J-S27005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 NARAT KIM                               :
                                         :
                   Appellant             :   No. 1698 EDA 2017

                Appeal from the PCRA Order April 21, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0008105-2010


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.:                             FILED JULY 19, 2018

     Appellant, Narat Kim, appeals pro se from the order denying his petition

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

9546. We affirm.

     We previously summarized the facts and history of this case as follows:

     Appellant had an argument with [Mr.] Ritha Ngoy on March 26,
     2010. Following the argument, Appellant and three cohorts
     traveled to Ritha Ngoy’s home and shot Mr. Ngoy’s brother. On
     June 29, 2010, the Commonwealth charged Appellant with murder
     and related offenses. Prior to trial, Appellant made an oral motion
     in limine, pursuant Pennsylvania Rule of Evidence 403, to preclude
     the Commonwealth from referring to Appellant at trial by his
     nickname, “Trigger.” Following argument, the court denied the
     motion. Appellant proceeded to a jury trial where multiple
     witnesses identified Appellant by his nickname as the shooter. At
     the conclusion of trial, the court instructed the jury regarding the
     limited use of Appellant’s nickname: “As to nicknames that were
     heard in the case, nicknames are nicknames and you are not to
     infer anything in this case from any nicknames that you heard.”
     (N.T. Trial, 12/21/11, at 84).
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              On December 21, 2011, the jury found Appellant guilty of
        third degree murder, carrying a firearm without a license, and
        [possessing instruments of crime (“PIC”)].[1] The court sentenced
        Appellant on February 13, 2012, to an aggregate term of twenty-
        three (23) to forty-six (46) years’ imprisonment. Appellant filed
        no post-sentence motions.

Commonwealth v. Kim, 75 A.3d 539, 653 EDA 2012 (Pa. Super. 2013)

(unpublished memorandum). Appellant filed a timely notice of appeal, and

we affirmed the judgment of sentence on April 1, 2013. Id. Our Supreme

Court denied Appellant’s petition for allowance of appeal on December 27,

2013.    Commonwealth v. Kim, 83 A.3d 414, 407 EAL 2013 (Pa. 2013).

Appellant did not seek review in the United States Supreme Court.

        On October 21, 2014, Appellant filed a timely pro se PCRA petition. The

PCRA court initially appointed counsel on May 27, 2015, but replaced him on

January 13, 2016. On December 30, 2016, new PCRA counsel filed a petition

to withdraw and a Turner/Finley2 no-merit letter.

        The PCRA court noted that it conducted an independent review of the

record, and it stated:

        [T]his [c]ourt found that [Appellant’s] claims failed and, on March
        21, 2017, issued a notice of its intention to dismiss his petition
        without a hearing pursuant to Pa.R.Crim.P. 907 (907 Notice). On
        March 31, 2017, [Appellant] filed a response objecting to this
        [c]ourt’s 907 Notice. This [c]ourt reviewed [Appellant’s] response
        and found that it raised no new claims and that it failed to
____________________________________________


1   18 Pa.C.S. §§ 2502(c), 6106, 907, respectively.

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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       supplement the claims he had already raised in a manner that
       changed this [c]ourt’s evaluation of those claims. Therefore, on
       April 21, 2017, this [c]ourt dismissed [Appellant’s] petition
       consistent with the 907 Notice.[3]

PCRA Court Opinion, 9/11/17, at 2. Appellant filed a timely notice of appeal;

both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

       Appellant raises the following issues on appeal, which we repeat

verbatim and have reordered for ease of disposition:

       1. Was trial counsel ineffective for failing to object at trial and
       raise on direct appeal that the trial court erred in its jury
       instruction pursuant to 18 Pa.C.S. Sections 2502(c) and 6106 by
       using language creating an inference of “intent” to commit a crime
       of violence (the third degree murder) from carring a firearm
       without a license?

       2. Was trial counsel ineffective for failing to raise at trial in a
       Motion of Disqualification and Recusal and on direct appeal that
       the trial court violated Rule 2.9 of Chapter 33 of Code of Judicial
       Conduct by conducting a seretive ex parte in-chamber meeting
       with only the defense counsel and forcing the defense counsel to
       reveal information which in violation of appellant’s attorney-client
       privilege and Due Process?

       3. Was trial counsel ineffective for failing to raise on post–
       sentence motion and on direct appeal that the trial court voilated
       the Double Jeopardy Clause by failing to merge the sentence of
       carring a firearm without a license to the third degree murder
       since both offenses were considered the same criminal episode?

       4. Was trial counsel ineffective for failing to preserve for appellate
       review on the issue of the trial court's refusal to include an
       instruction for voluntary manslaughter when charged the jury?

Appellant’s Brief at 4–5.


____________________________________________


3 The April 21, 2017 order also granted PCRA counsel’s petition to withdraw
as counsel. Order, 4/21/17.

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      When reviewing the propriety of an order denying PCRA relief, we

consider the record in the light most favorable to the prevailing party at the

PCRA level.    Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015);

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

This Court is limited to determining whether the evidence of record supports

the conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). These errors

include a constitutional violation or ineffectiveness of counsel, which “so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Commonwealth v. Cousar, 154

A.3d 287, 296 (Pa. 2017); 42 Pa.C.S. § 9543(a)(2). In addition, a petitioner

must show that the claims of error have not been previously waived.               42

Pa.C.S. § 9543(a)(3). Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa.

2014). “An issue has been waived ‘if the petitioner could have raised it but

failed to do so before trial, at trial, on appeal or in a prior state post conviction

proceeding.’” 42 Pa.C.S. § 9544(b); Blakeney, 108 A.3d at 749. The PCRA

court’s findings will not be disturbed unless there is no support for them in the

certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super.

2014).

      Moreover, “[t]here is no absolute right to an evidentiary hearing on a

PCRA petition, and if the PCRA court can determine from the record that no

genuine issues of material fact exist, then a hearing is not necessary.”


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Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting

Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a

decision is within the discretion of the PCRA court and will not be overturned

absent an abuse of discretion.” Mason, 130 A.3d at 617.

      All of Appellant’s issues aver that his trial counsel provided ineffective

assistance.    When considering an allegation of ineffective assistance of

counsel, we presume that counsel provided effective representation unless the

PCRA petitioner pleads and proves that: (1) the underlying claim is of arguable

merit; (2) counsel had no reasonable basis for his action or inaction; and (3)

petitioner was prejudiced by counsel’s action or omission. Commonwealth

v. Johnson, 179 A.3d 1105, 1114 (Pa. Super. 2018) (citing Commonwealth

v. Pierce, 527 A.2d 973, 975–976 (Pa. 1987)). “An [ineffective-assistance-

of-counsel] claim will fail if the petitioner’s evidence fails to meet any one of

the three prongs.     Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013). Because courts must presume that counsel was effective, the burden

of proving ineffectiveness rests with the petitioner.         Commonwealth v.

Montalvo, 114 A.3d 401, 410 (Pa. 2015).

      The only issue preserved for review in this appeal is Appellant’s claim

alleging ineffectiveness for failing to preserve the trial court’s refusal to include

a jury instruction for voluntary manslaughter, issue four above. The PCRA

court concluded, of the claims raised on appeal, this issue was the only one

Appellant presented in his PCRA petition. Thus, the PCRA court found that all


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other issues raised in Appellant’s Pa.R.A.P. 1925(b) statement were waived.

PCRA Court Opinion, 9/11/17, at 4–5. We concur.

      Appellant did not raise the first issue noted above, that trial counsel was

ineffective for failing to object at trial and raise on direct appeal that the trial

court erred in its jury instruction pursuant to 18 Pa.C.S. §§ 2502(c) and 6106

by using language creating an inference of “intent” to commit a crime of

violence, in his pro se PCRA petition. The Pennsylvania Rules of Appellate

Procedure provide that issues not raised by an appellant in the trial court are

waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a).

Thus, the issue is waived. Commonwealth v. Santiago, 855 A.2d 682, 691

(Pa. 2004) (“We have stressed that a claim not raised in a PCRA petition

cannot be raised for the first time on appeal.”).

      Appellant did assert the argument as one of trial court error, rather than

as ineffective assistance of counsel, in his response to the PCRA court’s

Pa.R.Crim.P. 907 notice. See Commonwealth v. Rigg, 84 A.3d 1080, 1085

(Pa. Super. 2014) (where a new issue is one concerning PCRA counsel’s

representation, a petitioner can preserve the issue by including that claim in

his Rule 907 response).      However, in addition to failing to couch it as an

ineffectiveness claim, Appellant did not preserve the issue by raising it in his

Pa.R.A.P. 1925(b) statement. Pa.R.A.P. 1925(b)(4)(vii) states that issues not

included in the statement of errors complained of an appeal and/or not raised

in accordance with the provisions of paragraph (b)(4) are waived. See also


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Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (citing

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (finding “[a]ny

issues not raised in a Pa.R.A.P. 1925(b) statement will be waived.”));

Commonwealth v. Riggle, 119 A.3d 1058 Pa. Super. 2015). Thus, for this

additional reason, the issue is waived.

      Appellant also did not raise the second issue, that trial counsel was

ineffective for failing to seek the trial court’s recusal, in his PCRA petition. As

noted by the PCRA court, the issue is waived. PCRA Court Opinion, 9/11/17,

at 5. “Any claim not raised in the PCRA petition is waived and not cognizable

on appeal.” Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 2007);

see also Pa.R.A.P. Rule 302.        Nor did Appellant include the issue in his

response to the PCRA court’s Pa.R.Crim.P. 907 notice. Petitioner’s Response

to [PCRA] court’s Notice Pursuant to Criminal Procedure Rule 907, 3/30/17.

While Appellant did assert the claim in his Pa.R.A.P. 1925(b) statement, a

party cannot rectify the failure to preserve an issue by proffering it for the first

time in a Rule 1925(b) statement.             Commonwealth v. Melendez-

Rodriguez, 856 A.2d 1278, 1288 (Pa. Super. 2004); Commonwealth v.

Watson, 835 A.2d 786 (Pa. Super. 2003).

      Appellant next asserts that trial counsel was ineffective for failing to file

a post-sentence motion and raise on direct appeal that his sentence for

carrying a firearm without a license should have merged with the sentence for

third degree murder. Appellant’s Brief at 15. Keeping in mind that the issue


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is couched in terms of ineffectiveness, we note that Appellant did not include

the issue in his Pa.R.A.P. 1925(b) statement, and thus, this claim of

ineffectiveness is waived. Castillo, 888 A.2d at 780; Lord, 719 A.2d at 309.

We further note however, that the underlying issue, whether the identified

sentences should have merged, is a claim relating to the legality of sentencing,

which cannot be waived. Commonwealth v. Lomax, 8 A.3d 1264, 1267 (Pa.

Super. 2010) (allegation that convictions should have merged for sentencing

purposes relates to legality of sentencing and cannot be waived). This Court

has the ability to consider an issue of legality of sentence sua sponte.

Commonwealth v. Orellana, 86 A.3d 877, 882–883 n.7 (Pa. Super. 2014).

Therefore, out of an abundance of caution, and in the alternative, we address

the underlying issue.

      Section 9765 of our Judicial Code 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 other
      offense. Where crimes merge for sentencing purposes, the court
      may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765. “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); accord Commonwealth v. Wade, 33 A.3d 108 (Pa.

Super. 2011) (42 Pa.C.S. § 9765 prohibits the merger of sentences unless a


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strict two-part test is met; the convictions must be based on a single criminal

act, and all of the statutory elements of one of the offenses must be included

in the statutory elements of the other); Commonwealth v. Tanner, 61 A.3d

1043, 1046 (Pa. Super. 2013) (same).

      Appellant’s underlying allegation that his crimes of third-degree murder

and carrying a firearm without a license should have merged for sentencing

purposes because they arose “from the same criminal episode” is frivolous.

The crimes of third-degree murder and carrying a firearm without a license do

not merge because each includes elements not included in the other.

Baldwin, 985 A.2d at 833–834. Third-degree murder requires proof that a

homicide was committed with malice. Commonwealth v. Seibert, 622 A.2d

361, 364 (Pa. Super. 1993). Carrying a firearm without a license required the

Commonwealth to establish that Appellant was either carrying a firearm in a

vehicle or concealed on his person, and that he had no license to do so.

Baldwin, 985 A.2d at 833. As the underlying claim lacks arguable merit,

counsel cannot be ineffective. Johnson, 179 A.3d at 1114.

      Lastly,   we   consider    Appellant’s    issue   alleging   trial   counsel’s

ineffectiveness for failing to preserve the trial court’s refusal to include a jury

instruction for voluntary manslaughter.        Initially, we note that Appellant’s

argument on this issue in his brief lacks cogent legal analysis supported by

relevant authority and citation to the certified record. See Pa.R.A.P. 2119(a)-

(c). “Although this Court is willing to construe liberally materials filed by a


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pro se litigant, a pro se appellant enjoys no special benefit. Accordingly, pro

se litigants must comply with the procedural rules set forth in the Pennsylvania

Rules of the Court.” Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa.

Super. 2017). In his reply brief, after the Commonwealth argued waiver due

to Appellant’s deficient brief, Appellant attempted to rectify this lack of

relevant argument on both the underlying issue and analysis of the claim

under the strictures of ineffective assistance. Appellant’s Reply Brief at 1–7.

      We conclude that the PCRA court thoroughly addressed this issue, and

we rely on its analysis, as follows:

             On December 20, 2011, shortly after the defense rested its
      case, this Court discussed with counsel what would be included in
      the final charge to the jury:

            THE COURT: So let’s discuss the charge.       First and
            third, 6106, and PIC.

            [TRIAL COUNSEL]: And we would be requesting
            voluntary manslaughter as well.

            [THE COMMONWEALTH]: I would object to that.
            There is no voluntary manslaughter.

            [TRIAL COUNSEL]: The evidence when he was coming
            toward Mr. Kim at the time.

            THE COURT: I’m not giving voluntary on this record.

      N.T. 12/20/11, at 162.

            Trial counsel did not object or continue to pursue a voluntary
      manslaughter instruction after this [c]ourt’s denial of the request.
      Nor did trial counsel object once again to the Court’s ruling at the
      conclusion of the Court’s final charge. See Commonwealth v.
      Pressley, 887 A.2d 220, 224 (Pa.2005) (holding that Pa.R.Crim.P.
      647(C) requires a specific objection to the charge or an exception

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     to the trial court’s ruling on a proposed point to preserve an issue
     involving a jury instruction). However, trial counsel was not
     ineffective because there was no evidence to support charging the
     jury as to voluntary manslaughter.

            Trial courts are not to instruct a jury on legal principles
     which are not applicable to the facts presented at trial because
     such instructions are likely to confuse jurors and place obstacles
     in the path of a just verdict. Commonwealth v. Taylor, 876 A.2d
     916, 925 (Pa. 2005). Therefore, a defendant must establish that
     the trial evidence would have reasonably supported a verdict
     based on the desired charge, and may not claim entitlement to an
     instruction that is not supported by the evidence presented at
     trial. Id. at 925-26. There are two bases to support a verdict for
     voluntary manslaughter: heat of passion and “imperfect” self-
     defense. See 18 Pa.C.S. 5 2503; Commonwealth v. Garcia, 535
     A.2d 1186, 1189 (Pa. Super. 1988) (“In order to successfully
     militate in favor of a voluntary manslaughter verdict, evidence
     must indicate that the slaying occurred as a result of passion
     generated by legal provocation or as the result of a mistaken belief
     in existence at the moment of the crime.”). Regarding evidence
     of heat of passion that would reduce murder to voluntary
     manslaughter:

           There must be sufficient cause of provocation and a
           state of rage or passion without time to cool, placing
           the defendant beyond the control of his reason, and
           suddenly impelling him to the deed. If any of these
           be wanting—if there be provocation without passion,
           or passion without a sufficient cause for provocation,
           or there be time to cool, and reason has resumed its
           sway, the killing will be murder.

     Commonwealth v. Hutchinson, 25 A.2d 277, 314-15 (Pa. 2011),
     quoting Commonwealth v. Miller, 987 A.2d 638, 651 (Pa. 2009).

            Whether provocation by the victim was sufficient to support
     a heat of passion defense is determined by an objective test,
     asking whether a reasonable person who was confronted with the
     provoking events would become impassioned to the extent that
     his or her mind was incapable of cool reflection. Id. at 314–15.15

           15As [Appellant’s] pro se PCRA petition only referred
           to voluntary manslaughter generally, this [c]ourt’s

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           907 Notice addressed both the heat of passion and the
           “imperfect self-defense” theories.       However, as
           [Appellant’s] March 31, 2017 response to the 907
           Notice argued only in favor of an “imperfect self-
           defense” theory, this [c]ourt will not address this
           theory any further but to note that, due to the hours
           that passed between [Appellant’s] altercation with the
           decedent’s brother and the shooting, the record would
           not have supported a voluntary manslaughter
           instruction with respect to heat of passion.

            To support a verdict for voluntary manslaughter under an
     “imperfect self-defense” theory,the evidence must show that the
     accused, at the time of the killing, “held ‘an unreasonable rather
     than a reasonable belief that deadly force was required to save his
     or her life,’ and ‘all other principles of justification under 18
     Pa.C.S. § 505 have been met.” Commonwealth v. Sanchez,
     82A.3d 943, 980 (2013), citing Commonwealth v. Tilley, 595 A.2d
     575, 582 (Pa. 1991); see also 18Pa.C.S. § 2503(b) (“A person
     who intentionally or knowingly kills an individual commits
     voluntary manslaughter if at the time of the killing he believes the
     circumstances to be such that, if they existed, would justify the
     killing under Chapter 5 of this title (relating to general principles
     of justification), but his belief is unreasonable.”).

           In light of the record before this [c]ourt, a jury instruction
     on voluntary manslaughter was not warranted. On March 26,
     2010, [Appellant] had an altercation with Ngoy. Around 8:00 PM
     that evening, hours after the incident with Ngoy, [Appellant]
     traveled with three companions from the park at Sixth and Wolf
     Streets to the decedent’s home at 620 Wolf Street, looking for
     Ngoy. At that point, the decedent and his sister, Melissa Ngar,
     were just arriving home from picking up food for dinner.
     [Appellant] approached the decedent and Ms. Ngar, demanding to
     know where Ngoy was. The decedent replied that he did not know
     where his brother was, whereupon [Appellant] drew a gun and
     shot the decedent. Ms. Nagar testified that, immediately before
     the shooting, the decedent did not have anything in his hands, nor
     did he make any gestures with his hands. Robert Domard, one of
     [Appellant’s] companions who witnessed the shooting, testified
     that, just before the shooting, [Appellant] and the decedent
     appeared to move towards each other “looking like they were
     about to fight.”


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           With respect to “imperfect self-defense” voluntary
     manslaughter, under these facts, the mere fact alone that the
     decedent and [Appellant] may have moved closer to each other in
     an aggressive manner did not establish that [Appellant] had an
     unreasonable belief that the decedent was a threat to his life. As
     there was no basis in the evidence presented at trial to support a
     jury instruction on voluntary manslaughter, counsel was not
     ineffective for failing to preserve this issue for appeal, and this
     claim failed.

PCRA Court Opinion, 9/11/17, at 7–10.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/18




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