J-S61035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    JEFFREY ANDERSON,

                             Appellant                No. 746 EDA 2017


                  Appeal from the PCRA Order January 27, 2017
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-1303719-2006


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 13, 2017

        Appellant, Jeffrey Anderson, appeals from the order denying his first

petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§

9541-9546. Specifically, Appellant claims ineffectiveness of trial counsel and

challenges the legality of his sentence. We affirm.

        We take the relevant facts and procedural history in this case from the

PCRA court’s March 31, 2017 opinion and our review of the certified record.

Appellant was arrested on June 8, 2006, and charged with attempted murder,

aggravated assault, criminal conspiracy, attempted kidnapping, unlawful

restraint, felon in possession of a firearm, discharge of a firearm into an

occupied structure, violations of the Uniform Firearms Act, possession of an
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*   Retired Senior Judge assigned to the Superior Court.
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instrument of a crime, terroristic threats, simple assault, recklessly

endangering another person, and false imprisonment.1 The charges arose out

of an incident where Appellant pointed a gun at his victim, threatened to kill

him, and then, following a struggle, shot him once in the stomach and once

grazing his chest. After the victim fled, Appellant chased him and fired at him

again. (See PCRA Court Opinion, 3/31/17, at 2-3).

       On November 25, 2009, a jury convicted Appellant of aggravated

assault, violating the Uniform Firearms Act, and possessing an instrument of

a crime. On April 9, 2010, Appellant was sentenced to not less than twenty-

three and one-half, nor more than forty-seven years of incarceration. This

Court affirmed Appellant’s judgment of sentence on July 11, 2011.          (See

Commonwealth v. Anderson, 55 A.3d 141 (Pa Super. 2011) (unpublished

memorandum)). On February 6, 2013, our Supreme Court denied Appellant’s

petition for allowance of appeal.        (See Commonwealth v. Anderson, 63

A.3d 772 (Pa. 2013)).

       On April 17, 2013, Appellant filed his first PCRA petition. The PCRA court

appointed counsel who filed an amended petition. After Appellant moved for

removal of counsel, current counsel entered her appearance on August 20,

2015, and filed an amended PCRA petition on November 12, 2015. On October


____________________________________________


1 18 Pa.C.S.A. §§ 901(a), 2702(a), 903(a)(1), 901(a), 2902(a)(1),
6105(a)(1), 2707.1(a), 6106(a)(1), 6108, 907(a), 2706(a)(1), 2701(a),
2705, and 2903(a).



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24, 2016, the court sent Appellant notice of its intent to dismiss the petition

without a hearing as meritless and previously litigated.          See Pa.R.Crim.P.

907(1). Appellant responded on November 4, 2016, and the court dismissed

the petition on January 27, 2017. Appellant timely appealed.2

       Appellant raises three issues on appeal.

       1. Whether the [PCRA] court erred in denying without a hearing
          [Appellant’s] claim[] of ineffective assistance of counsel for
          failure to object to the sufficiency of the jury instruction on self-
          defense[?]

       2. Whether the [PCRA] court erred in denying without a hearing
          [Appellant’s] claim[] of ineffective assistance of counsel for
          failure to argue that acquittal of attempted murder necessarily
          implies acquittal of aggravated assault[?]

       3. Whether the [PCRA] court erred in not correcting the illegal
          sentence [Appellant] is suffering under[?]

(Appellant’s Brief, at 7).

       Our standard and scope of review for the denial of a PCRA petition is

well-settled.

              This Court examines 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[.] Additionally, [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. In this respect, we will
       not disturb a PCRA court’s ruling if it is supported by evidence of
       record and is free of legal error. However, we afford no 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. . . .
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2 Pursuant to the PCRA court’s order, Appellant filed a timely statement of
errors complained of on appeal on March 9, 2017. The court entered its
opinion on March 31, 2017. See Pa.R.A.P. 1925.

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

denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks omitted).

      In his first two issues, Appellant claims he is entitled to relief because

trial counsel was ineffective. To obtain relief under the PCRA based upon a

claim of ineffective assistance of counsel, a petitioner must establish by a

preponderance of evidence that counsel’s ineffectiveness “so undermined the

truth-determining process that no reliable adjudication of guilt or innocence

could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

             In order to obtain relief under the PCRA based on a claim of
      ineffectiveness of counsel, a PCRA petitioner must satisfy the
      performance and prejudice test set forth in Strickland v.
      Washington, 466 U.S. 668, (1984). In Pennsylvania, we have
      applied the Strickland test by requiring a petitioner to establish
      that: (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. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.
      2001).      Counsel is presumed to have rendered effective
      assistance, and, if a claim fails under any required element of the
      Strickland test, the court may dismiss the claim on that basis.

Commonwealth v. Vandivner, 130 A.3d 676, 680 (Pa. 2015) (citation

formatting provided).

      In his first issue, Appellant argues that counsel was ineffective for failing

to object to the trial court’s self-defense jury instruction. (See Appellant’s

Brief, at 11-20). Specifically, he claims that, although the court instructed the

jury with regard to self-defense, its instruction was deficient because it failed

to explain that if defendant raised self-defense, the Commonwealth had the


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burden to disprove it. (See id. at 11-16).3 He further argued that counsel

did not have a reasonable basis for failing to object and he was prejudiced by

such failure because the jury asked questions about whether Appellant’s

possession of a gun was criminal if his actions were justified. (See id. at 16-

18). Finally, Appellant claims that the PCRA court erred when it dismissed

this claim as previously litigated.4 (See id. at 19-20). Appellant’s claim does

not merit relief.

              [W]hen evaluating the propriety of jury instructions, this
       Court will look to the instructions as a whole, and not simply
       isolated portions, to determine if the instructions were improper.
       We further note that, it is an unquestionable maxim of law in this
       Commonwealth that a trial court has broad discretion in phrasing
       its instructions, and may choose its own wording so long as the
       law is clearly, adequately, and accurately presented to the jury for
       its consideration. Only where there is an abuse of discretion or
       an inaccurate statement of the law is there reversible error.

Commonwealth v. Charleston, 94 A.3d 1012, 1021 (Pa. Super. 2014),

appeal denied, 104 A.3d 523 (Pa. 2014) (citation omitted). “[A] trial court


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3 Appellant’s brief also attempts to argue that the trial court erred when it
instructed the jury that Appellant “raised the issue of whether he acted in self-
defense when he had control of the handgun which shot the complaining
witness.” (N.T. Trial, 11/23/09, at 77). However, because Appellant failed to
develop this argument with citation to pertinent legal authority, we find it
waived. See Pa.R.A.P. 2101, 2119(a)-(b).

4 The PCRA court dismissed this claim as previously litigated, explaining that
on direct appeal, the Superior Court ruled that the self-defense instruction
adequately informed the jury. (See PCRA Ct. Op., at 5). Although we agree
with Appellant that his challenge to the jury instruction on direct appeal does
not preclude him from arguing that counsel was ineffective for not challenging
the instruction at trial, we may affirm the PCRA court on any basis. See
Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009).

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has broad discretion in phrasing its instructions, and may choose its own

wording so long as the law is clearly, adequately, and accurately presented to

the jury for its consideration.” Id. at 1021-22 (citation omitted).

            . . . [T]o properly inform a jury of the relationship between
      malice and self-defense, a trial court must instruct as to three
      points:

            (1) That in order to prove murder, the prosecution
            must prove beyond a reasonable doubt that the killing
            was malicious; (2) That evidence of self-defense, from
            whatever source, tends to negate the malice required
            for murder; (3) That in order to meet its burden of
            proof on the element of malice, the prosecution must
            exclude self-defense beyond a reasonable doubt.

            This Court further noted that a trial court is free to use its
      own language, but must accurately explain the relationship so that
      the jury understands that the finding of malice requires the
      exclusion of the defense of self-defense.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1143 (Pa. 2012) (citations

omitted).

      Here, the court instructed the jury that “[t]he issue having been raised,

it is the Commonwealth’s burden to prove beyond a reasonable doubt that the

defendant did not act in justifiable self-defense.” (N.T. Trial, 11/23/09, at

77). The court further explained that, “[i]f the Commonwealth fails to prove

[that the defendant did not believe he was actually in danger of death or

serious bodily injury or that this belief was unreasonable], the defendant’s

actions were justified, and you must find him not guilty of the crimes of

attempted murder, aggravated assault, and/or attempted kidnapping.”          (Id.

at 81).



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      Upon review, we conclude that because the jury instruction as a whole

accurately explains the shifting burden of proof associated with self-defense,

Appellant has not met his burden under Pierce that his underlying claim would

have arguable merit; therefore, he has failed to establish that trial counsel

was ineffective. See Vandivner, supra at 680; Sepulveda, supra at 1143;

Charleston, supra at 1021-22. Appellant’s first claim does not merit relief.

      In his second issue, Appellant claims that counsel was ineffective for

failing to argue at sentencing and on appeal that acquittal of the attempted

murder charge in this case necessitated acquittal of the aggravated assault

charge as well. (See Appellant’s Brief, at 21-26). Specifically, he relies on

Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994), and alleges that

trial counsel was ineffective for failing to argue that “the aggravated assault

and the attempted murder were functionally the same charge, and that

[Appellant], if acquitted of the greater offense, should not be liable of the

lesser included offense.” (Id. at 22). Appellant’s second issue is meritless.

      In Anderson, our Supreme Court vacated the appellant’s sentence for

aggravated assault, holding that because every element of his aggravated

assault conviction, the lesser offense, was subsumed in the elements of his

attempted murder conviction, the greater offense, the two offenses must

merge for sentencing. See Anderson, 650 A.2d at 24.

      Here, Appellant was not convicted of two crimes that would merge for

sentencing, the jury acquitted him of the attempted murder count. Thus, trial

counsel cannot be considered ineffective for not presenting a frivolous

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argument based on merger to the jury. Upon review, we agree with the trial

court’s reasoning that “just because crimes may merge for sentencing

purposes does not mean that acquittal of one charge requires acquittal of the

other charge. Merger for sentencing purposes precludes a defendant from

being sentenced twice for essentially the same crime. That is not the issue in

this matter.” (PCRA Ct. Op., at 6).            Appellant has failed to prove that his

underlying claim would have arguable merit; thus he has not established that

trial counsel was ineffective.       See Vandivner, supra at 680.         Appellant’s

second issue is meritless.

       Furthermore, to the extent that Appellant argues that the trial court

erred by denying his claims without a hearing, (see Appellant’s Brief, at 7),

his claim does not merit relief.5

       It is well-settled “that a PCRA petitioner is not automatically entitled to

an evidentiary hearing.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.

Super. 2014).      “We review the PCRA court’s decision dismissing a petition

without a hearing for an abuse of discretion.” Id. (citation omitted).

                    [T]he right to an evidentiary hearing on a post-
              conviction petition is not absolute. It is within the
              PCRA court’s discretion to decline to hold a hearing if
              the petitioner’s claim is patently frivolous and has no
              support either in the record or other evidence. It is
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5  We observe that we could find waiver of this issue because although
Appellant’s questions raise the issue of a failure to conduct an evidentiary
hearing, he has not developed this argument in his brief. See Pa.R.A.P.
2119(a), 2101. However, in the interest of judicial economy, we decline to
find waiver.

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            the responsibility of the reviewing court on appeal to
            examine each issue raised in the PCRA petition in light
            of the record certified before it in order to determine
            if the PCRA court erred in its determination that there
            were no genuine issues of material fact in controversy
            and in denying relief without conducting an
            evidentiary hearing.

           [A]n evidentiary hearing is not meant to function as a fishing
      expedition for any possible evidence that may support some
      speculative claim of ineffectiveness.

Id. (citations and quotation marks omitted).

      Here, after reviewing Appellant’s claims in light of the certified record,

we discern no abuse of discretion in the PCRA court’s decision to decline to

hold a hearing. See Miller, supra at 992.

      Finally, in his third issue, Appellant claims that, pursuant to Alleyne v.

United States, 570 U.S. 99 (2013), he is subject to an illegal sentence

because he was subject to a deadly weapon enhancement at sentencing. (See

Appellant’s Brief, at 27-32).     Appellant’s challenge to the legality of his

sentence does not merit relief.

      In Commonwealth v. Washington, our Supreme Court held that

“Alleyne does not apply retroactively to cases pending on collateral review.”

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).                    As

Appellant noted “his case was pending on collateral review at the time of the

[Alleyne] decision.” (Appellant’s Brief, at 31). Thus Alleyne does not apply,

and Appellant has not established that he is serving an illegal sentence. See

Washington, supra at 820.




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      Furthermore, although Appellant briefly mentions that this argument

“was available for argument by appellate and defense counsel at the time, but

was not brought[,]” and that “the failure of counsel to raise the illegal

sentencing at trial or on appeal is ineffective[,]” he has not attempted to prove

that counsel was ineffective for failing to challenge the legality of his sentence.

(Appellant’s Brief, at 29-30; see id. at 32); Vandivner, supra at 680.

Appellant’s final issue does not merit relief.

      Accordingly, Appellant has not met his burden of proving that the PCRA

court erred when it concluded that his claims were patently frivolous and

denied his petition without a hearing.      See Henkel, supra at 20; Miller,

supra at 992. Consequently, we affirm the order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2017




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