J-S63009-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
           v.                            :
                                         :
ANDRE MURRAY,                            :
                                         :
                   Appellant             :   No. 3512 EDA 2014

                Appeal from the PCRA Order November 3, 2014,
                  Court of Common Pleas, Philadelphia County,
                Criminal Division at No. CP-51-CR-0011666-2008

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED NOVEMBER 04, 2015

     Appellant, Andre Murray (“Murray”), appeals pro se from the order

entered on November 3, 2014 by the Court of Common Pleas of Philadelphia

County, Criminal Division, denying his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     The trial court summarized the relevant facts of this case as follows:

              On May 27, 2008, at about 4:00 p.m., Dana
           Treadwell, his wife, two of his children, and two of
           his step-nieces were walking near the area of 18th
           and Gerritt Streets in Philadelphia when they were
           nearly hit by a “greenish gray” car later described by
           Treadwell as either a 2005 Chevy Malibu or a 2004
           Mitsubishi Gallant. Treadwell then got into a heated
           argument with the driver of the car, codefendant
           Rayti Myers, who he recognized from the
           neighborhood. The passenger of the car joined the
           argument and Treadwell was told to wait there until
           they returned. The car drove away and Treadwell
           walked his family home.
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                After being at his house for about three minutes,
             Treadwell walked to a corner store at 18th and Reed
             Streets, which is one block north of 18th and Gerritt
             Streets. As Treadwell approached that intersection,
             he looked across a vacant lot and saw Myers driving
             the same car in his direction. The car eventually
             pulled over near where Treadwell was standing and
             Treadwell heard Myers say, “there he goes, get him,”
             whereupon [Murray] fired several shots at Treadwell.
             Treadwell hid behind a van, but was shot once in the
             elbow before the car drove away.

                After a few minutes, Treadwell ran home and
             asked a neighbor to call the police. The police took
             Treadwell to the hospital where he was treated for a
             gunshot wound and discharged that same night.
             Treadwell’s gunshot wound required surgery and left
             Treadwell unable to perform his job as a trash
             collector for several months.

Trial Court Opinion, 8/31/10, at 2-4 (record citations and footnote omitted).

      The PCRA court further provided the following procedural history for

this case:

                On November 17, 2009, [Murray] was convicted
             of attempted murder (18 Pa.C.S. §§ 901(a), 2502),
             aggravated assault (18 Pa.C.S. § 2702(a)(1)),
             criminal conspiracy (18 Pa.C.S. § 903(a)), and
             possessing an instrument of crime (18 Pa.C.S. §
             907(a)). On February 17, 2010, the [c]ourt imposed
             a sentence of twenty to forty years [of] incarceration
             on the charge of attempted murder and a concurrent
             sentence of one to two years [of] incarceration on
             the charge of possessing an instrument of crime.
             Due to merger, no judgment was entered on the
             conviction for aggravated assault, and due to the
             statutory prohibition against multiple convictions of
             inchoate crimes (18 Pa.C.S. § 906), no judgment
             was entered on the conviction for criminal
             conspiracy.   The [c]ourt denied [Murray]’s post-
             sentence motions on March 26, 2010.



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               [Murray]’s sentence was affirmed by the Superior
           Court on November 21, 2011. The Pennsylvania
           Supreme Court denied [Murray]’s petition for
           allowance of appeal on August 15, 2012. [Murray]
           was represented at trial and on appeal by Troy H.
           Wilson,    Esquire    [(“Trial/Appellate Counsel”)].
           [Murray] subsequently filed a pro se [PCRA petition]
           on July 26, 2013. Janis Smarro, Esquire [(“PCRA
           Counsel”)] was appointed to represent [Murray] on
           January 18, 2014.

              On July 28, 2014, pursuant to Commonwealth
           v. Finley, 550 A.2d 213 (Pa. Super. 1988), [PCRA
           Counsel] filed a letter stating there was no merit to
           [Murray]’s claims for collateral relief. On September
           16, 2014, the [c]ourt issued notice pursuant to
           Pa.R.Crim.P. 907 [] of its intent to dismiss [Murray]’s
           PCRA [p]etition without an evidentiary hearing.
           [Murray] filed a pleading entitled “In Response to the
           Letter of No-Merit …” [] on September 26, 2014.
           [PCRA Counsel] filed a [r]eply to [Murray’s]
           [r]esponse to [l]etter of [n]o-[m]erit [] on October
           7, 2014. On November 3, 2014, the [c]ourt formally
           dismissed [Murray]’s PCRA [p]etition and granted
           [PCRA    Counsel]’s     motion     to   withdraw   her
           appearance.

PCRA Court Opinion, 2/20/15, at 1-2 (record citations omitted).

      On December 1, 2014, Murray filed a timely pro se notice of appeal.

On   appeal,   Murray   raises   the   following   issues   for   our   review   and

determination:

           (1) Whether [Trial/Appellate Counsel] denied
           [Murray] the [r]ight to [c]ounsel and the [r]ight to
           [e]ffective   [a]ssistance   of    [c]ounsel,     where
           [Trial/Appellate Counsel] “entirely fails to subject the
           prosecution’s case to meaningful adversarial testing”
           during critical stages of his representation, and
           where the [trial court] invited [Trial/Appellate



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            Counsel] to submit a written request for curative
            instruction, and no instruction was submitted[?]

            (2) Whether there was constructive denied [sic] of
            counsel where [a]ttorney-[c]lient [r]elationship was
            so poor, [Trial/Appellate Counsel] was unable to
            prepare for trial or penalty phase (sentencing)[?]

            (3) Did [Trial/Appellate Counsel], exhibit lack of
            knowledge as to the legal issues involved in the
            case, where he fail [sic] to raise any arguable issues
            in the appellate brief depriving [Murray] of effective
            assistance of counsel on appeal which created
            prejudice and the presumption of prejudice[?]

            (4) Whether [PCRA Counsel] was ineffective for
            failing    to    raise   [Trial/Appellate  Counsel]’s
            ineffectiveness and fail[ing] to properly investigate
            [his] deficient representation[?]

            (5) Did the [sentencing court err] when it merged
            [a]ggravated [a]ssault and [a]ttempted [m]urder of
            the [f]irst [d]egree when both crimes require a
            different specific intent to bring different specific
            result, because [l]esser [i]ncluded [o]ffense [sic]
            cannot be higher-graded felonies than crimes in
            which they are supposedly included[?]

Murray’s Brief at 4.

      We begin by acknowledging that “[o]ur standard of review regarding a

PCRA court’s order is whether the determination of the PCRA court is

supported   by   the   evidence   of     record   and   is   free   of   legal   error.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). “The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Id.




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      For his first issue on appeal, Murray argues that Trial/Appellate

Counsel denied him the right to counsel and the right to effective assistance

of counsel, asserting that Trial/Appellate Counsel “entirely fail[ed] to subject

the prosecution’s case to meaningful adversarial testing during critical stages

of his representation[.]” Murray’s Brief at 10 (quotations omitted). Murray

contends that he was prejudiced by Trial/Appellate Counsel’s failure to

submit written curative instructions, after being invited to do so by the trial

court, following inflammatory remarks made by the prosecutor during his

opening statement. See id.

      We conclude that Murray has waived his first issue on appeal.          It is

well settled that any PCRA claims not raised in a petitioner’s pro se PCRA

petition, in an amended petition, or in response to a PCRA court’s Rule 907

notice are waived. Commonwealth v. Rigg, 84 A.3d 1080, 1084-85 (Pa.

Super. 2014). Here, Murray raises his first issue for the first time on appeal

and consequently, has waived it.         See id.; see also Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”).

      For his second issue on appeal, Murray argues that he was

constructively denied the effective assistance of counsel due to his poor

attorney-client   relationship   with   Trial/Appellate   Counsel   and   because

Trial/Appellate Counsel did not adequately prepare for trial.       See Murray’s

Brief at 11-13.     Murray complains that Trial/Appellate Counsel did not



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sufficiently communicate with him regarding his defense strategy, pursue

any alternative defense strategies than the one employed at trial, or

investigate and substantiate any of the facts surrounding Murray’s case.

See id.

      Like his first issue, we conclude that Murray has waived his second

issue on appeal. Murray did not raise this issue in his pro se PCRA petition,

in an amended petition, or in response to the PCRA court’s Rule 907 notice

to dismiss and raises it now for the first time on appeal. Accordingly, Murray

has also waived his second issue on appeal. See Rigg, 84 A.3d at 1084-85;

Pa.R.A.P. 302(a).

      For his third issue on appeal, Murray argues that Trial/Appellate

Counsel was ineffective because “he failed to raise any arguable issues in

the [a]ppellate brief depriving [him] of effective assistance of counsel on

appeal[,] which created prejudice and the presumption of prejudice.”

Murray’s Brief at 13.   Murray asserts that the memorandum deciding his

direct appeal stated that all his arguments were without merit, which made

the appeal “[f]rivolous and counsel ineffective.” Id.

      In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance.     Commonwealth

v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014).                To overcome that

presumption, the petitioner must establish that: “(1) the underlying claim

has arguable merit; (2) no reasonable basis existed for counsel’s action or



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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). To demonstrate prejudice in an ineffective assistance of

counsel claim, “the petitioner must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Commonwealth v. King, 57 A.3d

607, 613 (Pa. 2012). If the petitioner fails to prove any of these prongs, the

claim is subject to dismissal. Bomar, 104 A.3d at 1188.

      We conclude that the ineffective assistance of counsel claim underlying

Murray’s third issue is without arguable merit.         Murray provides no

explanation as to how Trial/Appellate Counsel was ineffective in handling his

direct appeal or how Trial/Appellate Counsel’s ineffectiveness resulted in

prejudice to him. See Murray’s Brief at 13-14. Murray essentially argues

that Trial/Appellate Counsel was ineffective merely because Murray lost his

direct appeal.   See id.    Although each of Murray’s direct appeal claims

failed, this alone does not prove that no reasonable basis existed for

Trial/Appellate Counsel’s actions or that Murray suffered prejudice because

of Trial/Appellate Counsel’s errors.   “It should be emphasized that lack of

merit in an appeal is not the legal equivalent of frivolity.” Commonwealth

v. Edwards, 906 A.2d 1225, 1231 (Pa. Super. 2006) (quotations and

citations omitted).   While Murray does briefly reference this Court finding



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some of the issues he raised in his direct appeal waived, this Court

ultimately conducted a merits review of each of those issues despite Murray

having waived them. See Commonwealth v. Murray, 1035 EDA 2010, at

6-16 (Pa. Super. Nov. 21, 2011) (unpublished memorandum). Accordingly,

Murray’s third issue does not entitle him to any relief.

         For his fourth issue on appeal, Murray argues that PCRA Counsel was

ineffective for failing to raise any issues relating to Trial/Appellate Counsel’s

ineffectiveness. See Murray’s Brief at 14-16. Murray lists several perceived

examples of Trial/Appellate Counsel’s ineffectiveness that he contends PCRA

Counsel should have raised, including, but not limited to:              Trial/Appellate

Counsel’s     failure   to   object   to    the   prosecutor’s   opening   statement,

Trial/Appellate    Counsel’s     lack      of   communication    with   Murray,    and

Trial/Appellate Counsel’s failure to raise any arguable issues on appeal. Id.

at 15.

         We conclude that Murray has waived this issue on appeal. This Court

has held “that issues of PCRA counsel effectiveness must be raised in a serial

PCRA petition or in response to a notice of dismissal before the PCRA court.

Commonwealth v. Ford, 44 A.3d 1190, 1200 (Pa. Super. 2012).                       Thus,

“when counsel files a Turner/Finley no-merit letter to the PCRA court, a

petitioner must allege any claims of ineffectiveness of PCRA counsel in a

response to the court’s notice of intent to dismiss.”            Id. at 1198.     Here,

Murray did not raise the issue of PCRA Counsel’s ineffectiveness in his



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response to the PCRA court’s Rule 907 notice.     See Response to No-Merit

Letter, 9/26/14.   Instead, in his response to the PCRA court’s Rule 907

notice, Murray merely claimed that the PCRA counsel was ineffective for

filing a Turner/Finley letter. See id. at 4. Murray made no reference to

any instances of Trial/Appellate Counsel’s ineffectiveness that PCRA Counsel

should have raised. See id. Therefore, Murray has waived his claim that

PCRA Counsel was ineffective for failing to raise claims of Trial/Appellate

Counsel’s ineffectiveness on appeal.

     For his final issue on appeal, Murray argues that the trial court erred in

merging his aggravated assault and attempted murder convictions for

purposes of sentencing.    A claim involving the merger of convictions for

purposes of sentencing is a challenge to the legality of the sentence and is

therefore not waivable.   Commonwealth v. Quintua, 56 A.3d 399, 400

(Pa. Super. 2012). “[O]ur standard of review is de novo and our scope of

review is plenary.” Id.

     Section 9765 of the Pennsylvania Sentencing Code states the following

regarding the merger of crimes for purposes of sentencing:

           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.




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42 Pa.C.S.A. § 9765.      Therefore, merger is appropriate only when two

specific criteria are satisfied: (1) “all of the statutory elements of one of the

offenses are included within the statutory elements of the other”; and (2)

“the crimes arise from a single criminal act[.]”           Commonwealth v.

Jenkins, 96 A.3d 1055, 1056 (Pa. Super. 2014), appeal denied, 104 A.3d 3

(Pa. 2014).

      Here, Murray was convicted of attempted murder pursuant to sections

901(a)1 (criminal attempt) and 2502(a)2 (first-degree murder) of the Crimes

Code and aggravated assault under section 2702(a)(1)3 of the Crimes Code.

See Docket, 2/23/15, at 5-6; PCRA Court Opinion, 2/20/15, at 1.               In

Commonwealth v. Anderson, 650 A.2d 20 (Pa. Super. 1994), our

Supreme Court determined that all of the statutory elements of aggravated

assault, as defined under 18 Pa.C.S.A. § 2702(a)(1), are included within the

statutory elements of attempted murder, as defined under 18 Pa.C.S.A. §§



1
  Section 901(a) of the Crimes Code defines criminal attempt as follows: “A
person commits an attempt when, with intent to commit a specific crime, he
does any act which constitutes a substantial step toward the commission of
that crime.” 18 Pa.C.S.A. § 901(a).
2
     Section 2502(a) of the Crimes Code provides: “A criminal homicide
constitutes murder of the first degree when it is committed by an intentional
killing.” 18 Pa.C.S.A. § 2502(a).
3
    Section 2702(a)(1) of the Crimes Code states that “a person is guilty of
aggravated assault if he … attempts to cause serious bodily injury to
another, or causes such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human
life[.]” 18 Pa.C.S.A. § 2702(a)(1).


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901(a), 2502(a). Anderson, 650 A.2d at 20 n.1, 24. The Supreme Court

explained:

                It is clear that the offense of aggravated assault is
             necessarily included within the offense of attempted
             murder; every element of aggravated assault is
             subsumed in the elements of attempted murder.
             The act necessary to establish the offense of
             attempted murder – a substantial step towards an
             intentional killing – includes, indeed, coincides with,
             the same act which was necessary to establish the
             offense of aggravated assault, namely, the infliction
             of serious bodily injury.         Likewise, the intent
             necessary to establish the offense of attempted
             murder – specific intent to kill – is greater than and
             necessarily includes the intentional, knowing, or
             reckless infliction of serious bodily injury, the intent
             required for aggravated assault. It is tautologous
             that one cannot kill without inflicting serious bodily
             injury. 18 Pa.C.S. § 2301. Inasmuch as aggravated
             assault, the lesser offense, contains some, but not all
             the elements of the greater offense, attempted
             murder, the two offenses merge for purposes of
             sentencing.

Id. at 24. Accordingly, Murray’s attempted murder and aggravated assault

convictions satisfied the first criteria for merger.

       Murray’s attempted murder and aggravated assault convictions also

satisfied the second criteria for merger, as they arose from a single criminal

act.   The Commonwealth indicated that Murray’s attempted murder and

aggravated assault charges stemmed from Murray firing several gunshots in

Treadwell’s direction, one of which hit Treadwell’s elbow.      See Affidavit of

Probable Cause, 6/18/08, at 2-3. Indeed, the certified record reflects that

this single act is lone occurrence in which Murray attempted to cause and



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succeeded in causing bodily injury to Treadwell. See N.T., 11/12/09 (Vol.

1), at 66-71.   Therefore, we conclude that the trial court did not err in

merging Murray’s attempted murder and aggravated assault convictions for

purposes of sentencing.4

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/4/2015




4
   We note that it is perplexing that Murray, a criminal defendant, would
raise this issue. The merger of Murray’s aggravated assault and attempted
murder convictions for purposes of sentencing did not increase his sentence
and likely served to benefit Murray by reducing his total sentence. See 42
Pa.C.S.A. § 9765 (“Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.”). Had we
determined the trial court erred in merging his aggravated assault and
attempted murder convictions and remanded for resentencing, the trial court
could have potentially resentenced Murray on both his attempted murder
and aggravated assault charges, as opposed to just his attempted murder
charge, thereby potentially leading to an increase in his sentence.


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