Com. v. Jackson, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
EDMOND JACKSON,
Appellant No. 2527 EDA 2014
Appeal from the PCRA Order August 15, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0305882-2005, CP-51-CR-0603441-
2005
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 14, 2015
Edmond Jackson (“Appellant”) appeals from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We vacate and remand.
We previously summarized the facts and procedural history underlying
Appellant’s convictions in our disposition of Appellant’s direct appeal:
On the evening of October 14, 2004, Detective Ronald Dove,
Detective James Waring, Officer Thomas Hood, and Officer
Edward Allen were investigating a shooting incident that
occurred earlier in the day in the neighborhood of 33rd and
Cumberland Streets in Philadelphia. Charles Wesley was the
target of that shooting. Detectives Dove and Waring were
standing on 33rd Street, speaking to Gene Palmer about the
incident. Officers Hood and Allen were sitting in a Ford Taurus
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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parked nearby on the street. Wesley was walking south on 33rd
Street, with Sharee Norton and her two children, Sharron Norton
and Shanya Wesley.
A group of men, which included Appellant, Kyle Little,
Mufusta McCloud, Ronald Alston, and Leroy Fair was walking
toward them. The men were armed. As they neared Wesley,
they started shooting. The officers exited their vehicle. Officer
Allen pushed Palmer to the ground. Officer Hood radioed for
assistance from other officers in the area. Detective Waring,
Norton, and her children took cover. Detective Dove saw that the
gunmen were firing in his direction, and took particular note of
Appellant, who was in a white T-shirt. Detective Dove crouched
to the ground. In total, between 50 and 80 shots were fired by
the gunmen. Detective Dove fired four shots toward the
gunmen. No one was injured. Wesley ran north on 33rd Street.
The gunmen ran west on Cumberland toward 34th Street. The
detectives and the officers pursued the gunmen. When Detective
Dove rounded the corner of 33rd and Cumberland, he saw
Appellant. Appellant turned, looked over his right shoulder at
Detective Dove, and raised his gun toward the detective. In
response, Detective Dove fired one shot at Appellant. Ultimately,
Appellant and the other gunmen were apprehended.
On October 14, 2004, Appellant was charged with, inter
alia, two counts of attempted murder, seven counts of
aggravated assault, carrying firearms without a license, and
criminal conspiracy. 18 Pa.C.S.A. §§ 2502, 2702, 6106, 901,
903.
Appellant waived his right to a jury trial. Appellant’s trial
began on November 7, 2005. On November 17, 2005, the trial
court found Appellant guilty of all charges. On July 21, 2006, the
trial court sentenced . . . Appellant to 13 ½ to 27 years
incarceration.
Commonwealth v. Jackson, 955 A.2d 441, 442–443 (Pa. Super. 2008)
(footnote omitted). The panel affirmed Appellant’s judgment of sentence,
id. at 450, and the Pennsylvania Supreme Court denied Appellant’s petition
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for allowance of appeal. Commonwealth v. Jackson, 967 A.2d 958 (Pa.
2009).
Appellant filed a timely pro se PCRA petition on March 9, 2010. The
PCRA court appointed counsel who filed an amended petition on April 4,
2013, and an addendum on December 19, 2014. The Commonwealth filed a
motion to dismiss and a reply to the addendum on January 21, 2014, and
May 14, 2014, respectively. Pursuant to Pa.R.Crim.P. 907, the PCRA court
sent a notice of its intent to dismiss Appellant’s petition on July 15, 2014.
The PCRA court dismissed Appellant’s petition without a hearing on August
15, 2014. Appellant filed a timely appeal and, along with the PCRA court,
complied with Pa.R.A.P. 1925.
On appeal, Appellant presents the following questions for our review:
I. Was the PCRA court’s dismissal of the Appellant’s PCRA
Petition unsupported by the record and based on legal
error because Appellant’s sentence is illegal and violates
the provisions of the United States Constitution and the
Pennsylvania Constitution barring double jeopardy and
prior counsel was ineffective for failing to argue these
issues?
II. Was the PCRA court’s dismissal of the Appellant’s PCRA
Petition unsupported by the record and based on legal
error because Appellant’s convictions violated the Due
Process Clause of the Fourteenth Amendment to the United
States Constitution and Due Process Clause of the
Pennsylvania Constitution and prior counsel was ineffective
for failing to argue this issue?
III. Was the PCRA court’s dismissal of the Appellant’s PCRA
Petition unsupported by the record and based on legal
error because prior counsel was ineffective when he failed
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to object to Detective Dove’s testimony that the Detective
had known Mr. Jackson for two years?
IV. Was the PCRA court’s dismissal of the Appellant’s PCRA
Petition without a hearing an error because newly
discovered evidence will demonstrate Appellant’s
conviction for the attempted murder of Detective Dove
should be vacated?
V. In the alternative, should this matter be remanded back to
the PCRA Court because after filing of Appellant’s appeal,
Ronald Dove was charged with a number of crimes
stemming from his misconduct as a police officer?
Appellant’s Brief at 5.
When reviewing the propriety of an order denying PCRA relief, this
Court is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). We
grant great deference to the PCRA court’s findings that are supported in the
record and will not disturb them unless they have no support in the certified
record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).
In order to obtain collateral relief, a PCRA petitioner must establish by
a preponderance of the evidence that his conviction or sentence resulted
from one or more of the circumstances enumerated in 42 Pa.C.S. §
9543(a)(2). Instantly, Appellant asserted in his PCRA petition the existence
of ineffective assistance of counsel (“IAC”) pursuant to 42 Pa.C.S. §
9543(a)(2)(ii). To plead and prove ineffective assistance of counsel, a
petitioner must establish: (1) that the underlying issue has arguable merit;
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(2) counsel’s actions lacked an objective reasonable basis; and (3) actual
prejudice resulted from counsel’s act or failure to act. Rykard, 55 A.3d
1177, 1189–1190 (Pa. Super. 2012). A claim of ineffectiveness will be
denied if the petitioner’s evidence fails to meet any one of these prongs.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010); Commonwealth
v. Barnett, ___ A.3d ___, 2015 Pa. Super. 162 (Pa. Super., filed July 29,
2015). “We do not employ a hindsight analysis in comparing trial counsel’s
actions with other efforts he may have taken.” Commonwealth v. Stultz,
114 A.3d 865, 881 (Pa. Super. 2015). Moreover, counsel is presumed to
have rendered effective assistance. Commonwealth v. Montalvo, 114
A.3d 401, 410 (Pa. 2015). We have explained that trial counsel cannot be
deemed ineffective for failing to pursue a meritless claim. Commonwealth
v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).
Appellant first contends that prior counsel was ineffective in failing to
argue that Appellant’s sentence violates the provisions of the United States
and Pennsylvania Constitutions barring double jeopardy. Appellant’s Brief
at 17. Additionally, Appellant argues that the aggravated assault
convictions violate Pennsylvania’s merger doctrine. Id. at 20.
As the Pennsylvania Supreme Court has explained:
[t]he proscription against twice placing an individual in jeopardy
of life or limb is found in the Fifth Amendment to the United
States Constitution, made applicable to the states through the
Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784,
794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The double
jeopardy protections afforded by our state constitution are
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coextensive with those federal in origin; essentially, both
prohibit successive prosecutions and multiple punishments for
the same offense. Commonwealth v. Fletcher, 580 Pa. 403,
861 A.2d 898, 912 (Pa. 2004). We have described double
jeopardy rights as “freedom from the harassment of successive
trials and the prohibition against double punishment.”
Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313, 318 (Pa.
1980) (plurality).
Commonwealth v. States, 938 A.2d 1016, 1019 (Pa. 2007). Thus, “[a]n
individual may be punished only once for a single act which causes a single
injury to the Commonwealth.” Commonwealth v. Williams, 753 A.2d
856, 864 (Pa. Super. 2000) (citing Commonwealth v. Owens, 649 A.2d
129 (Pa. Super. 1994)).
However, where more than one person is threatened or injured by a
single act of a defendant, the defendant is criminally liable for the harm
done to each victim. Commonwealth v. Yates, 562 A.2d 908, 910 (Pa.
Super. 1989). We stated in Yates:
Thus, it remains the law of this Commonwealth that the
life and safety of each citizen is to be protected individually.
There is no “two for one discount” in the Pennsylvania Crimes
Code, and we will not permit criminals to imply one through
distortion of the common-law merger doctrine. It shall not be a
defense to liability that an indiscriminant force employed by a
criminal injured or placed at risk more or different persons than
intended. To the contrary, the only effective way for a criminal
to limit potential liability in that respect is to choose more
discriminant tools for achieving the criminal objective(s) sought,
i.e., to stop using firearms and other instruments of crime which
place bystanders at risk.
Yates, 562 A.2d at 911 (emphasis in original; footnote omitted). “[T]he
merger doctrine is generally ‘a rule of statutory construction designed to
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determine whether the legislature intended for the punishment of one
offense to encompass that for another offense arising from the same
criminal act or transaction.’” Commonwealth v. Davidson, 938 A.2d 198,
217 (Pa. 2007) (quoting Commonwealth v. Collins, 764 A.2d 1056, 1057
(Pa. 2001)). “The purpose of the merger doctrine is double jeopardy-based,
i.e., to safeguard against multiple punishments for the same act. . . . The
test for sentencing merger is the same test utilized to decide whether more
than one offense has been committed in the double jeopardy context.” Id.
at 217–218.
Our legislature has addressed the mandatory merger of crimes for the
purpose of sentencing in section 9765 of the sentencing code, which
provides as follows:
§ 9765. Merger of sentences
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. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.
42 Pa.C.S. § 9765. To determine if two offenses merge for sentencing
purposes, the sentencing court must “assess whether the charges arose out
of a single set of facts and whether all the statutory elements of one offense
coincide with the statutory elements of the other offense.” Commonwealth
v. Martz, 926 A.2d 514, 526 (Pa. Super. 2007) (emphasis in original).
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Here, the PCRA court disposed of Appellant’s double-jeopardy-based
merger issue with the following analysis:
In the petition, counsel went on to cite and discuss in support [of
Appellant’s argument] the holdings in Weakland and Williams,
which are cited and discussed in Anderson.[1] [Appellant’s]
argument would be perfectly sound if [Appellant] had been
convicted of both the attempted murder and aggravated assault
of the intended victim, and/or both the attempted murder and
aggravated assault of the bystanders. What [Appellant] failed to
mention is that in all of those cases the convictions were for
crimes which were perpetrated upon a single victim; there were
no bystanders to whom those criminal acts were also directed.
In Anderson, the defendant shot the single victim, was tried by a
jury and convicted of aggravated assault and attempted murder,
was sentenced to consecutive terms for each offense, and the
Court ruled, of course, that those two convictions should have
merged and it vacated the sentence for the assault.
* * *
Counsel’s error here is in equating a single physical act, firing a
bullet at an intended victim while bystanders are in the line of
fire, with a single legally criminal act, attempted murder, and
then equating that criminal act with the separate legally criminal
acts of assaulting the bystanders. All of the defendants in the
transferred intent cases discussed above were convicted and
sentenced for more than one assault, those against the intended
victims and those against the bystanders, based upon the single
physical act of shooting at or assaulting the intended victim with
the specific intent to injure him, which intent then transferred to
the bystanders because they were in the line of fire. . . .
[Appellant] was not charged with or convicted of aggravated
assault on the intended victim, nor was he charged with or
convicted of the attempted murder of the bystanders. Had he
been convicted of both attempting to murder and assaulting
either the intended victim and/or the bystanders then counsel’s
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1
Commonwealth v. Weakland, 559 A.2d 25 (Pa. 1989), Commonwealth
v. Williams, 555 A.2d 1228 (1989), and Commonwealth v. Anderson,
650 A.2d 20 (Pa. 1994), respectively.
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argument would have merit, but that is not what happened. He
was simply convicted of committing separate crimes by having
fired a single shot at one person while others were present and
placed in harm’s way.
PCRA Court Opinion, 11/19/14, at 24, 26–27 (footnotes omitted).
Upon review, we conclude that the PCRA court’s analysis is supported
by the record. Appellant fired multiple shots at the intended victim while
bystanders were present, thereby exposing multiple people to the risk of
serious bodily injury or death. N.T., 11/10/15, at 4–24, 55. Thus, Appellant
committed the crime of attempted murder against the intended victim and
the crime of aggravated assault against each of the seven bystander-
victims.2 Appellant was convicted of and sentenced on these eight separate
crimes. There was no lesser charge to merge into the attempted murder
conviction related to the intended victim, and there were no greater charges
into which the aggravated assault convictions related to the seven
bystanders could merge. Appellant may not escape responsibility for the
crimes he committed against the intended victim and the seven bystanders.
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2
Attempt is defined by statute as follows: “[A] person commits an attempt
when with the intent to commit a specific crime, he does any act which
constitutes a substantial step towards the commission of the crime.” 18
Pa.C.S. § 901(a). A person may be convicted of attempted murder “if he
takes a substantial step toward the commission of a killing, with the specific
intent in mind to commit such an act.” Commonwealth v. Dale, 836 A.2d
150, 152–153 (Pa. Super. 2003). “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. § 2702(a)(1).
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He is not entitled to a “discount” because his reckless conduct threatened
multiple victims. Yates, 562 A.2d at 911.
Based on the foregoing, we discern no legal error in the PCRA court’s
conclusion that Appellant’s sentence did not violate the federal or state
prohibitions against double jeopardy or Pennsylvania’s merger doctrine.
Consequently, Appellant’s underlying claim lacks merit, and prior counsel
cannot be ineffective in failing to present this argument. Loner, 836 A.2d at
132.
The Commonwealth points out that Appellant “tacks on a claim that his
sentences are illegal under 18 Pa.C.S. § 906 because he was supposedly
convicted of ‘multiple inchoate crimes for the same act.’” Commonwealth’s
Brief at 11 (citing Appellant’s Brief at 23). Specifically, Appellant argues
that, “based on a singular set of facts, [he] was convicted of more than one
inchoate crime: attempt to murder and attempt to cause serious bodily
injury. These crimes were required to merge at sentencing and they were
not merged. For this reason, Appellant’s sentence is illegal.” Appellant’s
Brief at 23. The PCRA court implicitly ruled that Appellant waived this issue
by failing to preserve and/or plead it. Then, the PCRA court “simply
reiterate[d] that [Appellant’s] convictions were based on completely
separate and distinct criminal acts, albeit based on a single physical one.”
PCRA Court Opinion, 12/19/14, at 27 (footnote omitted). Unlike the PCRA
court, we conclude that Appellant has raised a legality of sentence claim
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which we may review. See Commonwealth v. Berry, 877 A.2d 479, 487
(Pa. Super. 2005) (“[A] legality of sentence claim retains its non-waivable
status so long as the [PCRA’s] jurisdictional time limitations are satisfied.”).
Upon review, we conclude that Appellant’s position is untenable.
Section 906 of the Crimes Code states: “[a] person may not be
convicted of more than one of the inchoate crimes of criminal
attempt, criminal solicitation or criminal conspiracy for conduct
designed to commit or to culminate in the commission of the
same crime.” 18 Pa.C.S. § 906. “Section 906 was designed to
prevent multiple inchoate charges that carry with them the same
criminal intent.” Commonwealth v. Davis, 704 A.2d 650, 653
(Pa.Super.1997). Under section 906, “inchoate crimes merge
only when directed to the commission of the same crime, not
merely because they arise out of the same incident.”
Commonwealth v. Graves, 510 Pa. 423, 508 A.2d 1198
(1986) (emphasis added).
Commonwealth v. Welch, 912 A.2d 857, 859 (Pa. Super. 2006).
To the extent Appellant posits that aggravated assault is one of the
multiple inchoate crimes, he is incorrect. “Statutes that make an attempt to
accomplish something sufficient to complete the crime say so explicitly.”
See Commonwealth v. Sims, 883 A.2d 593, 597 (Pa. 2005), rev’d on
other grounds, 919 A.2d 931 (Pa. 2007) (citing simple assault, 18 Pa.C.S. §
2701; aggravated assault, 18 Pa.C.S. § 2702; and robbery, 18 Pa.C.S. §
3701(2)). In other words, notwithstanding its “attempt to cause serious
bodily injury” component, aggravated assault is not an inchoate offense.
Furthermore, we observe that Appellant was charged with—and convicted
of—two counts of one inchoate crime, i.e., attempted murder. Although the
two attempts arose out of the same criminal incident, they were intended to
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culminate in the commission of two different crimes, the death of the
intended victim and the death of Detective Ronald Dove (“Dove”).
Therefore, Appellant’s sentences do not run afoul of section 906, and
Appellant’s legality of sentence challenge fails.
Next, Appellant contends that prior counsel was ineffective for failing
to argue that his convictions violated the due process clauses of the United
States and Pennsylvania Constitutions. Appellant’s Brief at 26. According to
Appellant, the Commonwealth failed to prove beyond a reasonable doubt the
mens rea element of his aggravated assault convictions. Id. at 27.
Essentially, Appellant challenges the sufficiency of the evidence as an IAC
claim that prior counsel failed to challenge the doctrine of transferred intent
as a “constitutional issue of a violation of Due Process.” Id. at 28.
The Commonwealth counters that Appellant’s underlying claim was
previously litigated on direct appeal and, therefore, is not reviewable
pursuant to 42 Pa.C.S. § 9543(a)(3). Commonwealth’s Brief at 13. The
Commonwealth further submits that an issue has been previously litigated if
“the highest appellate court in which the petitioner could have had review as
a matter of right has ruled on the merits of the issue.” Id. at 13 (citing 42
Pa.C.S. § 9544(a)(2)).
The PCRA court agreed with the Commonwealth that Appellant’s
underlying claim was previously litigated:
Our Supreme Court in Thompson, and this Court in
[Appellant’s] direct appeal, have specifically ruled that the
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transfer of the perpetrator’s intent to harm the intended victim
to the unintended victims provided sufficient proof of the intent
element of the crime of assault upon the latter, which, to
intentionally belabor the point, is just another way of saying that
[Appellant was] not . . . deprived of [his] liberty without full
comport with the due process of law. PCRA counsel’s theory that
applying transferred intent violates the due process clauses is
not only not a new theory, it is the specific theory that was
raised and rejected in [Appellant’s] direct appeal and he cannot
be allowed to relitigate that theory under the sham pretext of a
claim of ineffective assistance of counsel.
PCRA Court Opinion, 11/19/14, at 23 (internal quoted material and citation
omitted).
The PCRA court is correct. Although Appellant currently frames this
challenge as an IAC claim, this Court previously addressed the underlying
contention as a challenge to “the sufficiency of the evidence to sustain his
convictions for the aggravated assaults of Detective Waring, Officer Hood,
Officer Allen, Sharee Norton, Sharron Norton, Shanya Wesley, and Gene
Palmer.” Jackson, 955 A.2d at 445. We examined Appellant’s challenge in
depth, as follows:
While Appellant admits that he intended to shoot Wesley,
Appellant contends that these other persons were simply in the
way. Appellant argues that the Commonwealth failed to
establish that he had the specific intent to cause serious bodily
injury to any of these persons, and thus, the requisite intent for
his aggravated assault convictions is lacking.
Under the Crimes Code, 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;
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***
(4) attempts to cause or intentionally or knowingly causes
bodily injury to another with a deadly weapon[.]
18 Pa.C.S.A. § 2702(a)(1), (4). An attempt under § 2702(a),
requires a showing of a substantial step toward causing serious
bodily injury to another, accompanied by an intent to inflict
serious bodily injury. 18 Pa.C.S.A. § 901(a); Commonwealth
v. Matthew, 589 Pa. 487, 909 A.2d 1254, 1257 (2006).
“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. A
“[d]eadly weapon” is “[a]ny firearm, whether loaded or
unloaded, or any device designed as a weapon and capable of
producing death or serious bodily injury[.]” 18 Pa.C.S.A. §
2301.
“A person acts intentionally with respect to a material
aspect of an offense when ... it is his conscious object to engage
in conduct of that nature or to cause such a result[.]” 18
Pa.C.S.A. § 302(b)(1)(i). “‘As intent is a subjective frame of
mind, it is of necessity difficult of direct proof.’” Matthew, 909
A.2d at 1257 (citations omitted). “The intent to cause serious
bodily injury may be proven by direct or circumstantial
evidence.” Id.
In Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d
887 (1978), the Pennsylvania Supreme Court articulated a
totality of the circumstances test for determining whether a
defendant, who was charged under the attempt provision of the
aggravated assault statute, possessed the intent to inflict serous
[sic] bodily injury. The test the Court provided consisted of a
non-exhaustive list of factors to be considered on a case-by-case
basis. The list included evidence of a significant difference in
size or strength between the defendant and the victim, any
restraint on the defendant preventing him from escalating the
attack, the defendant’s use of a weapon or other implement to
aid his attack, and statements or actions that might indicate his
intent to inflict injury. Id. at 889. Recently, in Matthew, the
Supreme Court re-affirmed the totality of the circumstances test
announced in Alexander, and held that the test should be used
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to decide whether there is sufficient evidence to convict a
defendant charged with aggravated assault for attempting to
inflict serious bodily injury upon another. Matthew, 909 A.2d at
1259.
In this case, there is no direct evidence of Appellant’s
intent to cause serious bodily injury to Detective Waring, Officer
Hood, Officer Allen, Sharee Norton, her two children, or Gene
Palmer. Thus, any evidence of Appellant’s intent to do so must
be gleaned from the other circumstances surrounding the shots
Appellant fired on the evening of October 14, 2004. The
evidence shows that these persons were near Wesley, the
person Appellant admitted he intended to shoot. The evidence
also establishes that these persons were in the line of fire when
Appellant started shooting at Wesley.
* * *
As noted, on the issue of Appellant’s intent in the present
case, the evidence shows that Detective Waring, Officer Hood,
Officer Allen, Sharee Norton, Sharron Norton, Shanya Wesley,
and Gene Palmer were near Appellant’s intended victim. The
evidence also shows that Appellant fired a deadly weapon toward
them. There is, however, no other evidence, in the form of
circumstances, actions or words, occurring before, during, or
after the shooting, that tends to demonstrate that Appellant
specifically intended to inflict injury upon these particular
persons. Therefore, the only circumstance in the record from
which it may be inferred that Appellant had the intent to cause
these persons serious bodily injury was his firing a deadly
weapon in their direction. Based on the totality of the
circumstances, we conclude that the evidence was insufficient to
establish beyond a reasonable doubt that Appellant harbored the
specific intent to cause serious bodily injury with a deadly
weapon to any of these persons.
Nonetheless, the Commonwealth contends that Appellant’s
convictions for aggravated assault must stand. The
Commonwealth argues that even if the evidence is insufficient to
establish that Appellant had the specific intent to seriously injure
these persons, the intent element is satisfied under the doctrine
of transferred intent.4 The Commonwealth argues that under
the doctrine, Appellant’s admitted intent to shoot and cause
Wesley serious bodily harm, satisfies the intent element for
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Appellant’s aggravated assault convictions of these persons.
Appellant counters that the doctrine of transferred intent does
not apply in this case because these persons were not actually
injured. It is Appellant’s position that the doctrine is not meant
to apply and has not been applied to a charge of aggravated
assault, when criminal liability is premised on the attempt to
cause serious bodily injury to another. See, e.g., State v.
Brady, 393 Md. 502, 903 A.2d 870 (2006), cited in
Commonwealth v. Bullock, 590 Pa. 480, 913 A.2d 207, 219 n.
11 (2006), (concluding that the transferred intent doctrine does
not apply to crimes of attempt because the defendant has
committed a complete crime against the intended victim).
Appellant further argues that 18 Pa.C.S.A. § 303(b), enacted to
reflect existing law, reveals that the doctrine is to be used only
where a defendant shoots a gun at a person, intending to cause
serious bodily injury, but hits another, or where the defendant
shoots the intended victim, but the bullet does not cause serious
harm.
4
The doctrine of transferred intent was codified in
18 Pa.C.S.A. § 303. Commonwealth v. Devine,
750 A.2d 899, 904 (Pa.Super.2000), appeal denied,
564 Pa. 703, 764 A.2d 1065 (2000). The statute
provides in relevant part:
§ 303. Causal relationship between conduct
and result
(b) Divergence between result designed or
contemplated and actual result.—When
intentionally or knowingly causing a particular result
is an element of an offense, the element is not
established if the actual result is not within the intent
or the contemplation of the actor unless:
(1) the actual result differs from that designed or
contemplated as the case may be, only in the
respect that a different person or different property
is injured or affected or that the injury or harm
designed or contemplated would have been more
serious or more extensive than that caused; or
(2) the actual result involves the same kind of injury
or harm as that designed or contemplated and is not
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too remote or accidental in its occurrence to have a
bearing on the actor's liability or on the gravity of his
offense.
18 Pa.C.S.A. § 303(b).
* * *
In Commonwealth v. Thompson, 559 Pa. 229, 739 A.2d
1023 (1999), cert. denied, 531 U.S. 829, 121 S. Ct. 79, 148
L. Ed. 2d 41 (2000), our Supreme Court considered the doctrine
of transferred intent. Based upon the Court’s pronouncement in
Thompson regarding the doctrine, we are compelled to agree
with the Commonwealth that the doctrine applies in Appellant’s
case. In Thompson, the evidence established that Francisco
Forbes drove to Donovan “George” Aitken’s apartment. Forbes
was involved in Aitken’s marijuana business. When Forbes
exited his vehicle, the defendant approached him and asked for
a cigarette. Forbes indicated that he did not smoke, crossed the
street, and entered Aitken’s apartment building. Later, Forbes,
Aitken, and Aitken’s girlfriend exited the building. As Forbes was
crossing the street towards his car, he saw the defendant pull
out a handgun and begin firing. Forbes ducked, ran toward the
apartment building, and escaped injury. Aitken was shot and fell
to the ground. The defendant shot Aitken several more times.
Aitken died from the gunshot wounds.
The defendant was charged and convicted of, inter alia,
first-degree murder as to Aitken and aggravated assault as to
Forbes. The Commonwealth’s theory on the element of intent
for the aggravated assault charge incorporated the doctrine of
transferred intent. The trial court found that the doctrine applied
and charged the jury accordingly.
On appeal to the Supreme Court, the defendant challenged
the sufficiency of the evidence on his conviction for aggravated
assault as to Forbes. The defendant also asserted that the trial
court erred in instructing the jury on the doctrine. The
defendant argued that the instruction was not warranted
because Forbes was not an intended victim and because Forbes
suffered no harm.
The Supreme Court rejected the defendant’s argument,
ruling that the doctrine of transferred intent applied in his case.
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In doing so, the Court made clear that the defendant’s intent for
the aggravated assault charge as to Forbes could be satisfied by
application of the doctrine, even though Aitken, and not Forbes,
was the intended victim, and despite the fact that Forbes was
not injured. The Court stated:
[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. Where the evidence is sufficient to
support an instruction, a new trial is not warranted. Hence,
this claim warrants no relief.
Id. at 1029 (citations and footnote omitted) (emphasis in
original).
We conclude that Thompson controls and teaches that the
doctrine of transferred intent applies in Appellant’s 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. Viewing the evidence in the light
most favorable to the Commonwealth as verdict winner, together
with all the reasonable inferences to be drawn, we conclude that
the evidence was sufficient to sustain Appellant’s convictions for
aggravated assault.
Jackson, 955 A.2d at 445–446, 448-450 (some footnotes omitted).
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This Court already determined that Appellant’s aggravated assault
convictions were supported by sufficient evidence of intent through
application of the doctrine of transferred intent. Therefore, we conclude that
application of the transferred-intent doctrine did not result in a violation of
Appellant’s due process rights. We further conclude that counsel was not
ineffective for failing to argue that the convictions violated the federal and
state due-process clauses.
Through his third question, Appellant asserts that trial counsel was
ineffective for failing to object to the testimony of Dove that Dove had
known Appellant for two years. Appellant’s Brief at 34. Appellant contends
that this testimony was prejudicial because it raised an inference that
Appellant had committed other crimes, and it stripped him “of the
presumption of innocence.” Id. at 35.
The challenged testimony arose during Dove’s direct examination:
Q: Had you ever seen – you said you arrested Edmond
Jackson?
A: Yes.
Q: Had you ever seen him before?
A: Yes.
Q: How long before October 14, 2004 had you seen Mr.
Jackson?
A: I’ve known of him for maybe two years, I probably seen
him a couple times in between that.
N.T., 11/15/05, at 97–98.
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The PCRA court rejected Appellant’s argument with the following
analysis:
PCRA counsel described the testimony as follows: “The
Detective explained that he was able to identify [Appellant]
because he had known him for ‘maybe two years.’ [(](N.T.)
11/15/05 at 97–98) and had seen [Appellant] a couple of times
during that period.”; counsel then went on to acknowledge that
“Although the Detective did not explicitly state that he knew
[Appellant] from prior criminal contacts, but then leapt to the
conclusion that that was the obvious implication.”
* * *
[O]ur courts have made explicitly clear that, as long as any
references that the police make as to their prior personal
knowledge of a defendant’s identity are devoid of any
suggestions of prior criminal acts, those references would not be
improper. . . . Even if a judge or jury would have assumed that
the officer’s prior knowledge of the defendant’s identity did mean
that he had prior criminal run-ins with the law, it would not have
amounted to undue prejudice in view of all of the other relevant
incriminating evidence.
* * *
In the amended petition, counsel went on to note that
when the prosecutor began to ask the officer about knowing the
other defendants, their attorneys objected but were overruled,
but then concluded with the bald assumptions that [Appellant’s]
trial counsel had no reasonable strategic basis for not objecting
or requesting a mistrial, that had he objected and cited Clark
and Trowery,[3] he would have been sustained, and that
“Significant prejudice resulted because [i]f the Court had not
known about [Appellant’s] prior contacts with the law, there is a
reasonable likelihood the outcome of the trial would have been
different. Of course, prior counsel’s “reasonable strategic basis
____________________________________________
3
Commonwealth v. Clark, 309 A.2d 589 (Pa. 1973), and
Commonwealth v. Trowery, 235 A.2d 171 (Pa. Super. 1967),
respectively.
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for not objecting or requesting a mistrial” was obviously the
ethical duty of every attorney not to burden the court with
completely frivolous objections or motions. Equally, of course,
the next three conclusions are solely based on the unsupported
assumptions that the officer’s comment did, in fact, imply “prior
contacts with the law” and was, therefore, prejudicial and, was,
therefore, objectionable, all of which assumptions every court
quoted above clearly stated are erroneous if the comment does
not contain any indication of prior criminal activity on the part of
the defendant. Other than that, the defendant made no
attempts to demonstrate how those simple innocuous remarks
had any effect on his convictions or that the outcome of the trial
would have been different had his attorney objected and been
sustained.
Shorn of all those assumptions, [Appellant’s] argument is
reduced to simply saying that his prior counsel erred and
[Appellant] was thereby prejudiced, which is clearly both a
failure to properly plead a case for PCRA relief, to plead and
prove by a preponderance of the evidence that the underlying
claim has arguable merit, counsel had not reasonable basis for
his inaction and [Appellant] suffered prejudice as a result to the
extent that the truth-determining process was so undermined
that no reliable adjudication of guilty could have taken place,
and, more particularly, a failure to preserve the issue for appeal,
since he does not specify any of those alleged, or any other,
deficiencies in counsels’ conduct in the 1925(b) Statement. In
any event, since [Appellant] agrees that the officer only said he
know him, period, this court need only point out that there
would have been no basis for any objection and, therefore, his
trial counsel cannot be faulted for not raising a frivolous one.
And, finally, even if the trial judge did reach an inference of prior
criminal activity, it would properly have been considered
harmless in view of all of the other evidence.
PCRA Court Opinion, 11/19/14, at 7–12 (footnote and internal citations
omitted).
Pennsylvania courts have addressed the issue Appellant now presents
in myriad cases. Commonwealth v. Sanders, 442 A.2d 817, 818 (Pa.
Super. 1982); Commonwealth v. Potts, 460 A.2d 1127 (Pa. Super. 1983);
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Commonwealth v. Smith, 552 A.2d 1053 (Pa. Super. 1988);
Commonwealth v. Robinson, 864 A.2d 460 (Pa. 2004). Specifically, in
Smith, we reviewed a PCRA petitioner’s claim that the trial court erred in
allowing various police officers to refer to their prior contacts with the
petitioner and that trial counsel was ineffective for failing to preserve this
claim for review. Smith, 552 A.2d at 1060. We acknowledged that
reference to prior criminal activity by the accused, either expressly or by
reasonable implication, is impermissible. Id. (citing Commonwealth v.
Percell, 454 A.2d 542, 544 (Pa. 1982)). We further recognized, however,
that “not everything a policeman says about a person constitutes an
inference of prior criminal activity on the part of that person.” Id. (quoting
Sanders, 442 A.2d at 818). Indeed:
[m]erely because a police officer knows someone or
knows where [he] may be found does not suggest that
the person has been engaged in prior criminal activity. A
policeman may know someone because they reside in the
same neighborhood or for any number of reasons. We
refuse to hold that a policeman’s statement to the effect
that he knew someone, knew his nickname, or was
familiar with the person’s whereabouts raises an
inference of prior criminal activity.
Smith, 552 A.2d at 1060 (quoting Sanders, 442 A.2d at 818).
Here, Dove testified, “I’ve known of [Appellant] for maybe two years, I
probably seen him a couple times in between that.” N.T., 11/15/05, at 97–
98. Because the officer testified only that he knew Appellant and had seen
him a couple of times, Appellant’s claim that this testimony raised an
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impermissible inference of prior criminal activity is meritless. Smith and
Sanders; see also Commonwealth v. Riggins, 386 A.2d 520, 524 (Pa.
1978) (police detective’s testimony that he knew where defendant lived
“cannot be said to have given the jury the impression that appellant must
have been involved in prior criminal activity”). Accordingly, we hold that
trial counsel was not ineffective for failing to preserve a claim relating to the
admissibility of Dove’s testimony.
Appellant’s fourth issue challenges the dismissal of his petition without
a hearing based upon newly discovered evidence. Appellant’s Brief at 37.
According to Appellant, his conviction for the attempted murder of Dove
should be vacated based on news of Dove’s official firing from the
Philadelphia Police Department on or before December 6, 2013, for
withholding evidence in multiple homicide cases. Id. at 38.4 Citing
Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014), Appellant
acknowledges that a newspaper article, in and of itself, does not constitute
newly discovered evidence. Appellant’s Brief at 40. For that reason,
Appellant complains that the PCRA court denied his request for permission
and funding to conduct discovery regarding Dove’s misconduct “and the
____________________________________________
4
Based on Dove’s testimony that he knew Appellant, that he saw a man in
a white shirt raise a gun toward him, and that Appellant was wearing a white
shirt when apprehended, Appellant was the only co-defendant charged with
and convicted of the attempted murder of Dove. N.T., 11/15/05, at 74–78,
81–82, 97–98.
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implications for Appellant’s case.” Id. at 38–39, 40. Also relying on the
Castro decision, the PCRA court dismissed Appellant’s petition without
allowing discovery or conducting a hearing because Appellant “did not
present any real evidence or the identities of any witnesses who could
supply such evidence to support his after discovered evidence claim.” PCRA
Court Opinion, 11/19/14, at 31.
The Castro decision addressed “whether a newspaper article
submitted as the sole support for a motion for new trial on the basis of after-
discovered evidence warrants the grant of a hearing.” Castro, 93 A.3d at
819. Castro was convicted of drug offenses based on evidence that
Philadelphia Police Officer Cujdik gave pre-recorded money to a confidential
informant, who then entered the defendant’s home and purchased drugs.
Four days after Castro’s trial, the Philadelphia Daily News published an
article alleging that Officer Cujdik was under investigation for corruption and
falsification of evidence in another case involving the same confidential
informant. Holding that allegations in the article did not constitute evidence,
the Pennsylvania Supreme Court reversed this Court’s order remanding for a
hearing on Castro’s after-discovered evidence claim. Id. at 828.
Here, Appellant acknowledges that, at the time of his PCRA petition
and addendum, his “only proof of [Dove’s] misconduct was media reports.”
Appellant’s Brief at 38. For that reason, Appellant requested leave “to send
subpoenas for Dove’s internal affairs files, personnel file, disciplinary file,
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and his departmental file.” Id. at 40. According to Appellant, “additional
discovery was appropriate and necessary” to show that Dove “flouted
departmental policies and routinely lied during homicide investigations.” Id.
We note that the denial of a request for post-conviction discovery is
reviewed for an abuse of discretion. Commonwealth v. Collins, 957 A.2d
237, 272 (Pa. 2008). Discovery in PCRA proceedings cannot be used as an
excuse for engaging in a “fishing expedition.” Commonwealth v. Lark,
746 A.2d 585, 591 (Pa. 2000).
Appellant’s argument is not persuasive for two reasons. First, the
Castro Court expressly rejected newspaper articles, absent more, as
sufficient evidence to warrant a new trial or—by extension under the PCRA—
an evidentiary hearing. Second, Appellant can only speculate as to what he
would have found in Dove’s files if he had been permitted discovery. We
discern no abuse of the PCRA court’s discretion in refusing to allow a fishing
expedition based on a newspaper article and Appellant’s speculation. Lark,
746 A.2d at 591.
We reach the opposite conclusion with regard to Appellant’s fifth issue,
which, because of timing, the PCRA court did not address. According to
Appellant, while this appeal from the denial of collateral relief was pending,
“Ronald Dove was arrested and charged with: obstructing justice, unsworn
falsification to authorities, tamp[er]ing with/fabricating evidence, hindering
prosecution, flight, and conspiracy.” Appellant’s Brief at 42 (citing Appellate
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Brief Appendix D, “Dove Docket” at 2). We take judicial notice of the
criminal docket at CP-51-CR-0001382-2015, Commonwealth v. Ronald S.
Dove, and the charges listed therein as set forth by Appellant. Moreover,
we take judicial notice of the following docket entries: “Case relisted for
status of negotiations/possible non-trial disposition on 9/8/15 courtroom
1008. Trial readiness conference scheduled for 2/15/16 courtroom 1008.
Jury Trial date scheduled for 2/17/16 courtroom 1008. Defendant is on bail
and has signed service.” Docket No. CP-51-CR-0001382-2015 at 4.
In light of the change in Dove’s status from “under investigation” to
“facing charges,” Appellant requests that we remand for an evidentiary
hearing. Appellant’s Brief at 43. To be entitled to relief under the PCRA on
this basis:
the petitioner must plead and prove by a preponderance of the
evidence “[t]he unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would
have changed the outcome of the trial if it had been introduced.”
42 Pa.C.S.A. § 9543(a)(2)(vi). As our Supreme Court has
summarized:
To obtain relief based on after-discovered evidence,
[an] appellant must demonstrate that the evidence:
(1) could not have been obtained prior to the
conclusion of the trial by the exercise of reasonable
diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach
the credibility of a witness; and (4) would likely
result in a different verdict if a new trial were
granted.
Commonwealth v. Pagan, 597 Pa. 69, 106, 950 A.2d 270, 292
(2008) (citations omitted). “The test is conjunctive; the
[appellant] must show by a preponderance of the evidence that
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each of these factors has been met in order for a new trial to be
warranted.” Commonwealth v. Padillas, 997 A.2d 356, 363
(Pa.Super.2010) (citation omitted). Further, when reviewing the
decision to grant or deny a new trial on the basis of after-
discovered evidence, an appellate court is to determine whether
the PCRA court committed an abuse of discretion or error of law
that controlled the outcome of the case. Commonwealth v.
Reese, 444 Pa.Super. 38, 663 A.2d 206 (1995).
Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012).
Upon application of the four-prong test to Appellant’s after-discovered-
evidence claim, we conclude that he is entitled to an evidentiary hearing.
First, Appellant could not have obtained evidence regarding Dove’s alleged
official misconduct prior to the conclusion of his trial because the initial
newspaper article was not published until years after Appellant’s trial
concluded. Second, as Appellant submits, evidence of Dove’s alleged
misconduct “was not cumulative because nothing offered at trial
demonstrated that Dove habitually manipulated evidence or improperly
interfered with homicide investigations.” Appellant’s Brief at 41. Third,
although evidence of Dove’s misconduct in other homicide cases would serve
to impeach Dove’s testimony, such evidence—if connected to Appellant’s
case and believed—could also result in a different verdict because Dove’s
testimony was the sole basis for Appellant’s second attempted-murder
conviction and sentence.5 Accord Commonwealth v. Rivera, 939 A.2d
____________________________________________
5
Compare Foreman, 55 A.3d at 537 (where appellant did not establish a
nexus between his case and detective’s alleged misconduct, other evidence
(Footnote Continued Next Page)
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355, 359 (Pa. Super. 2007) (holding that appellant was entitled to
evidentiary hearing where he could not have discovered expert witness’
alleged criminal activities before his trial ended; this after-discovered
evidence was neither corroborative nor cumulative; the after-discovered
evidence called into serious question the type and amount of drug upon
which appellant’s conviction and sentence were based).
In sum, we conclude that Appellant’s first four claims do not establish
a basis for PCRA relief. However, in his fifth claim, Appellant presents more
than a newspaper article alleging misconduct by Dove. Actual charges
implicating the former detective’s role in Appellant’s case have been filed
against Dove. Thus, we conclude that Appellant’s final issue warrants an
evidentiary hearing to determine if collateral relief in the form of a new trial
is warranted based upon after-discovered evidence.
Order vacated. Case remanded for an evidentiary hearing consistent
with this Memorandum. Jurisdiction relinquished.
_______________________
(Footnote Continued)
of appellant’s guilt existed, and detective was eventually found not guilty of
all charges, appellant’s assertion that detective committed misconduct in his
case was pure conjecture and would not compel a different jury verdict);
Commonwealth v. Estepp, 17 A.3d 939, 943 (Pa. Super. 2011)
(“Appellant can only speculate about possible corruption that has not been
corroborated.”). But see Foreman, 55 A.3d at 539 (Wecht, J. dissenting)
(“[If] the goal is to find justice, there well may be circumstances where
after-discovered evidence that goes only to attack credibility may justify a
new trial.”) (citing Commonwealth v. Choice, 830 A.2d 1005 (Pa. Super.
2003) (Klein, J. dissenting)).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2015
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