J-S17040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
             v.                            :
                                           :
TERON KRIS UTSEY,                          :
                                           :
                   Appellant               :          No. 1460 EDA 2016

                   Appeal from the PCRA Order April 26, 2016
             in the Court of Common Pleas of Montgomery County,
               Criminal Division, No(s): CP-46-CR-0003508-2012

BEFORE: OLSON, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED APRIL 27, 2017

        Teron Kris Utsey (“Utsey”), pro se, appeals from the Order denying his

first Petition for Relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

        On March 26, 2011, Utsey and several co-conspirators entered into an

agreement to steal money and pills from Scott Hopper (“Hopper”), at his

residence in Hatboro, Montgomery County, Pennsylvania.         Utsey entered

Hopper’s residence, while possessing a semi-automatic gun. One of Utsey’s

co-conspirators possessed a crow-bar.      As a result of the home invasion,

Hopper sustained serious injuries.

        In March 2011, a jury convicted Utsey of burglary and criminal

conspiracy to commit robbery.2 The jury found Utsey not guilty of robbery,



1
    42 Pa.C.S.A. §§ 9541-9546.
2
    See 18 Pa.C.S.A. §§ 3502(a), 903.
J-S17040-17


terroristic threats and firearms not to be carried without a license. 3 The trial

court subsequently sentenced Utsey to an aggregate prison term of 7½ to

20 years. Utsey filed a post-sentence Motion, which the trial court denied.

On February 5, 2015, this Court affirmed Utsey’s judgment of sentence.

Commonwealth v. Utsey, 120 A.3d 369 (Pa. Super. 2015) (unpublished

memorandum).         Utsey did not petition for allowance of appeal to the

Pennsylvania Supreme Court.

        On December 16, 2015, Utsey filed the instant, pro se, PCRA Petition.

The PCRA court appointed counsel to represent Utsey.            Appointed counsel

subsequently filed a detailed no-merit letter and a Petition to Withdraw from

representation, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc).     On April 26, 2016, after Pa.R.A.P. 907 Notice, the PCRA court

granted counsel’s Petition to Withdraw, and dismissed Utsey’s PCRA Petition

without a hearing. Thereafter, Utsey filed the instant timely appeal, followed

by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

        Utsey, pro se, presents the following claims for our review:

        I. Did the trial court commit reversible error where it instructed
        the jury on “false in one, false in all,” which is an instruction that
        is clearly contrary to established federal and state laws
        governing the “reasonable doubt standard[,]” [and] easing the
        prosecution of its burden of proof?


3
    See 18 Pa.C.S.A. §§ 3701, 2706, 6105.


                                     -2-
J-S17040-17


      II.   Did the trial court commit error in allowing [Utsey’s]
      conviction for the conspiracy-to-robbery to stand where robbery
      was presented by the prosecution as a spontaneous act in
      furtherance of the burglary offense, and robbery was presented
      as the underlying conspiratorial act[,] of which a conspiracy
      conviction under [18 Pa.C.S.A.] § 903(c) could stand[,] violating
      Pennsylvania’s statutory laws and established federal precedent?

Brief for Appellant at vi (emphasis in original, some capitalization omitted).

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and

internal quotation marks omitted). Our scope of review

      is limited to the findings of the PCRA court and the evidence on
      the record of the PCRA court’s hearing, viewed in the light most
      favorable to the prevailing party, in this case, the
      Commonwealth. See, e.g., Commonwealth v. Duffey, 585
      Pa. 493, 889 A.2d 56, 61 (Pa. 2005); Commonwealth v.
      Meadius, 582 Pa. 174, 870 A.2d 802[, 805] (Pa. 2005). In
      addition, “[t]he level of deference to the hearing judge may vary
      depending upon whether the decision involved matters of
      credibility or matters of applying the governing law to the facts
      as so determined.” Commonwealth v. Reaves, 592 Pa. 134,
      923 A.2d 1119, 1124 (Pa. 2007) (citations omitted).

Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008).

      In his first claim, Utsey argues that the trial court improperly issued

the “false in one, false in all” jury instruction.   Brief for Appellant at 1.

According to Utsey, the jury showed its confusion over the instruction when

it asked to hear the instruction a second time. Id. Utsey disagrees with his

former PCRA counsel’s assessment, i.e., that his challenge to the jury

instruction is not cognizable under the PCRA.     Id. at 3-5.   In this regard,



                                  -3-
J-S17040-17


Utsey claims his PCRA counsel rendered ineffective assistance.       Id. at 5.

Utsey advances no argument regarding trial counsel’s representation.

      We note that in his PCRA Petition, Utsey alleged that his trial counsel

rendered ineffective assistance by not objecting to the “false in one, false in

all” jury instruction. PCRA Petition (Pro Se), 12/14/15, at 3. Accordingly,

we will address Utsey’s challenge to the jury instruction in the context of his

claim of ineffective assistance of trial counsel.

      As this Court has explained,

      [t]o be entitled to relief on an ineffectiveness claim, [the
      petitioner] must prove the underlying claim is of arguable merit,
      counsel’s performance lacked a reasonable basis, and counsel’s
      ineffectiveness caused him prejudice. Prejudice in the context of
      ineffective assistance of counsel means demonstrating there is a
      reasonable probability that, but for counsel’s error, the outcome
      of the proceeding would have been different. This standard is
      the same in the PCRA context as when ineffectiveness claims are
      raised on direct review. Failure to establish any prong of the
      test will defeat an ineffectiveness claim.

Commonwealth v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015) (citations

omitted).

      In its Opinion, the PCRA court addressed Utsey’s first claim and

concluded that it lacks merit. See PCRA Court Opinion, 6/30/16, at 5-6. We

agree with the sound reasoning of the PCRA court, as expressed in its




                                   -4-
J-S17040-17


Opinion, and affirm on this basis as to Utsey’s first claim.4 See id.

      In his second claim of error, Utsey asserts that the trial court

improperly upheld his conviction for conspiracy to commit robbery, “where

robbery was presented by the prosecution as a spontaneous act in

furtherance of the burglary offense,” yet identified as the criminal act

underlying the charge of conspiracy. Brief for Appellant at 6. Utsey asserts

that his role in planning the burglary “serves as the only conspiracy that is

cognizable under [18 Pa.C.S.A. §] 903(c)[.]” Brief for Appellant at 9. Utsey

directs this Court’s attention to evidence that he had remained in his car, a

block away from the residence, when his co-conspirators entered the home

and robbed the occupant. Id. Utsey claims that there is no evidence that

he conspired to commit a robbery. Id. at 10.

      In its Opinion, the trial court addressed this claim and concluded that

it lacks merit, as the claim is not cognizable under the PCRA.          See Trial

Court Opinion, 6/30/16, at 4-5. We affirm on the basis of the trial court’s

stated reasoning with regard to this claim. See id.5

      Order affirmed.

4
   Further, Utsey failed to preserve a challenge to PCRA counsel’s
ineffectiveness in a response to the PCRA court’s Pa.R.A.P. 907 Notice. See
Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa. Super. 2012) (stating
that “when counsel files a Turner/Finley no-merit letter to the PCRA court,
a petitioner must allege any claims of ineffectiveness of PCRA counsel in a
response to the court’s notice of intent to dismiss”) (citation omitted).
5
  See also Utsey, 120 A.3d 369 (unpublished memorandum at 2-7)
(summarizing the evidence and concluding that it is sufficient to establish
the crime of criminal conspiracy to commit robbery).


                                  -5-
J-S17040-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/27/2017




                          -6-
                                                                          Circulated 03/31/2017 09:56 AM




           IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
                               PENNSYLVANIA
                             CRIMINAL DIVISION


 COMMONWEALTH OF PENNSYLVANIA                                   CP-46-CR-0003508-2012


               v.
TERON UTSEY                                                     1460 EDA 2016


                                           OPINION

CARPENTER           J.                                          JUNE 29, 2016


                         FACTUAL AND PROCEDURAL HISTORY

               Appellant; Teron Utsey ("Utsey"), appeals pro se from a final order

of dismissal dated April 26, 2016, dismissing           ms petition   seeking post-

conviction relief under the Post-Conviction Relief Act ("PCRA"), 42 Pa.CS.A .. §§

9541-9546. The dismissal was based on counsel's no-merit letter submitted in

accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) and this Court's

independent review of the record.

               By way of background, on January 23, 2014, Utsey was convicted by

a jury of burglary and conspiracy to commit robbery! for              ms part in an early
morning brutal home invasion that occurred on March 26, 2011. On that date

there was an agreement between Utsey and several co-conspirators to steal

money and pillsfrom the victim, Scott Hopper, at his residence located at 145

       Utsey was found not guilty of robbery, terroristic threats and firearms not to be carried
without a license.
  East Moreland Avenue, Hatboro, Montgomery County. Utsey was armed with a

  semi-automatic gun and a co-conspirator was armed with a crow-bar. The

 victim sustained serious injuries.

                On April 28, 2014, Utsey was sentenced. A timely post-sentence

 motion was filed, and ultimately denied on May 8, 2014. Utsey filed a direct

 appeal with the Pennsylvania Superior Court. On February 5, 2015, the

 Pennsylvania Superior Court affirmed Utsey's judgment of sentence. Utsey did

 not seek further review with the Pennsylvania Supreme Court.

                On December 16, 2015, Utsey filed a prose PCRA petition. PCRA

 counsel was appointed on December 30, 2015, to assist Utsey with his petition.

 Having.found no meritorious issues to pursue, PCRA counsel filed a

 Turner/Finley no-merit letter dated March 25, 2016.2 On March 29, 2016, this

 Court issued a pre-dismissal      notice pursuant to Pa.RCnm.P. 907, notifying

 Utsey of this Court's intention to dismiss his PCRA petition without a hearing

 and of his right to file a response to the Rule 907 notice. Utsey filed a response,

 objecting to the proposed dismissal. On April 26, 2016, this Court entered a

 final order of dismissal, which is at issue in this appeal .

              . Utsey timely filed a notice of appeal and a timely concise statement

 of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) as directed by
                   J


. this Court. This 192 5(a) Opinion follows.




         A copy of PCRA counsel's no-merit letter is appended to this Opinion so as to be made a
 part of the record.
                                               2
                                         ISSUES

 I.    Whether it was proper for trial counsel not to object. challenge or request
       a mistrial, when Utsey was convicted of conspiracy to commit robbery.

II.    Whether it was proper for trial counsel not to object to the false in one,
       false in all jury charge.

                                      DISCUSSION

              Our appellate court's standard of review of an order dismissing a

petition under the PCRA is whether. the determination of the PCRA court is

supported by the evidence of record and is free of legal error. Commonwealth

v. Kimbrough, 938 A.2d 447 (Pa.Super. 2007). In evaluating a PCRA court's

decision, the scope of review is limited to the findings of the PCRA court and



party at the trial level. Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010).

              To be entitled to PCRA relief, an appellant must establish, by a

preponderance of the evidence, that his conviction or sentence resulted from

one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2), his claims have

not been previously litigated or waived, and "the failure to litigate the issue

prior to or during trial ... or on direct appeal could not have been the result of

any rational, strategic or tactical decision.. by counsel." Id. § 9543(a)(3), (a)(4). An
                .•



issue is previously litigated if "the highest appellate court in which [appellant]

could have had review as a matter of right has ruled on the merits of the issue."

Id. § 9544(a)(2). An issue is waived if appellant "could have raised it but failed

to do so before trial, at trial, ... on appeal or in a prior state postconviction



                                           3
  proceeding."    Id. § 9544(b), see also, Commonwealth v. Robinson, 82 A.3d 998,

  1005 (Pa. 2013).

                 To prevail on a claim of ineffectiveness of counsel, a petitioner

  must show, by a preponderance of the evidence, ineffective assistance of

  counsel which, in the circumstance of the particular case, so undermined the

  truth-determining process that no reliable adjudication of guilt or innocence
                    f
  could have taken place. Commonwealth v. Anderson, 995 A.2d 1184, 1191

 (Pa.Super. 2010). The law presumes counsel was effective and thus, the burden

 of proving otherwise rests with the defendant. Commonwealth v. Zook, 88 7

 A.2d 1218, 1227 (Pa. 2005). To properly plead ineffective assistance of counsel,

 a petitioner must plead and prove:     (1)   that the underlying issue has arguable

 merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual

 prejudice resulted from counsel's act or failure to act. Commonwealth v.

 Tedford, 598 Pa. 639, 960 A.2d 1 (Pa. 2008) (citing Commonwealth v. Pierce,

 515 Pa. 153, 527 A.2d 973, 975 (Pa. 19987) (adopting the U.S. Supreme Court's

 holding in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
. 674 (1984)).

 I.     It was proper for trial counsel not to object. challenge or request a
        mistrial. when Utsey was convicted of conspiracy to commit robbery.

                 In reading Utsey's prose PCRA petition, his response to this Court's
 907 notice of intent and his l 925(b) Statement, this Court discerns to the best

 of its ability Utsey to be arguing that he could not have been convicted of

 conspiracy to commit robbery because the conspiracy went to the burglary and


                                              4
 not to the robbery, which he argues was a "spontaneous       act in furtherance   of

 the burglary." Accordingly, the conspiracy could only relate to the burglary.

Utsey further seems to argue that to· have a valid conspiracy to commit robbery

conviction, the Commonwealth was required to prove a separate agreement to

commit the robbery, for which he was "two blocks away from the robbery when

it occurred." See, 1925(b) Statement docketed 6/1/16.

             Utsey's argument is nothing more than a variation of his

sufficiency of the evidence argument as it relates to his conspiracy to commit

robbery conviction that he raised in his direct appeal, an issue that the

Pennsylvania Superior Court rejected as meritless. Therein, the Superior Court

f ound that the evidence was indeed sufficient to convict him of conspiracy to

commit robbery despite having been found not guilty of robbery. See,
Commonwealth v. Teron Utsey, 2015 Wl 7587363, ,·,2 - 7 (Pa.Super 2015)

(unpublished memorandum). Because this claim has been raised in Utsey's

direct review, it is previously litigated and does not entitle Utsey to post-

conviction relief.

II.   It was proper for trial counsel not to object to the false in one, false in all
      jury charge.


             Utsey next contends that trial counsel was ineffective in failing to
object to the false in one, false in all jury- instruction. He argues that this

instruction is contrary to the reasonable doubt burden of proof and is
confusing to the jury.


                                           5
              This Court did instruct the jury with the false in one, false in all

jury instruction and this instruction was proper: the ref ore, there trial counsel

cannot be ineffective in failing to object. (Trial by Jury 1/23/14 pp. 50 - 51).
                 '                 .

The jury instruction provided by this Courtis a mirror of that which is set forth

in the Pennsylvania Suggested Standard Jury Instruction (Criminal)§ 4.15.3 The

false in one, false in all instruction informs the jury that if it finds any part of a
witness' testimony to be incredible, then it may reject all of that witness'

testimony. This charge is a proper statement of the law, and there is no harm if

that charge is given. Commonwealth v. Vicens-Rodriguez, 911 A.2d 116

(Pa.Super. 2006). Trial counsel cannot be found to be· ineffective in failing to



post-conviction relief based upon this alleged claim of error.




      The charge reads in full:

     If you decide that a witness deliberately testified falsely about a material point that is,
     about a matter that could affect the outcome of this trial, you may for that reason alone
     choose to disbelieve the rest of bis or her testimony. But you are not required to do so.
     You should consider not only the deliberate falsehood but also all other factors bearing
     on the witness's credibility in deciding whether to believe other parts of bis[/]her
     testimony.

     Pennsylvania Suggested Standard Jury Instruction (Criminal) § 4.15


                                              6
                                  CONCLUSION

             Based on the foregoing analysis, the final order of dismissal. dated

April 26, 2016, dismissing Utsey's PCRA petition should be affirmed.




                                            WILLIAM R. CARPENTER          J.
                                            COURT OF COMMON PLEAS
                                            MONTGOMERY COUNTY
                                            PENNSYLVANIA
                                            38TH JUDICIAL DISTRICT


Copies sent on June 30, 2016
By Interoffice Mail to:
Court Administration

By First Class Mail to:
Teron Utsey #LN5072
SCI Fayette
P.O. 9999
LaBelle, PA 15450-1050




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