Com. v. Anderson, J.

J-S61035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JEFFREY ANDERSON,
Appellant No. 746 EDA 2017
Appeal from the PCRA Order January 27, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1303719-2006
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 13, 2017
Appellant, Jeffrey Anderson, appeals from the order denying his first
petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§
9541-9546. Specifically, Appellant claims ineffectiveness of trial counsel and
challenges the legality of his sentence. We affirm.
We take the relevant facts and procedural history in this case from the
PCRA court’s March 31, 2017 opinion and our review of the certified record.
Appellant was arrested on June 8, 2006, and charged with attempted murder,
aggravated assault, criminal conspiracy, attempted kidnapping, unlawful
restraint, felon in possession of a firearm, discharge of a firearm into an
occupied structure, violations of the Uniform Firearms Act, possession of an
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* Retired Senior Judge assigned to the Superior Court.
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instrument of a crime, terroristic threats, simple assault, recklessly
endangering another person, and false imprisonment.1 The charges arose out
of an incident where Appellant pointed a gun at his victim, threatened to kill
him, and then, following a struggle, shot him once in the stomach and once
grazing his chest. After the victim fled, Appellant chased him and fired at him
again. (See PCRA Court Opinion, 3/31/17, at 2-3).
On November 25, 2009, a jury convicted Appellant of aggravated
assault, violating the Uniform Firearms Act, and possessing an instrument of
a crime. On April 9, 2010, Appellant was sentenced to not less than twenty-
three and one-half, nor more than forty-seven years of incarceration. This
Court affirmed Appellant’s judgment of sentence on July 11, 2011. (See
Commonwealth v. Anderson, 55 A.3d 141 (Pa Super. 2011) (unpublished
memorandum)). On February 6, 2013, our Supreme Court denied Appellant’s
petition for allowance of appeal. (See Commonwealth v. Anderson, 63
A.3d 772 (Pa. 2013)).
On April 17, 2013, Appellant filed his first PCRA petition. The PCRA court
appointed counsel who filed an amended petition. After Appellant moved for
removal of counsel, current counsel entered her appearance on August 20,
2015, and filed an amended PCRA petition on November 12, 2015. On October
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1 18 Pa.C.S.A. §§ 901(a), 2702(a), 903(a)(1), 901(a), 2902(a)(1),
6105(a)(1), 2707.1(a), 6106(a)(1), 6108, 907(a), 2706(a)(1), 2701(a),
2705, and 2903(a).
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24, 2016, the court sent Appellant notice of its intent to dismiss the petition
without a hearing as meritless and previously litigated. See Pa.R.Crim.P.
907(1). Appellant responded on November 4, 2016, and the court dismissed
the petition on January 27, 2017. Appellant timely appealed.2
Appellant raises three issues on appeal.
1. Whether the [PCRA] court erred in denying without a hearing
[Appellant’s] claim[] of ineffective assistance of counsel for
failure to object to the sufficiency of the jury instruction on self-
defense[?]
2. Whether the [PCRA] court erred in denying without a hearing
[Appellant’s] claim[] of ineffective assistance of counsel for
failure to argue that acquittal of attempted murder necessarily
implies acquittal of aggravated assault[?]
3. Whether the [PCRA] court erred in not correcting the illegal
sentence [Appellant] is suffering under[?]
(Appellant’s Brief, at 7).
Our standard and scope of review for the denial of a PCRA petition is
well-settled.
This Court examines PCRA appeals in the light most
favorable to the prevailing party at the PCRA level. Our review is
limited to the findings of the PCRA court and the evidence of
record[.] Additionally, [w]e grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. In this respect, we will
not disturb a PCRA court’s ruling if it is supported by evidence of
record and is free of legal error. However, we afford no deference
to its legal conclusions. [W]here the petitioner raises questions
of law, our standard of review is de novo and our scope of review
is plenary. . . .
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2 Pursuant to the PCRA court’s order, Appellant filed a timely statement of
errors complained of on appeal on March 9, 2017. The court entered its
opinion on March 31, 2017. See Pa.R.A.P. 1925.
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Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014), appeal
denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks omitted).
In his first two issues, Appellant claims he is entitled to relief because
trial counsel was ineffective. To obtain relief under the PCRA based upon a
claim of ineffective assistance of counsel, a petitioner must establish by a
preponderance of evidence that counsel’s ineffectiveness “so undermined the
truth-determining process that no reliable adjudication of guilt or innocence
could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
In order to obtain relief under the PCRA based on a claim of
ineffectiveness of counsel, a PCRA petitioner must satisfy the
performance and prejudice test set forth in Strickland v.
Washington, 466 U.S. 668, (1984). In Pennsylvania, we have
applied the Strickland test by requiring a petitioner to establish
that: (1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s action or failure to act; and
(3) the petitioner suffered prejudice as a result of counsel’s error,
with prejudice measured by whether there is a reasonable
probability that the result of the proceeding would have been
different. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.
2001). Counsel is presumed to have rendered effective
assistance, and, if a claim fails under any required element of the
Strickland test, the court may dismiss the claim on that basis.
Commonwealth v. Vandivner, 130 A.3d 676, 680 (Pa. 2015) (citation
formatting provided).
In his first issue, Appellant argues that counsel was ineffective for failing
to object to the trial court’s self-defense jury instruction. (See Appellant’s
Brief, at 11-20). Specifically, he claims that, although the court instructed the
jury with regard to self-defense, its instruction was deficient because it failed
to explain that if defendant raised self-defense, the Commonwealth had the
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burden to disprove it. (See id. at 11-16).3 He further argued that counsel
did not have a reasonable basis for failing to object and he was prejudiced by
such failure because the jury asked questions about whether Appellant’s
possession of a gun was criminal if his actions were justified. (See id. at 16-
18). Finally, Appellant claims that the PCRA court erred when it dismissed
this claim as previously litigated.4 (See id. at 19-20). Appellant’s claim does
not merit relief.
[W]hen evaluating the propriety of jury instructions, this
Court will look to the instructions as a whole, and not simply
isolated portions, to determine if the instructions were improper.
We further note that, it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury for
its consideration. Only where there is an abuse of discretion or
an inaccurate statement of the law is there reversible error.
Commonwealth v. Charleston, 94 A.3d 1012, 1021 (Pa. Super. 2014),
appeal denied, 104 A.3d 523 (Pa. 2014) (citation omitted). “[A] trial court
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3 Appellant’s brief also attempts to argue that the trial court erred when it
instructed the jury that Appellant “raised the issue of whether he acted in self-
defense when he had control of the handgun which shot the complaining
witness.” (N.T. Trial, 11/23/09, at 77). However, because Appellant failed to
develop this argument with citation to pertinent legal authority, we find it
waived. See Pa.R.A.P. 2101, 2119(a)-(b).
4 The PCRA court dismissed this claim as previously litigated, explaining that
on direct appeal, the Superior Court ruled that the self-defense instruction
adequately informed the jury. (See PCRA Ct. Op., at 5). Although we agree
with Appellant that his challenge to the jury instruction on direct appeal does
not preclude him from arguing that counsel was ineffective for not challenging
the instruction at trial, we may affirm the PCRA court on any basis. See
Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009).
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has broad discretion in phrasing its instructions, and may choose its own
wording so long as the law is clearly, adequately, and accurately presented to
the jury for its consideration.” Id. at 1021-22 (citation omitted).
. . . [T]o properly inform a jury of the relationship between
malice and self-defense, a trial court must instruct as to three
points:
(1) That in order to prove murder, the prosecution
must prove beyond a reasonable doubt that the killing
was malicious; (2) That evidence of self-defense, from
whatever source, tends to negate the malice required
for murder; (3) That in order to meet its burden of
proof on the element of malice, the prosecution must
exclude self-defense beyond a reasonable doubt.
This Court further noted that a trial court is free to use its
own language, but must accurately explain the relationship so that
the jury understands that the finding of malice requires the
exclusion of the defense of self-defense.
Commonwealth v. Sepulveda, 55 A.3d 1108, 1143 (Pa. 2012) (citations
omitted).
Here, the court instructed the jury that “[t]he issue having been raised,
it is the Commonwealth’s burden to prove beyond a reasonable doubt that the
defendant did not act in justifiable self-defense.” (N.T. Trial, 11/23/09, at
77). The court further explained that, “[i]f the Commonwealth fails to prove
[that the defendant did not believe he was actually in danger of death or
serious bodily injury or that this belief was unreasonable], the defendant’s
actions were justified, and you must find him not guilty of the crimes of
attempted murder, aggravated assault, and/or attempted kidnapping.” (Id.
at 81).
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Upon review, we conclude that because the jury instruction as a whole
accurately explains the shifting burden of proof associated with self-defense,
Appellant has not met his burden under Pierce that his underlying claim would
have arguable merit; therefore, he has failed to establish that trial counsel
was ineffective. See Vandivner, supra at 680; Sepulveda, supra at 1143;
Charleston, supra at 1021-22. Appellant’s first claim does not merit relief.
In his second issue, Appellant claims that counsel was ineffective for
failing to argue at sentencing and on appeal that acquittal of the attempted
murder charge in this case necessitated acquittal of the aggravated assault
charge as well. (See Appellant’s Brief, at 21-26). Specifically, he relies on
Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994), and alleges that
trial counsel was ineffective for failing to argue that “the aggravated assault
and the attempted murder were functionally the same charge, and that
[Appellant], if acquitted of the greater offense, should not be liable of the
lesser included offense.” (Id. at 22). Appellant’s second issue is meritless.
In Anderson, our Supreme Court vacated the appellant’s sentence for
aggravated assault, holding that because every element of his aggravated
assault conviction, the lesser offense, was subsumed in the elements of his
attempted murder conviction, the greater offense, the two offenses must
merge for sentencing. See Anderson, 650 A.2d at 24.
Here, Appellant was not convicted of two crimes that would merge for
sentencing, the jury acquitted him of the attempted murder count. Thus, trial
counsel cannot be considered ineffective for not presenting a frivolous
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argument based on merger to the jury. Upon review, we agree with the trial
court’s reasoning that “just because crimes may merge for sentencing
purposes does not mean that acquittal of one charge requires acquittal of the
other charge. Merger for sentencing purposes precludes a defendant from
being sentenced twice for essentially the same crime. That is not the issue in
this matter.” (PCRA Ct. Op., at 6). Appellant has failed to prove that his
underlying claim would have arguable merit; thus he has not established that
trial counsel was ineffective. See Vandivner, supra at 680. Appellant’s
second issue is meritless.
Furthermore, to the extent that Appellant argues that the trial court
erred by denying his claims without a hearing, (see Appellant’s Brief, at 7),
his claim does not merit relief.5
It is well-settled “that a PCRA petitioner is not automatically entitled to
an evidentiary hearing.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.
Super. 2014). “We review the PCRA court’s decision dismissing a petition
without a hearing for an abuse of discretion.” Id. (citation omitted).
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
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5 We observe that we could find waiver of this issue because although
Appellant’s questions raise the issue of a failure to conduct an evidentiary
hearing, he has not developed this argument in his brief. See Pa.R.A.P.
2119(a), 2101. However, in the interest of judicial economy, we decline to
find waiver.
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the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in light
of the record certified before it in order to determine
if the PCRA court erred in its determination that there
were no genuine issues of material fact in controversy
and in denying relief without conducting an
evidentiary hearing.
[A]n evidentiary hearing is not meant to function as a fishing
expedition for any possible evidence that may support some
speculative claim of ineffectiveness.
Id. (citations and quotation marks omitted).
Here, after reviewing Appellant’s claims in light of the certified record,
we discern no abuse of discretion in the PCRA court’s decision to decline to
hold a hearing. See Miller, supra at 992.
Finally, in his third issue, Appellant claims that, pursuant to Alleyne v.
United States, 570 U.S. 99 (2013), he is subject to an illegal sentence
because he was subject to a deadly weapon enhancement at sentencing. (See
Appellant’s Brief, at 27-32). Appellant’s challenge to the legality of his
sentence does not merit relief.
In Commonwealth v. Washington, our Supreme Court held that
“Alleyne does not apply retroactively to cases pending on collateral review.”
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). As
Appellant noted “his case was pending on collateral review at the time of the
[Alleyne] decision.” (Appellant’s Brief, at 31). Thus Alleyne does not apply,
and Appellant has not established that he is serving an illegal sentence. See
Washington, supra at 820.
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Furthermore, although Appellant briefly mentions that this argument
“was available for argument by appellate and defense counsel at the time, but
was not brought[,]” and that “the failure of counsel to raise the illegal
sentencing at trial or on appeal is ineffective[,]” he has not attempted to prove
that counsel was ineffective for failing to challenge the legality of his sentence.
(Appellant’s Brief, at 29-30; see id. at 32); Vandivner, supra at 680.
Appellant’s final issue does not merit relief.
Accordingly, Appellant has not met his burden of proving that the PCRA
court erred when it concluded that his claims were patently frivolous and
denied his petition without a hearing. See Henkel, supra at 20; Miller,
supra at 992. Consequently, we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2017
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