J-S03017-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                                             :
                v.                           :
                                             :
                                             :
    JAMES MILLER                             :
                                             :
                      Appellant              :   No. 589 WDA 2019

              Appeal from the PCRA Order Entered March 20, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0006742-2012

BEFORE:      McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McCAFFERY, J.:                       FILED FEBRUARY 12, 2020

        Appellant James Miller appeals from the order of the Allegheny County

Court of Common Pleas dismissing his first petition under the Post Conviction

Relief Act (PCRA).1 He argues solely that the PCRA court erred in determining

that trial counsel was not ineffective for failing to raise an objection to the jury

instruction. We affirm.

        The underlying facts, as summarized by the trial court, are as follows:

        It was mid-afternoon on May 2, 2012 at the First Niagara Bank
        branch on Murray Avenue in the Squirrel Hill section of the City of
        Pittsburgh. A man suddenly appears at the teller window. It was
        a bit startling. He is wearing a black jacket and is carrying a black
        satchel. His overall appearance is “very intimidating” to the teller.
        This person is 3 feet away. A note is placed on the counter in
        front of the teller. “Robbery. Calm,” is what the teller sees. While
        the teller could not see this person’s hands or any weapon, his
        impression was there may be “a gun.” The teller unlocked his

*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.
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      money drawer and began to take money out. He placed it on the
      counter. The person took this collection of money and placed it in
      his satchel. He did so with only one hand, leaving the other out
      of sight. It was not enough money. “More, More” is the
      command. The teller unlocked his 2nd drawer, removed the
      money inside it and placed this stack on the counter. The person
      grabbed this collection of bills, put it inside his satchel and left the
      bank. All total, [he] walked out with $2,461.

Trial Court Opinion, 3/27/14 at 3 (record citations omitted).

      Appellant was charged with two counts of robbery.2               The matter

proceeded to a jury trial commencing on June 25, 2017.                Prior to the

presentation of evidence, the trial court instructed the jury that Appellant had

no obligation to offer any evidence and that the burden of proving guilt rested

entirely on the Commonwealth. N.T., 6/25-27/13, at 168.3

      During its final instructions, the trial court specified that “[i]t’s not

[Appellant’s] burden to prove that [Appellant] is not guilty. Instead it is the

Commonwealth that always has the burden of proving each and every element

of the crime charged beyond a reasonable doubt.”             N.T. at 268.        When

instructing on the elements of robbery, the trial court said,

      [On robbery with fear of serious bodily injury, to find Appellant]
      guilty of this offense, you must find that the following two
      elements have been proven beyond a reasonable doubt: first,
      that [Appellant] inflicted serious bodily injury on the victim or
      threatened the victim with serious bodily injury or intentionally
      put the victim in fear of immediate serious bodily injury or second,

2 18 Pa.C.S. § 3701(a)(1)(ii) (threatening another with or intentionally putting
another in fear of immediate serious bodily injury), (vi) (robbery of a financial
institution).

3 The notes of testimony for Appellant’s three-day trial are in one
continuously-paginated volume.

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      [Appellant] did this during the course of committing a theft. [On
      robbery of a financial institution,] to find [Appellant] guilty of this
      offense, you must find that the following elements have been
      proven beyond a reasonable doubt: first, that [Appellant], in the
      course of committing a theft, the accused took or received money;
      the items were the property of the financial institution; the
      accused did not have permission of the financial institution to take
      or remove the money; the demand was made either orally or in
      writing to an employee of the financial institution; and [Appellant]
      acted with the intent to deprive the financial institution of money.

Id. at 277-79. At the close of the instruction, the trial court stated:

      If after consideration of the case and all the testimony you reach
      the conclusion that the Commonwealth has failed to meet its
      burden of proof required as to any or all of the charges, then your
      verdict slip must read “not guilty” next to the appropriate charge
      or charges on the verdict slip. On the other hand, members of
      the jury, if you reach the conclusion that the Commonwealth has
      met the required burden of proof beyond a reasonable doubt on
      any or all of the charges, then you should write “guilty” next to
      the appropriate charge or charges on the verdict slip.
Id. at 282-83.

      The jury found Appellant guilty of both robbery counts. On July 1, 2013,

he was sentenced to ten to twenty years’ incarceration and ordered to pay

restitution to the bank. This Court affirmed his judgment of sentence on May

11, 2015. Commonwealth v. Miller, 2017 WDA 2013 (unpub. memo) (Pa.

Super. May 11, 2015). On July 18, 2017, the trial court reinstated nunc pro

tunc Appellant’s right to file an allocatur petition in his direct appeal.      On

February 8, 2018, the Supreme Court of Pennsylvania denied his allocatur

petition. Commonwealth v. Miller, 309 WAL 2017 (Pa. Feb. 8, 2018).

      On March 12, 2018, Appellant filed a pro se PCRA petition, initiating the

present litigation. The PCRA court issued a notice of its intent to dismiss the


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petition without a hearing on November 9, 2018, per Pa.R.Crim.P. 907. On

March 20, 2019, the PCRA court entered an order dismissing the Appellant’s

petition. This timely appeal followed.

      The sole issue Appellant poses is whether the PCRA court erred for

dismissing Appellant’s petition, which argued that trial “counsel was ineffective

for failing to object to the inadequate jury instructions and for not requesting

the court to charge the jury that the Commonwealth had the burden to prove

each and every element of robbery beyond a reasonable doubt.” Appellant’s

Brief at 12.

      This Court reviews PCRA proceedings to ensure that the determination

below is supported by the record and otherwise free of legal error.

Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super. 2012) (citation

omitted).      This Court will not disturb the determination below unless the

certified record contains no support for it. Commonwealth v. Hernandez,

79 A.3d 649, 651 (Pa. Super. 2013). PCRA orders are reviewed in the light

most favorable to the prevailing party below.             Commonwealth v.

Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019), appeal denied, 216 A.3d

1028 (Pa. 2019) (citation omitted).

      As originally established by the United States Supreme Court in
      Strickland v. Washington, 466 U.S. 668 (1984), and adopted
      by Pennsylvania appellate courts, counsel is presumed to have
      provided effective representation unless a PCRA petitioner pleads
      and proves all of the following: (1) the underlying legal claim is of
      arguable merit; (2) counsel’s action or inaction lacked any
      objectively reasonable basis designed to effectuate the client’s
      interest; and (3) prejudice, to the effect that there was a

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      reasonable probability of a different outcome at trial if not for
      counsel’s error.
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014). “A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim

of ineffectiveness.”   Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009).

      “When evaluating jury instructions, the charge must be read as a whole

to determine whether it was fair or prejudicial.     The trial court has broad

discretion in phrasing its instructions, and may choose its own wording so long

as the law is clearly, adequately, and accurately presented to the jury for its

consideration.”   Commonwealth v. Storey, 167 A.3d 750, 759-60 (Pa.

Super. 1017), appeal denied, 217 A.3d 1213 (Pa. 2019).

      This Court cannot conclude that, when viewed as a whole, the charge

was inadequate or inaccurate. The trial court bookended its instruction as to

the elements of the robbery charges with admonitions that the burden of proof

was on the Commonwealth, and repeatedly emphasized the “beyond a

reasonable doubt” standard. See N.T. at 168, 268, 277-79, 282-83. The

instruction adhered to the letter and spirit of the law, and there is no support

in the record for Appellant’s argument that it was confusing or would have

indicated to the jury, contrary to the trial court’s repeated admonitions, that

he bore any burden or that it was possible to convict without reaching a verdict

beyond a reasonable doubt.

      Appellant relies on Commonwealth v. Bishop, 372 A.2d 794 (Pa.


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1977), in which our Supreme Court awarded a new trial based on a trial court’s

failure to explain anywhere in its instruction that the prosecution must

establish each element of the charged crimes beyond a reasonable doubt. See

id. at 796. Because “no direction at all was given as to the proper application

of the burden to the component parts of the crime in question” the Court found

it necessary that the defendant be retried. Id. Bishop reiterates that jury

instructions must connect the Commonwealth’s burden to the elements of the

charged crimes; in other words, Bishop reminds us that “it is the

Commonwealth that always has the burden of proving each and every

element of the crime charged beyond a reasonable doubt.” See N.T. at 268.

      The trial court instructed the jury at the beginning of its discussion of

the elements that each of them must be proved beyond a reasonable doubt:

“to find [Appellant] guilty of this offense, you must find that the following

elements have been proven beyond a reasonable doubt . . . .” Because the

trial court applied Bishop appropriately in crafting the charge, establishing

the essential nexus between burden and elements, Appellant’s argument fails.

See Bishop, 372 A.2d at 796; N.T. at 277-79.

      There is no merit to Appellant’s underlying argument that the instruction

was deficient; therefore, counsel cannot be faulted for failing to object. See

Wantz, 84 A.3d at 331. Counsel will not be deemed ineffective for failing to

pursue a meritless claim. Commonwealth v. Fears, 86 A.3d 795, 804 (Pa.

2014) (citation omitted).


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      Appellant’s allegation of error does not merit relief. As the PCRA court

did not err, we affirm its order dismissing Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/2020




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