J-S04028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                          Appellee

                     v.

MARQUIS JACKSON

                          Appellant                   No. 735 EDA 2019


             Appeal from the PCRA Order entered March 1, 2019
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0007141-2011


BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.:                              FILED MAY 11, 2020

      Appellant, Marquis Jackson, appeals from the March 1, 2019 order

entered in the Court of Common Pleas of Philadelphia County, denying his

request for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.

      The PCRA court provided the following factual background from the trial

court’s Rule 1925(a) opinion:

      [O]n May 31, 2011, at approximately 9:40 p.m. [the complainant,
      Donzel Murril] was sitting in a parked vehicle with his girlfriend
      near the 7400 block of Edmund Street, Philadelphia.            The
      complainant was sitting in the driver’s seat and his girlfriend,
      Verdell Goodman, was positioned in the passenger seat. The
      complainant observed [Appellant] emerge from an alleyway and
      walk to a nearby corner. Street lights illuminated the area and
      [Appellant] was not wearing clothing around his head or face.
      [Appellant] then walked to the driver’s side of the complainant’s
      vehicle, holding a firearm in his hand. The complainant verbally
      greeted [Appellant], whom he knew for five or six years.
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       [Appellant] then discharged his firearm multiple times, striking
       the complainant in the leg, back and elbow. The complainant then
       started his vehicle and drove briefly before stopping to permit Ms.
       Goodman to assume control. When presented with a photo-array
       at the hospital, the complainant identified [Appellant].

       . . . Ms. Goodman subsequently made a photo-array identification
       of [Appellant].

       The Commonwealth also presented evidence relating to the
       intimidation of witnesses. The complainant’s mother, Ms. Dolly
       Evans testified that she was approached by two individuals on
       June 30, 2011 at a store located at Loring and Torresdale Avenue,
       Philadelphia. Ms. Evans recognized one of the individuals and
       knew him as “Rob.” After a brief verbal exchange, the second
       individual struck Ms. Evans on the jaw, stating “take this message
       to your son.” . . . The complainant testified that he was also
       approached by Rob on the same date and at the same location.
       The complainant knew Rob as a local resident and frequently
       observed him in [Appellant’s] company. The complainant further
       characterized Rob as [Appellant’s] “right-hand man.”           Rob
       inquired “why you go to court on my young boy?” and followed
       up, stating “suppose I come and shoot your house up.”

PCRA Court Opinion, 6/28/19, at 2 (quoting Trial Court Rule 1925(a) Opinion,

12/18/13, at 2-3).1

       A jury found Appellant guilty on January 17, 2013 of attempted murder,

aggravated assault, simple assault, recklessly endangering another person,

possession of instrument of a crime (PIC), and carrying a firearm in public in

Philadelphia. Id. The trial judge sentenced Appellant to a term of 18 to 36

years in prison for attempted murder, and concurrent terms of two and a half




____________________________________________


1 Following the retirement of the trial court judge, the Honorable Earl W. Trent,
Jr., the Honorable Genece E. Brinkley was assigned to the PCRA proceedings.

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to five years each for PIC and for carrying a firearm in public in Philadelphia.

No additional penalties were imposed. Id.

      On April 16, 2013, Appellant filed a post-sentence motion seeking a new

trial based on weight of the evidence and arguing the trial court imposed an

excessive sentence. On April 29, 2013, the trial court denied the motion. Id.

      Appellant filed an appeal to this Court and complied with the trial court’s

directive to file a Rule 1925(b) statement of errors. Appellant later requested,

and was granted, the opportunity to file an amended Rule 1925(b) statement.

      On May 29, 2015, we affirmed Appellant’s judgment of sentence. Our

Supreme Court denied his petition for allowance of appeal on October 7, 2015.

Id.

      On September 8, 2016, Appellant filed a pro se PCRA petition.

Appointed counsel filed an amended petition followed by a second amended

petition. The Commonwealth filed a motion to dismiss and, on January 29,

2019, the PCRA court issued a notice of intent to dismiss pursuant to

Pa.R.Crim.P. 907. Appellant did not file a response. On March 1, 2019, the

PCRA court dismissed the petition as meritless. This timely appeal followed.

The PCRA court did not order a Rule 1925(b) statement but did issue a Rule

1925(a) opinion on June 28, 2019 explaining that the court properly dismissed

Appellant’s PCRA petition without an evidentiary hearing based on lack of

merit.

      On appeal, Appellant presents two issues for our consideration:


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      I.    Is appellant entitled to appeal nunc pro tunc from the
            judgment of sentence when appellate defense counsel in the
            appeal from the judgment of sentence waived all issues on
            appeal except an issue that was moot?

      II.   Did the [PCRA] court err in denying an evidentiary hearing
            in this case because [Appellant] raised a material issue of
            fact that trial defense counsel was ineffective in failing to
            request a motive/lack of motive charge from the trial court
            when the prosecutor in argument when addressing the lack
            of motive evidence told the jury that it does not have to
            prove motive?

Appellant’s Brief at 2.

      As this Court reiterated in Commonwealth v. Beatty, 207 A.3d 957

(Pa. Super. 2019):

      Our standard of review of the denial of a PCRA petition is limited
      to examining whether the evidence of record supports the court’s
      determination and whether its decision is free of legal error.
      Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011),
      appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court
      grants great deference to the findings of the PCRA court if the
      record contains any support for those findings. Commonwealth
      v. Boyd, 923 A.2d 513 (Pa. Super. 2007), appeal denied, 593 Pa.
      754, 932 A.2d 74 (2007).

Id. at 960-61.

      In his first issue, Appellant contends the PCRA court erred in denying

Appellant the opportunity to file a direct appeal nunc pro tunc in light of direct

appeal counsel’s waiver of “all issues on appeal except an issue that was

moot.” Appellant’s Brief at 2. Appellant first raised this issue in his Amended

PCRA Petition filed on June 12, 2017. In that amended petition, Appellant

alleged:




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        [Appellant’s] appellate defense counsel was ineffective because
        counsel raised no issue on appeal because counsel filed a vague
        1925(b) statement and did not cite to the record as a result of this
        failure all issues were waived. As a result of this [Appellant] lost
        [his] state constitutional right to appeal the judgment of sentence
        in the above matters.

Amended PCRA Petition, 6/12/17, at ¶ 4a. He included a prayer for relief,

which we repeat here verbatim, requesting “that his post sentence rights

including the right file motion to post sentence motions and to appeal be

reinstated nunc pro tunc or that he be granted an evidentiary hearing.” Id.

at 2.

        Our review of the memorandum opinion issued by this Court on direct

appeal reveals that Appellant raised two issues. The first claimed trial court

errors for granting a motion to consolidate Appellant’s trial with that of

Robinson (referred to as “Rob” in the quoted excerpt from the trial court’s

Rule 1925(b) opinion) and for admitting evidence that Robinson approached

the complainant in an attempt to intimidate him.            Commonwealth v.

Jackson, 1292 EDA 2013, unpublished memorandum at 5 (Pa. Super. filed

May 29, 2015). This Court found the claimed error regarding consolidation

was moot because Robinson pled guilty before trial. Id. at 5-6. The Court

then found the intimidation evidence issue waived for failure to provide record

citations to demonstrate that any evidence was erroneously admitted. Id. at

6-7. The Court then considered Appellant’s second issue, which challenged

the sufficiency of evidence to support his six convictions.            The Court

determined that Appellant’s Rule 1925(b) statement failed to specify the

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elements of the crimes he was challenging and, therefore, his sufficiency

claims were waived. Id. at 8-9. Having concluded “Appellant’s issues are

devoid of merit or waived,” the Court affirmed Appellant’s judgment of

sentence. Id. at 9.

      As mentioned above, on appeal from denial of Appellant’s petition, the

PCRA court did not direct Appellant to file a Rule 1925(b) statement of errors

complained of on appeal.        Therefore, even though Appellant asserted

entitlement to a direct appeal nunc pro tunc in his amended PCRA Petition,

the PCRA court did not address the issue. Regardless, Appellant is not entitled

to a direct appeal nunc pro tunc.

      As this Court recognized in Commonwealth v. Pulanco, 954 A.2d 639

(Pa. Super. 2008),

      It is well settled that when direct appeal counsel files a
      Pa.R.A.P.1925(b) statement that fails to preserve any issues for
      appellate review, the PCRA court may reinstate the petitioner’s
      direct appeal rights nunc pro tunc. Commonwealth v. Johnson,
      889 A.2d 620, 623 (Pa. Super. 2005) (citing Commonwealth v.
      Hernandez, 755 A.2d 1, 8–9 n. 4 (Pa. Super. 2000) (finding that
      a PCRA petitioner is entitled to a direct appeal nunc pro tunc where
      prior counsel caused his sole direct appellate claim to be waived),
      affirmed in part, 572 Pa. 477, 817 A.2d 479 (2003)). However,
      in the case sub judice, Appellant has had appellate review of
      some, albeit not all, of his issues. There is no right to the
      reinstatement of appellate rights nunc pro tunc in this instance.
      Commonwealth v. Halley, 582 Pa. 164, 173, 870 A.2d 795, 801
      (2005) (citing Hernandez, 755 A.2d at 9 n. 4 (“[A] PCRA
      petitioner is entitled to an appeal nunc pro tunc where prior
      counsel’s actions, in effect, entirely denied his right to a direct
      appeal, as opposed to a PCRA petitioner whose prior
      counsel’s ineffectiveness may have waived one or more,
      but not all, issues on direct appeal.”) (emphasis added)).


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      Accordingly, because Appellant did have a direct appeal
      addressing some of his issues, he was not entitled to the
      reinstatement of his direct appeal rights nunc pro tunc.
      Appellant’s PCRA petition could not be considered as a petition for
      a nunc pro tunc appeal, and he was required to avail himself of
      the PCRA process. Hernandez, 755 A.2d at 9 n. 4. Thus, the
      trial court was required to conduct a PCRA analysis as to the
      merits of the issues raised in his petition. Where some but not all
      of the petitioner’s issues have been addressed, “the PCRA
      petitioner’s right to a direct appeal was not entirely denied by
      counsel’s ineffectiveness, and, therefore, he must establish that
      counsel’s ineffectiveness so undermined the truth-determining
      process so as to render unreliable the adjudication of guilt or
      innocence.” Id.

Id. at 642.

      When analyzing claims of ineffectiveness under the PCRA,

      we begin with the presumption counsel is effective.
      Commonwealth v. Robinson, 623 Pa. 345, 82 A.3d 998, 1005
      (2013). To prevail on an ineffectiveness claim, appellant 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).                  In
      Pennsylvania, we have applied Strickland by looking to three
      elements an appellant must establish: (1) the underlying claim
      has arguable merit; (2) no reasonable basis existed for counsel’s
      actions or failure to act; and (3) appellant suffered prejudice as a
      result of counsel’s error, with prejudice measured by whether
      there is a reasonable probability that the result of the proceeding
      would have been different. See Commonwealth v. Pierce, 515
      Pa. 153, 527 A.2d 973, 975 (1987).

Commonwealth v. Hannibal, 156 A.3d 197, 206-07 (Pa. 2016). “A court is

not required to analyze the elements of an ineffectiveness claim in any

particular order of priority; if a claim fails under any necessary element of the

Strickland test, the court may proceed to that element first.” Id. at 207.




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The failure to satisfy any prong of the ineffectiveness test defeats the claim.

Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011).

      While we cannot state with any certainty why the PCRA court did not did

discuss Appellant’s request for reinstatement of appeal rights nunc pro tunc,

under Pulanco, it is clear that Appellant was not entitled to a nunc pro tunc

appeal. Therefore, the PCRA court was required to conduct a PCRA analysis

as to the merits of Appellant’s issues. Here, the PCRA court did exactly that.

The court addressed Appellant’s claim that an allegedly vague Rule 1925(b)

statement on direct appeal resulted in waiver of all issues on appeal. Based

on its review of the record from the direct appeal, the PCRA court concluded

the claim lacked arguable merit and determined Appellant was unable to

establish he was prejudiced by direct appeal counsel’s actions.     PCRA Court

Opinion, 6/28/19, at 6-8.

      With respect to the claims involving intimidation by “Rob,” the court

explained that even with citations to evidence regarding intimidation, the

claim was first raised on appeal. “Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302. Id.

at 9. Regarding the sufficiency claims, this Court on direct appeal determined

that Appellant failed to specify which elements of the various crimes Appellant

was challenging. However, as the PCRA court explained, even if Appellant had

specified the element, he would not be entitled to relief. Id. The PCRA court

considered the trial court’s analysis of Appellant’s sufficiency claims, see id.


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at 9-10, and concluded the trial court’s “opinion make clear that the evidence

presented at trial was sufficient to support finding [Appellant] guilty on all

charges and even if appellate counsel had specified the elements and charges

being challenged, his argument would be without merit.” Id. at 10 (some

capitalization omitted).

      Based on our review, we find the evidence of record supports the PCRA

court’s determination and conclude its disposition of Appellant’s first issue is

free of legal error. Appellant was not entitled to reinstatement of his direct

appeal rights nunc pro tunc. Further, he failed to establish that his claim had

arguable merit or that he was prejudiced as a result of counsel’s actions.

Appellant’s first issue fails.

      In his second issue, Appellant argues the trial court erred in denying an

evidentiary hearing to address trial counsel’s failure to request a motive/lack

of motive jury instruction. As our Supreme Court explained in Hannibal:

      We preliminarily note the PCRA court has discretion to dismiss a
      petition without a hearing when the court is satisfied “‘there are
      no genuine issues concerning any material fact, the defendant is
      not entitled to post-conviction collateral relief, and no legitimate
      purpose     would    be    served    by    further    proceedings.’”
      Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595, 604 (2013),
      quoting Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431,
      442 (2011), quoting Pa.R.Crim.P. 909(B)(2). “To obtain reversal
      of a PCRA court’s decision to dismiss a petition without a hearing,
      an appellant must show that he raised a genuine issue of fact
      which, if resolved in his favor, would have entitled him to relief,
      or that the court otherwise abused its discretion in denying a
      hearing.” Roney, 79 A.3d at 604–05, quoting Commonwealth
      v. D'Amato, 579 Pa. 490, 856 A.2d 806, 820 (2004).




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Id., 156 A.3d at 207. The PCRA court’s decision to deny a request for an

evidentiary hearing “is within the discretion of the PCRA court and will not be

overturned absent an abuse of discretion.”     Commonwealth v. Mason, 130

A.3d 601, 617 (Pa. 2015) (citation omitted).

      Appellant argues the PCRA court should have conducted an evidentiary

hearing to consider his claim of trial counsel ineffectiveness based on failure

to request a jury instruction.      The instruction at issue is Pennsylvania

Suggested Jury Instruction, Criminal, § 3.13., which provides:

      1. In my instructions, I have given you the legal definition of the
         crime charged. Motive is not a part of that definition. The
         Commonwealth is not required to prove a motive for the
         commission of the crime charged.

      2. However, you should consider the evidence of motive or lack
         of motive. Knowledge of human nature tells us that an ordinary
         person is more likely to commit a crime if he or she had a
         motive than if he or she has none. You should weigh and
         consider the evidence tending to show [motive] [absence of
         motive] along with all the other evidence in deciding whether
         the defendant is guilty or not guilty. It is entirely up to you to
         determine what weight should be given the evidence
         concerning motive.

Pa. SSJI (Crim.) 3.13 (2016).

      The PCRA court rejected Appellant’s jury instruction claim, noting:

      First, [Appellant] failed to show that his underlying claim has any
      merit. The text of the jury instruction makes clear that motive
      need not be proved in order for the Commonwealth to meet its
      burden in proving that [Appellant] committed the charged
      offenses. Second, since the Commonwealth did not have to prove
      motive, trial counsel had a reasonable basis for not requesting the
      jury instruction. Third, and similarly, since the Commonwealth
      did not need to prove motive, a request for the instruction from
      trial counsel would not have reasonably changed that outcome of

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         trial. Commonwealth v. Bond, 819 A.2d 33 (Pa. 2002). This is
         especially true given the evidence admitted at trial establishing
         that [Appellant] was the person who shot Murill, regardless of the
         motivation behind the offense. Thus, trial counsel was not
         ineffective for not requesting a jury instruction for motive.

PCRA Court Opinion, 6/28/19, at 12 (some capitalization omitted).

         As noted above, the failure to prove any prong of the ineffectiveness

test will defeat a claim of ineffectiveness. Here, the PCRA court determined

not only that the jury instruction claim lacked merit, but also that counsel had

a reasonable basis for not requesting the instruction and that a request for an

instruction would not have changed the outcome of the trial. Appellant did

not raise a genuine issue of fact entitling him to relief, and failed to prove that

the court abused its discretion in denying an evidentiary hearing. Because

the evidence of record supports the PCRA court’s determination and because

the court did not abuse its discretion when it dismissed Appellant’s petition

without an evidentiary hearing, Appellant is not entitled to relief on his second

issue.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/20



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