone out with the
    friend…[,] but that [Lucas] had no idea his friend was carrying a
    gun or would actually shoot anyone. The defense, in short, was
    that [Lucas] was essentially a bystander who did not conspire to
    injure, let alone kill, the victim. Under these circumstances,
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    [Lucas] is at a loss even to postulate any reason why counsel
    would have wanted to object to the court’s legally correct charge
    on conspiracy.
    
    Id. at 20-21.
    We agree with the Commonwealth’s analysis.
    We also agree with the Commonwealth that Lucas’s “argument that he
    was unfairly exposed to unforeseen elements … is simply untrue.” 
    Id. at 18.
    The Commonwealth stresses that,
    [a]ll elements of conspiracy to commit aggravated assault were
    contained within the crimes charged: attempted murder,
    aggravated assault, and conspiracy. And all of these elements
    related to a single victim and a single set of facts: the testimony
    of the Commonwealth’s witnesses that [Lucas] set out to shoot
    Mr. Morris and acted with another person in doing so. Under
    settled law, he cannot claim any lack of notice.
    
    Id. It is
    clear from the Commonwealth’s argument, the record before us,
    and the case law 
    discussed supra
    , that the trial court’s instruction that Lucas
    could be convicted of conspiracy to commit aggravated assault was not
    improper and it did not prejudice Lucas, as he had adequate notice and
    opportunity to defend against that lesser-included offense.     Consequently,
    Lucas failed to demonstrate that his trial counsel acted ineffectively by not
    objecting to that instruction, and the PCRA court erred by granting him a new
    trial on this basis.
    We next conclude that the PCRA court erred by basing its grant of a new
    trial on a conclusion that Lucas’s counsel was ineffective for not objecting
    when “the [c]ourt failed to properly instruct the jury on the specific intent
    required to find [Lucas] guilty of either conspiracy to commit murder or
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    conspiracy to commit aggravated assault….” PCO at 5 (footnote omitted). In
    Lucas’s petition, his entire argument on this point was as follows:
    Although the jury was instructed that [Lucas] was charged with
    [c]riminal [c]onspiracy to commit [m]urder, the [c]ourt failed to
    specify, in its [c]onspiracy charge, that in order to find [Lucas]
    guilty[,] the jury must find that he “intentionally and with malice
    attempted to cause the death of another person.” (See Exhibit 3
    - Bills of Information). Counsel for [Lucas] failed to object or ask
    for a more specific instruction on the charge of [c]riminal
    [c]onspiracy.
    PCRA Petition at 3.
    Notably, Lucas did not mention the court’s failure to instruct on the
    intent necessary for conspiracy to commit aggravated assault; thus, we agree
    with the Commonwealth that the PCRA court erred by sua sponte raising that
    issue. See Commonwealth’s Brief at 23 n.8.
    The Commonwealth also points out that Lucas “failed to show the
    necessary prejudice for his ineffective assistance claim.”    
    Id. at 24.
        It is
    apparent from the above-quoted portion of Lucas’s petition that he offered no
    discussion of how he was prejudiced by the omission of a specific-intent
    instruction regarding conspiracy. See Commonwealth v. Spotz, 
    84 A.3d 294
    , 320 (Pa. 2014) (“[T]o establish prejudice from trial counsel’s failure to
    object to the challenged portion of the … charge, [a petitioner] must show
    there is a reasonable probability that, but for counsel’s error or omission, the
    result of the proceeding would have been different.”) (citation omitted). As
    the Commonwealth stresses, the jury convicted Lucas of conspiracy generally;
    thus, we cannot presume, as does Lucas and the PCRA court, that he was
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    convicted of conspiracy to commit murder, which requires a specific intent to
    kill.1   Lucas could have instead been convicted of conspiracy to commit
    aggravated assault, which was the crime for which he was ultimately
    sentenced. If so, then the court’s omission of an instruction on specific intent
    to kill would not have changed the outcome of the trial. Again, Lucas offered
    no argument in his PCRA petition regarding how, under the unique
    circumstances of this case, the jury’s verdict would have been different, had
    his counsel objected to the court’s failure to provide a specific-intent
    instruction for conspiracy. Therefore, he failed to demonstrate prejudice, and
    the PCRA court erred by granting him a new trial.
    Order reversed.       Judgment of sentence reinstated.     Jurisdiction
    relinquished.
    Judge Dubow joins this memorandum.
    Judge Colins notes his dissent.
    ____________________________________________
    1 We reiterate that Lucas did not object to the court’s recording the jury’s
    general verdict on conspiracy, without specification of the object crime. The
    PCRA court concluded that Lucas’s counsel was ineffective for this failure. See
    PCO at 5. However, we do not see this claim raised anywhere in Lucas’s PCRA
    petition. Therefore, the court erred by sua sponte finding that counsel acted
    ineffectively in this regard. We observe that this Court previously chastised
    this trial/PCRA court for raising errors sua sponte, concluding that the court
    was effectively “engag[ing] in what amounts to advocacy on behalf of Lucas.”
    See Lucas, No. 368 EDA 2011, unpublished memorandum at 6 n.12. As we
    stressed in our prior decision, “[s]ua sponte consideration of issues deprives
    counsel of the opportunity to brief and argue the issues and the court of the
    benefit of counsel’s advocacy.” 
    Id. (citing Wiegand
    v. Wiegand, 
    337 A.2d 256
    , 257 (Pa. 1975)).
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    J-A24009-19
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/7/20
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Document Info

Docket Number: 2248 EDA 2018

Filed Date: 2/7/2020

Precedential Status: Non-Precedential

Modified Date: 12/13/2024