J-S50023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARREO MARQUIST TATE                       :
                                               :
                       Appellant               :   No. 216 WDA 2019

            Appeal from the PCRA Order Entered January 11, 2019
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0003309-2016


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                             FILED JANUARY 27, 2020

        This case returns to this panel after we remanded for the appointment

of new counsel.      Marreo Marquist Tate (Appellant) appeals from the order

denying his petition filed pursuant to the Post Conviction Relief Act (PCRA),

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

        [Appellant] was charged with Aggravated Assault, Recklessly
        Endangering Another Person, two counts of Terroristic Threats,
        Simple Assault, Intimidation of Witnesses or Victims, Disorderly
        Conduct, and Possessing Instruments of Crime.[FN]1 The charges
        arose on July 24, 2016, when [Appellant] and the victim, Javonna
        Moff[a]tt (“Moff[a]tt”), began engaging in a verbal altercation
        after Moff[a]tt arrived home from work and found [Appellant] in
        her home. The verbal altercation escalated and [Appellant] poked
        and/or punched Moffatt in the face and threw her into a television
        console, breaking the television and console and causing Moffatt
        to fall against a coffee table. Moffatt told police [Appellant]
        pointed a semi-automatic handgun at her head and threatened to
        shoot/kill her and her family if the police were contacted.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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                 18 Pa.C.S.A. § 2701(a)(4); 18 Pa.C.S.A. § 2705;
             [FN] 1

             2 counts 18 Pa.C.S.A. § 2706(a)(1); 18 Pa.C.S.A. §
             2701(a)(3); 18 Pa.C.S.A. § 4952(a)(1); 18 Pa.C.S.A.
             § 5503(a)(4); 18 Pa.C.S.A. § 907(b), respectively.

       After a jury trial on February 6th and 7th, 2017, [Appellant] was
       convicted of Count Three, Terroristic Threats; Count 5, Simple
       Assault; and Count 6 Intimidation of Witnesses or Victims. Counts
       One and Four, Aggravated Assault and Terroristic Threats, were
       withdrawn by the Commonwealth. Count 7, Intimidation of
       Witnesses or Victims, was dismissed by the Court and [Appellant]
       was acquitted of Counts 2 and 8, Recklessly Endangering Another
       Person and Possessing Instruments of Crime.

       On March 31, 2017, [Appellant] was sentenced as follows:

             Count 3 – Terroristic Threats: 16 – 32 months of
             incarceration consecutive to Docket Number 2944 of
             2015;
             Count 5 – Simple Assault: 12-24 months of
             incarceration consecutive to Count 3; and
             Count 6 – Intimidation of Witnesses or Victims – 24
             months of probation consecutive to Count 5.

       On April 10, 2017, a Post Sentence Motion was filed requesting
       the sentences be imposed concurrently rather than consecutively.
       Said Motion was denied. A direct appeal was not filed.

       On October 27, 2017, [Appellant] timely filed a pro se Motion for
       Post Conviction Collateral Relief alleging ineffective assistance of
       trial counsel for failing to object to alleged prejudicial statements
       by the Commonwealth and failing to object to the imposition of an
       illegal sentence based on an incorrect prior record score. PCRA
       counsel was appointed and filed Supplemental Motions of Monarch
       22, 2018 and August 6, 2018, reiterating [Appellant’s] claims.

Notice of Intent to Dismiss PCRA Pursuant to Pa.R.Crim.P. 907, 12/17/18, at

1-2.

       On December 17, 2018, the PCRA court issued notice of its intent to

dismiss Appellant’s PCRA petition without a hearing pursuant to Rule 907 of


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the Pennsylvania Rules of Criminal Procedure.         Appellant did not file a

response to the court’s notice, and on January 11, 2019, the PCRA court

dismissed Appellant’s petition. Appellant appealed. In reviewing Appellant’s

claims, we determined that Counsel’s deficient brief waived all issues on

appeal and Counsel was per se ineffective; we remanded for the appointment

of new counsel to file a new appellate brief. The trial court appointed new

counsel, who filed an appellate brief on January 10, 2020.

      Appellant states his issues as follows:

      A. Whether the PCRA Court erred in failing to grant relief based
         upon the ineffective assistance of counsel claim that defense
         counsel was ineffective in failing to object to or failing to move
         for a mistrial based upon the Commonwealth’s examination of
         Melquan Barnett which elicited responses that [the Appellant]
         “was known to lose his cool” and known to “carry a gun.”

      B. Whether the PCRA Court erred in failing to grant relief in that
         Counsel was ineffective in failing to object to the employment
         of a prior record score of 5 instead of 4 as to the calculation of
         the sentencing guidelines, which otherwise caused the
         imposition of an illegal sentence.

Appellant’s Brief at 6.

      We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.




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      In his first issue, Appellant asserts that trial counsel was ineffective. In

deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome the presumption, the

petitioner must establish: “(1) the underlying claim has arguable merit; (2)

no reasonable basis existed for counsel’s action or failure to act; and (3) the

petitioner 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.”            Id. (citation omitted).       To

demonstrate prejudice, the petitioner must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Commonwealth v. Cox, 983 A.2d

666, 678 (Pa. 2009). A reasonable probability is a probability sufficient to

undermine     confidence   in   the   outcome     of   the   proceeding.      See

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). If the petitioner fails

to prove any of these prongs, the claim is subject to dismissal. Id.

      Appellant argues that his trial counsel was ineffective for failing to object

to prejudicial questions posed by the Commonwealth during trial. Specifically,

during the Commonwealth’s cross-examination of defense witness, Melquan

Barnett, Appellant contends that the Commonwealth asked inflammatory




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questions, which warranted a new trial.1 Appellant takes umbrage with the

following exchange:

       [THE COMMONWEALTH]: Now, your testimony is that you did not
       see how this started; is that correct?

       [BARNETT]: No.

       [THE COMMONWEALTH]: It’s not correct?

       [BARNETT]: I was there. I said I didn’t see as far as when he
       went to answer the door what they were talking about. I couldn’t
       hear from upstairs.

       [THE COMMONWEALTH]: Okay.                 And there was a verbal
       argument; correct?

       [BARNETT]: Yeah.

       [THE COMMONWEALTH]: A verbal argument between both of
       them; correct?

       [BARNETT]: Yeah.

       [THE COMMONWEALTH]: And she wanted him to leave; right?

       [BARNETT]: That’s what she said, but it wasn’t until after he said
       he had relationships with both of the females who were renting
       out that apartment.

       [THE COMMONWEALTH]: But he starts to leave at some point;
       right?

       [BARNETT]: Right.

       [THE COMMONWEALTH]: And he’s going to go out the door; right?

       [BARNETT]: Right.
____________________________________________


1Barnett is Appellant’s cousin who was at the Victim’s home when the assault
occurred.

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     [THE COMMONWEALTH]: And you’re saying that - - so she’s
     getting what she wants; right? He’s leaving the apartment;
     correct?

     [BARNETT]: Yeah.

     [THE COMMONWEALTH]: And you want this jury to believe that
     that’s when she attacked him?

     [BARNETT]: I mean I’m not - - got control of her feelings or - - or
     how she went about doing things, I can’t control her mindset. I
     don’t know what he said about her. One was she’s a female, I
     know how females can be and how they can act dealing with their
     emotions. So, hey, maybe she did go and act up from hearing it.

     [THE COMMONWEALTH]: So women can act emotionally; but
     guys, they can’t lose their cool?

     [BARNETT]: I never said that.

     [THE COMMONWEALTH]: Your cousin’s been known to lose
     his cool, hasn’t he?

     [BARNETT]: I guess.

     [THE COMMONWEALTH]: And he was carrying a gun with him on
     that date, wasn’t he?

     [BARNETT]: No sir.

     [THE COMMONWEALTH]: A semiautomatic.

     [BARNETT]: No sir.

     [THE COMMONWEALTH]: It was his habit to carry a
     semiautomatic; wasn’t it?

     [BARNETT]: I just told you I don’t - - I’m not aware of no guns,
     so the questions you keep asking me about guns you can save it,
     sir.

N.T., 2/7/17, at 41-42 (emphasis added).



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      Appellant suggests that “[t]hese questions were posed without any prior

introduction of such evidence from defense counsel regarding either Appellant

or the alleged Victim.”   Appellant’s Brief at 16.   He asserts “there was no

physical evidence offered against Appellant to show that Appellant assaulted

or injured [the Victim],” while, in contrast, “Appellant offered two first-hand

defense witnesses that offered completely differing versions of events as

compared to the narrative offered by [the Victim].” Id. at 20. Accordingly,

Appellant asserts that trial counsel’s failure to object to the questions posed

by the Commonwealth was “so serious as to deprive [the Appellant] of a fair

trial.” Id. at 19.

      In addressing Appellant’s claim of ineffective assistance of counsel, the

PCRA court explained:

      Barnett testified on direct examination to Moff[a]tt’s emotional
      state and attempted to portray her as the aggressor. Pursuant to
      Pa.R.E. 404(B)(ii), the Commonwealth’s cross-examination of
      Barnett properly offered evidence of [Appellant’s] same emotional
      trait. As a threshold matter, the Commonwealth’s questions were
      within the scope of the direct examination and relevant to the
      traits raised by [Appellant]. Given [Appellant’s] prior convictions
      for carrying a gun, there was a factual predicate for the
      Commonwealth’s questions.FN2

            [FN] 2[Appellant] has two prior firearms convictions.
            The first conviction at Docket Number 3475 pf 2013
            was for Firearms not to be Carried without a License
            – Loaded, 18 Pa.C.S.A. § 6106(a). The second
            conviction at Docket Number 2944 of 2015 was for
            Firearms not to be Carried without a License –
            Unloaded, 18 Pa.C.S.A. § 6106(a)(1).

      Furthermore, [Appellant] does not articulate a basis for any
      prejudice. The actual evidence for the jury to consider were the

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J-S50023-19


      answers given by the witness, Barnet[t].          When asked if
      [Appellant] was carrying a gun during his encounter with the
      victim, Barnett specifically said no. When asked if [Appellant]
      carried a semiautomatic gun, Barnett twice said no, the second
      time more emphatically than the first. None of Barnett’s answers
      to these questions were prejudicial to [Appellant].

PCRA Notice of Intent to Dismiss, 12/17/18, at 5.

      The PCRA court’s findings of fact are supported by the record and its

legal conclusions are free from error. Appellant fails to establish how he was

prejudiced by the Commonwealth’s questions, especially when Barnett

responded that Appellant does not carry a semiautomatic weapon. See N.T.,

2/7/17, at 42.    Trial counsel’s failure to object cannot be said to have

undermined confidence in the outcome of the proceeding. For these reasons,

we conclude that trial counsel was not ineffective for failing to object to the

above-referenced statements, and that a mistrial would not have been

warranted. See Commonwealth v. Vazquez, 617 A.2d 786, 787-88 (Pa.

Super. 1992) (A mistrial is an “extreme remedy” that the court must grant

“only when an incident is of such a nature that its unavoidable effect is to

deprive defendant of a fair trial.”). Accordingly, no relief is due.

      In his second claim, Appellant argues that the trial court erred in

calculating his prior record score. Appellant contends that the miscalculation

resulted in an excessive and illegal sentence. Issues concerning the legality

of sentence are cognizable under the PCRA.            See Commonwealth v.

Hockenberry, 689 A.2d 283, 288 (Pa. Super. 1997). Whether Appellant’s

challenge implicates the legality of his sentence presents a pure question of



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law. Commonwealth v. Foster, 17 A.3d 332, 340 n.13 (Pa. 2011). Our

standard of review is de novo and our scope of review is plenary.

       Although framed as a challenge to the legality of his sentence,

Appellant’s claim actually contests the discretionary aspects of his sentence.

See Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (“A

challenge to an alleged excessive sentence is a challenge to the discretionary

aspects of a sentence.”). Requests for relief with respect to the discretionary

aspects     of   sentence      are    not      cognizable   in   PCRA   proceedings.

Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007)

(“Challenges to the discretionary aspects of sentencing are not cognizable

under the PCRA.”); see also Commonwealth v. Jordan, 772 A.2d 1011,

1016 (Pa. Super. 2001) (observing that “[t]his Court’s case law has stated

that a challenge to the discretionary aspects of sentencing is a matter that

must be reviewed in the context of a direct appeal and cannot be reviewed in

the context of a PCRA.”); see also 42 Pa.C.S.A. § 9543(a)(2). Again, no relief

is due.2

       Order affirmed.




____________________________________________


2 Even if Appellant’s claim was cognizable under the PCRA, the record reflects
that his prior record score was correctly calculated.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2020




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