Com. v. Gray, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANANTA GRAY :
:
Appellant : No. 2344 EDA 2017
Appeal from the Judgment of Sentence Entered May 18, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-Cr-0013639-2014
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J. *
MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 19, 2021
Appellant, Ananta Gray, appeals pro se from the aggregate judgment of
sentence of 9 to 18 years’ incarceration, imposed after he was convicted,
following a non-jury trial, of aggravated assault, possession with intent to
deliver, and related drug and firearm offenses. After careful review, we affirm.
The facts of Appellant’s underlying convictions are not pertinent to our
disposition of his appeal. We only briefly note that Appellant’s convictions
stemmed from evidence that he shot the victim in this case three times during
an attempted drug deal. The victim identified Appellant from a photo array
the day after the shooting. Appellant testified at trial that he shot the victim
in self-defense, but the court found his testimony incredible and convicted him
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*
Retired Senior Judge assigned to the Superior Court.
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of the above-stated offenses. However, the court acquitted Appellant of
attempted murder and conspiracy to commit murder.
On May 18, 2017, Appellant was sentenced to the aggregate term set
forth supra. He filed a timely post-sentence motion, which was denied.
Appellant then filed a timely, counseled notice of appeal, and his attorney
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Therein, counsel raised only a
single challenge to the weight of the evidence to support Appellant’s conviction
of aggravated assault. See Rule 1925(b) Statement, 8/15/17, at 1 (single
page) (“The aggravated assault conviction was against the weight of the
evidence.”). The trial court thereafter filed its Rule 1925(a) opinion, deeming
Appellant’s vague weight-of-the-evidence challenge waived and, alternatively,
without merit. See Trial Court Opinion (TCO), 2/2/18, at 3-10.
While Appellant’s appeal was pending, he filed with this Court a petition
to proceed pro se, and his attorney also filed a petition to withdraw.
Consequently, on July 17, 2018, this Court issued a per curiam order vacating
the briefing schedule, and remanding Appellant’s case for the trial court to
conduct a hearing to ascertain if Appellant’s waiver of counsel was knowing,
intelligent, and voluntary pursuant to Commonwealth v. Grazier, 713 A.2d
81 (Pa. 1998). Although we directed the court to make its ruling on
Appellant’s request to proceed pro se within 60 days of the filing of our order,
the court did not grant Appellant’s petition to proceed pro se until nearly one
year later, on July 11, 2019.
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Then, on October 4, 2019, we again issued a per curiam order vacating
the briefing schedule and remanding Appellant’s case to the trial court,
directing Appellant’s former counsel and/or the trial court to provide Appellant
with transcripts and any other documents that were pertinent to his appeal.
In July of 2020, Appellant’s former counsel filed a response to our order,
stating that he had provided all pertinent documents to Appellant, and
explaining that his delay in doing so was due to the COVID-19 pandemic.
Appellant thereafter filed his pro se brief, raising the following four
issues for our review, which we reproduce verbatim:
1. Weather the lower court error in decision to ignore the
petitioner claim that his criminal complaint had not been signed
and therefore bar Jurisdiction of the court to move forward with
the action against him?
2. Wheather not establishing Jursidiction was a fatel erra?
3. Wheather trial court erred in not establishing that the petitioner
was not acting in self defense and defense of others as no
evidence was ever produced to counter petitioners claim?
4. Wheather petitioners acquital of Att. Murder should have bared
prosecution of agg. Asult due to established laws of double
jeopardy?
Appellant’s Brief at 3.
In Appellant’s first two issues, which he addresses together in the
Argument portion of his brief, he claims that the court lacked subject matter
jurisdiction over his case because the criminal complaint was not “signed and
sealed by the issuing authority….” Id. at 6. Initially, we note that this claim
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was not raised in Appellant’s counseled Rule 1925(b) statement.1 However,
issues implicating the subject matter jurisdiction of the court cannot be
waived. Commonwealth v. Succi, 173 A.3d 269, 283 n.6 (Pa. Super. 2017)
(“[J]urisdiction ... is not waivable and may be raised at any time,
and sua sponte.”) (citing, inter alia, Commonwealth v. Little, 314 A.2d 270,
272 (Pa. 1974) (“An objection to lack of subject-
matter jurisdiction can never be waived; it may be raised at any stage in the
proceedings by the parties or by a court on its own motion.”)).
Although we may consider the merits of Appellant’s jurisdictional
challenge, it is clear that his argument is meritless on its face. The certified
record contains the criminal complaint, which is signed by the District
Attorney’s representative and the magistrate. See Criminal Complaint,
8/12/14, at 1-2. Moreover, we agree with the Commonwealth that, even if
the complaint had not been signed, that fact would not divest the court of
subject matter jurisdiction over Appellant’s case. The Commonwealth
explains:
The only two requirements for subject matter jurisdiction are: “the
competency of the court to hear the case, and the provision of
formal notice to the defendant of the crimes charged in
compliance with the [state and federal constitutions].”
Commonwealth v. Jones, 929 A.2d 205, 210 (Pa. 2007). “[N]o
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1
We recognize that Appellant filed a pro se Rule 1925(b) statement on July
19, 2019, which was nearly two years after the court directed him to file a
concise statement and his former counsel did so. Nothing in the record
indicates that Appellant sought, or was granted, leave to file a supplemental
concise statement, and the court did not file a supplemental opinion
addressing the claims set forth in his pro se Rule 1925(b) statement.
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court has ever held that subject matter jurisdiction requires the
Commonwealth to file a criminal information.” Commonwealth
v. Hatchin, 709 A.2d 405, 408 (Pa. Super. 1998).
The two requirements for subject-matter jurisdiction were met
here. The Court of Common Pleas had competency to adjudicate
defendant of a state crime. See Jones, 929 A.2d at 210-[]11
(agreeing that “the courts of common pleas have statewide
jurisdiction in all cases arising under the Crimes Code”). The
criminal complaint informed defendant of the charges against him,
the date of the incident, the location of the incident, the name of
the victim, and a brief summary of the offense. [See
Commonwealth’s Brief at] Exhibit [(copy of the criminal
complaint)]. Thus, the requirements of subject matter jurisdiction
were met.3
3
[Appellant] also forwarded a theory to the preliminary
hearing court, not specifically addressed in his brief, that the
court lacked subject matter jurisdiction because the
provisions of the crimes code allegedly do not have enacting
clauses. This Court has debunked this popular “jailhouse
lawyer” theory. See Commonwealth v. Stultz, 114 A.3d
865, 879 (Pa. Super. 2015) ([stating] the criminal statutes
have enacting clauses, notwithstanding the decision of
private publishing companies, such as West Publishing
Company, to omit them from their editions of statute
books).
Commonwealth’s Brief at 9. Appellant’s first two issues are meritless.
Next, Appellant claims that his constitutional protection against double
jeopardy was violated by the court’s acquitting him of attempted murder, but
convicting him of aggravated assault. Citing Commonwealth v. Anderson,
650 A.2d 20 (Pa. 1994), Appellant argues that because aggravated assault is
a lesser-included offense of attempted murder, the court’s acquitting him of
the murder charge meant that, pursuant to double jeopardy principles, it had
to acquit him of the aggravated assault offense, as well.
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Appellant does not point to where he raised this claim before the trial
court after it rendered its verdict, at his sentencing hearing, or in a post-
sentence motion. He also failed to raise it in his counseled Rule 1925(b)
statement, despite that the order directing him to file that statement informed
him that any claim not raised would be deemed waived. See Order, 7/24/17,
at 1 (single page). Generally, claims not raised before the trial court or
preserved in a Rule 1925(b) statement are waived for our review. See
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.”); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.”). However, our Supreme Court has
made clear that “merger/double jeopardy cases concern legality of sentencing,
even when the sentence at issue falls within prescribed minimum and
maximum sentences.” Commonwealth v. Foster, 17 A.3d 332, 342 (Pa.
2011).
Here, Appellant presents an atypical double-jeopardy claim, arguing not
that he was punished twice for the same offense but, rather, that his acquittal
for one crime required his acquittal for another. We need not discern if this
constitutes a non-waivable, legality-of-sentencing claim because, even if it
does, Appellant’s double-jeopardy argument is clearly meritless. As the
Commonwealth aptly observes,
“[t]he prohibition against double jeopardy was designed to protect
individuals from being tried or punished more than once for the
same allegation or offense.” Commonwealth v. Miller, 198 A.3d
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1187, 1191 (Pa. Super. 2018). “The Fifth Amendment of the
United States Constitution provides, in relevant part, that no
person shall ‘be subject for the same offence to be twice put in
jeopardy of life or limb[.]’”[] Id. (quoting U.S. Const. amend. V).
“Likewise, Article I, § 10 of the Pennsylvania Constitution provides
that ‘[n]o person shall, for the same offense, be twice put in
jeopardy of life or limb.’” Id. (quoting Pa. Const. art. I, § 10). It
is undisputed that [Appellant] was tried only once for the crimes
in this case, and therefore was never placed in double jeopardy.
[Appellant] cites case law that deals with the issue of whether a
person may be sentenced for both attempted murder and
aggravated assault. For instance, … Anderson … addressed “the
question of whether the crimes of attempted murder and
aggravated assault merge for sentencing purposes.”
[Anderson, 650 A.2d] at 21 (emphasis added). However, the
issue of merger for sentencing purposes did not arise here.
[Appellant] was acquitted of attempted murder and therefore
never sentenced for it. Thus, there was no sentence to “merge”
with th[e sentence] for aggravated assault. [Appellant’s] claim is
without merit.
Commonwealth’s Brief at 10-11 (emphasis in original). We agree.
Finally, Appellant argues that the evidence was insufficient to convict
him because the Commonwealth failed to disprove his claim that he shot the
victim in self-defense. Preliminarily, this issue was not set forth in Appellant’s
counseled Rule 1925(b) statement and, therefore, it is waived. See Pa.R.A.P.
1925(b)(4)(vii).
Nevertheless, even if preserved, we would deem Appellant’s claim to be
meritless. The Commonwealth presented adequate evidence to demonstrate
that Appellant was the aggressor in the incident. This Court has explained:
If the defendant properly raises “self-defense under [18 Pa.C.S.
§] 505 of the Pennsylvania Crimes Code, the burden is on the
Commonwealth to prove beyond a reasonable doubt that the
defendant’s act was not justifiable self-defense.”
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Commonwealth v. McClendon, 874 A.2d 1223, 1229–30 (Pa.
Super. 2005).
The Commonwealth sustains this burden if it establishes at
least one of the following: 1) the accused did not reasonably
believe that he was in danger of death or serious bodily
injury; or 2) the accused provoked or continued the use of
force; or 3) the accused had a duty to retreat and the retreat
was possible with complete safety.
Commonwealth v. Hammond, 953 A.2d 544, 559 (Pa. Super.
2008), appeal denied, … 964 A.2d 894 ([Pa.] 2009) (quoting
McClendon, supra at 1230). The Commonwealth must establish
only one of these three elements beyond a reasonable doubt to
insulate its case from a self-defense challenge to the evidence.
Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa. Super.
2000), appeal denied, … 782 A.2d 542 ([Pa.] 2001).
Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014).
Here, the Commonwealth explains how the evidence disproved
Appellant’s self-defense theory, as follows:
The evidence here proved that [Appellant] was the aggressor in
his attack on the victim. The victim gave a signed statement to
police in which he explained that [Appellant] initiated the attack
by pulling out a gun and shooting him from behind, hitting him in
the elbow.[2] N.T.[,] 3/3/17, [at] 44-46. This was corroborated
by the bullet hole surrounded by powder burns in the back of the
car seat, which proved that the gun had been pressed against the
seat when fired. Id. at 105-[]07. When the victim fled from the
car, [Appellant] continued firing at him, hitting him twice more.
Id. at 46, 49. Although the victim had a gun, it was never fired.
Id. at 141, 178. Surveillance footage showed [Appellant] calmly
leaving the area after the incident. Id. at 125-[]27. Although
[Appellant], who had convictions of crimen falsi [crimes], testified
that the victim pulled the gun first, the trial court disbelieved this
testimony. Id. at 167-[]68, 177, 193-[]94[; TCO] at 10.
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2
The victim was sitting in the front passenger seat of a vehicle, with Appellant
in the back seat behind him, when the shooting began. See TCO at 4.
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Commonwealth’s Brief at 13. We agree with the Commonwealth that, “when
the evidence is viewed in the light most favorable [to it, as the verdict winner,]
it establishes that [Appellant] provoked the fight, used unnecessary force, and
failed to allow the victim to retreat. Thus, the evidence was sufficient to
disprove self-defense.” Id. (citing, inter alia, Commonwealth v. Mouzon,
53 A.3d 738, 751 (Pa. 2012) (finding the appellant’s provoking the encounter
defeated his self-defense claim); Commonwealth v. Miller, 172 A.3d 632,
640 (Pa. Super. 2017) (concluding that the evidence disproved self-defense
where it showed that Miller had initiated the conflict unprovoked and acted
unreasonably). Thus, even had Appellant’s former counsel preserved this
issue in his Rule 1925(b) statement, we would conclude that the evidence
sufficiently disproved Appellant’s self-defense claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/19/21
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