J-S75018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARLON RUMPH                               :
                                               :
                       Appellant               :   No. 655 WDA 2019


              Appeal from the PCRA Order Entered April 15, 2019,
               In the Court of Common Pleas of Venango County,
             Criminal Division at No(s): CP-61-CR-0000715-2014.


BEFORE:      STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.:                              FILED JULY 10, 2020

        Marlon Rumph appeals from the order denying his first petition for relief

filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-46. We

affirm.1

        This Court previously summarized the pertinent facts as follows:

              In 2014, the Franklin County Police Department, the Oil
           City Police Department, and the Office of the Attorney
           General of Pennsylvania conducted a joint investigation in
           Venango County. With the use of a confidential informant,
           investigators engaged in controlled buys from a residence in
           Venango County. A search warrant was obtained for the
           location, and police discovered heroin, drug-dealing

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*   Retired Senior Judge assigned to the Superior Court.

1 By order dated March 6, 2020, we remanded this appeal for the preparation
of the PCRA hearing transcript. That transcript was received, and the appeal
is ready for disposition.
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           paraphernalia, a firearm, and cash. A number of drug
           dealers were arrested, and they led investigators to
           [Rumph] as the source of their heroin. Police obtained a
           wiretap for [Rumph’s] telephone, and, during an intercept,
           [Rumph] agreed to sell heroin to Christopher Carlson. Police
           were present when the drug transaction occurred on
           November 7, 2014, and arrested [Rumph] and Carlson.
           [Rumph] was charged with and convicted of [dealing in
           proceeds of an unlawful activity, possession of a controlled
           substance with intent to deliver (“PWID”), conspiracy to
           commit PWID, and criminal use of communication facility].

               At [Rumph’s] trial, Christopher Carlson testified as
           follows. A relative arranged for him to meet [Rumph],
           whom he knew as “Lucky,” so that Carlson could begin
           selling heroin in the Franklin area. In May 2014, [Rumph]
           agreed to sell heroin to Carlson for $100 a gram, and
           Carlson would re-sell that substance for between $150 and
           $200 a gram. When he first started dealing, Carlson would
           purchase between twenty to thirty grams of heroin a week
           from [Rumph]. Over the course of the six months that he
           dealt that substance, Carlson began to purchase about 100
           grams a week from [Rumph], who was Carlson’s sole source
           of heroin. Carlson, who was arrested in November 2014,
           was also aware that [Rumph] sold heroin to other drug
           dealers.

Commonwealth v. Rumph, 160 A.3d. 268 (Pa. Super. 2017), unpublished

memorandum at 1-2 (citations to record omitted).

     The trial court sentenced Rumph to an aggregate term of seventeen to

fifty years of imprisonment. The trial court denied Rumph’s post-sentence

motions.     Thereafter, Rumph retained Stanley T. Booker, Esquire, and

Attorney Booker entered his appearance on February 26, 2016. Rumph filed

a timely appeal to this Court, and we affirmed his judgment of sentence on

January 26, 2017.      Rumph, supra.      Our Supreme Court denied Rumph’s




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petition for allowance of appeal on August 16, 2017.       Commonwealth v.

Rumph, 170 A.3d 986 (Pa. Super. 2017).

       On July 26, 2018, Rumph filed a pro se PCRA petition. Because the

PCRA court noted that Attorney Booker remained counsel of record, Rumph’s

pro se PCRA petition was forwarded to him. On August 16, 2018, Attorney

Booker filed an amended petition in which Rumph raised multiple ineffective

assistance of counsel claims. The PCRA court held an evidentiary hearing on

December 20, 2018, at which trial counsel testified. By order entered April

15, 2019, the PCRA court denied Rumph’s amended PCRA petition. This timely

appeal followed.2       Both Rumph and the PCRA court have complied with

Pa.R.A.P. 1925.

       Rumph now raises four claims on appeal. Although not phrased as such

in his statement of questions, it is clear from his supporting argument, and

that PCRA court’s treatment of the issues in its Rule 1925(a) opinion, that

Rumph is challenging trial counsel’s ineffectiveness for failing to challenge: 1)

the trial court’s determination at sentencing that he was not R.R.R.I eligible;

2) the trial court’s applying an offense gravity score for delivery of over 1000

grams of heroin when the parties previously stipulated that the amount was

less than 10 grams; 3) the trial court’s determination that sufficient evidence


____________________________________________


2 Thereafter, Attorney Booker filed a motion for the appointment of counsel to
represent Rumph on appeal, and the PCRA court appointed current counsel.




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supported Rumph’s conviction for dealing in proceeds of unlawful activities;

and 4) the trial court’s allowing the Commonwealth to introduce inadmissible

evidence in the form of multiple hearsay statements.       See Rumph’s Brief at

5.3

       Our scope and standard of review is well settled:

              This Court analyzes PCRA appeals in the light most
          favorable to the prevailing party at the PCRA level. Our
          review is limited to the findings of the PCRA court and the
          evidence of record and we do not disturb a PCRA court’s
          ruling if it is supported by the record and is free of legal
          error. Similarly, we grant great deference to the factual
          findings of the PCRA court and will not disturb those findings
          unless they have no support in the record. However, we
          afford no such deference to its legal conclusions. Where the
          petitioner raises questions of law, our standard of review is
          de novo and our scope of review is plenary. Finally, we may
          affirm a PCRA court’s decision on any grounds if the record
          supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016 (citation

omitted).

       Rumph’s issues involve his claim of ineffective assistance of trial

counsel. To obtain relief under the PCRA premised on a claim that counsel

was ineffective, a petitioner must establish by a preponderance of the

evidence that counsel's ineffectiveness so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken
____________________________________________


3 Although Rumph raises five issues in his brief, PCRA counsel combined the
issues regarding hearsay and inadmissible evidence because “after review
with [Rumph] and the file, the issue is the same argument.” Rumph’s Brief
at 20.


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place.     Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).

“Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Id. This requires the petitioner to demonstrate

that:     (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) petitioner

was prejudiced by counsel's act or omission. Id. at 533.

         Initially, we note that Rumph begins his brief with the reiteration of

general standards regarding the ineffectiveness of counsel, including

ineffectiveness in relation to a guilty plea—case law inapplicable to Rumph’s

jury verdicts. See Rumph’s Brief at 10-12.

         Moreover, Rumph’s argument in support of each of his ineffectiveness

claims is not adequately supported by case authority or citation to the record.

As to his first issue, although Rumph correctly cites the RRRI statute, his

supporting argument consists of a single paragraph made up of bare

assertions devoid of case authority. In support of his second issue involving

the trial court’s calculation of the Offense Gravity Score for drug offenses,

Rumph cites cases involving challenges to the legality of a sentence, even

though in disposing of his direct appeal, we informed him that such a

challenged involved the discretionary aspects of his sentence. See Rumph,

supra, unpublished memorandum at 7. In support of his third issue regarding

the sufficiency of the evidence supporting his drug conviction, Rumph repeats

inapplicable case law regarding the validity of a plea, and ignores the fact that

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trial counsel did challenge the sufficiency of the evidence by requesting a

judgment of acquittal at the close of the Commonwealth’s case. See N.T.,

11/19/15, at 29-92.     With regard to his fourth issue, the introduction of

inadmissible hearsay testimony, Rumph merely lists instances when alleged

hearsay was admitted and summary concludes that this “inadmissible

evidence tainted the jury’s finding of guilt.” Rumph’s Brief at 21. Finally, as

to each issue, Rumph does not discuss the three-part test for ineffectiveness

as it applies to each claim.

      Despite these shortcomings, after careful review, we conclude that the

Honorable Robert L. Boyer has prepared a thorough and well-reasoned opinion

that correctly disposes of each of Appellant’s ineffectiveness claims.    See

PCRA Court Opinion, 4/15/19, at 13-15 (correctly concluding Rumph was

ineligible for RRRI under subsection 4503(a)(6) because his drug conviction

for possessing with intent to deliver over 1000 grams of heroin, pursuant to

section 7508(7)(iii), is expressly excluded from eligibility); at 17-19 (citing

the discussion regarding the alleged stipulation at trial regarding the weight

of the drugs at issue, and finding Rumph misinterprets the stipulation’s terms;

while the Commonwealth stipulated to the weight of the drugs confiscated

from Carlson’s residence, the jury was free to accept Carlson’s testimony that

he distributed over 1000 grams of heroin that he had received from Rumph);

at 21 (noting that trial counsel unsuccessfully moved for a judgment of

acquittal as to the charge of dealing in proceeds from unlawful activities, and

that there was ample evidence to support the conviction); and at 8-13 (citing

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from the record each instance of alleged hearsay challenged by Rumph and

discussing why none of them warranted post-conviction relief).

       We therefore adopt Judge Boyer’s April 15, 2019 opinion as our own in

disposing of the present appeal.4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2020




____________________________________________


4The parties are directed to attach a copy of the Judge Boyer’s opinion to this
memorandum in the event of further proceedings.


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