Com. v. Howell, P. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
PARIS LASHAWN HOWELL :
:
Appellant : No. 261 WDA 2020
Appeal from the Judgment of Sentence Entered October 24, 2018
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0000084-2018
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED OCTOBER 09, 2020
Appellant, Paris Lashawn Howell, appeals nunc pro tunc from the
judgment of sentence entered in the Mercer County Court of Common Pleas,
following his jury trial conviction for robbery.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
November 7, 2017, Appellant shot the seventeen-year-old victim in the
buttocks during an armed robbery. The Commonwealth filed a criminal
information on March 9, 2018, charging Appellant with attempted murder,
aggravated assault, and robbery—serious bodily injury. Following trial, a jury
convicted Appellant of the robbery charge and found him not guilty of the
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3701(a)(1)(i).
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remaining offenses. On October 24, 2018, the court sentenced Appellant to
eight (8) to twenty (20) years’ imprisonment. Appellant did not file a post-
sentence motion or notice of appeal.
On October 30, 2018, Appellant filed a pro se petition pursuant to the
Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. The court
appointed counsel, who filed an amended petition. On June 27, 2019, the
parties entered into a stipulation whereby Appellant withdrew the pending
PCRA petition, and the court reinstated Appellant’s post-sentence and direct
appeal rights. Appellant subsequently filed a post-sentence motion nunc pro
tunc, which the court denied on September 24, 2019. Again, Appellant did
not pursue a direct appeal.
On December 16, 2019, Appellant filed another pro se PCRA petition.
The court appointed current counsel on January 14, 2020. Before appointed
counsel took any further action, the court reinstated Appellant’s direct appeal
rights by order entered January 27, 2020.
Appellant timely filed a notice of appeal nunc pro tunc on February 18,
2020. That same day, the court ordered Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. On March 27, 2020,
Appellant filed his Rule 1925(b) statement.
Appellant now raises two issues for our review:
Whether the verdict of conviction on count 3 of the
indictment alone represents an impermissible inconsistent
verdict?
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Whether trial counsel was ineffective given the facts and
circumstances of this case such that his adjudication on
count 3 was unreliable?
(Appellant’s Brief at 22).
In his first issue, Appellant asserts the Commonwealth charged him with
three offenses involving “serious bodily injury.” Appellant contends the jury’s
decision to convict him of robbery while acquitting him of attempted murder
and aggravated assault amounts to an inconsistent verdict. Appellant also
maintains the Commonwealth presented insufficient evidence to support the
robbery conviction. Specifically, Appellant argues: 1) no property was stolen
from the victim; 2) the victim’s sister, who was not present during the
incident, identified Appellant as a suspect; 3) the victim did not know who
shot him; and 4) “the victim took a great deal of time to point to [Appellant]
as the perpetrator at trial.” (Id. at 29). Based upon the foregoing, Appellant
concludes this Court must reverse his conviction. We disagree.
Pennsylvania law permits inconsistent verdicts, provided sufficient
evidence supports each conviction. Commonwealth v. Miller, 613 Pa. 584,
588, 35 A.3d 1206, 1208 (2012).
Inconsistent verdicts, while often perplexing, are not
considered mistakes and do not constitute a basis for
reversal. Rather, the rationale for allowing inconsistent
verdicts is that it is the jury’s sole prerogative to decide on
which counts to convict in order to provide a defendant with
sufficient punishment. When an acquittal on one count in
an indictment is inconsistent with a conviction on a second
count, the court looks upon the acquittal as no more than
the jury’s assumption of a power which they had no right to
exercise, but to which they were disposed through lenity.
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Thus, this Court will not disturb guilty verdicts on the basis
of apparent inconsistencies as long as there is sufficient
evidence to support the verdict.
Commonwealth v. Rose, 960 A.2d 149, 158 (Pa.Super. 2008), appeal
denied, 602 Pa. 657, 980 A.2d 110 (2009) (quoting Commonwealth v.
Frisbie, 889 A.2d 1271, 1273 (Pa.Super. 2005), appeal denied, 588 Pa. 747,
902 A.2d 1239 (2006)). “[A]n acquittal cannot be interpreted as a specific
finding in relation to some of the evidence….” Miller, supra at 596, 35 A.3d
at 1213.
Our standard of review for sufficiency claims is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal
denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v.
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Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).
The Crimes Code defines the offense of robbery as follows:
§ 3701. Robbery
(a) Offense defined.—
(1) A person is guilty of robbery if, in the course
of committing a theft, he:
(i) inflicts serious bodily injury upon
another[.]
* * *
(2) An act shall be deemed “in the course of
committing a theft” if it occurs in an attempt to commit
theft or in flight after the attempt or commission.
18 Pa.C.S.A. § 3701(a)(1)(i), (2).
“A conviction for robbery does not require proof of a completed theft, it
requires only that the requisite force was used ‘in the course of committing a
theft[.]’” Commonwealth v. Robinson, 936 A.2d 107, 110 (Pa.Super.
2007), appeal denied, 597 Pa. 705, 948 A.2d 804 (2008). “Serious bodily
injury” is defined as: “Bodily injury which creates a substantial risk of death
or which causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. §
2301.
Instantly, the seventeen-year-old victim was walking home from school
on November 7, 2017. (See N.T. Trial, 6/19/18, at 27-28). The victim
proceeded down Malleable Street, where he walked past Appellant. (Id. at
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30). Appellant and two cohorts began to follow the victim. (Id. at 31). The
victim noticed the men behind him and turned into an alleyway. (Id.)
Appellant ran to catch up with the victim, brandished a firearm, and demanded
the victim’s possessions. (Id.) The victim attempted to flee, and Appellant
opened fire. (Id. at 32). A bullet struck the victim in the left buttocks and
exited through his thigh.2 (Id.)
Despite being wounded, the victim escaped to his residence. (Id. at
33). The victim’s sister was home, and the victim informed her about the
shooting as he called 911. (Id. at 33-34). Police arrived at the victim’s
residence within minutes, and the victim provided a description of the shooter.
(Id. at 33). After the victim gave the description, his sister knew it was
Appellant because “one of [her] friends used to date the man who [the victim]
described.” (Id. at 53). The victim’s sister obtained a picture of Appellant
from his Facebook page and showed it to the police. (Id. at 54). Thereafter,
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2 At trial, the Commonwealth introduced the victim’s medical records and
photographs of the victim’s injuries. (See N.T. Trial at 36-38). These exhibits
were not included with the certified record on appeal. Nevertheless, the
victim’s testimony alone established a serious bodily injury. See
Commonwealth v. Daniels, 467 Pa. 35, 38, 354 A.2d 538, 539 (1976)
(stating jury properly found that defendant caused serious bodily injury where
he fired single bullet that struck and wounded victim); Commonwealth v.
Kramer, 371 A.2d 1008, 1013 (Pa.Super. 1977) (concluding witness’s
testimony established serious bodily injury where defendant repeatedly struck
his children on buttocks; although blows were directed at buttocks, “there still
was a very good likelihood that one or more could have gone astray and
ruptured a kidney or broken a bone”).
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an ambulance transported the victim to a nearby hospital for treatment. (Id.
at 52).
Later that day, the police presented the victim with a photographic
array, which included Appellant’s picture. (Id. at 38, 62). The victim
immediately selected Appellant’s photograph from the array and identified him
as the shooter. (Id. at 38-39). The victim also identified Appellant as the
shooter at trial.3 (Id. at 30-32, 35).
Here, the victim’s trial testimony established that Appellant inflicted
serious bodily injury during the course of committing a theft. See 18
Pa.C.S.A. § 2301; 18 Pa.C.S.A. § 3701. Viewing this evidence in the light
most favorable to the Commonwealth as verdict winner, sufficient evidence
supported the robbery conviction. See Tucker, supra. Because sufficient
evidence supported the jury’s decision, Appellant is not entitled to relief on his
claim of an inconsistent verdict. See Rose, supra.In his second issue, Appellant identifies certain challenges to the
effectiveness of trial counsel. For the following reasons, Appellant is not
entitled to relief at this juncture.
“[A]s a general rule, a petitioner should wait to raise claims of ineffective
assistance of trial counsel until collateral review.” Commonwealth v. Grant,
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3 Contrary to Appellant’s argument, our examination of the trial transcript
does not reveal any hesitation on the part of the victim to identify Appellant
as the shooter at trial.
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572 Pa. 48, 67, 813 A.2d 726, 738 (2002). Our Supreme Court has recognized
two very limited exceptions to the general rule: (1) in extraordinary
circumstances where claims of trial counsel’s ineffectiveness are apparent
from the record and immediate consideration best serves the interests of
justice and/or; (2) where there is good cause shown and review of the claim
is preceded by a waiver of the right to seek collateral review.
Commonwealth v. Holmes, 621 Pa. 595, 598-99, 79 A.3d 562, 563-64
(2013). Our Supreme Court also adopted a third exception, which requires
“trial courts to address claims challenging trial counsel’s performance where
the defendant is statutorily precluded from obtaining subsequent PCRA
review.” Commonwealth v. Delgros, 646 Pa. 27, 42, 183 A.3d 352, 361
(2018).
Instantly, the record does not indicate that extraordinary circumstances
exist, or that Appellant waived his right to PCRA review. See Holmes, supra.Further, Appellant is not statutorily barred from seeking PCRA relief. See
Delgros, supra. Thus, we decline to entertain Appellant’s ineffectiveness
complaints on direct appeal, and we defer such claims until collateral review.
See Grant, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/2020
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