J-S63004-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

CHRISTOPHER L. THORNHILL

                        Appellant                  No. 1252 WDA 2016


                Appeal from the PCRA Order August 2, 2016
             In the Court of Common Pleas of Jefferson County
            Criminal Division at No(s): CP-33-CR-0000471-2012


COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

CHRISTOPHER L. THORNHILL

                        Appellant                  No. 1254 WDA 2016


                Appeal from the PCRA Order August 2, 2016
             In the Court of Common Pleas of Jefferson County
            Criminal Division at No(s): CP-33-CR-0000579-2012


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                        FILED OCTOBER 17, 2017

     Christopher L. Thornhill appeals from the order denying his PCRA

petition. We affirm.

     We previously set forth the facts underlying this appeal:
J-S63004-17



            On September 22, 2011, Shane Glatt and Richard White
     forcibly entered the home of Mary McCallister and John Smith on
     Cranberry Alley in Punxsutawney. Appellant, who dealt drugs to
     Mr. Glatt and Mr. White, lived in a second-floor bedroom in the
     house. Mr. Glatt and Mr. White took a safe containing money
     and drugs from Appellant’s room. When Appellant learned that
     his safe had been stolen, he became furious and set out to
     discover the identities of the culprits . . . Appellant’s
     acquaintance, Naim Sturges . . . told Appellant it was Mr. Glatt
     and Mr. White who had taken the safe.

           ....

            Only a few minutes after Mr. Sturges informed Appellant of
     their involvement in the theft, Mr. Glatt and Mr. White arrived in
     Mr. Glatt’s car. Appellant, gun in hand, went outside to confront
     them. Mr. Glatt had a brief conversation with Appellant in front
     of the car. Mr. White remained in the front passenger seat of
     the vehicle[.] When Mr. Glatt turned around to retrieve his cell
     phone from the car, Appellant shot him in the back of the knee.
     Mr. Glatt fell to the ground and began to “crab walk” away from
     Appellant toward the rear of the car. Appellant continued to fire
     at Mr. Glatt, who survived multiple gunshot wounds to his legs,
     buttocks, ankle, and groin area. At some point, Appellant also
     shot Mr. White in the back as he turned to exit the vehicle,
     instantly paralyzing him below the waist.

           ....

           The Commonwealth charged Appellant at No. 0579 of 2011
     with two (2) counts of criminal attempt (homicide), four (4)
     counts of aggravated assault, two (2) counts of simple assault,
     and one (1) count of persons not to possess firearms. At No.
     0471 of 2012, Appellant was charged with receiving stolen
     property, i.e., the gun used in the shootings.         The court
     consolidated the cases for trial. Following a four-day trial . . . a
     jury convicted Appellant of all charges except one count of
     attempted homicide with respect to Richard White.

           Sentencing took place on November 14, 2012 . . .
     Appellant received an aggregate sentence of forty-five (45) to
     ninety (90) years’ imprisonment.



                                    -2-
J-S63004-17



Commonwealth v. Thornhill, 105 A.3d 779 (Pa.Super. 2014) (unpublished

memorandum at *2-6). This Court affirmed his judgment of sentence, id.,

and on November 25, 2014, the Supreme Court denied Appellant’s petition

for allowance of appeal.     Commonwealth v. Thornhill, 104 A.3d 4 (Pa.

2014).

      On February 25, 2016, Appellant filed a timely pro se PCRA petition

alleging, inter alia, that trial counsel rendered ineffective assistance of

counsel by failing to move for severance of his person not to possess

firearms offense. Counsel was appointed. The PCRA court held a hearing on

Appellant’s petition on June 10, 2016. On August 2, 2016, the PCRA court

denied the petition. Appellant filed a timely notice of appeal to this Court.

Appellant complied with the PCRA court’s order to file a Rule 1925(b) concise

statement of errors complained of on appeal, and the court authored its Rule

1925(a) opinion. This matter is now ready for our review.

      Appellant raises a single question for our consideration: “Did the trial

court err in failing to find that [Appellant] was denied the effective

assistance of counsel, and that he was thereby prejudiced, when his trial

counsel failed to have the charge of ‘Person not to possess, use,

manufacture,    control,   sell   or   transfer   firearms’   (18   Pa.C.S.A.   Sec.

6105(a)(1)) severed from the remaining charges [Appellant] faced at the

consolidated jury trial in this matter?” Appellant’s brief at 5.




                                        -3-
J-S63004-17



      We review an order denying a PCRA petition to determine whether the

PCRA court’s ruling is supported by the evidence of record and is free from

legal error. Commonwealth v. Watley, 153 A.3d 1034, 1039 (Pa.Super.

2016).   We will not disturb the PCRA court’s findings unless there is no

support for the findings in the certified record. Id. at 1039-1040.

      To establish ineffective assistance of counsel, a PCRA petitioner must

show that the underlying claim has arguable merit, counsel’s actions lacked

any reasonable basis, and counsel’s actions prejudiced the petitioner. Id. at

1040. Our analysis begins with the presumption that counsel was effective.

Id. Further, the failure to satisfy any prong of the test will cause the claim

to fail. Id. Finally, “a defendant raising a claim of ineffective assistance of

counsel is required to show actual prejudice; that is, that counsel’s

ineffectiveness was of such magnitude that it ‘could have reasonably had an

adverse effect on the outcome of the proceedings.’”       Commonwealth v.

Freeland, 106 A.3d 768, 776 (Pa.Super. 2014) (citation and internal

brackets omitted).

      Appellant argues that trial counsel was ineffective for failing to seek

severance of his person not to possess offense from the remainder of his

charges. In support of this position, Appellant relies on prior case law, such

as Commonwealth v. Jones, 858 A.2d 1198 (Pa.Super. 2004), wherein we




                                     -4-
J-S63004-17



found the trial court abused its discretion by failing to sever a charge of

person not to possess a firearm.1 Appellant contends that, under this case

law, failing to sever this offense impermissibly and prejudicially introduced

prior     bad   act   evidence    into   the   proceeding,   which     was   otherwise

unnecessary to establish his conviction for the other crimes. He alleges that

“the jury could have assumed that since [he] was not permitted to possess a

firearm that he had some type of prior conviction.              It may have even

speculated that it was for a prior violent crime.” Appellant’s brief at 25. He

maintains that, under this line of reasoning, trial counsel could have no

reasonable basis for not severing the charge for trial.              Finally, Appellant

asserts that he was prejudiced by this failure since “the jury might presume

____________________________________________


1The Crimes Code defines the offense of persons not to possess, use,
manufacture, control, sell or transfer firearms, in relevant part, as:

    (1)    A person who had been convicted of an offense in subsection
           (b), within or without this Commonwealth, regardless of the
           length of sentence or whose conduct meets the criteria in
           subsection (c) shall not possess, use, control, sell, transfer or
           manufacture or obtain a license to possess, use, control, sell,
           transfer or manufacture a firearm in this Commonwealth.

    18 Pa.C.S. § 6105(a). Subsection (b) of the statute enumerates specific
    offenses which apply to subsection (a). Subsection (c) delineates conduct
    which gives rise to the prohibition defined in subsection (a). Such
    conduct includes fugitives from justice, people convicted of offenses
    under The Controlled Substance, Drug, Device and Cosmetic Act,
    individuals who have been adjudicated incompetent or involuntarily
    committed into a mental institution, illegal aliens, and a number of other
    behaviors. See 18 Pa.C.S. § 6105(b) and (c).



                                           -5-
J-S63004-17



that the defendant had a prior criminal record which could have led the jury

to believe [he] had a pre-existing criminal disposition,” or had perpetrated

the crimes with the relevant mens rea. Appellant’s brief at 29.

      Herein, Appellant stipulated that he was a person not permitted to

possess a firearm by motion dated October 29, 2012. As such, the jury was

not required to find that element of the offense, and was not otherwise

informed of the conduct which gave rise to the prohibition. Simply, the jury

was not apprised of any evidence related to the underlying offense to which

Appellant’s claim now relates.    In addition, the court’s jury instructions

indicated the following:

      It’s been stipulated that [Appellant] could not possess, use,
      manufacture, control, sell, or transfer a firearm. So you must
      find that. The first thing you must find is that he was unable to
      do that. That’s been stipulated.

            ....

      You the jurors are the sole judges of the facts. It will be your
      responsibility to consider the evidence, to find the facts, and
      applying the law to the facts as you find them, to decide whether
      the defendant has been proven guilty beyond a reasonable
      doubt.

N.T. Trial, 11/8/12, at 139-140, 146.

      It is well-established that “[w]e presume that the jury follows a trial

court’s instructions.” Commonwealth v. Windslowe, 158 A.3d 698, 713

(Pa.Super. 2017) (citation omitted). Appellant’s mere speculation that the

jury may have been prejudiced by the possibility that he had an underlying



                                    -6-
J-S63004-17



criminal offense does not overcome this presumption.          The trial court

ensured that the jury was only to consider the evidence presented by the

Commonwealth.       The Commonwealth did not offer any evidence regarding

why Appellant was not permitted to possess a firearm, and indeed, due to

Appellant’s stipulation, it had no need to. The record reveals no indication

that the jury was otherwise aware of those details.

      Lastly, Appellant’s instant protestations fall far short of proving the

actual prejudice necessary to establish that trial counsel’s alleged error

reasonably had an adverse effect on the outcome of the proceedings.

Freeland, supra.        This is especially true in light of the overwhelming

evidence of guilt proffered by the Commonwealth during Appellant’s jury

trial, including the testimony of the victims, Mr. Glatt and Mr. White. Hence,

no relief is due.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2017




                                     -7-
