J-S04034-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   Appellee             :
                                        :
                   v.                   :
                                        :
MALCOME JAMARR GREENE,                  :
                                        :
                    Appellant           :     No. 411 WDA 2015

               Appeal from the PCRA Order February 5, 2015,
            in the Court of Common Pleas of Allegheny County,
           Criminal Division, at No(s): CP-02-CR-0001250-2009

BEFORE:    BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:         FILED FEBRUARY 11, 2016

     Malcome Jamarr Greene (Appellant) appeals from the order entered on

February 5, 2015, which dismissed his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     The background underlying this matter can be summarized as follows.

           Appellant was charged in connection with a shooting that
     occurred in the early morning hours of November 21, 2008 at
     the A-Plus Minimart/Sunoco Station in north Pittsburgh. After
     police were dispatched to the scene, Officer Michael Kelly of the
     Pittsburgh Police found the shooting victim, S.G., a Caucasian
     male, lying on the ground as he had been shot in the leg, pelvis,
     and buttocks. No weapons were found at the crime scene. S.G.
     was taken to the hospital in critical condition. After S.G.’s
     condition improved, he was able to identify Appellant as the
     shooter.

           On April 11, 2011, Appellant proceeded to a jury trial []
     where the following factual history was developed.        After
     drinking at a local club, S.G. had stopped at the convenience
     store to buy cigarettes on the night of the shooting. Conceding
     that he was intoxicated that evening, S.G. admitted he became

*Retired Senior Judge assigned to the Superior Court.
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     argumentative     with   several   African-American   customers
     (including Appellant) and used offensive language, which
     included profanity and racial slurs.      After S.G. exited the
     convenience store, an unidentified black male followed S.G. and
     confronted him in the parking lot. S.G. admitted he argued with
     this man, but never threw any punches and simply walked away.
     Shortly thereafter, S.G. claims Appellant shot him several times.
     S.G. claims that Appellant sped away from the scene in his
     vehicle.

            Several days after the shooting, Appellant made a
     statement to [] Pittsburgh police detectives. Appellant claimed
     the victim had come into the convenience store the night of the
     shooting and had acted belligerently towards him, by cursing
     and calling him names. As the victim was leaving the store,
     Appellant alleged the victim attempted to prevent a large
     African-American man from leaving the store. When both men
     exited the store, Appellant claimed the two men got into a
     fistfight where S.G. was punching the larger black male in the
     head.     After Appellant approached the men in a purported
     attempt to help, Appellant contends that S.G. “began to come
     after” him and chased Appellant around the parking lot in circles.
     Appellant then pulled out a gun and shot S.G. several times.
     Claiming that he did not feel he hurt S.G. in any way, Appellant
     got in his vehicle and left the scene of the shooting.

           After giving his statement, Appellant gave the police
     consent to search his residence and assured them they would
     find the firearm used in the shooting in his bedroom. Officers
     found a firearm underneath Appellant’s bed, but ballistics
     evidence later showed that this was not the weapon used in the
     shooting as shell casings found at the crime scene did not belong
     to that gun. At trial, Appellant claimed the gun he used in the
     shooting had been stolen. Police never located the weapon
     Appellant used to shoot S.G.

           The Commonwealth presented two eyewitnesses whose
     testimony conflicted with Appellant’s account of the shooting.
     LaDawn Gardner was present in the convenience store and
     witnessed S.G.’s drunken rant at the other customers. She
     exited the store to pump gas in her vehicle and witnessed S.G
     and the unidentified black male attempt to fight in the parking
     lot. She testified that the men swung their fists at each other,


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        but failed to make any physical contact. Gardner claimed that
        Appellant came around the corner with a gun. After S.G. turned
        to see Appellant pointing the gun at him, S.G. dared Appellant to
        shoot him. Appellant shot the victim at close range several
        times.

              John Lonett was also an eyewitness to the shooting and
        was present in the convenience store when S.G. pushed the
        larger black male near the doorway. While Lonett was pumping
        gas for his vehicle, he saw S.G. and the larger black man get
        into a “scuffle,” but did not witness either man throwing a
        punch. Lonett testified that Appellant came around the corner
        and walked toward S.G. After the men began to yell at each
        other, Appellant shot at S.G.’s feet, causing S.G. to jump.
        Appellant continued firing at S.G., after which S.G. fell to the
        ground and Appellant left the scene in his vehicle.

              At the conclusion of the trial, the jury acquitted Appellant
        of attempted homicide, but convicted him of aggravated
        assault[, 18 Pa.C.S. § 2702(a)(1)]. On June 20, 2011, the trial
        court sentenced Appellant to an aggregate term of five to twenty
        years [of] imprisonment for the aggravated assault. On June
        30, 2011, Appellant filed a post-sentence motion, which the trial
        court denied on July 7, 2011. [Appellant timely filed a direct
        appeal.]

Commonwealth v. Greene, 60 A.35 585 (Pa. Super. 2012) (unpublished

memorandum at 1-4).

        This Court affirmed Appellant’s judgment of sentence on August 30,

2012.     Id.   Appellant filed a petition for allowance of appeal, which our

Supreme Court denied on March 14, 2013.          Commonwealth v. Greene,

619 Pa. 699 (2013).      On March 18, 2014, Appellant pro se timely filed a

PCRA petition.    The PCRA court appointed counsel to represent Appellant,

and counsel filed an amended PCRA petition on Appellant’s behalf.




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      On January 15, 2015, the PCRA court issued notice pursuant to

Pa.R.Crim.P. 907(1) stating that the court intended to dismiss the PCRA

petition without holding an evidentiary hearing.    The court then dismissed

the petition on February 5, 2015. Appellant timely filed a notice of appeal.

      On appeal, Appellant argues that the PCRA court erred by dismissing

his PCRA petition without holding an evidentiary hearing. More specifically,

Appellant contends that the court incorrectly concluded that trial counsel did

not render ineffective assistance. According to Appellant, “trial counsel was

ineffective for failing to request that the jury be instructed on the lesser

included offenses of aggravated assault under 18 Pa.C.S. § 2702(a)(4),

recklessly endangering another person under 18 Pa.C.S. § 2705, and simple

assault under 18 Pa.C.S. § 2701.”       Appellant’s Brief at 12 (unnecessary

capitalization omitted).   The PCRA court rejected this claim by concluding,

inter alia, that Appellant was not prejudiced by counsel’s failure to request

such instructions. We agree with this conclusion.

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s rulings are supported by the evidence of

record and free of legal error.    Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010).      “To establish ineffectiveness of counsel, a

PCRA petitioner must show the underlying claim has arguable merit,

counsel’s actions lacked any reasonable basis, and counsel’s actions

prejudiced the petitioner. Prejudice means that, absent counsel’s conduct,



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there is a reasonable probability the outcome of the proceedings would have

been different.”      Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa.

Super. 2013) (citations omitted).

     Even if we assume arguendo that trial counsel should have requested

that the trial court charge the jury on lesser included offenses of aggravated

assault, 18 Pa.C.S. § 2702(a)(1),1 counsel’s inaction did not prejudice

Appellant. The jury’s verdict makes clear that they were convinced beyond a

reasonable doubt that Appellant was guilty of aggravated assault as defined

in subsection 2702(a)(1).    Such a verdict demonstrates that, had the jury

been charged on lesser included offenses of aggravated assault, they simply

would have convicted him of those offenses as well, and the lesser-included-

offense convictions would have merged with aggravated assault for purposes

of sentencing.     Thus, absent counsel’s alleged failure to request jury

instructions on the lesser included offenses, there is not a reasonable

probability that the outcome of Appellant’s trial would have been different.

Consequently,    we    conclude   that   the   PCRA court properly dismissed

Appellant’s PCRA petition.

     Order affirmed.




1
  Subsection 2702(a)(1) provides, “A person is guilty of aggravated assault if
he … attempts to cause serious bodily injury to another, or causes such
injury intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life[.]” 18 Pa.C.S. § 2702(a)(1).


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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/11/2016




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