J-S06019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HAROLD JAMES

                            Appellant                  No. 106 EDA 2014


                Appeal from the PCRA Order December 13, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0109841-2006


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED APRIL 15, 2015

        Harold James appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, dismissing his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.           After

careful review, we affirm.

        On March 12, 2007, James was convicted by a jury of robbery, robbery

of a motor vehicle, kidnapping, possession of an instrument of crime and

terroristic threats.    The convictions stem from an incident in which James

carjacked a woman, held her hostage, threatened her with a knife, ordered

her to remove her pants, and demanded her money and credit cards. James

was originally brought to trial on November 17, 2006; however, the trial

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*
    Former Justice specially assigned to the Superior Court.
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court declared a mistrial when a Commonwealth witness stated that James

was a registered sex offender.          James was retried beginning on March 2,

2007 and ultimately convicted of the above crimes.                 On April 18, 2007,

James was sentenced to an aggregate of thirty-two to sixty-four years in

prison.1

        James    filed   post-sentence         motions,   which   were   denied.   By

memorandum decision dated May 12, 2010, this Court affirmed his

judgment of sentence.2 Our Supreme Court denied allowance of appeal on

September 7, 2010. James filed a pro se PCRA petition on March 10, 2011.

The trial court appointed counsel, who filed an amended petition on February

8, 2013.     The trial court dismissed James’ PCRA petition and this timely

appeal follows, in which James raises the following issues for our review:

        1. Whether trial [and appellate] counsel [were] ineffective for
           [failing to] preserv[e] the issue that a motion to bar
           [re]prosecution based on double jeopardy should have been
           filed once a mistrial was declared?

        2. Whether trial and appellate counsel were ineffective for failing
           to file post-sentence motions where the sentence was
           excessive, [and the court] double counted [James’] prior
           record when fashioning the sentence?



____________________________________________


1
  The court sentenced James to 10 to 20 years’ incarceration each for the
robbery, robbery of a motor vehicle and kidnapping convictions, and to one
to two years’ incarceration each for the PIC and terroristic threats
convictions. All sentences were ordered to be served consecutively.
2
    Both the post-sentence motions and the appeal were filed nunc pro tunc.



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      3. Whether trial counsel was ineffective for failing to request an
         unlawful restraint instruction?

      4. Whether appellate and trial counsel were ineffective for failing
         to properly preserve a challenge to the weight of the evidence
         where no post sentence motions were filed and appellate
         counsel failed to ask for a remand to file one?

      5. Whether appellate and trial counsel were ineffective for failing
         to preserve the Rule 600 issue?

Brief of Appellant, at 5.

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

well-settled.   We review the PCRA court’s findings of fact to determine

whether they are supported by the record, and review its conclusions of law

to determine whether they are free from legal error.       Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to

the findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level. Id.

      James’ claims all raise issues of ineffectiveness of counsel.         To

establish counsel’s ineffectiveness, a petitioner must demonstrate: (1) the

underlying claim has arguable merit; (2) counsel had no reasonable basis for

the course of action or inaction chosen; and (3) counsel’s action or inaction

prejudiced the petitioner.   See Strickland v. Washington, 466 U.S. 668

(1984).

      A failure to satisfy any prong of the ineffectiveness test requires
      rejection of the claim. The burden of proving ineffectiveness
      rests with Appellant. To sustain a claim of ineffectiveness,
      Appellant must prove that the strategy employed by trial counsel
      was so unreasonable that no competent lawyer would have
      chosen that course of conduct. Trial counsel will not be deemed
      ineffective for failing to pursue a meritless claim.

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Commonwealth v. Rega, 933 A.2d 997, 1019 (Pa. 2007).

      James first claims that trial and appellate counsel were ineffective for

failing to raise a double jeopardy claim after his first trial ended in a mistrial.

James claims that the Commonwealth demonstrated “deliberate bad faith”

when its police witness, Detective Malinka Bragg, stated that James was a

registered sex offender after the trial court specifically told her not to

mention that fact.

      “The double jeopardy clause of the Pennsylvania Constitution prohibits

retrial of a defendant not only when prosecutorial misconduct is intended to

provoke the defendant into moving for a mistrial, but also when the conduct

of the prosecutor is intentionally undertaken to prejudice the defendant to

the point of the denial of a fair trial.” Commonwealth v. Basemore, 875

A.2d 350, 358 (Pa. Super. 2005), quoting Commonwealth v. Smith, 615

A.2d 321, 325 (Pa. 1992). “In order to raise double jeopardy implications,

prosecutorial misconduct must be deliberate, undertaken in bad faith and

with a specific intent to deny the defendant a fair trial.”          Id., quoting

Commonwealth v. Santiago, 654 A.2d 1062, 1085 (Pa. Super. 1994).

      Here, there is no merit to James’ claim that the prosecution engaged

in any misconduct, deliberate or otherwise. Immediately following defense

counsel’s objection to Detective Bragg’s statement regarding James’ status

as a registered sex offender, the court stated as follows:

      THE COURT:      Despite the fact that [counsel for the
      Commonwealth] Ms. Hurley told this detective not to mention
      that the defendant is a registered sex offender, the detective

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      first said [police had run] a check on the defendant, which first
      of all, you know, could have been bad enough.

      Ms. Hurley stopped the detective and moved on and asked the
      [d]etective why the [the Special Victims Unit became involved in
      the case] and what SVU is. And expecting the [d]etective to say
      [that] based on the information received, perhaps it could have
      been a possible rape or sexual assault is what Ms. Hurley
      expected the witness to say. And instead, the witness said
      because he’s a registered sex offender.

      So now based on the defense’s request for a mistrial, I must
      grant that. And I want to be very clear on the record that it’s
      not an error on the part of the Commonwealth’s attorney in any
      way, shape, fashion or form.

N.T. Trial, 11/17/06, at 109-10.

      The court’s conclusions are supported by the record, which makes it

clear that counsel for the Commonwealth did not intend for Detective Bragg

to testify regarding James’ classification as a sex offender. As the trial court

noted, prior to the offending testimony, counsel had also interrupted

Detective Bragg when she mentioned that another detective was “running

checks” on James’ background and redirected her testimony with a specific,

unrelated question.   See id. at 104. This was an obvious attempt on the

part of the Commonwealth to steer its witness’s testimony clear from a

potentially inappropriate subject.

      Because the record does not support a finding of misconduct on the

part of the prosecution, a motion to dismiss would properly have been

denied.   Basemore, supra.      As counsel cannot be deemed ineffective for

failing to pursue a baseless claim, Rega, supra, James’ first assignment of

error is without merit.


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      Next, James claims that trial and appellate counsel were ineffective for

failing to raise a claim regarding the excessiveness of his sentence.

However, this claim was previously raised before this Court and found to be

meritless. See Commonwealth v. James, 4 A.3d 190 (Pa. Super. 2010).

      James also alleges that his sentences for robbery and robbery of a

vehicle should merge.     Specifically, James asserts that “[a]lthough some

elements of the crime[s] were different[,] namely one was a vehicle and the

other was the owner of the vehicle, it was all part of one act and [James]

should not have been sentenced separately on each count.”            Brief of

Appellant, at 16. This claim is patently meritless.

       Whether James’ convictions merge for purposes of sentencing is a

question implicating the legality of his sentence.      Commonwealth v.

Raven, 97 A.3d 1244, 1248 (Pa. Super. 2014). Consequently, our standard

of review is de novo and the scope of our review is plenary. Id.

      The merger doctrine is a rule of statutory construction designed to

determine whether the legislature intended for the punishment of one

offense to encompass that of another offense.           Commonwealth v.

Davidson, 938 A.2d 198, 217 (Pa. 2007). The objective of the doctrine is

to prevent a defendant from being punished more than once for the same

criminal act. Id.   The merger doctrine has been codified at section 9765 of

the Sentencing Code, which provides as follows:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the

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      other offense.  Where crimes merge for sentencing purposes,
      the court may sentence the defendant only on the higher graded
      offense.

42 Pa.C.S.A. § 9765 (emphasis added). Section 9765 precludes courts from

merging sentences when each offense contains a statutory element that the

other does not.    Commonwealth v. Baldwin, 985 A.2d 830, 834 (Pa.

2009).

      Here, robbery and robbery of a vehicle each contain elements that the

other does not. Specifically, James was convicted of robbery because “in the

course of committing a theft” he “inflict[ed] serious bodily injury upon

another[.]”    See 18 Pa.C.S.A. § 3701(a)(1).        James was convicted of

robbery of a motor vehicle because he “st[ole] or t[ook] a motor vehicle

from another person in the presence of that person or any other person in

lawful possession of the motor vehicle.”    See 18 Pa.C.S.A. § 3702(a). As

James himself concedes, these crimes each contain elements that the other

does not.     Accordingly, they do not merge for purposes of sentencing.

Baldwin, supra. As counsel cannot be found to be ineffective for failing to

pursue a baseless claim, Rega, supra, James is entitled to no relief.

      James next asserts that trial counsel was ineffective for failing to

request a jury instruction on the crime of unlawful restraint, which he claims

is a lesser included offense of kidnapping.     James asserts that there was

“sufficient evidence presented . . . that the complainant was restrained and

exposed to the risk of serious bodily injury” and, therefore, “there is no trial




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strategy that would have prevented defense counsel from asking for such an

instruction[.]” Brief of Appellant, at 19. This claim is meritless.

      It is settled law in Pennsylvania that a defendant may be convicted of

an offense that is a lesser-included offense of the crime actually charged.

Commonwealth v. Kelly, 102 A.3d 1025, 1032 (Pa. Super. 2014).

      A lesser-included offense is a crime having elements . . . which
      are a necessary subcomponent of elements of another crime, the
      greater offense. The elements in the lesser-included offense are
      all contained in the greater offense; however, the greater
      offense contains one or more elements not contained in the
      lesser-included offense.

Id.

      This Court has previously held that unlawful restraint is not a lesser

included offense of kidnapping.      A person is guilty of kidnapping “if he

unlawfully removes another a substantial distance under the circumstances

from the place where he is found, or if he unlawfully confines another for a

substantial period in a place of isolation” in order to “facilitate commission of

any felony or flight thereafter” or “inflict bodily injury on or to terrorize the

victim or another.” 18 Pa.C.S.A. § 2901(a). A person commits the offense

of unlawful restraint if he “restrains another unlawfully in circumstances

exposing him to risk of serious bodily injury[.]”    18 Pa.C.S.A. § 2902.     In

Commonwealth v. Ackerman, 361 A.2d 746 (Pa. Super. 1976), we stated

the following:

      The Crimes Code, in 18 Pa.C.S.[A.] § 2301, defines both bodily
      injury (“[i]mpairment of physical condition or substantial pain”)
      and serious bodily injury (“[b]odily injury which creates a
      substantial risk of death or which causes serious, permanent

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      disfigurement, or protracted loss or impairment of the function
      of any bodily member or organ”). Thus, there can be no doubt
      that exposure to “serious bodily injury,” as opposed to mere
      “bodily injury,” is a distinct element of the crime of unlawful
      restraint.  In prosecuting a case for unlawful restraint, the
      burden would be on the Commonwealth to prove beyond a
      reasonable doubt that the bodily injury to which the victim was
      exposed was serious bodily injury.

      On the other hand, to prove kidnapping, the Commonwealth
      need only prove that bodily injury was intended. Serious bodily
      injury is not an element of the crime of kidnapping. While we
      might agree that intent to inflict bodily injury necessarily
      involves an exposure of the victim to bodily injury, we are
      unable to agree that such an intent necessarily involves
      exposure of the victim to serious bodily injury.

Id. at 748-49. Accordingly, to the extent that James’ claim is based on the

lesser-included-offense argument, it must fail.

      Moreover, bald, undeveloped allegations will not satisfy a petitioner’s

burden to both plead and prove he is entitled to relief under the Act. See 42

Pa.C.S.A. § 9543(a).    Here, James has neither pled nor proven that trial

counsel lacked a reasonable basis for not requesting an unlawful restraint

instruction.   Nonetheless, as the Commonwealth argues in its brief, it is

apparent that trial counsel’s strategy was to obtain an outright acquittal on

the kidnapping charge by arguing that the evidence failed to demonstrate

that James drove the victim a “substantial distance” as required by the

statute.   The goal of seeking complete acquittal does not constitute

ineffective assistance of counsel.   Commonwealth v. Farmer, 758 A.2d

173, 179 (Pa. Super. 2000).   Accordingly, this claim is without merit.




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      James next asserts that prior counsel was ineffective for failing to

preserve a challenge to the weight of the evidence. James claims that “the

verdict was against the weight of the evidence [because] the [prosecution’s]

case relied solely on the testimony of the complainant[,] whose testimony

was full of contradictions.”   Brief of Appellant, at 20-21.     This claim is

meritless.

      The determination of the weight of the evidence exclusively is
      within the province of the fact-finder, who may believe all, part,
      or none of the evidence. A new trial should be awarded when
      the jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice and the award of a new trial is imperative so
      that right may be given another opportunity to prevail. In this
      regard, the evidence must be so tenuous, vague and uncertain
      that the verdict shocks the conscience of the court. While
      appellate review of a weight of the evidence claim normally
      involves examining the trial court’s exercise of discretion in its
      review of the fact-finder’s determinations, instantly, we must
      test the merits of Appellant’s claim without the benefit of a trial
      court’s opinion.

Commonwealth v. Ross, 856 A.2d 93, 99 (Pa. Super. 2004) (citations and

quotation marks omitted).

      Here, a review of the trial record indicates that the victim’s testimony

was not, as James suggests, “full of contradictions.” On the contrary, the

victim’s story remained consistent throughout the course of her trial

testimony and did not deviate from previous statements given to the police.

Moreover, her testimony was corroborated by that of eyewitness Steven

Gilbert, who saw the victim and James as they each exited the victim’s

vehicle. Gilbert testified that he saw that the victim’s pants were down and,



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believing a rape had possibly occurred, he proceeded to pursue James.

Police testimony and evidence submitted at trial were also consistent with

the victim’s statement that James’ knife broke during a struggle in the

victim’s car.   Finally, James’ own confession corroborated the victim’s

testimony.

      In light of the foregoing, we conclude that the verdict was not against

the weight of the evidence. Accordingly, neither trial nor appellate counsel

were ineffective for failing to preserve this meritless claim. Rega, supra.

      Finally, James claims that prior counsel were ineffective for failing to

preserve a claim under Pa.R.Crim.P. 600. This claim, however, is waived, as

it was not raised either in James’ pro se PCRA petition or in his counseled

amended petition.   See Commonwealth v. Coleman, 19 A.3d 1111 (Pa.

Super. 2011) (claim waived when raised for first time in Pa.R.A.P. 1925(b)

statement).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2015




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