J-S16006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARKAL TREY MUNFORD                        :
                                               :
                       Appellant               :    No. 1271 MDA 2018

               Appeal from the PCRA Order Entered July 6, 2018
                  In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0004001-2014


BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                             FILED: MAY 20, 2019

        Markal Trey Munford appeals from the order entered on July 6, 2018,

denying, after a hearing, his first, counseled petition filed pursuant to the

Pennsylvania Post Conviction Relief Act (PCRA).1 Munford seeks relief from

the judgment of sentence of 6¼ to 12½ years’ imprisonment, imposed after

a jury convicted Munford of one count each of person not to possess firearms,

receiving stolen property (RSP), firearms not to be carried without a license,

and possession of a controlled substance.2 Munford contends the PCRA court

erred in denying relief where appellate counsel was ineffective for not raising

a claim on direct appeal that the evidence was insufficient to sustain his

____________________________________________


1   42 Pa.C.S.A. §§ 9541–9546.

218 Pa.C.S.A. §§ 6105(a)(1), 3925(a), and 6106(a)(1), respectively; and 35
P.S. § 780-113(a)(16).
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conviction for RSP.   See Munford’s Brief at 7. Based on the following, we

reverse the denial of PCRA relief and remand with instructions.

      We take the underlying facts and procedural history in this matter from

this Court’s decision on direct appeal and our independent review of the

certified record:

      On February 21, 2014, at approximately 1:45 a.m., [Munford] was
      a passenger in a Ford Ranger pick-up truck driven by his father
      when two York City police officers stopped the vehicle for having
      a suspended registration. As police officers pulled up behind the
      pick-up truck, the driver got out and walked away from the vehicle
      toward the officers, saying he lived right across the street. The
      officers told him several times to get back in the vehicle. As they
      escorted the driver back to his vehicle, the officers saw
      [Munford’s] head slightly pop up in the passenger seat. They were
      unable to see his hands until they got around to the front of the
      vehicle, at which point they saw [Munford] hunched over the front
      seat with his hands in his lap.

      After [Munford] and his father provided the police officers with
      identification, the officers discovered that the probation and parole
      department had issued a warrant for [Munford’s] detention. The
      officers arrested and searched [Munford].           In his pockets,
      [Munford] had $1,000 in cash and two small baggies containing
      blue pills, later determined to be Methylone (known as “bath
      salts”), a Schedule I controlled substance. Because the car was
      unregistered and uninsured, the officers impounded the vehicle
      and searched it. They discovered a stolen, loaded .357 Magnum
      revolver underneath the passenger seat where [Munford] had
      been sitting. A background check revealed [Munford] was a
      person not permitted to possess firearms.

      The Commonwealth charged [Munford] with Person Not to Possess
      Firearms, [RSP], Firearms Not to be Carried Without a License,
      and Possession of Controlled Substance by Person Not Registered.
      [Munford] filed a [m]otion to [s]uppress, which the trial court
      denied.

      A jury trial proceeded, at which the arresting officers testified
      regarding the events leading up to and including [Munford’s]

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     arrest. They testified that [Munford] was hunched over in the
     front seat so that they did not even know he was there until they
     neared the vehicle while returning [Munford’s] father to the car.
     The officer who found the gun testified that it had been pushed
     “pretty far back” under the passenger seat, and because it was
     “so shoved back,” the gun would have been accessible to the
     driver only if he were to get out of the car, walk around to the
     passenger side, and reach under the seat.

     [Munford] testified that the truck belonged to his father who used
     it in his construction business, but that [Munford] registered it in
     his (Munford’s) name because his father had “had problems with
     his license.” Munford further testified that he had been drinking
     at a bar the night of the incident and had called his father for a
     ride home. He testified that when police officers stopped the
     vehicle, he was hunched over the front seat because he “was
     basically in a relaxed position.” [Munford] denied ever seeing the
     gun, and denied knowing how the gun ended up underneath the
     passenger seat of the truck.

     The jury found [Munford] found guilty of all charges. The court
     subsequently sentenced [Munford] to an aggregate term of
     incarceration of 6 years, 3 months to 12 years, 6 months.

     Munford timely appealed.

Commonwealth v. Munford, 2016 WL 3155101, at ** 1-2 (Pa. Super. Jun.

6, 2016) (unpublished memorandum) (footnote and record citations omitted).

     On June 6, 2016, this Court affirmed the judgment of sentence. Id. at

*1. On December 7, 2016, the Pennsylvania Supreme Court denied leave to

appeal. Commonwealth v. Munford, 163 A.3d 408 (Pa. 2016).

     On March 27, 2017, Munford, acting pro se, filed a timely PCRA petition.

On March 31, 2017, the PCRA court appointed counsel, who filed an amended

PCRA petition on November 14, 2017. The PCRA court held an evidentiary

hearing on March 29, 2018.


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        At the hearing, PCRA counsel withdrew all issues except the alleged

ineffectiveness of appellate counsel for failing to raise on appeal issues

challenging the trial court’s denial of Munford’s motion to suppress and the

sufficiency of the evidence underlying his conviction for RSP.       N.T. PCRA

Hearing, 3/29/2018, at 3-4.         Munford testified at the hearing that he had

requested, in writing, that appellate counsel raise both those issues.3 Id. at

9-10.

        Anthony Tambourino, Esquire, who represented Munford on direct

appeal, also testified at the hearing. Id. at 13. With respect to the issue of

failing to challenge the sufficiency of the evidence underlying the receiving

stolen property conviction, Mr. Tambourino stated that his general philosophy

was to raise any issues he felt might have possible merit in the Rule 1925(b)

statement so as to preserve them for appeal but only to raise the strongest

issues on appeal. Id. at 17. Mr. Tambourino testified that he believed that

the evidence was sufficient to sustain the conviction for receiving stolen

property because the vehicle in which Munford was a passenger was registered

in his name, he constructively possessed the gun, and he made furtive

movements in an attempt to conceal the weapon under his seat. Id. at 18.

On cross-examination, he reiterated that he believed that the evidence

demonstrated that the “gun was clearly stolen.” Id. at 21.



____________________________________________


3   Munford has abandoned this issue on appeal. Munford’s Brief, at 7.

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      On July 6, 2018, the PCRA court issued an order and opinion denying

Munford’s PCRA petition. The instant, timely appeal followed. On August 9,

2018, in response to the PCRA court’s order, Munford filed a timely concise

statement of errors complained of on appeal. On August 16, 2018, the PCRA

court issued an opinion adopting its earlier, July 6, 2018 opinion.

      Munford challenges the denial of his PCRA petition.       Our 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 evidence
      of record and is free of legal error. Similarly, [w]e 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.
      [W]here 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. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (quotation

marks and citations omitted). Furthermore, where, as here, the defendant

alleges appellate counsel rendered ineffective assistance, we note:

      [W]e begin with the presumption that counsel is effective. To
      prevail on an ineffectiveness claim, [a]ppellant must satisfy, by a
      preponderance of the evidence, the performance and prejudice
      standard set forth in Strickland v. Washington, 466 U.S. 668,
      104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court has divided
      the performance component of Strickland into two subparts
      dealing with arguable merit and reasonable strategy.
      Commonwealth v. Baumhammers, 625 Pa. 354, 92 A.3d 708,
      719 (Pa. 2014); Commonwealth v. Pierce, 515 Pa. 153, 527
      A.2d 973, 975-77 (Pa. 1987). With regard to “reasonable basis”
      in the appellate context, “[i]t is well settled that appellate counsel

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     is entitled, as a matter of strategy, to forego even meritorious
     issues in favor of issues he believes pose a greater likelihood of
     success.” Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032,
     1043 (Pa. 2012). See also Commonwealth v. Robinson, 581
     Pa. 154, 864 A.2d 460, 479 n.28 (Pa. 2004), cert denied, 546 U.S.
     983, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005) (“Th[e] process of
     ‘winnowing out weaker arguments on appeal and focusing on’
     those more likely to prevail, far from being evidence of
     incompetence, is the hallmark of effective appellate advocacy.”)
     (quoting Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661,
     91 L.Ed.2d 434 (1986). Accord Jones v. Barnes, 463 U.S. 745,
     746, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)) (“Experienced
     advocates since time beyond memory have emphasized the
     importance of winnowing out weaker arguments on appeal and
     focusing on one central issue if possible, or at most on a few key
     issues.”).    To establish Strickland/Pierce prejudice in the
     appellate representation context, the petitioner must show that
     there is a reasonable probability that the outcome of the direct
     appeal proceeding would have been different but for counsel’s
     deficient performance.

Commonwealth v. Blakeney, 108 A.3d 739, 749-750 (Pa. 2014), cert.

denied, 135 S.Ct. 2817 (2015).

     “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit . . .” Pierce, supra

at 194. “Counsel cannot be found ineffective for failing to pursue a baseless

or meritless claim.” Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.

Super. 2007), appeal denied, 951 A.2d 1163 (2008) (citation omitted). Here,

our review of the applicable law demonstrates that Munford’s claim that

counsel should have challenged the sufficiency of the evidence underlying his

RSP conviction has arguable merit.




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      When examining a challenge to the sufficiency of the evidence, our

standard of review is as follows:

      The determination of whether sufficient evidence exists to support
      the verdict is a question of law; accordingly, our standard of
      review is de novo and our scope of review is plenary. In assessing
      [a] sufficiency challenge, we must determine whether viewing all
      the evidence admitted at trial in the light most favorable to the
      [Commonwealth], there is sufficient evidence to enable the
      factfinder to find every element of the crime beyond a reasonable
      doubt.     [T]he facts and circumstances established by the
      Commonwealth need not preclude every possibility of innocence.
      . . . [T]he finder of fact while passing upon the credibility of
      witnesses and the weight of the evidence produced, is free to
      believe all, part[,] or none of the evidence.

Commonwealth v. Edwards, 177 A.3d 963, 969-970 (Pa. Super. 2018)

(quotation marks and citations omitted).     Moreover, “[t]he Commonwealth

may sustain its burden of proving every element of the crime beyond a

reasonable    doubt   by   means     of    wholly   circumstantial   evidence.”

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citation

omitted), appeal denied, 32 A.3d 1275 (Pa. 2011).

      The jury found Munford guilty of RSP, which we define as:

      (a) Offense defined.—A person is guilty of theft if he
      intentionally receives, retains, or disposes of movable property of
      another knowing that it has been stolen, or believing that it has
      probably been stolen, unless the property is received, retained, or
      disposed with intent to restore it to the owner.

18 Pa.C.S.A. § 3925(a). Our Court has described the elements of the crime

as follows: (1) intentionally acquiring possession of the movable property of

another; (2) with knowledge or belief that it was probably stolen; and (3) the




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intent to deprive permanently. Commonwealth v. Nero, 58 A.3d 802, 807

(Pa. Super. 2012) (citation omitted), appeal denied, 72 A.3d 602 (Pa. 2013).

      Here, Munford argues, “the trial record and PCRA record are devoid of

any evidence that [he] knew that the property [was] stolen, or [believed] that

it had probably been stolen.” Munford’s Brief, at 11. With respect to this

element, we have stated:

      Importantly, the Legislature expressly defined the required mental
      state as “knowing” or “believing.”        Because the Legislature
      excluded mental states such as recklessness, negligence, or
      naïveté about the stolen status of the property, those mental
      states are insufficient. This reasoning is consistent with the
      common recognition that penal statutes are to be strictly
      construed. Thus, courts may not hold that a less culpable mental
      state satisfies a criminal statute where the statute demands proof
      of the more culpable mental state.

Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa. Super. 2015) (en

banc) (citations omitted).

      Thus, it was the Commonwealth’s burden to demonstrate either that

Munford knew someone had stolen the weapon, or believed that someone had

probably stolen it. At trial, the parties stipulated that the gun belonged to

Dustin Ayala, who reported it stolen to the West Manchester Police

Department on March 30, 2013. N.T. Trial, 7/08/2015, at 109-110, 119-1120.

However, the Commonwealth does not point to any direct evidence that

Munford knew that someone had stolen the handgun.           Commonwealth’s

Brief, at 12-16. Instead, it argues that it produced sufficient circumstantial

evidence to show that Munford should have known someone had stolen it. Id.


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Specifically, the Commonwealth highlights:     (1) that, as a convicted felon,

Munford could not legally possess a gun; (2) his furtive movements at the

time of the traffic stop and Munford’s “hunched over” position; and (3) that

the gun was located under the passenger seat of the car. Id. at 14, 16. We

disagree.

      In Robinson, supra, this Court held that the mere fact that the

appellant could not legally possess firearms was not sufficient to sustain a

conviction for RSP. Robinson, supra at 267. Moreover, we stated:

      [l]ikewise, none of the other recognized indicia of knowledge of
      the stolen nature of the property is present. The handgun in
      Robinson’s possession was located in an unremarkable location
      (his coat pocket), and it had not been altered in any way to
      conceal its stolen status, as the manufacturer’s serial number
      remained plainly visible. Robinson’s conduct at the time of arrest
      likewise provided no indicia of guilty knowledge, as he merely
      stared “stone-faced” in response to Officer Dinger’s inquiries, and
      he did not offer any false explanation for his possession of the
      handgun or make any effort to flee apprehension. In sum, the
      Commonwealth introduced no evidence whatsoever at trial
      regarding how, when, or where Robinson acquired the handgun,
      or from whom. Instead, the Commonwealth proved only that
      Robinson possessed stolen property, which, as indicated, by itself
      is not sufficient to prove guilty knowledge.

Id. at 269 (citation omitted).

      We discern little difference between the facts in Robinson, and those

in the present case. The Commonwealth did not offer evidence that anyone

had altered the gun in any way or that the serial number was altered or

obliterated. Further, with respect to Munford’s actions at the traffic stop, the

police could not see his hands and did not see him attempt to hide anything,


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or attempt to flee. Munford, supra at *1. To extrapolate that because he

could not legally purchase a gun, Munford had knowledge that someone had

stolen the gun 11 months earlier is mere conjecture.        Thus, because the

evidence, or the lack thereof, presented at trial closely resembles the facts in

Robinson, supra, Munford has demonstrated that his claim has arguable

merit.

      We next examine whether counsel had a reasonable basis for foregoing

the sufficiency claim. Our Supreme Court has stated:

      When assessing whether counsel had a reasonable basis for his
      act or omission, the question is not whether there were other
      courses of action that counsel could have taken, but whether
      counsel’s decision had any basis reasonably designed to effectuate
      his client’s interest. As the Commonwealth accurately states, this
      cannot be a hindsight evaluation of counsel’s performance, but
      requires an examination of “whether counsel made an informed
      choice, which at the time the decision was made reasonably could
      have been considered to advance and protect [the] defendant’s
      interests.” Our evaluation of counsel’s performance is “highly
      deferential.”

            [S]trategic choices made after thorough investigation
            of law and facts relevant to plausible options are
            virtually unchallengeable; and strategic choices made
            after less than complete investigation are reasonable
            precisely to the extent that reasonable professional
            judgments support the limitations on investigation. In
            other words, counsel has a duty to make reasonable
            investigations or to make a reasonable decision that
            makes particular investigations unnecessary. In any
            ineffectiveness case, a particular decision not to
            investigate    must   be    directly   assessed    for
            reasonableness in all the circumstances, applying a
            heavy measure of deference to counsel’s judgments.

      Strickland, 466 U.S. at 690–91, 104 S.Ct. 2052; see also
      Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 535–

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      36 (2009) (“The duty to investigate, of course, may include a duty
      to interview certain potential witnesses; and a prejudicial failure
      to fulfill this duty, unless pursuant to a reasonable strategic
      decision, may lead to a finding of ineffective assistance.”).

Commonwealth v. Williams, 141 A.3d 440, 463 (Pa. 2016) (most citations

omitted).

      We have held that counsel is permitted to winnow out weaker claims in

favor of pursuing claims that counsel believes offer a better chance of relief.

Id. at 471.    “Appellate counsel need not (and should not) raise every

nonfrivolous claim, but rather may select from among them in order to

maximize the likelihood of success on appeal.” Id.

      Even though counsel testified that PCRA counsel had not given him

sufficient notice of the hearing and, therefore, he was unable to review

Munford’s file, much of his testimony concerned his general philosophy and

practice rather than his specific decision-making process in the instant matter.

See N.T. PCRA Hearing, 3/29/2018 at 14-17.

      The sole issue counsel raised on appeal was that Munford did not

constructively possess the gun and, therefore, the evidence was insufficient

to sustain his conviction for firearm possession. See Munford, supra at *2.

Given that possession was an element of both offenses, if counsel believed

that the evidence was insufficient to demonstrate constructive possession for

purposes of possessing a firearm, then logically it would have been insufficient

for purposes of RSP.




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      Moreover, counsel stated that he believed that this was not a viable

issue because “the reasonable inference that could be drawn is that [Munford]

knew it was stolen given that he is a person not to possess and it is a stolen

firearm.” N.T. PCRA Hearing, 3/29/2018 at 22. This statement falls squarely

afoul of our holding in Robinson.            See Robinson, supra at 271.

Furthermore, handgun transfers between family members do not require a

background check and both Munford and his father were in the same vehicle

where the gun was found.

      Given this, it appears that rather than winnowing claims to raise only

the strongest issue, counsel actually raised a weaker issue, as the evidence

underlying the weapons charge was actually stronger than the evidence

underlying the RSP charge. See id.; see Munford, supra at **2-3. We can

discern no reasonable strategic basis for counsel’s failure to challenge the

sufficiency of the evidence underlying the RSP conviction on direct appeal.

      Turning to the final prong, prejudice, the question is whether “there is

a reasonable probability that, but for [appellate] counsel’s errors, the result

of the proceeding would have been different.” Id. at 465 (citations omitted).

Here, as discussed above, based upon our decision in Robinson, supra, there

is a substantial likelihood that the outcome of Munford’s appeal would have

been different had appellate counsel raised this issue on direct appeal. Had

the appeal succeeded, we would have reversed the conviction of RSP and

vacated the judgment of sentence. While Munford’s sentence for RSP was


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shorter than his sentence for possession of a firearm, the trial court imposed

it consecutively. See Trial Court Opinion, 7/06/2018, at 2. Thus, had the

judgment for RSP been vacated, it would have disturbed the overall sentencing

scheme and the trial court could have resentenced Munford to a lesser

sentence. Thus, Munford has demonstrated that appellate counsel’s failure

prejudiced him.

      Accordingly, we reverse the PCRA court’s order denying relief as to

Munford’s claim regarding direct appeal counsel’s ineffectiveness for failing to

raise the issue of the sufficiency of the evidence underlying the RSP conviction.

Moreover, we direct the PCRA court to reinstate Munford’s direct appeal rights

nunc pro tunc with respect to the sufficiency of the evidence underlying the

RSP conviction only, and, if necessary, appoint new counsel for Munford.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2019




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