Com. v. Gore, M.

J. S09004/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARKO L. GORE, : No. 1812 WDA 2013
:
Appellant :
Appeal from the PCRA Order, October 30, 2013,
in the Court of Common Pleas of Cambria County
Criminal Division at No. CP-11-CR-0001069-2009
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 25, 2015
Marko L. Gore appeals, pro se, from the order of October 30, 2013,
denying his PCRA1 petition. We affirm.
The facts of this case were summarized by this court on direct appeal
as follows:
The record reflects that there was a
long-standing disagreement between Gore and
Cirilito Cheatam (“Cheatam”). On April 4, 2009, a
green Chevy Blazer full of Cheatam’s friends –
Denise Burt (“Burt”), Shy-Kwoiila Williams
(“Williams”), Cierra Clinton (“Clinton”),
Sharon McCall (“McCall”), and R.L., Burt’s minor
goddaughter – drove into a Sheetz parking lot and
observed Gore waive [sic] his hand at Cheatam as if
he had a gun. The women did not stop, and instead
continued towards Oakhurst, where they were to
drop R.L. off at a party. While on the way to
Oakhurst, a car driven by Gore’s friend stopped in
1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
J. S09004/15
front of the Blazer. Gore, driving a white Ford
Expedition, pulled alongside of the Blazer in the
opposite lane, pulled out a gun, aimed it at Burt, and
told her “he didn’t want to do it but he had no
choice.” N.T., 7/8/10, at 95.
Burt saw that the car in front of her left room
for her to get away, and she drove off down the
street. Gore fired a shot and shattered the Blazer’s
rear windshield. Burt saw that Gore was coming
after her so she stopped, pushed her goddaughter
out of the car, got out and started running into the
woods, terrified.
McCall jumped into the driver’s seat and tried
to get away from Gore, who was following the
Blazer. More shots were fired at the Blazer. McCall
ultimately crashed the Blazer into a garage, and the
remaining occupants of the vehicle ran out of the car
in different directions. No one was injured.
Gore’s girlfriend at that time, Constance
McCausland (“McCausland”), responded to Gore’s call
and picked him up at a nearby gas station. They
went to a bar, then to an afterhours club, and
around 5:00 a.m. decided to drive to Pittsburgh.
According to McCausland, this was not unusual, as
they had gone to Pittsburgh several times during the
month they had been dating. They stayed in a hotel
overnight, and on Sunday, McCausland returned to
Johnstown without Gore.
In the weeks that followed, police came to
McCausland’s house looking for Gore. Gore came to
her home approximately a month later, but
McCausland told him to leave, as detectives were
looking for him and she did not want to be involved.
Although she did not specifically tell him there was a
warrant out of [sic] his arrest, McCausland stated
that Gore knew he was wanted by police.
A United States Marshal apprehended Gore in
Pittsburgh on June 25, 2009. He was transported
back to Johnstown for trial. A jury convicted Gore of
-2-
J. S09004/15
one count of firearms not to be carried without a
license, five counts of aggravated assault, and five
counts of recklessly endangering another
person.[Footnote 1] He was acquitted of five counts
of attempted murder.[Footnote 2] The trial court
adjudged him guilty of driving while operating
privileges were suspended or revoked.[Footnote 3]
The trial court sentenced him to an aggregate term
of 19 to 44 years of imprisonment, broken down as
follows: an eight to 16 year sentence for aggravated
assault on Burt, a consecutive eight to 16 year
sentence for aggravated assault on R.L., three
consecutive one to four year sentences for
aggravated assaults on Clinton, McCall, and Williams,
a concurrent sentence of 42 to 84 months of
imprisonment for carrying a firearm without a
license, and a concurrent 90 day term of
imprisonment for driving under suspension.
[Footnote 1] 18 Pa.C.S.A. §§ 6106(a)(1),
2702(a)(1), 2705.
[Footnote 2] 18 Pa.C.S.A. §§ 901(a),
2502.
[Footnote 3] 75 Pa.C.S.A. § 1543(a).
Commonwealth v. Gore, 38 A.3d 916 (Pa.Super. 2011), unpublished
memorandum at 1-3, appeal denied, 48 A.3d 1247 (Pa. 2012). On
November 9, 2011, this court affirmed the judgment of sentence, and on
July 18, 2012, the Pennsylvania Supreme Court denied allowance of appeal.
Id.
On April 30, 2013, appellant filed a timely pro se PCRA petition, and
counsel was appointed. An amended petition was filed on appellant’s behalf,
and a hearing was held on September 5, 2013. On October 30, 2013, the
PCRA court filed an opinion and order denying appellant’s petition. A timely
-3-
J. S09004/15
notice of appeal was filed on November 13, 2013. Following a hearing,
appellant was permitted to proceed pro se on the instant appeal, with
stand-by counsel. Appellant complied with Pa.R.A.P., Rule 1925(b),
42 Pa.C.S.A., and the PCRA court filed an opinion on January 17, 2014,
relying on its previous opinion and order of October 30, 2013.
Appellant has raised the following issues for our review:
I. Whether the appellant’s rights under the
Pennsylvania and United States constitutions
were violated with respects [sic] to the trial
court’s transferred intent jury instruction of
which [sic] invaded the jury’s province, created
impermissible mandatory presumptions,
shifted the burden of proof, negated the right
to proof beyond a reasonable doubt, impaired
the presumptions of innocence, and subjected
appellant to double jeopardy, inter alia? And
whether trial/appellate counsel and/or PCRA
counsel were constitutionally ineffective for
failing to raise and/or preserve this issue(s)?
II. Whether appellant was sentenced illegally in
violation of the Pennsylvania and United States
constitutions in that the sentencing court not
only invaded the jury’s province, but also erred
and abuse [sic] its discretion in by [sic] failing
to merge such sentence(s), and further in its
enhancement and sentencing of appellant
outside the sentencing guidelines, inter alia?
And whether sentencing/appellate counsel
were constitutionally ineffective for failing to
raise and/or preserve this issue(s)?
III. Whether the appellant’s rights under the
Pennsylvania and United States constitutions
were violated with respects [sic] to the verdict
being against the weight of the evidence as to
[the] Commonwealth’s failure to establish
proof beyond a reasonable doubt on the
-4-
J. S09004/15
aggravated assault charges? And whether
trial/appellate counsel were constitutionally
ineffective for failing to raise and/or preserve
this issue?
Appellant’s brief at 4 (capitalization omitted).
Initially, we recite our standard of review:
This Court’s standard of review regarding an order
denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
“To prevail on a claim alleging counsel’s
ineffectiveness, Appellant must demonstrate (1) that
the underlying claim is of arguable merit; (2) that
counsel’s course of conduct was without a
reasonable basis designed to effectuate his client’s
interest; and (3) that he was prejudiced by counsel’s
ineffectiveness.” Commonwealth v. Wallace, 555
Pa. 397, 407, 724 A.2d 916, 921 (1999), citing
Commonwealth v. Howard, 538 Pa. 86, 93, 645
A.2d 1300, 1304 (1994) (other citation omitted). In
order to meet the prejudice prong of the
ineffectiveness standard, a defendant must show
that there is a “‘reasonable probability that but for
counsel’s unprofessional errors, the result of the
proceeding would have been different.’”
Commonwealth v. Kimball, 555 Pa. 299, 308, 724
A.2d 326, 331 (1999), quoting Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). A “‘[r]easonable probability’
is defined as ‘a probability sufficient to undermine
confidence in the outcome.’” Id. at 309, 724 A.2d at
-5-
J. S09004/15
331, quoting Strickland, 466 U.S. at 694, 104 S. Ct.
2052.
Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal
denied, 832 A.2d 435 (Pa. 2003). “We presume counsel is effective and
place upon Appellant the burden of proving otherwise. Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)
(citations omitted).
First, appellant argues that the trial court erred by giving the jury a
transferred intent instruction on aggravated assault. Appellant argues that
the instruction was inappropriate where his intended victim was Denise Burt
and no one was injured. This issue was preserved at trial; however,
appellant contends that counsel was ineffective for failing to raise it on direct
appeal.
The trial court instructed the jury as follows:
As I said, as with the attempt to commit murder, you
can infer or transfer intent. You can infer one’s
intent, the natural and the probable consequences of
his acts. Thus in case if [sic] you find beyond a
reasonable doubt that the defendant intended to and
attempted to cause serious bodily injury to
Denise Burt, but that his acts effected [sic] or put at
risk the other four occupants of the vehicle as well,
put them at the same risk of which he placed Denise
Burt, and that the acts that he took and the other
steps that he took, constituted a substantial step
toward the commission of the infliction of serious
bodily injury, then you may find the defendant guilty
of aggravated assault, and as to the other four
victims as well.
-6-
J. S09004/15
Notes of testimony, 7/9/10 at 143.
In Commonwealth v. Jackson, 955 A.2d 441 (Pa.Super. 2008),
appeal denied, 967 A.2d 958 (Pa. 2009), the target of the shooting was
Charles Wesley (“Wesley”), but others, including several police officers, were
in the line of fire. As in this case, the appellant argued that he only intended
to shoot Wesley and there was no evidence he intended to inflict injury upon
the other individuals. The appellant argued that the doctrine of transferred
intent did not apply where no one was actually injured. Id. at 448. The
Commonwealth countered that the appellant’s admitted intent to shoot and
cause Wesley serious bodily harm satisfied the intent element for his
aggravated assault convictions of the other persons. Id.
Relying on Commonwealth v. Thompson, 739 A.2d 1023 (Pa.
1999), cert. denied, 531 U.S. 829 (2000), this court agreed. In
Thompson, the defendant shot and killed the intended victim,
Donovan “George” Aitken (“Aitken”). Jackson, 955 A.2d at 449. However,
Francisco Forbes (“Forbes”) was also in the immediate area at the time of
the shooting and had to duck and run to escape injury. Id. The defendant
was found guilty of first-degree murder as to Aitken and aggravated assault
as to Forbes. Id. Despite the fact that Forbes was not an intended victim
and suffered no harm, our supreme court held that the defendant’s intent for
the aggravated assault charge as to Forbes could be satisfied by application
of the transferred intent doctrine:
-7-
J. S09004/15
[I]n order to sustain the conviction for aggravated
assault, the Commonwealth only needed to establish
that appellant attempted to cause serious bodily
injury. There is no requirement that the victim
actually be injured. Moreover, appellant’s argument
that the transferred intent instruction was not
warranted because he did not intend to shoot Forbes
ignores the essence of the transferred intent
doctrine, that is, the person who ultimately is the
victim not be the original intended victim. “The
transferred intent theory provides that if the intent
to commit a crime exists, this intent can be
transferred for the purpose of finding the intent
element of another crime.” The evidence here
demonstrated that appellant shot in the direction of
Forbes even though he may have only intended to
shoot Aitken. This evidence was sufficient to warrant
the transferred intent instruction.
Id. at 449-450, quoting Thompson, 739 A.2d at 1029 (citations and
footnote omitted) (emphasis in original).
Following Thompson, the Jackson court reluctantly concluded2 that
the doctrine of transferred intent also applied in that case:
It is an established fact that Appellant specifically
intended to cause serious bodily injury to Wesley
with a deadly weapon. Under the doctrine,
Appellant’s intent in this regard is transferred to
Detective Waring, Officer Hood, Officer Allen, Sharee
Norton, Sharron Norton, Shanya Wesley, and Gene
Palmer. Therefore, the intent element for Appellant’s
aggravated assault convictions as to these persons
was met.
2
The court in Jackson urged our supreme court to revisit Thompson,
opining that the better rule, as set forth by the Supreme Court of Maryland
in State v. Brady, 903 A.2d 870 (Md. 2006), is that the unintended victim
must be actually injured for the transferred intent doctrine to apply. Id. at
450 n.6.
-8-
J. S09004/15
Id. at 450.
This court is bound by Thompson and Jackson. Even if appellant
only intended to inflict injury upon Burt, he could be found guilty of
aggravated assault as to the other persons in the car as well, under the
transferred intent doctrine. Therefore, the trial court did not err in
instructing the jury on transferred intent, and counsel had no basis for
raising the issue on appeal. Counsel cannot be deemed ineffective for failing
to raise a baseless or meritless claim. Poplawski, supra.3
Next, appellant raises two legality of sentencing claims. First, he
argues that his sentences should have merged where there was only one
victim, Denise Burt. According to appellant, he could not be convicted of
multiple counts of aggravated assault where he only intended to shoot Burt.
Appellant also argues that he committed a solitary criminal act by firing
inside the vehicle.
“A claim that the trial court imposed an illegal sentence by failing to
merge sentences is a question of law. Accordingly, our standard of review is
plenary.” Commonwealth v. Snyder, 870 A.2d 336, 349 (Pa.Super.
3
To the extent appellant also argues the trial court erred in issuing the
instruction regarding criminal attempt to commit murder, we note that
appellant was found not guilty of those charges. Similarly, appellant argues
that the trial court’s instruction contained a mandatory presumption on the
element of intent. (Appellant’s brief at 18-19.) Again, however, this only
pertains to the attempted murder instruction, not aggravated assault. In
addition, the issue regarding the mandatory presumption language was
never raised in the PCRA court; as such, it is waived. Pa.R.A.P. 302(a).
-9-
J. S09004/15
2005), quoting Commonwealth v. Duffy, 832 A.2d 1132, 1137 (Pa.Super.
2003), appeal denied, 845 A.2d 816 (Pa. 2004).
Our Courts have long held that where a defendant
commits multiple distinct criminal acts, concepts of
merger do not apply. Commonwealth v.
Anderson, 538 Pa. 574, 650 A.2d 20 (1994);
[Commonwealth v. Johnson, 874 A.2d 66, 70
(Pa.Super. 2005), appeal denied, 587 Pa. 720, 899
A.2d 1122 (2006)]; see also 42 Pa.C.S.A. § 9765
(“no crimes shall merge for sentencing purposes
unless the crimes arise from a single criminal act
and all of the statutory elements of one offense are
included in the statutory elements of the other
offense.”)
Commonwealth v. Robinson, 931 A.2d 15, 24 (Pa.Super. 2007)
(en banc) (emphasis in original).
Appellant argues that he fired a single shot inside the vehicle,
intending to strike Burt. (Appellant’s brief at 35.) Appellant claims that no
one actually saw him fire additional shots into the vehicle. However,
appellant mischaracterizes the record and misconstrues our standard of
review. Viewing the testimony in the light most favorable to the verdict
winner, the Commonwealth, there was ample evidence that appellant fired
multiple shots at the vehicle before it finally crashed into a garage. (Trial
court opinion, 10/30/13 at 4.) Therefore, appellant did not commit a single
criminal act as he contends on appeal.
In addition, as stated above, under the doctrine of transferred intent,
appellant could be found guilty of five separate counts of aggravated assault
for five individual victims. The Crimes Code defines aggravated assault, in
- 10 -
J. S09004/15
relevant part, as follows: “(a) Offense defined.--A person is guilty of
aggravated assault if he: (1) attempts to cause serious bodily injury to
another, or causes such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human
life[.]” 18 Pa.C.S.A. § 2702(a)(1) (emphasis added). As Section 2702 is
written with regard to an attempt to cause serious bodily injury to an
individual person, a separate offense is committed for each such attempt.
The legislature has authorized multiple sentences for multiple victims, even
arising from a single criminal act or episode. Therefore, the trial court did
not err in imposing multiple sentences for each of the five victims.
Commonwealth v. Garcia-Rivera, 983 A.2d 777 (Pa.Super. 2009) (trial
court did not err in imposing multiple, consecutive sentences for involuntary
manslaughter, 18 Pa.C.S.A. § 2504, for each of the two victims killed in a
single automobile accident).
Appellant also claims that his sentence violates Alleyne v. United
States, 133 S. Ct. 2151 (U.S. 2013), in that the trial court imposed an
aggravated range sentence based on factors not submitted to the jury,
including that his actions put at risk innocent people living in the area of the
city where the incident occurred. The trial court observed at sentencing that
bullets passed through the home of at least one resident, and that Burt’s
vehicle eventually ran off the road and crashed into a garage. (Notes of
- 11 -
J. S09004/15
testimony, 11/9/10 at 8.) According to appellant, this judicial fact-finding
violated Alleyne and resulted in an illegal sentence.
According to the Alleyne Court, a fact that increases
the sentencing floor is an element of the crime.
Thus, it ruled that facts that mandatorily increase
the range of penalties for a defendant must be
submitted to a fact-finder and proven beyond a
reasonable doubt. The Alleyne decision, therefore,
renders those Pennsylvania mandatory minimum
sentencing statutes that do not pertain to prior
convictions constitutionally infirm insofar as they
permit a judge to automatically increase a
defendant’s sentence based on a preponderance of
the evidence standard.
Commonwealth v. Thompson, 93 A.3d 478, 493-494 (Pa.Super. 2014),
quoting Commonwealth v. Watley, 81 A.3d 108, 117 (Pa.Super. 2013)
(footnote omitted).
Appellant was not sentenced to a mandatory minimum sentence.
Rather, the trial court exercised its sentencing discretion to impose an
aggravated range sentence, still well within the statutory maximum, based
on certain sentencing factors including the outrageousness of appellant’s
conduct. This did not violate Alleyne or the Apprendi line of cases. As
Mr. Justice Thomas explained in Alleyne,
In holding that facts that increase mandatory
minimum sentences must be submitted to the jury,
we take care to note what our holding does not
entail. Our ruling today does not mean that any fact
that influences judicial discretion must be found by a
jury. We have long recognized that broad
sentencing discretion, informed by judicial
factfinding, does not violate the Sixth Amendment.
See, e.g., Dillon v. United States, 560 U.S. ,
- 12 -
J. S09004/15
, 130 S. Ct. 2683, 2692, 177 L. Ed. 2d 271 (2010)
(“[W]ithin established limits[,] . . . the exercise of
[sentencing] discretion does not contravene the
Sixth Amendment even if it is informed by
judge-found facts” (emphasis deleted and internal
quotation marks omitted)); [Apprendi v. New
Jersey, 530 U.S. 466, 481 (2000)] (“[N]othing in
this history suggests that it is impermissible for
judges to exercise discretion—taking into
consideration various factors relating both to offense
and offender—in imposing a judgment within the
range prescribed by statute”).[Footnote 6]
[Footnote 6] See also United States v.
Tucker, 404 U.S. 443, 446, 92 S. Ct.
589, 30 L. Ed. 2d 592 (1972) (judges may
exercise sentencing discretion through
“an inquiry broad in scope, largely
unlimited either as to the kind of
information [they] may consider, or the
source from which it may come”);
Williams v. New York, 337 U.S. 241,
246, 69 S. Ct. 1079, 93 L. Ed. 1337
(1949) (“[B]oth before and since the
American colonies became a nation,
courts in this country and in England
practiced a policy under which a
sentencing judge could exercise a wide
discretion in the sources and types of
evidence used to assist him in
determining the kind and extent of
punishment to be imposed within limits
fixed by law”).
Alleyne, 133 S. Ct. at 2163. Therefore, appellant’s sentence was not in
violation of Alleyne and was not illegal.
Finally, appellant claims that trial and appellate counsel were
ineffective for failing to litigate a weight of the evidence claim. (Appellant’s
brief at 36-37.) Appellant offers no meaningful analysis or citation to
- 13 -
J. S09004/15
pertinent legal authority in support of a weight claim. (Id.) Appellant does
not explain why the issue would have resulted in a new trial either at the
trial level or on direct appeal. As such, the issue is waived. See
Commonwealth v. Murchinson, 899 A.2d 1159, 1162 (Pa.Super. 2006)
(applying Pa.R.A.P. 2119(a) to find waiver where the appellant failed to
develop meaningful argument with specific reference to the record in support
of his claims) (citations omitted); Commonwealth v. Hakala, 900 A.2d
404, 407 (Pa.Super. 2006), appeal denied, 909 A.2d 1288 (Pa. 2006)
(finding waiver where the appellant failed to offer either analysis or case
citation in support of his request for relief, admonishing that “[i]t is not this
Court’s function or duty to become an advocate for the appellants”), quoting
Commonwealth v. Birdseye, 637 A.2d 1036, 1043 (Pa.Super. 1994). It is
well established that pro se status confers no special benefit and “a pro se
litigant must comply with the procedural rules set forth in the Pennsylvania
Rules of the Court.” Commonwealth v. Lyons, 833 A.2d 245, 251-252
(Pa.Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005) (citation
omitted). To the extent appellant sets forth any argument whatsoever, it
seems he harkens back to his argument regarding lack of specific intent to
harm anyone other than Burt, which we have already addressed supra.
Order affirmed.
Judgment Entered.
- 14 -
J. S09004/15
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2015
- 15 -