J-S50042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

AKIM PIERRE

                            Appellant                   No. 3026 EDA 2014


               Appeal from the PCRA Order September 25, 2014
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0003339-2010


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED SEPTEMBER 29, 2015

        Appellant Akim Pierre appeals from the order entered in the Bucks

County Court of Common Pleas, which dismissed his petition filed for relief

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The trial court, which was the same as the PCRA court, previously set

forth the underlying facts of this appeal as follows:

          On Monday, March 29, 2010, Claire Forte [(“Victim”)]
          opened the door to her garage, placed her purse and scarf
          on the passenger seat of the car, closed the door and
          started to walk around to the driver’s side of her vehicle.
          As she rounded the rear of her vehicle, she realized that
          she forgot her umbrella and opened the trunk of her car to
          retrieve one. As she was doing this, she heard a noise to
          her left and turned around.        Three men, including
          [Appellant], were standing behind her and suddenly ran
          toward her.
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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       The men charged at her and Appellant punched her in the
       face as she attempted to turn away. After hearing the
       men say “get her in the trunk,” [Victim] reached up and
       pushed a button on the inside of the trunk lid that caused
       it to close automatically. She was then pushed to the
       ground and Appellant held her down and stuffed his hand
       in her mouth to keep her from screaming. Appellant
       clawed the inside of her mouth with his hand as she
       attempted to scream.

       Appellant proceeded to place his hands around [Victim’s]
       neck and squeeze. After that, another attacker sat on
       [Victim’s] hips to hold her down as Appellant went back to
       “digging and scratching” in her mouth. [Victim] continued
       to struggle and scream.       At some point, one of the
       attackers dragged [Victim] away from the car to the other
       side of the garage. She then watched as her Mercedes
       was backed down her driveway.         Still located in the
       Mercedes was [Victim’s] purse, wallet, and cell phone.
       During the entire ordeal, the exterior garage door was
       open and [Victim’s] husband was sleeping inside of the
       home.

       [Victim] watched as the two men remaining in the garage
       sprinted down the street to a silver Range Rover.
       Following the attack, [Victim’s] husband contacted 911.
       Officer Fabrizio Catoni of the Lower Makefield Township
       Police Department heard the radio broadcast describing
       two vehicles leaving the scene of a crime in Newtown
       Borough. As Officer [Catoni] positioned his vehicle at the
       intersection of Route 332 and Interstate 95, he observed a
       silver Range Rover matching the broadcast description.
       The car was traveling eastbound on Route 332. Officer
       [Catoni] followed the vehicle and made a vehicle stop in
       Ewing, New Jersey within 15 minutes of the broadcast.
       Appellant was sitting ¡n the passenger seat of the vehicle
       when the vehicle was stopped.

       When the vehicle was searched, nylon rope was located
       between the driver’s seat and passenger seat and a BB
       gun was found on the backseat. A pair of black gloves was
       found next to the gun. Another pair of gloves was found in
       the passenger door compartment. The pair of gloves

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         located in the passenger door were identified at trial by
         Co-Defendant [Jerry] Laventure as the gloves worn by
         Appellant during the attack on [Victim]. DNA testing also
         showed that Appellant’s DNA was on both pairs of gloves.

         [Victim] informed the police that approximately one week
         prior to the attack, she had observed a silver Range Rover
         on the Newtown bypass. As the car passed her, she
         noticed a parking pass for Princeton Junction train station
         hanging from the rearview mirror. [Victim] recognized the
         pass because she had the same one hanging from her
         mirror. She remembered the car because she thought it
         unusual to see another car driving to Newtown from
         Princeton Junction. When shown a picture of the vehicle
         [in which her attackers were apprehended, Victim]
         recognized this car to be the same car she saw her
         attackers flee to and the same car she observed on the
         Newtown bypass.

         During trial, Co-Defendant Laventure testified that March
         29, 2010 was not the group’s first attempt at stealing
         [Victim’s] car. Prior to this attack, Appellant and his two
         co-defendants stole two vans from Philadelphia and
         attempted to block [Victim’s] car [on] her block. When
         one of the vans would not start, the plan was aborted. On
         another occasion, the three men parked outside of
         [Victim’s] home.       Co-defendant Laventure exited the
         vehicle, but Co-Defendant [Troy] Dillard apparently could
         not get his door open.           According to Co-Defendant
         Laventure, [they had made] at least four attempts [to
         steal Victim’s car] prior to the attack of March 29, 2010.

Trial Court Opinion, filed March 22, 2012, at 3-6 (citations to the record and

some capitalization omitted).

      The PCRA court set forth the procedural history of this appeal:

         Following a waiver trial held on November 15 and 16,
         2010, Appellant was found guilty of robbery (threat of
         immediate serious bodily injury), robbery of motor vehicle,
         criminal attempt (at kidnapping to facilitate the
         commission of a felony), theft by unlawful taking (movable
         property), simple assault, burglary, and criminal

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       conspiracy (to commit robbery).3 Sentencing was deferred
       for a pre-sentence investigation and on February 10, 2011,
       Appellant was sentenced to serve an aggregate term of not
       less than 13 nor more than 28 years’ confinement in a
       State Correctional Institution.4
          3
            18 Pa.C.S. § 3701(a)(1)(ii), 3702(a), 901(a),
          3921(a), 2701(a)(1), 3502(a), and 903(a)(1),
          respectively.
          4
            Appellant was sentenced as follows: four to ten
          years’ imprisonment for the robbery conviction;
          three to six years’ imprisonment for the attempted
          kidnapping    conviction;  three     to   six  years’
          imprisonment for the burglary conviction; and, three
          to six years’ imprisonment for the conspiracy to
          commit robbery conviction. The trial court ordered
          that “each of those [sentences] is to run consecutive
          to one another and not concurrent.”             N.T.,
          Sentencing, 2/ 10/2011, p. 21.

       On May 5, 2011, Appellant filed a timely PCRA petition
       alleging ineffective assistance of counsel for failure to file a
       direct appeal to the Superior Court and claiming that the
       trial court imposed an excessive sentence. Stuart Wilder,
       Esq. was appointed to represent Appellant and a PCRA
       hearing was held on October 3, 2011. Following the
       hearing, the PCRA court granted Appellant’s PCRA petition
       and reinstated Appellant’s right to file both a post-
       sentence motion and a direct appeal nunc pro tunc. PCRA
       Court Order, 10/17/11, p. 1.

       Appellant then filed a Motion for Reconsideration of
       Sentence on October 13, 2011 claiming that the trial court
       imposed an unreasonable and unjust sentence and that
       the court failed to take into account and give proper
       weight to mitigating factors. Motion for Reconsideration of
       Sentence, 10/13/2011, p. 1-2. Following a hearing held
       on December 15, 2011, the trial court denied Appellant’s
       motion. Appellant then filed [a] notice of appeal to the
       Superior Court on January 17, 2012, and the Superior
       Court affirmed Appellant’s sentence on October 31, 2012.




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         Appellant then flled a PCRA Petition with [the PCRA] court
         on August 26, 2013. Appellant was appointed counsel and
         subsequently filed Amended PCRA Petitions on December
         10, 2013 and August 28, 2014. [The PCRA court] held a
         hearing on Appellant’s amended PCRA petition on August
         29, 2014. Appellants PCRA petition was finally denied on
         September 25, 2014[.]

PCRA Court Opinion, filed February 6, 2015, at 3-4.

      On October 24, 2014, Appellant timely filed a notice of appeal.    On

November 3, 2014, the PCRA court ordered Appellant to file a concise

statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b),

and he timely complied on November 24, 2014.

      Appellant raises the following issues for our review:

         WHETHER PREVIOUS COUNSEL WAS INEFFECTIVE FOR
         FAILING TO FILE A REQUESTED PETITION FOR
         ALLOWANCE OF APPEAL[?]

         WHETHER THE TRIAL COURT ERRED BY SENTENCING
         APPELLANT TO CONSECUTIVE TERMS OF IMPRISONMENT
         IN VIOLATION OF TITLE 18 PA.C.S. SECTION 906[?]

         WHETHER APPELLANT’S CRIMES OF CRIMINAL ATTEMPT,
         KIDNAPPING, AND CRIMINAL CONSPIRACY TO COMMIT
         ROBBERY, BURGLARY, AND THEFT INVOLVE THE SAME
         CRIMINAL INTENT[?]

Appellant’s Brief at 4.

      Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the




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certified record.”   Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).

      To be eligible for PCRA relief, a petitioner must plead and prove, by a

preponderance of the evidence, that his conviction or sentence was the

result of one or more of the following:

                                     *     *   *

                (ii) Ineffective assistance of counsel which, in the
            circumstances of the particular case, so undermined the
            truth-determining process that no reliable adjudication
            of guilt or innocence could have taken place.

                                     *     *   *

               (vii) The imposition of a sentence greater than the
            lawful maximum.

                                     *     *   *

42 Pa.C.S. § 9543(a)(2).

      In his first issue, Appellant argues his appellate counsel was ineffective

for failing to file a petition for allowance of appeal to our Supreme Court. He

claims that his challenge to the court’s imposition of consecutive sentences,

in the aggravated range, without consideration of mitigating factors, was a

challenge to the legality of his sentence.     He contends that he requested

appellate counsel file the petition to challenge the legality of his sentence

and that appellate counsel’s failure to do so was per se ineffective.       We

disagree.




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       This Court follows the Pierce2 test adopted by our Supreme Court to

review claims of ineffective assistance of counsel:

          When a petitioner alleges trial counsel’s ineffectiveness in
          a PCRA petition, he must prove by a preponderance of the
          evidence that his conviction or sentence resulted from
          ineffective   assistance   of   counsel    which,     in   the
          circumstances of the particular case, so undermined the
          truth-determining process that no reliable adjudication of
          guilt or innocence could have taken place. We have
          interpreted this provision in the PCRA to mean that the
          petitioner must show: (1) that his claim of counsel’s
          ineffectiveness has merit; (2) that counsel had no
          reasonable strategic basis for his action or inaction; and
          (3) that the error of counsel prejudiced the petitioner-i.e.,
          that there is a reasonable probability that, but for the error
          of counsel, the outcome of the proceeding would have
          been different. We presume that counsel is effective, and it
          is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal

denied, 889 A.2d 87 (Pa.2005) (internal citations and quotations omitted).

The petitioner bears the burden of proving all three prongs of this test.

Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001).                  “If an

appellant fails to prove by a preponderance of the evidence any of the

Pierce prongs, the Court need not address the remaining prongs of the

test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009),

appeal denied, 990 A.2d 727 (Pa.2010) (citation omitted).

       Our Supreme Court has held that:


____________________________________________


2
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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           in presenting a PCRA claim of ineffective assistance of
           counsel for failing to file a requested petition for allowance
           of appeal, an appellant need not show that the petition
           would likely have been granted, but merely that the appeal
           was requested and counsel failed to act.             In these
           situations, the Supreme Court has effectively held that the
           prejudice prong of the test for ineffective assistance has
           been established per se.

Commonwealth v. Bath, 907 A.2d 619, 622 (2006), appeal denied, 918

A.2d 741 (Pa.2007) (internal citations omitted).

        However, this Court has declined to find counsel per se ineffective for

failing to file a requested petition for allowance of appeal where the only

claim     involves    “challenging    the    merits     of       an    upheld-on-the-merits

discretionary        sentencing      challenge     to        a        guideline   sentence”.

Commonwealth v. Rigg, 84 A.3d 1080, 1089-90 (Pa.Super.2014).                              In

Rigg, this Court found that, “because the Pennsylvania Supreme Court is

generally statutorily precluded from reviewing a defendant’s discretionary

sentencing claim, counsel was not per se ineffective in not seeking a

discretionary appeal after this Court affirmed Appellant’s sentence where

that was the lone issue Appellant wished to be reviewed.” Id.

        Here, this Court affirmed Appellant’s judgment of sentence on direct

appeal.      See Commonwealth v. Pierre, No. 317 EDA 2012, filed

September 10, 2012 (unpublished memorandum).                            Appellant claims he

requested his appellate counsel file a petition for allowance of appeal to our

Supreme Court and that counsel did not act upon this request.                      See N.T.

PCRA Hearing, 8/29/2014, at 11.                  Before we deem counsel per se

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ineffective, however, we must determine whether Appellant’s question on

appeal was one that challenged only the discretionary aspects of his

sentence.

      The sole question Appellant raised in his Pa.R.A.P. 1925(b) statement

for his direct appeal was:

         [WHETHER]   THE  COURT   ERRED   IN  IMPOSING
         CONSECUTIVE SENTENCES, AND SENTENCES IN THE
         AGGRAVATED RANGE, BECAUSE [APPELLANT’S] PRIOR
         CRIMINAL RECORD DID NOT JUSTIFY IT, HE HAD
         SUPPORT   FROM  HIS   FAMILY,  AND  HE   WAS
         REMORSEFUL[?]

Appellant’s Pa.R.A.P. 1925(b) Statement, filed January 26, 2012.

      Appellant’s challenge to the trial court’s imposition of consecutive

sentences and failure to consider mitigating factors are challenges to the

discretionary aspects of his sentence, not challenges to the legality of his

sentence.    See Commonwealth v. Mastromarino, 2 A.3d 581, 585

(Pa.Super.2010), appeal denied, 14 A.3d 825 (Pa.2011) (appellant’s claim

imposition   of   consecutive   sentences   was   excessive   challenged   the

discretionary aspects of sentencing); Commonwealth v. Raven, 97 A.3d

1244, 1253 (Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014)

(appellant’s claim court failed to consider mitigating factors challenged

discretionary aspects of sentencing). After finding that his challenge to the

discretionary aspects of his sentence failed on the merits, this Court affirmed

Appellant’s judgment of sentence. Thus, counsel was not per se ineffective




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for failing to file a petition for allowance of appeal to the Supreme Court

after this Court affirmed his judgment of sentence.

      Likewise,   Appellant   fails   to   establish   the   prongs     of    ineffective

assistance of counsel under Pierce. Specifically, Appellant cannot prove he

was prejudiced by counsel’s failure to file the petition because the

Pennsylvania   Supreme     Court does not have           jurisdiction    to     consider

challenges to the discretionary aspects of a sentence that this Court has

already addressed. See Commonwealth v. Mouzon, 812 A.2d 617, 622

(Pa.2002) (“Pursuant to § 9781(f) of the Sentencing Code, ‘[n]o appeal of

the discretionary aspects of the sentence shall be permitted beyond the

appellate court that has initial jurisdiction for such appeals.’ 42 Pa.C.S. §

9781(f). As a result, this Court lacks jurisdiction to consider challenges to

the discretionary aspects of sentences that the Superior Court has already

reviewed.”). Therefore, Appellant’s first issue merits no relief.

      In his second and third issues, Appellant argues the court erred by

sentencing him to consecutive terms of imprisonment for two inchoate

crimes. Specifically, he contends his crimes of criminal attempt, kidnapping

and criminal conspiracy to commit robbery, burglary and theft involve the

same criminal intent. He concludes that, by sentencing him to consecutive

terms for the same criminal attempt, the court imposed an illegal sentence,

in violation of 18 Pa.C.S. § 906. Again, we disagree.




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     “Issues relating to the legality of a sentence are questions of law. Our

standard of review over such questions is de novo and our scope of review is

plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa.Super.2014),

appeal granted, ___ A.3d ___, No. 63 MAL 2015, 2015 WL 4755651 (Pa.

Aug. 12, 2015) (internal quotations and citations omitted).

     18 Pa.C.S. § 906 provides:

        § 906. Multiple convictions of inchoate crimes barred

        A person may not be convicted of more than one of the
        inchoate crimes of criminal attempt, criminal solicitation or
        criminal conspiracy for conduct designed to commit or to
        culminate in the commission of the same crime.

18 Pa.C.S. § 906.

     This Court has observed:

        Under section 906, “inchoate crimes merge only when
        directed to the commission of the same crime, not merely
        because they arise out of the same incident.”
        Commonwealth v. Graves, 508 A.2d 1198 ([Pa.]1986)
        (emphasis added). See e.g., Commonwealth v. Brown,
        486 A.2d 441, 445 ([Pa.Super.]1984) (finding that
        appellant’s sentences for attempted burglary and
        conspiracy to commit burglary violate section 906, because
        they arise from conduct directed to the commission of the
        same crime); Commonwealth v. Ford, 461 A.2d 1281,
        1289 ([Pa.Super.]1983) (stating that appellant’s sentences
        for attempted murder, conspiracy to commit murder and
        possession of an instrument of crime are barred under
        section 906, because the facts of the case demonstrated
        “that the offenses were perpetrated with one objective in
        mind-the (attempted) killing” of the victim).

Commonwealth v. Welch, 912 A.2d 857, 859 (Pa.Super.2006).




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      Appellant was convicted of criminal attempt (kidnapping to facilitate

the commission of a felony) and criminal conspiracy (to commit robbery).

Appellant argues the conspiracy to commit robbery encompassed the

kidnapping of Victim. He supports this proposition by directing our attention

to the rope found in his vehicle when he was apprehended for these, as well

as other, crimes. Appellant lied at trial and denied having any involvement

with the conspiracy to steal the car or the attempted kidnapping. See N.T.,

11/16/10, at 48-71. However, Appellant later admitted to agreeing with co-

defendants to attempt to steal Victim’s car.    N.T., 12/15/11, at 30.    He

denied trying to stuff Victim in the trunk, and denied knowing the rope was

in his vehicle. Id. at 32-33.

      The trial court reasoned:

         [I]n Appellant’s case, the evidence adduced at trial
         established that Appellant and two co-defendants entered
         into a conspiracy to commit robbery by planning and
         coordinating the theft of [Victim’s] automobile.     That
         conspiracy was not designed to culminate in the attempted
         kidnapping of [Victim]. Instead, the attempted kidnapping
         merely arose from the co-defendants[’] initial failure to
         achieve the goal of the conspiracy. Appellant and his
         codefendants only developed the criminal intent to kidnap
         [Victim] when [she] fought back, at which point one of the
         attackers exclaimed, “Get the bitch ¡n the trunk” and one
         or more of the co-defendants attempted to push [Victim]
         into the trunk of the car. … [T]he attempted kidnapping
         exceeded the scope of the conspiracy to steal [Victim’s]
         car. The attempted kidnapping and the conspiracy to
         commit robbery were thus independent crimes; the
         objective of the conspiracy was to steal [Victim’s] car,
         while the objective of the attempted kidnapping was to
         kidnap [Victim].


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Trial Court Opinion, filed February 6, 2015, at 9.

      Based on the evidence adduced at trial, we agree with the trial court

that the conspiracy to commit robbery by planning and coordinating the

theft of Victim’s automobile was not designed to culminate in the attempted

kidnapping of Victim. Thus, although these two inchoate crimes arose out of

the same incident, they do not merge because they were not directed to the

commission of the same crime. See Welch, supra. The determination of

the PCRA court is supported by the evidence of record and is free of legal

error. Appellant’s issues merit no relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2015




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