J-S55034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RAYMOND S. DOMAN, JR.

                            Appellant                No. 212 EDA 2014


                  Appeal from the PCRA Order January 2, 2014
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0005671-2010


BEFORE: BOWES, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                          FILED FEBRUARY 24, 2015

       Raymond S. Doman, Jr., appeals from the order entered January 2,

2014, in the Bucks County Court of Common Pleas, dismissing his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et

seq. Doman seeks relief from the judgment of sentence of an aggregate 14

to 28 years’ imprisonment following his jury conviction of theft, criminal

mischief, robbery (two counts), simple assault, recklessly endangering

another person (REAP), resisting arrest, and fleeing or attempting to elude

police officer.1    On appeal, Doman challenges the ineffectiveness of trial

counsel for failing to object to the transfer of some of the charges from


____________________________________________


1
 18 Pa.C.S. §§ 3921, 3304, 3701(a)(1)(ii) and (iv), 2701, 2705, and 5104,
and 75 Pa.C.S. § 3733, respectively.
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Montgomery County to Bucks County.               For the reasons that follow, we

affirm.

       The facts underlying Doman’s arrest and conviction are as follows.2

On June 8, 2010, Doman stole a white Volkswagen Eos from the parking lot

of the Willow Grove Mall in Montgomery County, Pennsylvania.          One week

later, on June 15, 2010, David Clee, a retired police officer, noticed Doman

standing next to a sports utility vehicle (SUV) in the parking lot of the

Neshaminy Mall in Bucks County, Pennsylvania, with the Volkswagen Eos

idling in the nearby travel lane. Suspecting Doman was trying to steal the

SUV, Clee approached and saw Doman in the SUV with broken glass on the

ground.    Clee then took the keys from the idling Volkswagen and walked

towards the mall for help. Doman ran after Clee, “sucker punched” him, and

proceeded to punch him until Clee relented. Id. at 2. Doman took the keys

to the Volkswagen from Clee’s pocket and fled.           A witness provided the

police with the Volkswagen’s license plate number.

       On June 21, 2010, another witness observed Doman prowling around

cars parked in the Cornwell Height’s Park & Ride lot in Bucks County,

Pennsylvania.     After Doman broke into a car, the witness called police.    A

Pennsylvania State Trooper arrived shortly thereafter and saw Doman who
____________________________________________


2
 The facts are summarized in more detail in the PCRA court’s opinion. See
PCRA Court Opinion, 4/22/2014, at 1-5.



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met the description of the culprit. The officer exited his vehicle, identified

himself, and drew his weapon, ordering Doman to freeze. Doman ignored

the trooper’s directive and got into the Volkswagen parked nearby. Although

the trooper tried to take the keys from the ignition, Doman accelerated while

the trooper’s body was hanging from the window. The trooper discharged

his service weapon several times until he was able to get free.        Doman,

unharmed, then fled the scene. The police found the Volkswagen abandoned

near the Delaware River in Bensalem, Pennsylvania. Doman was discovered

a few hours later, hiding in a nearby wooded area.

       Doman was charged with numerous offenses stemming from all three

incidents.    In August of 2010, the Montgomery County District Attorney’s

Office agreed to withdraw the charges filed against Doman in Abington

Township based upon the June 8, 2010, car theft at Willow Grove Mall, so

that the Bucks County District Attorney’s Office could prosecute Doman for

all three incidents.3       The case proceeded to a jury trial in Bucks County,

and on December 10, 2010, the jury returned a verdict of guilty on the

following charges: (1) with respect to the June 8th incident in Montgomery

County - theft and criminal mischief; (2) with respected to the June 15 th


____________________________________________


3
  See Letter from Montgomery County District Attorney’s Office Chief of Staff
to Bucks County District Attorney, 8/26/2010.




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incident in Bucks County – simple assault and two counts of robbery; and

(3) with respect to the June 21st incident in Bucks County – fleeing or

attempting to elude police officer, REAP, and resisting arrest. The jury found

Doman not guilty on charges of aggravated assault (four counts), simple

assault, possessing an instrument of crime, and driving under suspension.4

On May 20, 2011, the trial court imposed an aggregate sentence of 14 to 28

years’ imprisonment.        Doman filed a timely motion for reconsideration of

sentence, which was denied by the trial court.

        Although Doman failed to file a timely appeal, on August 16, 2011, he

filed a motion for reinstatement of his direct appeal rights nunc pro tunc,

which the trial court promptly granted. On appeal, this Court affirmed the

judgment of sentence, and the Pennsylvania Supreme Court denied Doman’s

petition for allocator review. See Commonwealth v. Doman, 55 A.3d 134

(unpublished memorandum) (Pa. Super. 2012),5 appeal denied, 57 A.3d 67

(Pa. 2012).

        On January 29, 2013, Doman filed a timely, pro se PCRA petition.

Counsel was appointed, and the court conducted two PCRA hearings on

____________________________________________


4
    18 Pa.C.S. §§ 2702, 2701, and 907, and 75 Pa.C.S. § 1543, respectively.
5
  On direct appeal, Doman challenged the jury instructions, the sufficiency of
the evidence, and the discretionary aspects of his sentence.




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November 18, 2013, and January 2, 2014.6 Following the second hearing,

the court dismissed Doman’s petition. This timely appeal followed.7

       The sole issue Doman raises on appeal challenges the ineffectiveness

of trial counsel for failing to object to the transfer of the Montgomery County

charges to Bucks County. He acknowledges Pennsylvania Rule of Criminal

Procedure 555 allows for a choice of venue when charges arising from the

same criminal episode occur in different judicial districts.        However, he

contends the Commonwealth failed to file the written agreement authorizing

the transfer of the charges to Bucks County in violation of the rule. Further,

Doman argues that, here, “[t]he only fact that the three incidents share is

that Doman was unlawfully in possession of a white Volkswagen Eos that

belonged to another person.”          Doman’s Brief at 16.   Rather, he maintains

“the theft of the Volkswagen was a separate and distinct incident from the

violent offenses that were charge[d] in relation to the Bucks County acts[,]”

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6
  We note that although appointed counsel did not file an amended PCRA
petition, she did fully participate in both of Doman’s PCRA hearings and
presented cogent arguments on his behalf. However, we caution counsel
that the best practice is to file an amended petition when appointed by the
court as PCRA counsel.
7
  On January 23, 2014, the PCRA court ordered Doman to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Doman complied with the court’s directive and filed a concise statement on
February 10, 2014.




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and counsel’s failure to object to the transfer of the charges is an issue of

arguable merit. Id.

       Moreover, Doman rejects counsel’s claim that the failure to object was

strategic.     Counsel testified his theory of the case was that Doman

committed “thefts of opportunity rather than thefts of violence[,]” and that

“[t]he inclusion of the Montgomery County offense was consistent with his

theory[.]”    Id. at 18.      However, Doman asserts counsel still could have

pursued that theory without “needlessly” exposing Doman to an aggregate

sentence with the inclusion of the Montgomery County theft.          Id. at 19.

Lastly, Doman contends that he was prejudiced by counsel’s failure to object

because he would have pled guilty to the theft in Montgomery County, and

would not have received a sentence above the aggravated range of the

sentencing guidelines.8

       When reviewing an order dismissing a PCRA petition, we must

determine whether the ruling of the PCRA court is supported by record

evidence and is free of legal error.           Commonwealth v. Burkett, 5 A.3d
____________________________________________


8
  The standard range of the guidelines for Doman’s Montgomery County
theft offense called for a minimum sentence of 12 to 18 months’
imprisonment, with an aggravated range of 21 months. See Guideline
Sentence Form, 5/20/2011. The statutory maximum sentence for the crime
was 42 to 84 months’ imprisonment. Id. Therefore, Doman’s sentence of
24 to 48 months’ (two to four years’) incarceration fell outside the
aggravated guidelines range.




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1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings

of the PCRA court, and these findings will not be disturbed unless they have

no support in the certified record.”     Commonwealth v. Carter, 21 A.3d

680, 682 (Pa. Super. 2011) (citation omitted).

        Where, as in the present case, the petitioner’s only claim is a challenge

to the ineffectiveness of prior counsel, our review is well-established:

        We begin our analysis of ineffectiveness claims with the
        presumption that counsel is effective.          To prevail on his
        ineffectiveness claims, Appellant must plead and prove, by a
        preponderance of the evidence, three elements: (1) the
        underlying legal claim has arguable merit; (2) counsel had no
        reasonable basis for his action or inaction; and (3) Appellant
        suffered prejudice because of counsel’s action or inaction. With
        regard to the second, i.e., the “reasonable basis” prong, we will
        conclude that counsel’s chosen strategy lacked a reasonable
        basis only if Appellant proves that “an alternative not chosen
        offered a potential for success substantially greater than the
        course actually pursued.”       To establish the third, i.e., the
        prejudice prong, Appellant must show that there is a reasonable
        probability that the outcome of the proceedings would have been
        different but for counsel’s action or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal

citations omitted). “Failure to establish any prong of the test will defeat an

ineffectiveness claim.”    Commonwealth v. Keaton, 45 A.3d 1050, 1061

(Pa. 2012) (citations omitted).

        Pennsylvania Rule of Criminal Procedure 555 provides, in relevant

part:

        (A) In all cases in which charges arising from a single criminal
        episode occur in more than one judicial district:


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        (1) If the charges are filed in more than one judicial district, at
        any time after the case is held for court, the proceedings may
        be transferred to one of the judicial districts.

                                      ****

      (B) The judicial district to which the proceedings are to be
      transferred shall be determined either:

                                      ****

      (2) by written agreement of the attorneys for the
      Commonwealth, filed with the clerk(s) of courts of the judicial
      district(s) in which the charges are pending, with service upon
      the defendant or defendant's counsel, and an opportunity for the
      defendant to object.

                                      ****

      (D) Upon the filing of the agreement of the attorneys for the
      Commonwealth in paragraph (B)(2),

      (1) absent an objection within 10 days of filing, the court
      promptly shall order the transfer of the proceedings. …

Pa.R.Crim.P. 555.

      Similarly, Rule 130 addresses the issue of venue before charges are

filed. It states, in relevant part:

      When charges arising from the same criminal episode occur in
      more than one judicial district, the criminal proceeding on all the
      charges may be brought before one issuing authority in a
      magisterial district within any of the judicial districts in which the
      charges arising from the same criminal episode occurred.

Pa.R.Crim.P. 130(A)(2).

      Our review of the record in the present reveals that the Montgomery

County charges were filed, and later withdrawn, after the Bucks and

Montgomery County district attorney’s offices agreed to prosecute all three



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incidents in Bucks County.    See Letter from Montgomery County District

Attorney’s Office Chief of Staff to Bucks County District Attorney, 8/26/2010.

The agreement, dated August 26, 2010, was entered into before Doman was

arraigned in Bucks County on October 1, 2010, for the charges stemming

from all three incidents.    Therefore, while the docket reflects no formal

transfer order by the Bucks County trial court pursuant to Rule 555(D)(1), it

appears the transfer occurred before Doman was formally arraigned on

October 1, 2010, in Bucks County on the charges for all three incidents.

     Furthermore, when considering whether separate offenses constitute a

single criminal episode, we are guided by the following:

     The determination of what constitutes a single criminal episode
     must not be approached in a rigid or hypertechnical manner ….
     Rather, when determining what constitutes a single criminal
     episode, we consider (1) the temporal relationship between the
     acts in question and (2) the logical relationship between the
     acts. In determining whether a number of offenses are “logically
     related” to one another, a court should inquire into whether
     there is a substantial duplication of factual and/or legal issues
     presented by the offenses; if there is substantial duplication,
     then the offenses are logically related and must be prosecuted at
     one trial.

Commonwealth v. Wittenburg, 710 A.2d 69, 73 (Pa. Super. 1998)

(citation omitted) (considering whether subsequent prosecution is barred

pursuant to compulsory joinder rule in 18 Pa.C.S. § 110), appeal denied,

727 A.2d 1120 (Pa. 1998).




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      The PCRA court provided the following cogent analysis of Doman’s

ineffectiveness claim:

             Obviously, [trial counsel] can only be found ineffective if
      there is some arguable merit to the motion to transfer
      proceedings which he admittedly did not file. However, both the
      Montgomery County and Bucks County cases arose from the
      same criminal episode thereby justifying the Bucks County’s
      grant of jurisdiction because there is a substantial temporal and
      logical relationship between the two.          The theft of the
      Volkswagen vehicle from Montgomery County and the numerous
      crimes that later occurred in Bucks County are temporally
      related because this stolen vehicle was used by [Doman] just a
      week later in Bucks County. In terms of the logical relationship,
      two separate trials would have resulted in numerous witnesses
      being required to testify twice to substantially the same facts
      which underlie [Doman’s] offenses, creating an unnecessary
      burden on judicial resources in the process. Two witnesses in
      Bucks County were in close proximity to the White Volkswagen
      just prior to Mr. Clee’s assault, and were able to view its
      occurrence, call police, and get the license plate of the
      aforementioned Volkswagen while [Doman] fled in same.
      Furthermore, [Doman’s] assault of Mr. Clee was, arguably, the
      result of Mr. Clee retrieving the keys from the stolen Volkswagen
      to prevent [Doman’s] escape. Therefore, because both involve
      the same criminal episode, this claim has no merit and hearing
      all charges in Bucks County eliminated duplication of effort on
      the part of the parties involved and prevented the waste of
      judicial resources.

             It follows that [trial counsel] had a reasonable basis for not
      filing what would have been a useless motion and was,
      therefore, not ineffective for failing to do so. However, another
      separate and distinct reasonable basis for not objecting to the
      consolidation existed in the alternative. [Trial counsel] testified
      that the ultimate theory of the case was to show that [Doman]
      was a thief of opportunity and, although he had a long history of
      thefts, he was not violent or aggressive towards anyone in
      perpetration of these prior crimes.         Therefore, because the
      taking of the Volkswagen is wholly consistent with that theory,


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     [trial counsel] deemed it advantageous for the jury to hear
     evidence regarding this Montgomery County theft.

           Finally, in terms of prejudice, at the PCRA proceedings [the
     court] commented that:

        … the most that could have been done would be to lodge
        an objection to the District Attorney’s motion, we would
        then have a hearing on it and I would make a decision
        from the facts that it was a part of the total events that
        happened in Bucks County, and for that reason alone the
        motion would have been denied, because we would have
        had the same witnesses and some of the same facts gone
        over in two separate trials.

     (N.T., 20, Jan. 2, 2014). Furthermore, [trial counsel] did testify
     that he “touched on” the topic of venue with [Doman] but cannot
     recall the specifics surrounding this conversation because it was
     never an issue of contention. Regardless, we would not have
     granted the motion had there been an objection to venue on this
     basis even if [Doman] requested it and [trial counsel] complied
     and, therefore, there exists no prejudice for [trial counsel’s]
     failure to raise this motion.

PCRA Court’s Opinion, 4/22/2014, at 13-15 (some record citations omitted).

     We agree with the PCRA court’s analysis.          With respect to the

prejudice prong, we also note that Doman contends in his brief that had the

Montgomery County charges not been transferred to Bucks County, he

would have pled guilty to the theft offenses in Montgomery County, and he

would not have received a sentence above the aggravated range. We find

this claim specious.   Doman did not testify during the PCRA hearings, and

never averred that he would have entered a guilty plea had the charges

remained in Montgomery County.          Moreover, his contention that a




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Montgomery County judge would have imposed a lesser sentence for his

crime is pure speculation.

      Therefore, because we agree with the PCRA court that Doman has

failed to demonstrate trial counsel’s ineffectiveness, we affirm the order

dismissing his PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015




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