J-S43036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

LAMONT ELLISON

                            Appellant                No. 3191 EDA 2014


                  Appeal from the PCRA Order October 31, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008480-2008


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED JULY 27, 2015

        Appellant, Lamont Ellison, appeals from the ordered entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The PCRA court opinion sets forth the relevant facts and procedural

history of this case as follows:

          On January 15, 2010, following a bench trial before the
          Honorable Steven R. Geroff, [Appellant] was found guilty
          of murder of the third degree and possessing an
          instrument of crime. On April 1, 2010, [Appellant] was
          sentenced to seventeen and a half (17.5) to thirty five (35)
          years of imprisonment for third-degree murder and a
          concurrent term of two and a half (2.5) to five (5) years of
          imprisonment for possessing an instrument of crime.

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
J-S43036-15


          [Appellant] filed a direct appeal. Judgment of sentence
          was affirmed by the Pennsylvania Superior Court on
          February 18, 2011.       The Pennsylvania Supreme Court
          denied [Appellant’s] request for allocatur on August 11,
          2011. On June 25, 2012, [Appellant] filed a timely pro se
          petition for post-conviction collateral relief. On November
          19, 2013, counsel filed an Amended Petition claiming that
          appellate counsel was ineffective for failing to raise a
          sufficiency-of-the-evidence     claim     for    [Appellant’s]
          conviction of third-degree murder. The Commonwealth
          filed a motion to dismiss on August 13, 2014. On October
          31, 2014, the petition was dismissed for lack of merit….[2]

(PCRA Court Opinion, filed February 27, 2015, at 1-2).         Appellant filed a

timely notice of appeal on November 12, 2014.          The court did not order

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.

       Appellant raises the following issue for our review:

          DID THE [PCRA] COURT ERR IN NOT REINSTATING
          APPELLANT’S RIGHT TO APPEAL THE JUDGMENT OF
          SENTENCE NUNC PRO TUNC WHEN APPELLATE DEFENSE
          COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THE
          ISSUE THAT THE EVIDENCE WAS INSUFFICIENT TO FIND
          APPELLANT GUILTY OF THIRD DEGREE MURDER ON
          APPEAL FROM THE JUDGMENT OF SENTENCE?

(Appellant’s Brief at 2).
____________________________________________


2
  The docket entry for October 1, 2014, indicates the court issued an order
granting a motion for continuance and states: “Continue for formal dismissal
on 10-31-14. 907 notice to be sent.” Notwithstanding this notation on the
docket, the record is unclear whether the court in fact gave notice of its
intent to dismiss Appellant’s PCRA petition without a hearing, pursuant to
Pa.R.Crim.P. 907. Nevertheless, Appellant does not claim on appeal that the
court failed to give Rule 907 notice, which constitutes waiver of that issue.
See Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa.Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).



                                           -2-
J-S43036-15


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

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if    the   record contains any support for       those   findings.

Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). A petitioner is

not entitled to a PCRA hearing as a matter of right; the PCRA court can

decline to hold a hearing if there is no genuine issue concerning any material

fact, the petitioner is not entitled to PCRA relief, and no purpose would be

served by any further proceedings.    Commonwealth v. Hardcastle, 549

Pa. 450, 701 A.2d 541 (1997).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Steven R.

Geroff, we conclude Appellant’s issue merits no relief.      The PCRA court

opinion comprehensively addresses and properly disposes of the question

presented.   (See PCRA Court Opinion at 4-5) (finding: on evening before

day of incident, victim’s mother saw Appellant drive slowly by victim, roll

down car window, make hand gesture simulating gun pointed at victim, and

say, “pow, pow”; victim’s sister found victim lying in street with multiple

gunshot wounds; victim told sister Appellant had shot victim; Appellant’s

friend told police Appellant had shot victim; while incarcerated, Appellant


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J-S43036-15


confided in cellmate that Appellant had shot victim; Appellant used deadly

weapon on vital part of victim’s body; evidence at trial was sufficient for

court to find Appellant was perpetrator of crime and acted with malice;

because evidence was sufficient to sustain Appellant’s third-degree murder

conviction, Appellant’s claim lacks arguable merit; therefore, appellate

counsel was not ineffective for failing to raise sufficiency challenge on direct

appeal). Accordingly, we affirm on the basis of the PCRA court opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/2015




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                         IN THE COURT OF COMMON PLEAS
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                        TRIAL DIVISION - CRIMINAL SECTION


COMMONWEAL          TH OF PENNSYLVANIA                                             CP-51-CR-0008480-2008


                 vs.
                                       FILED                                       SUPERIOR COURT
                                      FEB 2 7 2015                                 NO. 3191 EDA 2014
LAMONT ELLISON
                                 Criminal Appeal~ Unit
                               First Judioia\ Distnct of PA
                                                   OPINION


                              CP·51-CR..Q008480-200B Comm. v. Ellison, Lamont
GEROFF, J.                                        Opinion                       FEBRUARY 27, 2015


                                   1111111111111111111111111
                                            7263636221

        Petitioner, Lamont Ellison, has filed an appeal of this court's order denying his Amended

Petition pursuant to the Post Conviction Relief Act, 42 Pa.CS.A. § 9541 et seq.


   I.      PROCEDURAL HISTORY

        On January 15, 2010, following a bench trial before the Honorable Steven R. Geroff, the

Petitioner was found guilty of murder of the third degree and possessing an instrument of crime.

On April 1, 2010, Petitioner was sentenced to seventeen and a half (17.5) to thirty five (35) years

of imprisonment for third-degree murder and a concurrent term of two and a half (2.5) to five (5)

years of imprisonment for possessing an instrument of crime.


        The Petitioner filed a direct appeal. Judgment of sentence was affirmed by the

Pennsylvania Superior Court on February 18, 2011. The Pennsylvania Supreme Court denied

Petitioner's request for allocatur on August 11, 2011. On June 25, 2012, the Petitioner filed a



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timely prose petition for post-conviction collateral relief. On November 19, 2013, counsel filed

an Amended Petition claiming that appellate counsel was ineffective for failing to raise a

sufficiency-of-the-evidence   claim for the Petitioner's conviction of third-degree murder. The

Commonwealth filed a motion to dismiss on August 13, 2014. On Octo her 31, 2014, the petition

was dismissed for lack of merit pursuant to 42 Pa.C.S.A. §9541 et. seq. The Petitioner filed a

timely notice of appeal.


   II.      STANDARDOFREVIEW


         An ineffectiveness claim raised pursuant to the Post Conviction Relief Act must establish

that counsel's mistake so undermined the truth-determining process that no reliable adjudication

of guilt or innocence could have taken place. 42 Pa.C.S. § 9543(a)(2)(ii). See Commonwealth v.

Kimball, 5 55 Pa. 299, 312, 724 A.2d 326, 333 (Pa. 1999). To establish ineffectiveness under the

PCRA, a petitioner must demonstrate: (l) that the underlying claim is of arguable merit; (2) that

counsel's performance lacked a reasonable basis; and (3) that the ineffectiveness of counsel

caused the petitioner prejudice.   Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 245

(2008), citing Commonwealth v. Carson, 590 Pa. 50 l, 913 A.2d 220, 233 (2006), cert. denied, ---

U.S.----, 128 S.Ct. 384, 169 L.Ed.2d 270 (2007) (citing Commonwealth v. Pierce, 515 Pa. 153,

527 A.2d 973, 975 (1987) (adopting U.S. Supreme Court's holding in Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Eq.2d 674 (1984)). The law presumes that trial counsel is

effective and, therefore, a petitioner carries the burden of proving ineffectiveness.

Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663, 673 ( 1992). A failure to satisfy any prong

of the test for ineffectiveness requires rejection of tbe entire claim. Commonwealth v. Jones, 571

Pa. 112, 811 A.2d 994, 1002 (2002).



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       A claim has arguable merit where the factual averments, if accurate, could establish cause

for relief. See Commonwealth v. Jones, 583 Pa. 130, 876 A.2d 380, 385 (2005). If a petitioner

raises allegations, which, even if accepted as true, do not establish the underlying claim, he or

she will have failed to establish the arguable merit prong related to the claim. Id Whether the

facts rise to the level of arguable merit is a legal determination. Commonwealth v, Saranchak,

581 Pa. 490, 866 A.2d 292, 304 n. 14 (2005).


          Here, the underlying claim is that the evidence was insufficient to convict the Petitioner

of murder of the third degree. In evaluating a challenge to the sufficiency of the evidence, a

reviewing court must determine whether, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of

fact could have found that each and every element of the crimes charged was established beyond

reasonable doubt. Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).

   III.       DISCUSSION


          The Petitioner argues that appellate counsel was ineffective for failing to raise a

sufficiency-of-the-evidence    claim against his conviction of third-degree murder because

insufficient evidence was presented at trial to identify the Petitioner as the perpetrator of the

offense, and because insufficient evidence was presented at trial to establish that the Petitioner

acted with the requisite mens rea, or criminal intent.

          Murder of the third degree is an unlawful killing with malice. Pa.C.S.A. § 2502(c),

Commonwealth v, Carter, 481 Pa. 95, 393 A.2d 13, 15 (Pa. Super. 1978). Malice is defined as

"wickedness of disposition, hardness of the heart, cruelty, recklessness of consequences, and a

mind regardless of social duty." Commonwealth v, Shaffer, 722 A.2d 195, 199 (Pa. Super.

1998). Malice may be inferred from the attending circumstances, such as the use of a deadly

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weapon on a vital part of the body of another human being. Commonwealth v. Paquette, 451 Pa.

250, 301 A.2d 837, 840 (1973).

     Sufficiency ofthe Evidence.

        The evidence presented at trial was overwhelmingly sufficient for the trier of fact to find

that the Petitioner was the perpetrator of the crime, and was overwhelmingly sufficient for the

trier of fact to find that the Petitioner acted with malice. The evening prior to the day on which

the Petitioner shot the victim, the victim's mother saw the Petitioner slowly drive by her son, roll

down the window of the car, and make a hand gesture simulating a gun pointing at the victim.

"Pow, pow," she heard the Petitioner say. (N.T. 01/13/2010, 91-95).1 The victim's sister found

the victim shot and lying in the street, fading in and out of consciousness. When she asked the

victim what had happened, he stated, "Poodie (the Petitioner) shot me."2 (N.T. 01/13/2010, 108-

 114). Immediately after the shooting, Petitioner's own friend told police that the Petitioner had

shot the victim. (N.T. 01/14/2010, 91-103). After the shooting and while incarcerated, the

Petitioner confided to a cellmate that he had shot the victim, to whom he referred as "Twin."3

(N.T. 01/13/2010, 36-43).

         There are additional reasons to support a finding that the Petitioner acted with malice.

 The murder was committed with the use of a deadly weapon on a vital part of the victim's body,

 with the victim sustaining multiple gunshot wounds to his stomach, foot, and knee. (N.T.

 O 1/15/2010, 5-7). The victim's mother saw the Petitioner drive slowly past her son the night

 prior to the murder and make an obvious gesture threatening to kill him. The evidence clearly

 demonstrated that the Petitioner acted deliberately and with malice when he shot the victim the

 next day.

 I The victim's mother identified the Petitioner in court as the man who had driven by her son. Id. at 95.
 2 The victim's sister knew the Petitioner and knew that his nickname was "Poodie." Id. at 115.
 3 The victim was known by that nickname because he had a twin brother, Joseph (N.T. 01/13/2010, 91-92).



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         The Petitioner's underlying claim, that there was insufficient evidence to establish his

guilt for his conviction of third-degree murder, is without arguable merit. Since the Petitioner's

ineffectiveness claim lacks arguable merit, the Petitioner has failed the first prong of the

ineffectiveness test. To establish ineffectiveness, a petitioner must plead and prove all three

prongs of the ineffectiveness test. The Petitioner's failure to plead and prove the first prong of

the test means that his entire ineffectiveness claim must be rejected.

   IV.      CONCLUSION


         For the reasons stated above, the Petitioner's Amended Petition for Post Conviction

Relief was properly denied.




                                               BY THE COURT:



                                                                                       ....... ~·-··




                                               STEVEN R. GEROFF,




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