J-S49032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

KEVIN A. WOODLEY

                        Appellant                   No. 3441 EDA 2013


         Appeal from the PCRA Order entered November 20, 2013
            In the Court of Common Pleas of Monroe County
            Criminal Division at No: CP-45-CR-0001861-2010


BEFORE: OLSON, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                       FILED OCTOBER 14, 2014

      Appellant, Kevin A. Woodley, appeals from the November 20, 2013

order of the Monroe County Court of Common Pleas denying his petition

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. Upon review, we affirm.

      On October 4, 2010, Appellant was charged with several crimes in

connection with a shooting. Following a jury trial, Appellant was convicted of

two counts of aggravated assault, four counts of simple assault, and one

count each of recklessly endangering another person and possessing an

instrument of crime.    The trial court sentenced Appellant to an aggregate

prison term of 66 to 132 months. Appellant timely appealed. On November

20, 2012, this Court affirmed.      See Commonwealth v. Woodley, 2846

EDA 2011, unpublished memorandum at 1-10 (Pa. Super. filed November
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20, 2012). Our Supreme Court denied Appellant’s Petition for Allowance of

Appeal on May 15, 2013. See Commonwealth v. Woodley, 67 A.3d 797

(Pa. 2013).

      On July 12, 2013, Appellant timely filed the instant PCRA petition.

After appointing counsel, and holding a hearing, the trial court denied

Appellant’s petition. This appeal followed.

      Appellant raises the following issues for our review:

      Did the trial court err in finding trial counsel was not ineffective
      for failing to request a corrupt and polluted source instruction
      since the Commonwealth relied on testimony from the co-
      defendant involved in the case[?]

      Was the imposition of a deadly weapons [sic] enhancement a
      violation of [Appellant]’s right to due process since the jury was
      not asked to find beyond a reasonable doubt whether the
      weapon was used for the specific offenses to which the
      enhancement was applied[?]

Appellant’s Brief at 7.

      In reviewing the propriety of a PCRA court’s order dismissing a
      PCRA petition, we are limited to determining whether the PCRA
      court’s findings are supported by the record and whether the
      order in question is free of legal error. The PCRA court’s findings
      will not be disturbed unless there is no support for the findings in
      the certified record.

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).

      In his first claim, Appellant raises an issue of ineffective assistance of

counsel. Specifically, Appellant argues his trial counsel provided ineffective

assistance of counsel as a result of his failure to request a corrupt and




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polluted source instruction in connection with the testimony of Appellant’s

accomplice and co-defendant. We disagree.

       To obtain relief on a claim of ineffective assistance of counsel, a PCRA

petitioner must plead and prove: (1) the underlying claim has arguable

merit; (2) no reasonable basis existed for counsel’s actions or failure to act;

and (3) resulting prejudice such that there is a reasonable probability that

the result of the proceedings would have been different but for counsel’s

error. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014)

(quoting Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super.

2013)).    Finally, a petitioner must satisfy all three prongs of the test for

ineffectiveness, or the claim must be rejected.          Commonwealth v.

Baumhammers, 92 A.3d 708, 719 (Pa. 2014).

       There is no issue the underlying claim (corrupt source charge) has

arguable merit under the circumstances of the case.1          See Trial Court

____________________________________________


1
    See Commonwealth v. Williams, 732 A.2d 1167, 1181 (Pa. 1999):

       With respect to the corrupt source charge, it is well established
       that, in any case in which an accomplice implicates the
       defendant, the trial court should instruct the jury that the
       accomplice is a corrupt and polluted source whose testimony
       should be considered with caution. The charge is indicated in
       cases in which the evidence is sufficient to present a jury
       question with respect to whether the Commonwealth’s witness is
       an accomplice. Such a jury question is present when the witness
       could be indicted for the crime for which the accused is charged.
       A person may be indicted as an accomplice where the evidence
       would establish that he knowingly and voluntarily cooperated
(Footnote Continued Next Page)


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Opinion, 11/21/13, at 5. The trial court, however, found trial counsel had a

reasonable basis for not requesting the instruction. Id. at 6. We agree. To

this end, the learned trial court noted:

        Here, a review of the record amply supports a conclusion that
        trial counsel had some reasonable basis for not requesting [a
        corrupt source charge]. [Trial] [c]ounsel argued that [Appellant]
        was innocent, and the defense strategy was to show that [co-
        defendant] shot the gun into the crowd. Trial counsel stated
        that it was [Appellant]’s position during the trial that he was not
        the shooter—rather [co-defendant] was responsible.            . . .
        [I]nstructing the jury that [co-defendant]’s testimony should be
        used cautiously because [Appellant] and [co-defendant] were
        accomplices would be damaging to his defense and confusing to
        the jury.

Id.2




                       _______________________
(Footnote Continued)

        with or aids another in the commission of a crime with the intent
        to assist the principal.

Id. (citations and quotation marks omitted).
2
    Similarly, Appellant summarized trial counsel’s strategy as follows:

        Although trial counsel considered requesting the [charge] and
        researched the matter, trial counsel chose not to request the
        instruction.  . . . Trial counsel claims his decision against
        requesting the instruction was based on his strategy to prove
        Appellant was not involved in the shooting in any way. He also
        claims he was concerned that the use of the word accomplice
        would derogate the strategy. More specifically, he opined that
        the word accomplice would automatically link the Appellant to
        the crime and implicate him as participant.

Appellant’s Brief at 16.



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       Thus, it is clear from the record trial counsel had a reasonable strategy

intended to effectuate Appellant’s interests.    While the strategy might not

have worked as hoped, this is not sufficient for finding ineffective assistance

of counsel.     See Commonwealth v. Birdsong, 24 A.3d 319, 341 (Pa.

2011) (citing Harrington v. Richter, 131 S. Ct. 770, 790–92 (2011) (“[I]f

all that can be shown is ‘merely that the defense strategy did not work out

as well as counsel had hoped,’ ineffectiveness claim should not be

granted.”)).

       Appellant acknowledges that well-settled “case law suggests that it is a

reasonable trial tactic for counsel to forego requesting a corrupt and polluted

source instruction where the trial strategy is to prove he/she was not

involved in the crime.” Appellant’s Brief at 17. Nonetheless, according to

Appellant, the jury charge was still appropriate because the defense strategy

was to show that co-defendant was accomplice to someone else, not

Appellant.

       This reinterpretation of trial counsel’s strategy is not consistent with

Appellant’s own summary of the trial counsel’s stated strategy,3 and finds no

support in the record.4 In fact, the trial court found Appellant’s strategy was



____________________________________________


3
    See supra n.3.
4
  We also note the transcripts of the PCRA hearing are not part of the
original record forwarded to this Court.



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to show that co-defendant was the shooter, and that he had nothing to do

with the shooter or the shooting. Trial Court Opinion, 11/21/13, at 6.

      Appellant, in essence, is not arguing the strategy employed was

unreasonable. Rather, Appellant argues another strategy was available, and

trial counsel was ineffective for not taking the other strategy. The argument

is without merit.

      Appellant’s argument fails to account for the applicable standard of

review of ineffective assistance of counsel claims.     A court may find the

strategy employed had no reasonable basis “only if [a]ppellant proves that

an alternative not chosen offered a potential for success substantially

greater than the course actually pursued,” Commonwealth v. Hutchinson,

25 A.3d 277, 285 (Pa. 2011) (citation omitted), or, the alternative, that “in

light of all the alternatives available to trial counsel, the strategy actually

employed by him was so unreasonable that no competent lawyer would have

chosen that course of conduct.”    Commonwealth v. Williams, 640 A.2d

1251, 1265 (Pa. 1994). “Counsel’s decisions will be considered reasonable if

they effectuated his client’s interests.”   Commonwealth v. Stewart, 84

A.3d 701, 707 (Pa. Super. 2013) (citing Commonwealth v. Miller, 987

A.2d 638, 653 (Pa. 2009)).      “We do not employ a hindsight analysis in

comparing trial counsel’s actions with other efforts he may have taken.” Id.

Finally, “ [a]lthough we do not disregard completely the reasonableness of

other alternatives available to counsel, the balance tips in favor of a finding

of effective assistance as soon as it is determined that trial counsel’s

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decision had any reasonable basis.” Commonwealth v. Cooper, 941 A.2d

655, 664 (Pa. 2007) (quotation marks and citation omitted).

        Here,   Appellant    has    demonstrated,   if   anything,   there   was   an

alternative to the strategy employed by trial counsel.          However, Appellant

failed to argue, let alone prove, the alternative “offered a potential for

success substantially greater that the course actually pursued” or that “no

competent lawyer would have chosen that course of action.” Hutchinson,

supra; Williams, supra.             The challenge, in fact, amounts to second

guessing trial counsel. We will not do so. Commonwealth v. Rivers, 786

A.2d 923, 930 n.5 (Pa. 2001).

        Next, Appellant argues the trial court erred in applying a deadly

weapon enhancement5 because there was no finding by the jury that
____________________________________________


5
    See 204 Pa. Code § 303.10(a)(2), which provides:

        (2) When the court determines that the offender used a deadly
        weapon during the commission of the current conviction offense,
        the court shall consider the DWE/Used Matrix (§ 303.17(b)). An
        offender has used a deadly weapon if any of the following were
        employed by the offender in a way that threatened or injured
        another individual:

          (i) Any firearm, (as defined in 42 Pa.C.S. § 9712) whether
          loaded or unloaded, or

          (ii) Any dangerous weapon (as defined in 18 Pa.C.S. § 913),
          or

          (iii) Any device, implement, or instrumentality capable of
          producing death or serious bodily injury.

(Footnote Continued Next Page)


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Appellant used a weapon in the course of the commission of crimes he had

been convicted. Appellant argues, the imposition of the enhancement was

illegal under Alleyne v. United States, 133 S. Ct. 2151 (2013), “since the

jury was specifically asked to determine whether Appellant used a weapon

with the intent to cause bodily injury to another and acquitted Appellant of

the two specific counts of aggravated assault—deadly weapon pertaining to

the two victims the enhancement was applied.”         Appellant’s Brief at 25.

Appellant also notes that neither recklessly endangering another person nor

disorderly conduct—some of other Appellant’s convictions—required proof

that of a weapon was used in the commission of these two offenses.

Accordingly, Appellant reasons the jury was never instructed, and therefore

never found, Appellant used a weapon in these other crimes.          Id. at 26.

This claim fails for many reasons.

      Despite Appellant’s characterization, it is well-established a challenge

to the imposition of the deadly weapon enhancement is in fact a challenge to

the discretion of the trial court, not to the legality of the sentence.    See,

e.g., Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super.

2014) (en banc); Commonwealth v. Pennington, 751 A.2d 212, 216 (Pa.

Super. 2000). Appellant should have raised it as such before the trial court,

but failed to do so. Failure to raise the discretionary aspects before the trial


                       _______________________
(Footnote Continued)

Id.



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court results in a waiver of the challenge. Commonwealth v. Felder, 75

A.3d 513, 515 (Pa. Super. 2013). Here, it is undisputed Appellant failed to

timely and properly raise this discretionary aspects challenge before the trial

court. Accordingly, the claim is waived.

      Furthermore, it is well-established claims involving the discretionary

aspects of a sentence are not reviewable in the PCRA context        See, e.g.,

Commonwealth v. Jordan, 772 A.2d 1011, 1106 (Pa. Super. 2001) (“This

Court’s case law has stated that a challenge to the discretionary aspects of

sentencing is a matter that must be reviewed in the context of a direct

appeal and cannot be reviewed in the context of the PCRA.”); see also

Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2007);

Commonwealth v. Evans, 866 A.2d 442, 444-45 (Pa. Super. 2005).

Accordingly, the claim is not cognizable under the PCRA.

      It is well-established that Alleyne does not require “that any fact that

influences judicial discretion must be found by a jury.        We have long

recognized that broad sentencing discretion, informed by judicial factfinding,

does not violate the Sixth Amendment.” Alleyne, 133 S. Ct. at 2163. In

this regard, this Court recently noted:

      Alleyne and [Apprendi v. New Jersey, 530 U.S. 466 (2000)],
      dealt with factors that either increased the mandatory minimum
      sentence or increased the prescribed sentencing range beyond
      the statutory maximum, respectively. Our case does not involve
      either situation; instead, we are dealing with a sentencing
      enhancement [i.e., deadly weapon].          If the enhancement
      applies, the sentencing court is required to raise the standard
      guideline range; however, the court retains the discretion to


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     sentence outside the guideline range. Therefore, neither of the
     situations addressed in Alleyne and Apprendi are implicated.

Buterbaugh, 91 A.3d at 1270 n.10. See also United States v. Ramirez-

Negron, 751 F.3d 42, 48 (1st Cir. 2014) (“[F]actual findings made for

purposes of applying the Guidelines, which influence the sentencing judge’s

discretion in imposing an advisory Guidelines sentence and do not result in

imposition of a mandatory minimum sentence, do not violate the rule in

Alleyne.”); United States v. Benn, --- F. App’x ----, 2014 WL 2109806, at

*11 (4th Cir. May 21, 2014) (“Alleyne has no application to [a]ppellants’

sentences in this case. The district court’s drug quantity determinations at

sentencing did not increase [a]ppellants’ statutory mandatory minimum

sentences, but rather, were used to determine their advisory Guidelines

ranges.”). Thus, reliance on Alleyne is misplaced.

     Finally, we note the argument (i.e., jury did not find that Appellant

used a deadly weapon) is based on Appellant’s selective recollection of the

facts and/or misunderstanding of the law.

     While Appellant was acquitted of two aggravated assault-deadly

weapon charges and neither recklessly endangering another person nor

disorderly conduct required proof that a weapon was used in the commission

of these two offenses, Appellant fails to mention that he was convicted of

possessing an instrument of crime, i.e., a weapon, in the commission of the

crimes he was convicted.     While the jury’s findings might be at odds,

inconsistent verdicts are permissible.   “[T]he law is clear that inconsistent

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verdicts are permissible in Pennsylvania.” Commonwealth v. States, 938

A.2d 1016, 1025 (Pa. 2007).

         Appellant seems also to ignore that a deadly weapon enhancement is

imposed by the trial court, not the jury, if certain conditions are met, see

204 Pa. Code § 303.10(a)(2), and fails to appreciate that Appellant’s

conviction of crimes that did not include possession/use of a deadly weapon,

not only does not negate the enhancement, but actually warrants its

applicability. The enhancement, in fact, can be applied only if a weapon was

possessed/used in the commission of a crime, as long as it does not involve

any crime enumerated in 204 Pa. Code § 303.10(a)(3) or the possession/use

of   a    weapon   is   not   an   element   of   the    crime   itself.   See   Id.

§ 303.10(a)(3)(ix). Accordingly, in addition to being waived, this claim is

not cognizable, unsupported, and meritless.             Thus, we conclude the trial

court did not abuse its discretion in imposing the sentencing enhancement.

         In light of the foregoing, we affirm the trial court’s order denying

Appellant’s PCRA petition.

         Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2014




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