J-S65017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

CHRISTOPHER MANIGAULT,

                         Appellant                      No. 3320 EDA 2013


             Appeal from the PCRA Order of November 8, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0805411-2003


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED JANUARY 08, 2015

      Appellant,   Christopher   Manigault,   appeals    from   an   order   that

dismissed his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court summarized the factual and procedural history in this

case as follows:

      On June 24, 2003, at approximately 9:53 a.m., Kenneth Wasiek
      (victim/decedent) was working at a clearly marked construction
      site for the Philadelphia Water Department on Belmont Avenue
      in the City and County of [Philadelphia].      The construction
      notices extended for several blocks and required the closure of
      the right lane for several hundred feet before the point of
      impact. The water department truck was not in the traveling
      lane and was visibly marked by emergency lights. As Mr.
      Wasiek, wearing a reflective safety vest, was exiting his truck,
      he was struck by [A]ppellant’s car, traveling approximately 40-
      50 mph. The victim was thrown into the air. [A]ppellant did not
      stop but continued through a red light and caused collisions with
      two (2) other cars.       [A]ppellant was under the combined
      influence of marijuana and Xanax to such a level that he was

*Retired Senior Judge assigned to the Superior Court.
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     incapable of safely operating a motor vehicle. The medical
     examiner determined that the thirty-two-year-old victim, [Mr.]
     Wasiek, died as a result of being struck by a motor vehicle.

     On June 24, 2003 Appellant was arrested and charged with
     [homicide by vehicle while driving under the influence, homicide
     by vehicle while driving in an active work zone, involuntary
     manslaughter, accidents involving death or personal injury, and
     driving under the influence of alcohol or controlled substance.]
     On June [7 and] 16, 2004[, Appellant] appeared before th[e trial
     court] and entered a plea of guilty. On July 29, 2004 Appellant
     was sentenced to [consecutive terms of imprisonment of five to
     10 years for homicide by vehicle while driving under the
     influence, six to 12 years for homicide by vehicle committed in
     an active work zone, and three and one-half to seven years for
     accidents involving death or bodily injury.        Thus, Appellant
     received an aggregate sentence] of not less than [14½] years to
     no[t] more than [29] years. On August 19, 2004[,] Appellant
     filed a timely [n]otice of [a]ppeal to the Superior Court of
     Pennsylvania and on October 16, 2006 the [j]udgment of
     [s]entence was affirmed. [On February 26, 2007,] Appellant
     filed a [pro se PCRA] and PCRA [c]ounsel was appointed. PCRA
     counsel filed an [a]mended PCRA [p]etition on November 27,
     2007 seeking reinstatement of Appellant’s right[s] to file [p]ost
     [s]entence [m]otions and [a] direct appeal based on ineffective
     assistance of counsel, and on February 6, 2008 the
     Commonwealth filed a [m]otion to [d]ismiss the [p]etition. On
     July 7, 2008[, the PCRA court] granted the PCRA [p]etition and
     on July 14, 2008 Appellant filed [p]ost [s]entence [m]otions. On
     October 9, 2008[, p]ost [s]entence [m]otions were denied and
     Appellant filed a timely [n]otice of [a]ppeal to the Superior Court
     of Pennsylvania on October 16, 2008. The Superior Court of
     Pennsylvania affirmed the [j]udgment of [s]entence on July 7,
     2009.     Appellant then filed a [p]etition for [a]llowance of
     [a]ppeal in the Supreme Court of Pennsylvania and on December
     9, 2009 the [p]etition for [a]llowance of [a]ppeal was denied.

     On February 5, 2010[,] Appellant filed the instant PCRA
     [p]etition pro se and PCRA counsel was appointed. On July 12,
     2012[,] PCRA counsel filed an [a]mended PCRA [p]etition and on
     April 30, 2013 the Commonwealth filed a [m]otion to [d]ismiss
     the petition. On October 1, 2013[, the PCRA court issued n]otice
     pursuant to Pa.R.Crim.P. 907 [] to Appellant and on November


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      8, 2013 the PCRA [p]etition was dismissed. This timely appeal
      followed on November 17, 2013.

      Pursuant to Pa.R.A.P. 1925(b)[,] Appellant was instructed to file
      a [concise s]tatement of [e]rrors [c]omplained [o]f [o]n
      [a]ppeal. Appellant responded claiming that the PCRA [c]ourt
      erred when it dismissed the Appellant’s [a]mended PCRA
      [p]etition without holding an evidentiary hearing; that the
      sentencing court imposed an illegal sentence as the sentences
      merged; that trial counsel was ineffective for failing to object to
      the sentencing courts’ imposition of consecutive sentences on
      the charge of [a]ccidents [i]nvolving [d]eath or [p]ersonal
      [i]njury and the charge of [h]omicide by [v]ehicle when the
      sentence on these charges should have merged; and that
      counsel were ineffective for failing to raise these issues in [p]ost
      [s]entence [m]otions, on appeal, or under the PCRA.

PCRA Court Opinion, 4/11/14, at 1-3.

      Appellant’s brief raises the following questions for our consideration:

      Did the [h]onorable PCRA [c]ourt err when it dismissed the
      [Appellant’s] [a]mended PCRA [p]etition without a [h]earing but
      where the [Appellant] properly pled and would have been able to
      prove that he was entitled to relief?

Appellant’s Brief at 3.

      Appellant argues on appeal that the PCRA court erred in dismissing his

petition without a hearing where he pled and proved that he received an

unlawful sentence (or alternatively that trial counsel was ineffective in failing

to challenge his sentence) because his punishment for accidents involving

death or personal injury should have merged with his sentence for homicide




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by vehicle.1 The basis for Appellant’s claim is that all homicides by vehicle

involve accidents in which a death has occurred and there was a single

victim and single incident in this matter. This claim merits no relief.

       “The Superior Court's task in reviewing the denial of PCRA relief [i]s to

determine whether the PCRA court's factual findings were supported by the

record, and whether the court's legal decision was free from error.”

Commonwealth v. Hill, 2014 WL 6609012, *16 (Pa. 2014).               The PCRA

recognizes a petitioner’s right to challenge his conviction or sentence on

grounds that trial counsel was ineffective or that the trial court imposed an

unlawful sentence. See 42 Pa.C.S.A. § 9543(a)(2)(ii) (ineffective assistance

of counsel) and (a)(2)(vii) (unlawful sentence). A claim that the trial court

imposed an unlawful punishment by failing to merge sentences is a question

of law; thus, our review of such claims is plenary. Commonwealth v. Orie,

____________________________________________


1
  Appellant also makes a passing claim that the trial court should not have
accepted his guilty plea to accidents involving death or personal injury
because the facts did not establish the elements of this offense. See
Appellant’s Brief at 11. To the extent Appellant raises this claim under the
guise of trial counsel’s ineffectiveness, it is undeveloped with citation to
pertinent authority and, hence, waived. See Commonwealth v. Perez, 93
A.3d 829, 837-838 (Pa. 2014) (a litigant waives appellate claims that are
unsupported by citation to supporting authorities). In the alternative, we
conclude that this claim lacks merit. Appellant alleges that the facts did not
establish that he failed to stop. Appellant’s Brief at 10. Contrary to
Appellant’s contention, however, the facts placed on the record at the plea
hearing clearly indicate that, following Appellant’s contact with the victim,
Appellant’s vehicle did not come to rest until it collided with two other cars
after Appellant ran a red light. N.T., 6/7/04, at 20-21. Thus, there was
ample evidence that Appellant failed to stop his car.



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88 A.3d 983, 1020 (Pa. Super. 2014). Moreover, to prove that counsel was

ineffective, the petitioner carries the burden of overcoming the presumption

of effectiveness and demonstrating that: (1) his underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his action or

inaction;   and   (3)   the   petitioner   suffered   prejudice   as   a   result.

Commonwealth v. Burno, 94 A.3d 956, 972 (Pa. 2014).               The failure to

prove any prong of this test will defeat an ineffectiveness claim and counsel

cannot be deemed ineffective for failing to raise a meritless claim.

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).

      We apply the following principles when passing upon the PCRA court’s

decision to dismiss a petition without an evidentiary hearing.

      We also note that a PCRA petitioner is not automatically entitled
      to an evidentiary hearing. We review the PCRA court's decision
      dismissing a petition without a hearing for an abuse of
      discretion.

      [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 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.

Commonwealth v. Miller, 2014 WL 4783558, *2 (Pa. Super. 2014).

      Whether advanced in terms of the alleged ineffectiveness of his trial

counsel or the illegality of his sentence, Appellant’s claim on appeal rises and


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falls on the propriety of the PCRA court’s conclusion that his sentence for

homicide by vehicle should not merge with his sentence for accidents

involving death or personal injury. We limit our focus to this discrete legal

issue.

         As the trial court recognized, 42 Pa.C.S.A. § 9765, entitled Merger of

Sentences, governs our analysis. It provides:

         § 9765. Merger of Sentences

         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
         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.       Interpreting this language, our Supreme Court has

declared: “The statute's mandate is clear. It prohibits merger unless two

distinct facts are present: 1) the crimes arise from a single criminal act; and

2) all of the statutory elements of one of the offenses are included in the

statutory elements of the other.”      Commonwealth v. Baldwin, 985 A.2d

830, 833 (Pa. 2009). It is not disputed that the offenses in this case arose

from a single incident. We therefore focus on whether all of the statutory

elements of one of the offenses are included in the statutory elements of the

other.

         A person commits homicide by vehicle if he “recklessly or with gross

negligence causes the death of another person while engaged in the

violation of any law of this Commonwealth or municipal ordinance applying

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to the operation or use of a vehicle or to the regulation of traffic except

section 3802 (relating to driving under influence of alcohol or controlled

substance) … when the violation is the cause of death.”               75 Pa.C.S.A.

§ 3732(a). A person commits an offense under 75 Pa.C.S.A. § 3742(a) if he

is the driver of a vehicle involved in an accident involving death or personal

injury and he fails immediately to stop, return, or remain at the scene of an

accident until he has fulfilled the requirements of 75 Pa.C.S.A. § 3744

(relating to duty to give information and render aid).           See 75 Pa.C.S.A.

§ 3742(a).      Under the plain terms of these statutes, section 3732(a)

requires proof that an individual has acted recklessly or with gross

negligence while violating a traffic law at the time he causes the death of

another in a motor vehicle accident.           Section 3742(a) contains no similar

requirement.2 By contrast, criminal liability attaches under section 3742(a)

if a driver involved in an accident that results in death or personal injury fails

to stop at the scene of the collision.         This element is not found in section

3732(a).     Because each of these offenses includes an element which the

other does not, merger is prohibited under section 9765. Accordingly, the

trial court did not err in dismissing Appellant’s petition without a hearing.

____________________________________________


2
  Indeed, criminal culpability is triggered under section 3742(a) whenever an
individual is involved in an accident that results in death or personal injury
and he fails to stop at the scene of an accident. Thus, the Commonwealth
may obtain a conviction under section 3742(a) regardless of the fact that the
individual has exercised the upmost of caution in operating his vehicle.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/2015




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