Com. v. Phomma, K.

J-S33023-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KHAMPHOY PHOMMA, :
:
Appellant : No. 1713 EDA 2014
Appeal from the PCRA Order May 19, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0402861-2006
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JUNE 10, 2015
Khamphoy Phomma (“Phomma”) appeals from the May 19, 2014 order
of the Philadelphia County Court of Common Pleas dismissing his petition
filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546
(“PCRA”), without a hearing. Upon review, we affirm.
We previously summarized the facts of this case when deciding
Phomma’s direct appeal as follows:
On February 1, 2006, Philadelphia Police went to
an apartment building located at 6344 North Eighth
Street to investigate a report of a killing inside of
Apartment 304. Upon arrival, police discovered the
body of Danh Nguyen. Mr. Nguyen had been stabbed
and was obviously dead. An autopsy of his body
revealed that he had been stabbed twice in the left
chest that caused injuries to his heart and both
lungs. There were also four other superficial stab
wounds to the victim’s body observed during the
autopsy. The manner of death was deemed to be
homicide.
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Subsequent investigation revealed that on the
night of the incident, several people, including the
victim, Dat Huynh, Thai Lam, John Tieu, and
someone named Thomas, had gathered at the
apartment to play cards. Apparently, the victim won
a lot of money during the game and some of the
losers stated that they were going to get their
money back.
[Phomma] was not present when the game began
and appeared at the apartment later in the evening.
Dat Huynh, a resident of the apartment, left prior to
the killing and as he was leaving, he encountered
[Phomma], Lam, and Thomas, outside his
apartment. Thai Lam stated he was going to take
back the money he lost to the victim and Huynh told
him not to do anything to the victim because he was
a close friend. When Hyunh returned, police were
outside his apartment.
After Huynh departed, [Phomma] and Thai Lam
entered the apartment. Lam, who had a mask
covering his face, pulled out a gun and ordered
everyone to get down. Contemporaneous therewith,
[Phomma] went into the kitchen and ordered the
victim to hand over his money. According to John
Tieu, the victim ignored [Phomma] and the two men
began fighting. Tieu fled when the fight started and
learned that the victim had been killed the next day.
On February 2, 2006, Homicide Detective John
Verrecchio, acting on information given to police,
went to [Phomma’s] residence to locate [Phomma’s]
vehicle and to speak to [Phomma] who had been
identified as a suspect in the victim’s death. Upon
arrival, the detective observed that [Phomma’s] car
was parked across the street from [Phomma’s]
residence. He then went to [Phomma’s] residence
and was eventually admitted inside by [Phomma’s]
sister. Once inside, Detective Verrecchio told
[Phomma’s] sister that he wanted to speak to
[Phomma]. [Phomma’s] sister went to [Phomma’s]
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bedroom and had him come downstairs. When
[Phomma] did so, Detective Verrecchio told him that
there had been an incident at which time [Phomma]
volunteered that he had been involved in a fight at
the location mentioned by the detective.
After [Phomma] volunteered that he had been
involved in the fight, Detective Verrecchio placed
[Phomma] under arrest. [Phomma] was then placed
inside a police vehicle by uniformed officers so that
he could be transferred to the Homicide Unit at the
police headquarters. Prior to leaving the scene,
however, an officer approached Detective Verrecchio
and told him that [Phomma] was talking about the
incident. Detective Verrecchio went to [Phomma]
and gave him Miranda warnings after which
[Phomma], without questioning, stated that he
stabbed the victim. [Phomma] was then transported
to police headquarters where, [Phomma] gave a
formal statement upon being administered and then
formally waiving the rights afforded under Miranda.
In his statement, [Phomma] first told authorities
that during the card game, he became frustrated
because he had lost some money and that after
losing a hand he threw his cards on top of the
victim’s money scattering it. The victim, who
[Phomma] heard had a reputation for being tough,
became incensed and approached [Phomma].
[Phomma] stated that he picked up the victim’s knife
after the victim punched [Phomma] in the mouth
and stabbed the victim in the side of his chest.
[Phomma] stated that he stabbed the victim a
second time when the victim continued to come at
him. [Phomma] then threw the knife down and fled
the residence. As he fled, he picked up some of the
money sitting on the floor.
[Phomma] recanted much of what he told police
about the incident after police advised him that they
wanted to ask him additional questions following
their review of a statement given by another
witness. During the supplemental interview,
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[Phomma] stated that when he arrived at the
apartment, he saw Thai Lam outside it and Lam told
him that he wanted to rob the guy who had won
money from him. According to [Phomma], Lam
asked [Phomma] to assist in the robbery but
[Phomma] refused. [Phomma] then went inside and
began playing cards. During the game, Lam and a
friend of the victim’s got into an argument. When the
victim stood up, [Phomma] believed that the victim
was about to go after Lam so he grabbed the victim
from behind and punched him in the back. The
victim turned around and began swinging at
[Phomma] who grabbed a knife and stabbed him.
[Phomma] stated that he and Lam then fled the
scene. [Phomma] admitted that the victim did not
punch him in the face.
[Phomma] further stated that upon leaving the
apartment he called 911 and told police that four
black guys had entered the apartment and
committed a robbery. [Phomma] thereafter told his
girlfriend and another friend that he had stabbed the
victim. He also discarded his bloody clothes in a
sewer located across the street from his house,
which police later recovered.[FN]
______________________
[FN]
Police recovered [Phomma’s] clothing based on
the information [Phomma] provided during his
interview. Police also recovered the murder weapon
from the scene of the incident.
Commonwealth v. Phomma, 122 EDA 2010, 1-4 (Pa. Super. Dec. 9,
2010) (quoting Trial Court Opinion, 3/1/10, at 2-5) (footnote citation to
Miranda omitted).
Following a bench trial held on June 7, 2007, the trial court convicted
Phomma of third-degree murder and possessing an instrument of crime for
the stabbing death of Danh Nguyen. The trial court acquitted him of robbery
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and criminal conspiracy. It sentenced Phomma on August 9, 2007 to an
aggregate term of twenty to forty years of imprisonment.
The lower court reinstated Phomma’s right to file post-sentence
motions and direct appeal rights on December 3, 2009. Phomma filed post-
sentence motions nunc pro tunc on December 16, 2009, and the trial court
denied relief the same day. Phomma appealed his conviction to this Court,
challenging the trial court’s denial of his motion to suppress, the sufficiency
of the evidence to support his conviction of third-degree murder, and
discretionary aspects of his sentence. A panel of this Court affirmed his
judgment of sentence in an unpublished Memorandum on December 9,
2010. The Pennsylvania Supreme Court denied Phomma’s request for
allowance of appeal on June 27, 2011.
Phomma, acting pro se, filed the instant timely PCRA petition on
December 19, 2011. The PCRA court appointed counsel to represent
Phomma, and counsel filed an amended PCRA petition on August 10, 2012
alleging that prior counsel was ineffective for failing to preserve a challenge
to the weight of the evidence. The Commonwealth filed a response on
March 5, 2014. On April 16, 2014, the PCRA court sent notice of its
intention to dismiss Phomma’s PCRA petition without a hearing, and
ultimately dismissed the petition on May 19, 2014.
Phomma filed a timely notice of appeal, followed by a court-ordered
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
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1925(b). The PCRA court filed a responsive opinion pursuant to Pa.R.A.P.
1925(a).
On appeal, Phomma raises one issue for our review: “Did the PCRA
[c]ourt err when it dismissed [Phomma]’s [a]mended PCRA [p]etition
without a [h]earing even though [Phomma] properly pled and would have
been able to prove that he was entitled to relief?” Phomma’s Brief at 3.
We review a PCRA court’s decision to determine whether the record
supports it and to ensure it is free of legal error. Commonwealth v.
Walker, 110 A.3d 1000, 1003 (Pa. Super. 2015). As stated above, the
PCRA court dismissed Phomma’s petition without an evidentiary hearing
based upon its conclusion that the issue raised therein was meritless.
The 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
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.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation
omitted).
Phomma raises a claim of ineffective assistance of counsel. In
resolving a question of counsel’s effectiveness, we begin with the
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presumption that counsel rendered effective assistance. Commonwealth
v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that
presumption, the petitioner must establish: “(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.” Id. (citation
omitted). If the petitioner fails to prove any of these prongs, the claim is
subject to dismissal. Id.Phomma bases his ineffectiveness claim on prior counsel’s failure to
preserve a weight of the evidence claim. Phomma’s Brief at 8. Phomma
contends that the verdict was in fact contrary to the weight of the evidence
for two reasons: (1) the Commonwealth failed to disprove that he killed the
victim in self-defense and (2) the Commonwealth failed to prove that he
acted with the requisite malice to support his conviction of third-degree
murder. Id. at 8-10.
The PCRA court found that both of Phomma’s claims utterly lacked
merit. In relation to his first argument regarding self-defense, the PCRA
court found as follows:
[Phomma’s] claim that he acted in self-defense
rests entirely on a portion of [Phomma’s] statement
to police wherein he remarked that he stabbed the
victim after the victim attacked him with a knife.
However, [Phomma] also told police that he advised
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his girlfriend that he stabbed the victim over money
and that after doing so he took money before
fleeing. (N.T. 6/7/07, 94-105). In addition, other
evidence established that the victim had been
stabbed multiple times and struck with a blunt
object, that [Phomma] admitted entering the
apartment to commit a robbery, and that after the
incident occurred [Phomma] took steps to cover up
his involvement in the crime by making a phone call
during which he blamed four black men for the killing
and by throwing his bloody clothes down a sewer.
(N.T. 6/7/07, 98, 105-106). The fact that this [c]ourt
did not accept [Phomma’s] self-serving statements
does not make the verdict against the weight of the
evidence. This is especially so given that the totality
of the circumstances established that the killing was
not committed in self-defense and that the
Commonwealth met its burden of disproving that it
was so committed.
PCRA Court Opinion, 9/15/14, at 6-7. Addressing Phomma’s second
contention in support of his weight of the evidence claim, the PCRA court
found that the Commonwealth adequately proved that Phomma acted with
malice based upon Phomma’s use of a deadly weapon (a knife) on a vital
part of the victim’s body (his chest). Id. at 8. It further found that his
attempt to hide evidence after the murder “demonstrated consciousness of
guilt.” Id.
The law is well settled:
A motion for a new trial alleging that the verdict
was against the weight of the evidence is addressed
to the discretion of the trial court. An appellate court,
therefore, reviews the exercise of discretion, not the
underlying question whether the verdict is against
the weight of the evidence. The factfinder is free to
believe all, part, or none of the evidence and to
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determine the credibility of the witnesses. The trial
court will award a new trial only when the jury’s
verdict is so contrary to the evidence as to shock
one’s sense of justice. In determining whether this
standard has been met, appellate review is limited to
whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the
facts and inferences of record disclose a palpable
abuse of discretion. Thus, the trial court’s denial of a
motion for a new trial based on a weight of the
evidence claim is the least assailable of its rulings.
Commonwealth v. Weathers, 95 A.3d 908, 910-11 (Pa. Super. 2014),
appeal denied, 106 A.3d 726 (Pa. 2015) (citation omitted).
Our review of the record comports with the facts and testimony cited
above by the PCRA court. We observe that the PCRA court judge also
served as the judge at trial. Because the trial court, as factfinder, was free
to believe all, part or none of the evidence presented, there can be no abuse
of discretion in the PCRA court’s determination.
Furthermore, as stated by the trial court, “The fact-finder may infer
malice and specific intent to kill based on the defendant's use of a deadly
weapon upon a vital part of the victim’s body.” Commonwealth v.
Towles, 106 A.3d 591, 597 (Pa. 2014), cert. denied sub nom. Towles v.
Pennsylvania, 135 S. Ct. 1494 (U.S. 2015) (citation omitted). A knife is a
deadly weapon, see Commonwealth v. Robertson, 874 A.2d 1200, 1207
(Pa. Super. 2005), and the chest is a vital part of a person’s body, see
Commonwealth v. Johnson, 42 A.3d 1017, 1026 (Pa. 2012).
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We find no error in the PCRA court’s conclusion that the weight of the
evidence claim was meritless and was unsupported by the record. Counsel
cannot be found to have rendered ineffective assistance for failing to pursue
a meritless claim. Commonwealth v. Eichinger, 108 A.3d 821, 831 (Pa.
2014). As such, the PCRA court did not err by dismissing Phomma’s PCRA
petition without an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2015
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