J-S66026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
RONALD GRAYSON GILMORE,                  :
                                         :
                         Appellant       :   No. 288 WDA 2017
                                         :

                 Appeal from the PCRA Order July 16, 2015
   In the Court of Common Pleas of Lawrence County Criminal Division at
                     No(s): CP-37-CR-0000555-2005


BEFORE:     BENDER, P.J.E., DUBOW, J., and PLATT*, J.

MEMORANDUM BY DUBOW, J.:                          FILED FEBRUARY 8, 2018

      Appellant Ronald Grayson Gilmore appeals from the Order entered by

the Lawrence County Court of Common Pleas denying his Petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

He contends, inter alia, that trial and appellate counsel provided ineffective

assistance for failing to raise issues regarding jury instructions and the

verdict slip. After careful review, we affirm the denial of Appellant’s PCRA

Petition.

      This Court previously set forth the facts underlying Appellant’s

conviction in our disposition of his direct appeal and we, thus, will not repeat

them in detail here.    On May 8, 2007, a jury found Appellant guilty of

Conspiracy to Commit Murder and not guilty of First- and Third-Degree

Murder and Persons Not to Possess a Firearm, in connection with the 2005


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S66026-17



death of Carmen Oliva who was shot three times in the head after Appellant

and others suspected that he was a police informant.1 The court sentenced

Appellant to 17½ to 35 years’ incarceration.             This Court affirmed the

Judgment of Sentence, and our Supreme Court denied allocatur on March

23, 2010.     See Commonwealth v. Gilmore, 1630 MDA 2008, 984 A.2d

1012 (Pa. Super. filed Aug. 17, 2009), appeal denied, 991 A.2d 310 (Pa.

2010).

       Appellant filed a pro se PCRA Petition on March 24, 2011, which

subsequently-appointed counsel amended twice.2 After many continuances,

the court held an evidentiary hearing on April 2, 2014, with Appellant

represented by his third PCRA attorney. Appellant testified as to the issues

he had wanted to raise in his PCRA Petition.                 After several more

continuances, a second day of the hearing occurred on January 9, 2015, at

which Appellant’s trial counsel testified.       After receiving many extensions,

Appellant filed a legal memorandum in which he asserted, inter alia, that the


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1
  The Commonwealth had charged Appellant with Criminal Homicide in
violation of 18 Pa.C.S. § 2501(a), Criminal Conspiracy with the Intent to
Commit Criminal Homicide, 18 Pa.C.S. § 2501(a), 18 Pa.C.S. § 903(a); and,
Persons Not to Possess a Firearm, 18 Pa.C.S. § 6105(a)(1).
2
  The court appointed one PCRA attorney on May 2011. The court granted
that attorney’s Motion to Withdraw in August 2011. The court appointed a
second PCRA attorney, who failed to appear at a scheduled hearing in March
2012. On May 2, 2012, a third attorney entered her appearance on behalf of
Appellant.



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verdict violated Apprendi v. New Jersey, 530 U.S. 466 (2000). By Order

and Opinion dated July 16, 2015, the PCRA court denied relief.

      Appellant filed a timely pro se Notice of Appeal and counsel thereafter

filed an amended Notice of Appeal. The PCRA court appointed new counsel

to represent Appellant on appeal. Appellant submitted a counseled Pa.R.A.P.

1925(b) Statement. The PCRA court did not file a 1925(a) Opinion.

      Appellant presents the following Statement of the Questions Involved

in his Brief:

      1. Whether the lower court erred when it denied [Appellant’s]
         claim that the jury verdict of Conspiracy to Commit Murder
         was in error, in violation of his Fifth, Fourteenth and Sixth
         Amendment Rights of the U.S[.]

      2. Whether the lower court erred when it denied [Appellant’s]
         claim that the assistance of trial counsel was ineffective for
         failing to raise objections to the verdict slip.

      3. Whether the assistance of appellate counsel was ineffective
         for failing to argue additional claims of the ineffective
         assistance of trial counsel for failure to object to the jury
         instructions.

Appellant’s Brief at 4.

      STANDARD AND SCOPE OF REVIEW

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). This Court grants great deference to the findings of the PCRA court if

the record supports them.      Commonwealth v. Boyd, 923 A.2d 513, 515


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(Pa. Super. 2007). We give no such deference, however, to the court’s legal

conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

      We will address Appellant’s three issues together. In his first issue,

Appellant argues the trial court erred in its jury instructions and verdict

sheet. Recognizing that he waived these issues because he failed to object

at trial, Appellant contends in his second and third issues that trial counsel

provided ineffective assistance of counsel by failing to object to the verdict

form and jury instructions. He further asserts that “appellate counsel failed

to argue that trial counsel was ineffective for failing to instruct on Criminal

Homicide, including instructions for Involuntary Manslaughter,” and states,

“there was no strategic decision given for the failure … to raise the issue in a

post[-] conviction petition.”     Appellant’s Brief at 35.      Appellant, thus,

challenges the effective assistance of trial, appellate, and PCRA counsel

based on the underlying claim raised in his first issue.

      INEFFECTIVE ASSISTANCE OF COUNSEL

      The   law   presumes      counsel   has   rendered   effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).                 The

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the

particular course of conduct pursued by counsel did not have some


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reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceeding would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      With respect to layered ineffectiveness claims, the Pennsylvania

Supreme Court has provided the following guidance:

      [I]n order for a petitioner to properly raise and prevail on a
      layered ineffectiveness claim, sufficient to warrant relief if
      meritorious, he must plead, present, and prove the
      ineffectiveness of Counsel 2 (appellate counsel), which as we
      have seen, necessarily reaches back to the actions of Counsel 1
      (trial counsel). To preserve (plead and present) a claim that
      Counsel 2 was ineffective in our hypothetical situation, the
      petitioner must: (1) plead, in his PCRA petition, that Counsel 2
      was ineffective for failing to allege that Counsel 1 was ineffective
      for not [taking the suggested actions], see Commonwealth v.
      Marrero, [ ] 748 A.2d 202, 203, n. 1 (2000); and (2) present
      argument on, i.e., develop, each prong of the Pierce test as to
      Counsel 2's representation, in his briefs or other court
      memoranda.

Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003) (emphasis in

original).

      “Where, however, the petitioner fails to plead, present[,] and prove all

three prongs of the Pierce test regarding the underlying issue of trial

counsel's ineffectiveness, … [a] petitioner is unable to establish the requisite

arguable     merit   prong   of   his   layered   claim   of   appellate   counsel's




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ineffectiveness.” Commonwealth v. Reyes, 870 A.2d 888, 897 (Pa. 2005)

(citation omitted).

      Additionally, it is well-settled that an appellant may not raise

challenges to PCRA counsel’s effectiveness for the first time on appeal. See

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (citing

cases).

      After   reviewing    the   record,   we    conclude    that   Appellant’s

ineffectiveness claims warrant no relief as he has failed prove that the

underlying issues have arguable merit.

      Verdict Slip/Jury Instructions

      Appellant asserts that “the court erred when it sent a verdict slip to

the jury with Criminal Conspiracy to Commit Murder,” instead of Conspiracy

to Commit Homicide. Appellant’s Brief at 28. He also argues the jury should

have been instructed on manslaughter and involuntary manslaughter as they

are also crimes that fall within the definition of “homicide.”   He avers trial

counsel was ineffective for failing to request such an instruction and for

approving the verdict slip before it went to the jury. He also asserts that all

subsequent counsel provided ineffective assistance by failing to raise the

issue on appeal and to assert trial counsel’s ineffectiveness.

      The Commonwealth charged Appellant with Criminal Homicide in

violation of 18 Pa.C.S. § 2501(a), Criminal Conspiracy with the Intent to




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Commit Criminal Homicide, 18 Pa.C.S. § 2501(a), 18 Pa.C.S. § 903(a); and,

Persons Not to Possess a Firearm, 18 Pa.C.S. § 6105(a)(1).

        18 Pa.C.S. § 2501 provides:

        (a) Offense defined.--A person is guilty of criminal homicide if
        he intentionally, knowingly, recklessly or negligently causes the
        death of another human being.
        (b) Classification.--Criminal homicide shall be classified as
        murder, voluntary manslaughter, or involuntary manslaughter.

        In the Crimes Code, the legislature created “one major homicide

offense, that of criminal homicide.”            Commonwealth v. Polimeni, 378

A.2d 1189, 1194 (Pa. 1977).          “[T]he several types of homicide, namely,

murder of any of the three named degrees and voluntary and involuntary

manslaughter are constituent subsidiary offenses within the single major

offense. All grades of unlawful killing thus have been made lesser included

offenses of the overall crime of criminal homicide.”                 Id. at 1194–95

(footnote omitted).

        Both First- and Third-Degree Murder involve malice. Pursuant to 18

Pa.C.S. § 2501(a), a conviction of First-Degree Murder requires proof that

there     was   an   “intentional   killing,”   i.e.,   malice   aforethought,   which

distinguishes it from any other type of homicide.                Commonwealth v.

Weinstein, 451 A.2d 1344, 1348 (Pa. 1982). Third-Degree Murder includes

“[a]ll other kinds of murder,” i.e., killings that occur with an element of

malice.    See Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005)

(noting that the requisite level of malice for third-degree murder is


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“wickedness of disposition, hardness of heart, recklessness of consequences,

[or] a mind regardless of social duty”).      In order to be found guilty of

voluntary manslaughter, the evidence must show that the defendant killed

the victim as a result of “sudden and intense passion resulting from serious

provocation.” 18 Pa.C.S. § 2503.     Involuntary manslaughter requires that

the evidence show that the killing resulted from an “unlawful act” done in a

“reckless or grossly negligent manner.” 18 Pa.C.S. § 2504.

     “Because    the   legislature   has   classified   both   murder   and   []

manslaughter as subdivisions of the major offense of criminal homicide, a

defendant who has been charged with murder is entitled on request to have

the jury instructed on the elements of [ ] manslaughter at least where

evidence is presented at his trial on which a verdict of that less

serious offense could rationally be based.” Polimeni, supra at 1196

(emphasis added).

     Appellant avers that trial counsel was ineffective for failing to request

a jury instruction on voluntary and involuntary manslaughter. He also avers

that the verdict slip should have contained those offenses for the jury’s

consideration.

     The verdict slip contained the following offenses for the jury to

consider:

     1.   Murder in the First Degree;
     2.   Murder in the Third Degree;
     3.   Criminal Conspiracy to Commit Murder; and
     4.   Person not to Possess, Use a Firearm.

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Verdict Slip, dated May 8, 2007.

      Appellant argues that because the verdict slip did not say “criminal

conspiracy to commit homicide,” the jury was unable to consider the full

range of possible homicide offenses, i.e., manslaughter and involuntary

manslaughter, in addition to First- and Third-Degree murder.                 See

Appellant’s Brief at 26–33.

      The PCRA court aptly analyzed Appellant’s claim regarding trial

counsel’s alleged ineffectiveness regarding failing to request the jury

instructions and failing to object to the verdict slip regarding the notation

“Conspiracy to Commit Murder.”          After reviewing in detail the facts

presented at trial, as well as relevant statutory and case law, the court

concluded:

      In the current case, the Court did not instruct the jury on the
      charges of voluntary or involuntary manslaughter as there was
      no evidence presented at trial to suggest those instructions
      were appropriate. The evidence presented at trial demonstrated
      [that Appellant] conspired with Kailin Stewart and Andrae
      Jackson to perpetrate the intentional killing of the victim in order
      to rectify the problem [that] he was an alleged “snitch”. There
      is no evidence [that Appellant] killed the victim in a state of rage
      or through an unreasonable belief [that] justification to kill the
      victim existed as [Appellant] and the victim decided to return to
      the Biker Clubhouse to confront Ms. Natale concerning the rumor
      the victim was working as a confidential informant for the police.
      The record lacks any reference to [Appellant] being enraged by
      the victim at any time while they were in each other’s
      presence[,] nor is there any indication [that] justification for the
      victim’s murder existed.    Furthermore, there was no evidence
      presented at trial [that Appellant] killed the victim through his
      recklessness or gross negligence. The allegations and facts on
      record demonstrate the victim’s death was caused by three

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       gunshot wounds intentionally inflicted upon the victim. Thus,
       the Court was not required to instruct the jury concerning
       voluntary and involuntary manslaughter. Since there was no
       basis to instruct the jury on manslaughter, the Court utilized the
       term Conspiracy to Commit Murder on its verdict slip as to avoid
       confusing the jury and murder was the only degree of homicide
       charged.

Trial Court Opinion, dated 7/16/15, at 11-12.

       Appellant attempts to rely on Apprendi, supra, and Commonwealth

v. Weimer, 977 A.2d 1103 (Pa. 2009),3 to argue that it was up to the jury

to determine whether conviction for manslaughter was an appropriate

disposition. Apprendi provides that, other than the fact of prior convictions,

“any fact that increases the penalty for a crime beyond the statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Id. at 490 (emphasis added).

       Here, Appellant conversely argues that the jury should have had the

opportunity to consider Manslaughter because such a finding would have

decreased the penalty imposed. Appellant’s argument misses the point of

Apprendi’s constitutional analysis.            Furthermore, no court has stretched

and contorted the holding of Apprendi as Appellant does to support a

complaint about jury instructions and a verdict slip pertaining to lesser-


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3
 The Weimer Court addressed the elements required to establish Criminal
Conspiracy before concluding that the appellant’s convictions of Third-
Degree Murder and Conspiracy to Commit Criminal Homicide were proper.
977 A.2d at 1105.



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included offenses. As the facts of this case do not lend themselves to such a

consideration, we decline to conduct such an analysis here.

      Moreover, and most significantly, Appellant’s argument ignores the

basic underlying premise that there must be evidence presented at trial

upon which a manslaughter verdict could “rationally be based.” Polimeni,

supra at 1196.     See, e.g., Commonwealth v. Carter, 466 A.2d 1328,

1329 (Pa. 1983) (concluding the trial court properly refused to charge the

jury on voluntary manslaughter “unreasonable belief” as there was no

evidence to support a verdict on that charge); Commonwealth v. Keaton,

431 A.2d 999, 1000-01 (Pa. 1981) (finding trial court properly refused to

instruct jury on involuntary manslaughter where there was no evidence to

support the charge).     Our review of the record, including the transcripts

from Appellant’s trial, supports the PCRA court’s conclusion there was no

evidence presented at trial to support a Manslaughter verdict. Accordingly,

the jury instruction that Appellant now avers should have been requested

would have been unwarranted and inappropriate.             Consequently, the

omission of Manslaughter from the verdict slip was proper.

      Because the issues underlying Appellant’s ineffective assistance of

counsel claims have no merit, Appellant is not entitled to relief. Accordingly,

the PCRA court did not abuse its discretion in denying Appellant’s PCRA

Petition.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/2018




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