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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
J-S04007-20


        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.



                                    -2-
J-S04007-20


        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

                                    -3-
J-S04007-20


     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

                                    -4-
J-S04007-20


        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


                                     -5-
J-S04007-20


     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.



                                   -6-
J-S04007-20


      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


                                    -7-
J-S04007-20


      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,



                                      -8-
J-S04007-20



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:


                                      -9-
J-S04007-20


            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.




                                       - 10 -
J-S04007-20



      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


                                     - 11 -
J-S04007-20


      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

                                     - 12 -
J-S04007-20



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




                                    - 13 -
