Com. v. Rushing, T.

J-S04007-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY ALLEN RUSHING :
:
Appellant : No. 1603 EDA 2019
Appeal from the PCRA Order Entered April 30, 2019
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0004298-2017
BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: Filed: April 15, 2020
Appellant, Troy Allen Rushing, appeals from the order denying his timely
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows:
On March 27, 2017 Appellant’s wife, Janine Rushing (“the victim”),
obtained a temporary Protection from Abuse Act (“PFA”) order
against Appellant. On th[e] same day, Appellant was served with
the PFA Order. The PFA [order] in essence directed that Appellant
stay away from the victim’s home and have no contact with her.
Later that same night, Appellant appeared outside the victim’s
house and attempted to enter using an old set of keys. Police
were called, and when Appellant saw them, he fled from the
police, who were unable to apprehend him.1
1Appellant was charged with Loitering and Prowling because
of this incident [at] CP-09-CR-0004278-2017. The charge
of Loitering and Prowling at Night were nolle prossed as part
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of [his] Open Guilty Plea on October 10, 2017. This charge
was added as an amendment to CP-09-CR-0004298-2017.
On April 2, 2017, Appellant was seen by [the victim] looking at
her through her kitchen windows. Again, the police were called to
the home and[,] upon seeing the police, Appellant grabbed his
bicycle and fled. He was ultimately apprehended and told the
police that he “would not stop going to the victim’s home and stop
contacting her no matter what.”
On April 4, 2017, the police responded to the call of [the victim]
for another violation of [the] PFA order. This time, the call was
made after the victim had received various harassing calls and
text messages from Appellant. One of the messages stated that
Appellant could see [the victim] sitting at [her] kitchen table. On
April 5, 2017, the victim obtained a final PFA order against
Appellant. Th[at] [o]rder reiterated that Appellant was precluded
from any contact, directly or otherwise[,] with the victim.
On April 14, 2017, Appellant called and texted the victim and her
sister-in law while they were together. His message indicated that
he was watching them through [the victim’s] kitchen window. The
police were called and arrested Appellant after he attempted to
flee.3 In addition to criminal charges, Appellant was charged with
indirect Criminal Contempt for violating a PFA order. On April 19,
2017, Appellant was found to be in contempt of the PFA [order]
and sentenced to 40 days[’] imprisonment.
3 As a result, Appellant was charged with Loitering and
Prowling, Stalking and Criminal Trespass [at] CP-09-CR-
0004298-2017.
On October 10, 2017, Appellant entered an open [g]uilty [p]lea
before this [c]ourt to Stalking,4 Resisting Arrest,5 and Loitering
and Prowling at Night.6 Prior to his guilty plea, Appellant executed
a written guilty plea colloquy, advising him of his trial and post-
trial rights. The written colloquy was incorporated into the record.
Thereafter, Appellant’s trial and post-trial rights were reviewed
with him orally on the record. He was then advised of the
elements of the offenses to which he was entering his plea; the
maximum fines and penalties that could be imposed; and advised
of the suggested guideline ranges. The [c]ourt made an
independent determination that his guilty plea was … entered
knowingly, voluntarily, intelligently[,] and of his own free will.
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4 18 Pa.C.S.[] § 2709.1(A)(1). Stalking was graded as a
felony of the third degree.
518 Pa.C.S.[] § 5104. Resisting Arrest was graded as a
misdemeanor of the second degree.
618 Pa.C.S.[] § 5506. [Loitering and Prowling at Night was
g]raded as a misdemeanor of the third degree.
Appellant was advised of the potential penalties [for each of these
offenses].
Trial counsel raised an issue regarding Appellant’s standard
guideline range for Stalking. Counsel asserted that his New Jersey
conviction, should make his prior record score 0 rather than 1,
resulting in a sentence range of [3-12] months[’ incarceration].
The Commonwealth calculated the range to be [6-14] months[’
incarceration].7 Appellant agreed to the facts as they were
asserted by the Commonwealth, regarding the events of March
27, 2017, April 2, 2017, and April 14, 2017.
7 PCRA counsel argues that the New Jersey disorderly
conduct should have been classified as a summary offense.
Although not stated directly on the record, [Appellant]’s
record indicates that he had a prior misdemeanor conviction
in addition to the New Jersey case. With the New Jersey
conviction being classified by the Commonwealth as a
misdemeanor assault, [Appellant]’s prior record score would
be a [1]. However, if the New Jersey simple assault was
treated as a summary offense, as Appellant argued, his prior
record score would be a [0].
Next, Appellant claimed he accepted responsibility for his actions,
stating “I know what I did was absolutely wrong.” Prior to
sentencing Appellant, the [c]ourt considered: [that] Appellant’s
statement lacked credibility; the victim impact statement;
Appellant’s admission of prior abusive relationships; Appellant’s
disregard of numerous court orders; Appellant’s prior prison
sentences; his continued stalking of [the victim]; prior PFA
violations; and Appellant’s mental health. Appellant was then
sentenced to [1-3] years[’] incarceration for Stalking, followed by
a two (2) year period of probation for Resisting Arrest[,] with
credit for time served.
On October 18, 2017, Appellant filed a timely Motion for
Reconsideration of his sentence. A hearing was held on November
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29, 2017. During the hearing, Appellant’s trial counsel discussed
his initial issues with Appellant’s prior record score. Counsel
reasserted his argument that the guidelines should have been
lower since his New Jersey conviction was improperly considered.
Appellant also asserted that he wanted to give a better impression
than the one he gave during his sentencing. Following the
hearing, the [c]ourt denied Appellant’s motion. No direct appeal
was filed and judgment became final on December 29, 2017.
On December 13, 2017, Appellant submitted his first pro se PCRA
petition, which was denied as prematurely filed.8 On January 12,
2018, Appellant filed his second pro se PCRA petition. An
[a]mended petition was filed by assigned counsel alleging
ineffective assistance of Appellant’s trial counsel. On October 12,
2018, the [c]ourt conducted an evidentiary hearing.
8 This petition was premature because it was filed within the
thirty-day period [Appellant] had to file a direct appeal.
At this hearing, Appellant alleged multiple claims of ineffective
assistance of trial counsel. Counsel for the Commonwealth and
Appellant stipulated that if Appellant’s New Jersey attorney were
called to testify, he would say that in New Jersey, a simple assault
charge9 would be classified as a disorderly persons offense. PCRA
counsel argued that Appellant’s disorderly persons offense should
not have been graded as a misdemeanor. In response, the
Commonwealth argued that the New Jersey simple assault was
properly considered a misdemeanor since it was identical in
language to Pennsylvania’s simple assault charge.10
9 New Jersey[’s] statue defines simple assault as: “(1)
Attempts to cause or purposely, knowingly or recklessly
causes bodily injury to another; or (2) Negligently causes
bodily injury to another with a deadly weapon; or (3)
Attempts by physical menace to put another in fear of
imminent serious bodily injury. Simple assault is a
disorderly persons offense unless committed in a fight or
scuffle entered into by mutual consent, in which case it is a
petty disorderly persons offense.” N.J.S. § 2C:12-1(a).
10 Pennsylvania[’s] statute defines simple assault as: (I)
attempts to cause or intentionally. knowingly or recklessly
causes bodily injury to another; (2) negligently causes
bodily injury to another with a deadly weapon; (3) attempts
physical menace to put another in fear of imminent serious
bodily injury; or (4) conceals or attempts to conceal a
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hypodermic needle on his person and intentionally or
knowingly penetrates a law enforcement officer or an officer
or an employee of a correctional institution, county jail or
prison, detention facility or mental hospital during the
course of an arrest or any search of the person. 18 Pa.C.S.[]
§ 2701. In Pennsylvania, a simple assault is generally
graded as a misdemeanor of the second degree.
Trial counsel testified that he had represented Appellant for his
PFA and criminal cases. Prior to Appellant’s plea of guilty, he had
requested discovery, but had not received anything beyond the
complaints, affidavit of probable cause, and the PFA allegations.
Despite this, trial counsel decided to proceed with the guilty plea
without further discovery, as he felt that he knew enough of the
facts of the case.
Additionally, trial counsel testified that when he reviewed the
written guilty plea colloquy with Appellant that he marked the
form, but that Appellant signed the document. Counsel also
averred that Appellant asked for reconsideration of his sentence
because he wanted to convince the sentencing court to give him
a lower sentence. Trial counsel also averred that he did not
consider double jeopardy to be an issue with regard to Appellant’s
criminal contempt and his stalking charges.
Regarding the Domestic Violence Investigation [(“DVI”)] report,
trial counsel attested that he had reviewed the report and went
over the document, as did Appellant prior to his sentence.
Counsel also reviewed with Appellant the rights he would be giving
up with his guilty plea. Appellant neither raised an objection to
this statement nor denied reviewing and signing the written guilty
plea colloquy. After Appellant was sentenced, trial counsel gave
the original DVI report to Appellant’s mother, who mailed it to
Appellant about five months later.
Next, Appellant testified claiming that he was not informed of his
waiving certain pretrial and post-trial rights by pleading guilty.
Appellant did admit to being informed prior to pleading guilty of
counsel’s legal strategy regarding the outstanding discovery in
light of his guilty plea. He also admitted to having an opportunity
to review the DVI report prior to pleading guilty. It was only later,
during his PCRA petition when Appellant asserted that some of the
contents of the DVI report “hadn’t even happened and some
things that had been presented in a light that I don’t think is
accurate and I think with explanation are going to look a whole lot
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different. And I believe that report influenced my sentence
greatly.”
Only at the PCRA hearing does Appellant claim that he did not
answer any of the questions on the written colloquy form and that
he would have answered a few of the questions differently if he
had. However, Appellant never denies initialing and signing the
colloquy form. Instead, on multiple occasions while Appellant
[was] on the record, he asserted that (1) it was always his intent
to plead guilty; (2) he “owned” all of the instances where he
violated the PFA and resisted arrest; and (3) he wanted another
chance to present a better case during his allocution.
Appellant admitted that he “never planned on not pleading
guilty[.]” In fact, he stated that he might even plead guilty if
granted a new trial. Additionally, Appellant states that the only
claim he really felt that he had was based on double jeopardy.11
Only once during arguments during Appellant’s PCRA hearing two
years later, did he say that he would not have ple[]d guilty if he
had known about the double jeopardy issue, and would have
moved to have the charges dismissed.
11[Appellant] stated that he believed double jeopardy was
appropriate because after being found in contempt of the
PFA against him he was “hit with criminal charges later for
the same course of events[.]” Later, [he] explain[ed] that
he believed that he was pleading guilty during his PFA
contempt hearing in April 2017.
Next, Appellant asserted that he was not being honest during his
sentencing hearing, despite being under oath. He further alleged
that he did not answer any of the oral colloquy questions asked
by the [c]ourt. It should be noted that at no point on the record
does Appellant state that he did not desire to plead guilty. He
agreed to the facts of the case as summarized by the
Commonwealth, although Appellant later asserts that this was
also a false statement. This is in direct conflict to Appellant’s
statements made during his reconsideration hearing where he
affirmed that he was speaking the truth in agreeing to the
Commonwealth’s restatement of the facts and that he initiated
and signed the written colloquy. Also, Appellant admitted that
when he was given his chance to speak during his guilty plea
colloquy, he did not object to pleading guilty or ask for a
continuance.
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At the conclusion of the PCRA hearing, this [c]ourt did not find
Appellant’s testimony to be credible but found trial counsel’s
testimony credible. Additionally, the [c]ourt found that …
Appellant did not show that he was prejudiced by counsel’s course
of action such that he would not have ple[]d guilty.
At the conclusion of the PCRA hearing, the [c]ourt took the matter
under advisement. On April 30, 2019, the [c]ourt sent out an
order denying Appellant’s PCRA petition. This timely appeal was
filed.
PCRA Court Opinion (“PCO”), 8/14/19, at 1-7 (citations omitted).
Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b) statement.
The trial court issued its Rule 1925(a) opinion on August 14, 2019. Appellant
now presents the following question for our review:
Did the trial court err by denying the [PCRA] petition[,] … where
Appellant received ineffective assistance of counsel, evidenced by
a guilty plea without reviewing discovery, allowing sentencing on
a miscalculated prior record score, and failing to seek the
dismissal of the criminal case based upon double jeopardy
following his [PFA] order conviction?
Appellant’s Brief at 4.
Our standard in reviewing a PCRA court order is abuse of
discretion. We determine only whether the court’s order is
supported by the record and free of legal error. This Court grants
great deference to the findings of the PCRA court, and we will not
disturb those findings merely because the record could support a
contrary holding. We will not disturb the PCRA court’s findings
unless the record fails to support those findings.
A criminal defendant has the right to effective counsel during a
plea process as well as during trial. A defendant is permitted to
withdraw his guilty plea under the PCRA if ineffective assistance
of counsel caused the defendant to enter an involuntary plea of
guilty.
We conduct our review of such a claim in accordance with the
three-pronged ineffectiveness test under section 9543(a)(2)(ii) of
the PCRA. The voluntariness of the plea depends on whether
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counsel’s advice was within the range of competence demanded
of attorneys in criminal cases.
In order for [an] [a]ppellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. [The] [a]ppellant must
demonstrate: (1) the underlying claim is of arguable merit; (2)
that counsel had no reasonable strategic basis for his or her action
or inaction; and (3) but for the errors and omissions of counsel,
there is a reasonable probability that the outcome of the
proceedings would have been different. The petitioner bears the
burden of proving all three prongs of the test. Moreover, trial
counsel is presumed to be effective.
Commonwealth v. Rathfon, 899 A.2d 365, 368–69 (Pa. Super. 2006)
(internal citations and quotation marks omitted).
Initially, we note the Commonwealth’s argument that:
[T]o the extent Appellant is … seeking relief on his claims that
counsel was ineffective for failing to review full discovery or
properly challenge the calculation of his prior record score, these
claims are waived. Appellant has put forth no argument with
respect to either such claim. He has one lone sentence at the end
of his brief claiming that counsel was ineffective for failing to
pursue those issues. The brief is void of any facts, law or
argument to support this contention. Appellant’s bald statements
do not entitle him to relief and his abandonment of these claims
results in waiver. He is, therefore, not entitled to relief on this
basis.
Commonwealth’s Brief at 19.
We agree with the Commonwealth. Appellant provides no meaningful
discussion or analysis of those issues in his brief. When “an appellate brief
fails to provide any discussion of a claim with citation to relevant authority or
fails to develop the issue in any other meaningful fashion capable of review,
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that claim is waived.” Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009).
Appellant preserves one claim for our review, which is whether trial
counsel was ineffective for failing to seek dismissal of the criminal charges
filed against him or other relief based on double jeopardy principles. He
asserts that his previous prosecution for contempt for violating the PFA order
(“contempt conviction”) was for the same conduct that formed the factual
basis of the criminal charge of stalking at issue in this case. Trial counsel did
not raise this issue in a pre-trial motion, at the plea hearing, during
sentencing, or in a post-sentence motion. As the bulk of Appellant’s sentence
was for stalking, he was ostensibly prejudiced by counsel’s failure to raise a
double jeopardy claim before Appellant entered a guilty plea, assuming it
would have been successful. Thus, whether trial counsel was ineffective turns
on the merit of the underlying double jeopardy claim.
“The Double Jeopardy Clause, applicable to the States through the
Fourteenth Amendment, provides that no person shall ‘be subject
for the same offense to be twice put in jeopardy of life or limb.’”
Commonwealth v. Decker, … 664 A.2d 1028, 1029 ([Pa.
Super.] 1995) (citing U.S. CONST. amend. 5). “Furthermore, the
Double Jeopardy Clause [] protects against a second prosecution
for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects
against multiple punishments for the same offense.” Id.“To determine whether a defendant’s protection against multiple
punishments for the same offense has been violated, this
Commonwealth applies the test set forth in Blockburger v. U.S.,
284 U.S. 299 … (1932).” Commonwealth v. Beckwith, … 674
A.2d 276, 279 ([Pa. Super.] 1996). The U.S. Supreme Court
explained this test as follows:
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In both the multiple punishment and multiple prosecution
contexts, this Court has concluded that where the two
offenses for which the defendant is punished or tried cannot
survive the “same-elements” test, the double jeopardy bar
applies. The same-elements test, sometimes referred to as
the “Blockburger” test, inquires whether each offense
contains an element not contained in the other; if not, they
are the “same offense” and double jeopardy bars additional
punishment and successive prosecution.
United States v. Dixon, 509 U.S. 688, 696 … (1993).
We note that “the ‘same-elements’ test of Blockburger has long
been followed in this Commonwealth” and its application “requires
a comparison of the elements of the offenses to determine
whether each offense requires proof of a fact which the other does
not.” Commonwealth v. Caufman, … 662 A.2d 1050, 1052
([Pa.] 1995) (citations omitted). When making such a
comparison, overlap in proof between the two prosecutions does
not establish a double jeopardy violation. Beckwith, 674 A.2d at
279.
Commonwealth v. Jackson, 10 A.3d 341, 344–45 (Pa. Super. 2010).
Appellant argues that there are substantial factual overlaps between his
contempt conviction and his conviction in this case for stalking, as reflected in
the criminal complaints at issue. Appellant’s Brief at 12-13. However, while
factual overlap is a necessary predicate to a double jeopardy claim, it is alone
insufficient to establish a double jeopardy violation. Jackson, 10 A.3d at 45
(citing Beckwith, 674 A.2d at 279). As noted above, we must also apply the
Blockburger test to the elements of Appellant’s stalking and contempt
charges. Appellant provides no discussion of the Blockburger test in his
brief.
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The PCRA court determined that double jeopardy did not bar Appellant’s
prosecution for stalking based its analysis of the two at-issue offenses under
the Blockburger test, reasoning as follows:
Here, Appellant was found in contempt for violating the “no
contact” provision of the PFA [o]rder. “No contact” encompasses
a broad range of conduct beyond the elements contained in the
offense of stalking.
In applying Blockburger, this [c]ourt found that double jeopardy
does not apply with his subsequent conviction for stalking. With
respect to the crime of stalking, a person is in violation if they
intentionally, repeatedly and without permission place another
person in reasonable fear of bodily injury or cause substantial
emotional distress. 18 Pa.C.S.[] § 2709.1(a)(1). In contrast, a
conviction for indirect criminal contempt is warranted where: (1)
the PFA order is clear that no contact either direct or indirect is
allowed; (2) there is notice of the PFA [o]rder; (3) there was willful
contact despite the terms of the PFA; and (4) there was wrongful
intent. Commonwealth v. Brumbaugh, 923 A.2d 108, 110 (Pa.
Super. 2007). Comparing these elements, it is clear that stalking
is not a lesser-included offense as both offenses have different
elements.
PCO at 10-11.
We detect no legal error in the PCRA court’s analysis. With respect to
the crime of stalking, Appellant was charged with engaging “in a course of
conduct or repeatedly commit[ting] acts toward another person, including
following the person without proper authority, under circumstances which
demonstrate either an intent to place such other person in reasonable fear of
bodily injury or to cause substantial emotional distress to such other person.”
18 Pa.C.S. § 2709.1(a)(1).
To establish indirect criminal contempt, the Commonwealth must
prove: 1) the [o]rder was sufficiently definite, clear, and specific
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to the contemnor as to leave no doubt of the conduct prohibited;
2) the contemnor had notice of the [o]rder; (3) the act
constituting the violation must have been volitional; and 4) the
contemnor must have acted with wrongful intent.
Brumbaugh, 932 A.2d at 110.
Contempt contains two elements that are not required to prove the
crime of stalking under Section 2709.1(a)(1), both concerning the presence
of a pre-existing no-contact order. Stalking requires a course of conduct or
repeated acts, whereas a single act is sufficient to prove contempt.
Additionally, stalking requires an intent to create fear or emotional distress in
the victim, an element not required to establish contempt. Thus,
Blockburger dictates that Appellant’s stalking and contempt convictions do
not violate double jeopardy principles, even if both offenses arise out of the
same act.
Moreover, to establish a course of conduct or repeated acts for the
purpose of proving stalking, the Commonwealth necessarily had to prove
multiple acts, and the record supports the conclusion that Appellant repeatedly
menaced the victim. Hence, Appellant’s conviction for stalking was not
premised upon any individual act. However, with regard to contempt,
Appellant could violate the PFA order with a single act. It stands to reason
that Appellant’s stalking conviction does not violate double jeopardy because
it was not complete based on the commission of any individual act that
constituted contempt.
For these reasons, we conclude that Appellant was not prejudiced by his
trial attorney’s failure to challenge his stalking charge, conviction, or sentence
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on double jeopardy grounds. Thus, Appellant’s only preserved ineffective-
assistance-of-counsel claim lacks merit. See Commonwealth v. Philistin,
53 A.3d 1, 10 (Pa. 2012) (stating that the “[f]ailure to prove any prong” of
the three-prong ineffectiveness test “will defeat an ineffectiveness claim”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/20
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