J-S40045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

SCOTT BRADLEY KINGSTON

                         Appellant                   No. 2016 MDA 2012


               Appeal from the PCRA Order October 22, 2012
             In the Court of Common Pleas of Bradford County
            Criminal Division at No(s): CP-08-CR-0000735-2009


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 29, 2014

      Appellant, Scott Bradley Kingston, appeals from the order dismissing

his petition pursuant to the Post Conviction Relief Act (“PCRA”). After careful

review, we affirm in part, vacate in part, and remand for further

proceedings.

      As we write primarily for the parties, we set forth only so much of the

factual and procedural history as is necessary to address the issues raised in

this appeal.   Kingston was arrested and charged with Driving Under the

Influence (“DUI”) of alcohol in 2008.     While awaiting trial, Kingston was

imprisoned in the Wyoming County jail. On November 15, 2008, December

4, 2008, and December 16, 2008, Kingston wrote letters to Jennifer Mroz.

In the first letter, Kingston discussed the possibility of his father or his

mother testifying that they had been the driver of the vehicle when he was
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arrested.   In the subsequent letters, Kingston suggested that Mroz take

responsibility as the driver of the vehicle on that night.

      At Kingston’s trial in 2009, Mroz failed to appear and her preliminary

hearing testimony was read into the record. Kingston’s father testified, and

claimed that he had been driving the vehicle when Kingston was arrested.

Ultimately, the jury acquitted Kingston of DUI.

      After the trial, the Commonwealth questioned Mroz on her failure to

appear at Kingston’s trial. While denying that she had intentionally failed to

appear, she conceded that she had been asked to perjure herself at trial.

She produced the letters Kingston had sent her from the Wyoming County

prison.

      The Commonwealth subsequently charged Kingston with multiple

charges, including three charges of soliciting perjury relevant to the instant

appeal, and three charges of soliciting to hinder prosecution.         A jury

convicted Kingston on the six relevant solicitation charges, and on May 17,

2010, the trial court sentenced Kingston on each of the six counts, as well as

two others.   The trial court ran each sentence consecutively.     This Court

affirmed Kingston’s judgment of sentence by order dated July 6, 2011, and

slightly under a month later, Kingston filed a pro se PCRA petition, which the

PCRA court dismissed without a hearing on December 5, 2011.

      On May 2, 2012, Kingston filed a second timely PCRA petition through

counsel, which he amended on June 22, 2013. On October 22, 2012, the


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PCRA court entered an order dismissing Kingston’s second petition, and this

timely appeal followed.

      On appeal, Kingston raises the following issues for our review:

      A. Was the [c]ourt’s determination that 18 Pa.C.S. Section 906
         does not prohibit Defendant from being sentenced to: three
         (3) counts of solicitation of Jennifer Mroz to commit perjury
         and three (3) counts of solicitation of Jennifer Mroz to hinder
         prosecution of the Defendant in error? Furthermore, was the
         Defendant entitled to relief under the Post Conviction Relief
         Act (PCRA) for the following reasons: he was sentenced to a
         term of imprisonment beyond the lawful maximum; he was
         prejudiced by the ineffective assistance of counsel by not
         raising this issue prior; and/or that the application of 18
         Pa.C.S. Section 907 was in violation of the laws of
         Pennsylvania?
      B. Did the [c]ourt error in determining that the Defendant was
         not prejudiced by the [c]ourt’s lack of venue and subject
         matter jurisidiction?

Appellant’s Brief, at 5.

      Our standard of review of a PCRA court’s denial of a petition for post-

conviction relief is well-settled.   We must examine whether the record

supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. See Commonwealth v. Hall, 867 A.2d

619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record.       See

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).               Our

scope of review is limited by the parameters of the PCRA.                  See

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).




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      To be eligible for relief under the PCRA, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted   from   one     of   the   errors   listed   in   42   PA.CONS.STAT.ANN.   §

9543(a)(2)(i)-(viii).     Commonwealth v. Albrecht, 554 Pa. 31, 41, 720

A.2d 693, 698 (1998). Section 9543(a)(2) requires, inter alia,

           (2) That the conviction or sentence resulted from one or
           more of the following:

           (i) A violation of the Constitution of this Commonwealth
           or the Constitution or laws of the United States which, in
           the circumstances of the particular case, so undermined
           the    truth-determining     process   that   no   reliable
           adjudication of guilt or innocence could have taken place.

           (ii) Ineffective assistance of counsel which, in the
           circumstances of the particular case, so undermined the
           truth-determining process that no reliable adjudication of
           guilt or innocence could have taken place.

           (iii) A plea of guilty unlawfully induced where the
           circumstances make it likely that the inducement caused
           the petitioner to plead guilty and the petitioner is
           innocent.

           (iv) The improper obstruction by government officials of
           the petitioner's right of appeal where a meritorious
           appealable issue existed and was properly preserved in
           the trial court.

           (v) Deleted.

           (vi) The unavailability at the time of trial of exculpatory
           evidence that has subsequently become available and
           would have changed the outcome of the trial if it had
           been introduced.

           (vii) The imposition of a sentence greater than the lawful
           maximum.

           (viii) A proceeding in a tribunal without jurisdiction.



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42 PA.CONS.STAT.ANN. § 9543(a)(2)(i)-(viii).

      We will address Kingston’s argument on jurisdiction and venue first. A

challenge to the trial court’s jurisdiction is cognizable under the PCRA. See

42 PA.CONS.STAT.ANN. § 9543(a)(2)(viii).       A challenge alleging improper

venue is not. Thus, Kingston’s venue argument is meritless.

      Kingston contends that the Bradford County Court of Common Pleas

did not have jurisdiction over the charges based upon the three relevant

letters as the letters were sent from Wyoming County Jail to Mroz, who

resided in Wyoming County. However, this Court has previously held that a

charge of solicitation may be tried in the county where the ultimate criminal

act was to be performed. See Commonwealth v. Carey, 439 A.2d 151,

155 (Pa. Super. 1981).     Similarly, we held that venue was proper in the

target county. See id.

      Here, while the solicitations never left Wyoming County, it is clear that

the ultimate criminal acts, perjury at Kingston’s DUI trial, and lying to police

during their investigation, were to occur in Bradford County.      Thus, under

Carey, Bradford County had jurisdiction over the solicitation charges.

Furthermore, even if we were to reach his venue argument, it would merit

no relief. As a result, we affirm the PCRA court’s dismissal of Section II of

Kingston’s second amended PCRA petition.

      Kingston next argues that trial counsel was ineffective for failing to

object, pursuant to 18 PA.CONS.STAT.ANN. § 906, to the imposition of


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separate sentences for each of the three solicitation to commit perjury

charges, and separately, the three solicitation to hinder prosecution charges

arising from the letters.     Under Section 906, Kingston contends, these

convictions merged into only two sentences: one for solicitation to commit

perjury, and one for solicitation to hinder prosecution.

      In addressing Kingston’s claim of trial counsel’s ineffectiveness, we

turn to the following principles of law:

      In order for Appellant to prevail on a claim of ineffective
      assistance of counsel, he must show, by a preponderance of the
      evidence, ineffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place … Appellant must
      demonstrate: (1) the underlying claim is of arguable merit; (2)
      that counsel had no reasonable strategic basis for his or her
      action or inaction; and (3) but for the errors and omissions of
      counsel, there is a reasonable probability that the outcome of
      the proceedings would have been different.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(citations omitted). Moreover, “[w]e presume counsel is effective and place

upon Appellant the burden of proving otherwise.”           Commonwealth v.

Springer, 961 A.2d 1262, 1266-1268 (Pa. Super. 2008). “This Court will

grant relief only if Appellant satisfies each of the three prongs necessary to

prove counsel ineffective.”      Id., at 1267.     Thus, we may deny any

ineffectiveness claim if “the evidence fails to meet a single one of these

three prongs.” Id.




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       The PCRA court dismissed Kingston’s ineffectiveness claims without a

hearing, concluding that there was no arguable merit. We conclude that the

PCRA court’s reasoning was faulty. Kingston’s claims have arguable merit,

and we must remand for a hearing on the remaining two prongs of

Kingston’s ineffectiveness claims.

       The PCRA court found that each of the three solicitation to commit

perjury convictions and each of the three solicitation to hinder prosecution

convictions envisioned culmination in different crimes.       Section 906 of the

Crimes Codes provides that a “person may not be convicted of more than

one of the inchoate crimes of criminal attempt, criminal solicitation or

criminal conspiracy for conduct designed to commit or to culminate in the

commission of the same crime.”1            18 PA.CON.STAT.ANN. § 906.   This Court

has repeatedly held that a defendant can be convicted of multiple related

inchoate crimes where the inchoate crimes envisioned culmination in distinct

crimes. See Commonwealth v. Grekis, 601 A.2d 1284, 1294 (Pa. Super.

1992).

       Here, the PCRA court found that the first letter requested Mroz to

commit perjury and hinder prosecution by testifying and stating to police

investigators that Kingston’s mother had been driving on the night he was
____________________________________________


1
  This Court has held that it is not the jury’s verdict, but the judgment of
sentence entered by the trial court, that constitutes a “conviction” under
Section 906. See Commonwealth v. Grekis, 601 A.2d 1284, 1295 (Pa.
Super. 1992).



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arrested.   In contrast, the PCRA court concluded that the second letter

requested Mroz to commit perjury and hinder prosecution by testifying and

stating to police investigators that Mroz had been driving on the night

Kingston was arrested.     Finally, the PCRA court concluded that the third

letter requested that Mroz commit perjury and hinder prosecution by

testifying and stating to police investigators that she was intoxicated on the

night Kingston was arrested, and did not remember who was driving.

      The PCRA court’s reasoning is plausible at first glance, but ultimately

proves too much.    First, while the letters requested different methods of

perjury or hindering prosecution, they were all methods to the same end -

namely, exculpation of Kingston of the DUI charges.            Second, while

Kingston’s letters provided three different methods by which Mroz could

perjure herself or provide false statements to police investigators, each

method was ultimately exclusive of the others.        Mroz could only offer

perjured testimony once - at Kingston’s DUI trial. Similarly, she could only

use one of the proffered stories if she were to effectively hinder the

prosecution of Kingston.     This is comparable to a defendant soliciting

another person to break into a house later that evening by going through

the front door, the back door, or through a window. The separate options do

not constitute discrete crimes.    Only one crime is intended.      Thus, we

conclude that the PCRA court’s finding that the solicitations envisioned more

than two ultimate crimes was in error.


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       The Commonwealth argues that Section 906 does not prohibit multiple

convictions based upon separate solicitations that are designed to culminate

in the commission of the same crime. See Appellee’s Brief, at 5. Instead,

the Commonwealth posits, Section 906 prohibits separate convictions for

each of the different inchoate crimes based upon a single action taken by the

defendant.

       Our review of existing case law interpreting Section 906 reveals no

precedent directly on point. In each case, the defendant had been convicted

of violating separate sections under Chapter 9 of the Crimes Code. None of

the published opinions addressed the propriety of multiple convictions for

separate violations of one section of Chapter 9, all aimed at culminating in

the same criminal outcome.2             We are thus presented an issue of first

impression.

       While the Commonwealth’s argument has some appeal, we conclude

that it ultimately does not comport with a plain reading of the statute or a

close reading of case law applying the statute.          First, we note that the

statute requires merger only when the separate inchoate convictions were

based on “conduct designed to culminate in the commission of the same

crime.” If the legislature desired the statute to only require merger where


____________________________________________


2
 As noted infra, this issue was raised in Commonwealth v. Wade, but that
panel ultimately found the issue waived. See 33 A.3d at 115.



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the convictions were based upon the same conduct, it would have replaced

the phrase with the much shorter “same conduct.”

      The policy undergirding Section 906, as explicated in our case law,

leads to the same conclusion.       This Court has observed that the policy

behind Section 906 rested on a recognition that the harm in inchoate crimes

resides “not in the acts already accomplished, but in the danger that

appellant would succeed in his criminal endeavor.”           Commonwealth v.

Crocker, 389 A.2d 601, 604 (Pa. Super. 1978); see also Commonwealth

v. Zappacosta, 401 A.2d 805, 808 (Pa. Super. 1979).                Thus, we have

highlighted the fact that separate solicitations to immediately commit

involuntary   deviate   sexual   intercourse    at   different   times   envisioned

culmination in distinct crimes in affirming multiple inchoate convictions. See

Grekis, 601 A.2d at 1295.        Moreover, while ultimately finding the issue

waived for failure to preserve, this Court has recognized that section 906

would bar multiple convictions for possession of an instrument of crime if the

conduct at issue had but a single criminal objective. See Commonwealth

v. Wade, 33 A.3d 108, 115 (Pa. Super. 2011).

      Here, the facts are undisputed.         Kingston was convicted of writing

three letters soliciting Mroz to commit perjury at his trial and seeking Mroz

to hinder prosecution by giving the investigating officers false statements.

While there are six separate solicitations involved, they all envisioned

culmination in but two criminal acts; Mroz committing perjury and hindering


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prosecution. Thus, Kingston’s allegation of trial counsel ineffectiveness has

arguable merit.

      However, the PCRA court dismissed the petition without a hearing.

Under such circumstances, we cannot address the issues of whether counsel

had a reasonable strategy. And, on this undeveloped record, we cannot say

that Kingston suffered prejudice.     We therefore vacate the PCRA court’s

order on these grounds, and remand for further proceedings consistent with

this memorandum.

      PCRA order affirmed in part and vacated in part. Case remanded for

further   proceedings   consistent   with     this   memorandum.   Jurisdiction

relinquished.

      President Judge Emeritus Bender joins the memorandum.

      Judge Bowes files a concurring and dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2014




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