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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
MARKO L. GORE,                           :         No. 1812 WDA 2013
                                         :
                         Appellant       :


                 Appeal from the PCRA Order, October 30, 2013,
                in the Court of Common Pleas of Cambria County
                Criminal Division at No. CP-11-CR-0001069-2009


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 25, 2015

        Marko L. Gore appeals, pro se, from the order of October 30, 2013,

denying his PCRA1 petition. We affirm.

        The facts of this case were summarized by this court on direct appeal

as follows:

                      The record reflects that there was a
              long-standing disagreement between Gore and
              Cirilito Cheatam (“Cheatam”). On April 4, 2009, a
              green Chevy Blazer full of Cheatam’s friends –
              Denise     Burt   (“Burt”),  Shy-Kwoiila    Williams
              (“Williams”),     Cierra     Clinton     (“Clinton”),
              Sharon McCall (“McCall”), and R.L., Burt’s minor
              goddaughter – drove into a Sheetz parking lot and
              observed Gore waive [sic] his hand at Cheatam as if
              he had a gun. The women did not stop, and instead
              continued towards Oakhurst, where they were to
              drop R.L. off at a party. While on the way to
              Oakhurst, a car driven by Gore’s friend stopped in

1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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          front of the Blazer. Gore, driving a white Ford
          Expedition, pulled alongside of the Blazer in the
          opposite lane, pulled out a gun, aimed it at Burt, and
          told her “he didn’t want to do it but he had no
          choice.” N.T., 7/8/10, at 95.

                Burt saw that the car in front of her left room
          for her to get away, and she drove off down the
          street. Gore fired a shot and shattered the Blazer’s
          rear windshield. Burt saw that Gore was coming
          after her so she stopped, pushed her goddaughter
          out of the car, got out and started running into the
          woods, terrified.

                 McCall jumped into the driver’s seat and tried
          to get away from Gore, who was following the
          Blazer. More shots were fired at the Blazer. McCall
          ultimately crashed the Blazer into a garage, and the
          remaining occupants of the vehicle ran out of the car
          in different directions. No one was injured.

                Gore’s girlfriend at that time, Constance
          McCausland (“McCausland”), responded to Gore’s call
          and picked him up at a nearby gas station. They
          went to a bar, then to an afterhours club, and
          around 5:00 a.m. decided to drive to Pittsburgh.
          According to McCausland, this was not unusual, as
          they had gone to Pittsburgh several times during the
          month they had been dating. They stayed in a hotel
          overnight, and on Sunday, McCausland returned to
          Johnstown without Gore.

                In the weeks that followed, police came to
          McCausland’s house looking for Gore. Gore came to
          her home approximately a month later, but
          McCausland told him to leave, as detectives were
          looking for him and she did not want to be involved.
          Although she did not specifically tell him there was a
          warrant out of [sic] his arrest, McCausland stated
          that Gore knew he was wanted by police.

                A United States Marshal apprehended Gore in
          Pittsburgh on June 25, 2009. He was transported
          back to Johnstown for trial. A jury convicted Gore of


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           one count of firearms not to be carried without a
           license, five counts of aggravated assault, and five
           counts     of   recklessly   endangering     another
           person.[Footnote 1] He was acquitted of five counts
           of attempted murder.[Footnote 2] The trial court
           adjudged him guilty of driving while operating
           privileges were suspended or revoked.[Footnote 3]
           The trial court sentenced him to an aggregate term
           of 19 to 44 years of imprisonment, broken down as
           follows: an eight to 16 year sentence for aggravated
           assault on Burt, a consecutive eight to 16 year
           sentence for aggravated assault on R.L., three
           consecutive one to four year sentences for
           aggravated assaults on Clinton, McCall, and Williams,
           a concurrent sentence of 42 to 84 months of
           imprisonment for carrying a firearm without a
           license, and a concurrent 90 day term of
           imprisonment for driving under suspension.

                 [Footnote 1] 18 Pa.C.S.A. §§ 6106(a)(1),
                 2702(a)(1), 2705.

                 [Footnote 2] 18 Pa.C.S.A. §§ 901(a),
                 2502.

                 [Footnote 3] 75 Pa.C.S.A. § 1543(a).

Commonwealth v. Gore, 38 A.3d 916 (Pa.Super. 2011), unpublished

memorandum at 1-3, appeal denied, 48 A.3d 1247 (Pa. 2012).               On

November 9, 2011, this court affirmed the judgment of sentence, and on

July 18, 2012, the Pennsylvania Supreme Court denied allowance of appeal.

Id.

      On April 30, 2013, appellant filed a timely pro se PCRA petition, and

counsel was appointed. An amended petition was filed on appellant’s behalf,

and a hearing was held on September 5, 2013. On October 30, 2013, the

PCRA court filed an opinion and order denying appellant’s petition. A timely


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notice of appeal was filed on November 13, 2013.          Following a hearing,

appellant was permitted to proceed pro se on the instant appeal, with

stand-by counsel.     Appellant complied with Pa.R.A.P., Rule 1925(b),

42 Pa.C.S.A., and the PCRA court filed an opinion on January 17, 2014,

relying on its previous opinion and order of October 30, 2013.

     Appellant has raised the following issues for our review:

           I.     Whether the appellant’s rights under the
                  Pennsylvania and United States constitutions
                  were violated with respects [sic] to the trial
                  court’s transferred intent jury instruction of
                  which [sic] invaded the jury’s province, created
                  impermissible       mandatory      presumptions,
                  shifted the burden of proof, negated the right
                  to proof beyond a reasonable doubt, impaired
                  the presumptions of innocence, and subjected
                  appellant to double jeopardy, inter alia? And
                  whether trial/appellate counsel and/or PCRA
                  counsel were constitutionally ineffective for
                  failing to raise and/or preserve this issue(s)?

           II.    Whether appellant was sentenced illegally in
                  violation of the Pennsylvania and United States
                  constitutions in that the sentencing court not
                  only invaded the jury’s province, but also erred
                  and abuse [sic] its discretion in by [sic] failing
                  to merge such sentence(s), and further in its
                  enhancement and sentencing of appellant
                  outside the sentencing guidelines, inter alia?
                  And whether sentencing/appellate counsel
                  were constitutionally ineffective for failing to
                  raise and/or preserve this issue(s)?

           III.   Whether the appellant’s rights under the
                  Pennsylvania and United States constitutions
                  were violated with respects [sic] to the verdict
                  being against the weight of the evidence as to
                  [the] Commonwealth’s failure to establish
                  proof beyond a reasonable doubt on the


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                  aggravated assault charges?        And whether
                  trial/appellate counsel were constitutionally
                  ineffective for failing to raise and/or preserve
                  this issue?

Appellant’s brief at 4 (capitalization omitted).

      Initially, we recite our standard of review:

            This Court’s standard of review regarding an order
            denying 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. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

            “To    prevail on a claim alleging counsel’s
            ineffectiveness, Appellant must demonstrate (1) that
            the underlying claim is of arguable merit; (2) that
            counsel’s course of conduct was without a
            reasonable basis designed to effectuate his client’s
            interest; and (3) that he was prejudiced by counsel’s
            ineffectiveness.” Commonwealth v. Wallace, 555
            Pa. 397, 407, 724 A.2d 916, 921 (1999), citing
            Commonwealth v. Howard, 538 Pa. 86, 93, 645
            A.2d 1300, 1304 (1994) (other citation omitted). In
            order to meet the prejudice prong of the
            ineffectiveness standard, a defendant must show
            that there is a “‘reasonable probability that but for
            counsel’s unprofessional errors, the result of the
            proceeding     would     have     been     different.’”
            Commonwealth v. Kimball, 555 Pa. 299, 308, 724
            A.2d 326, 331 (1999), quoting Strickland v.
            Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,
            80 L.Ed.2d 674 (1984). A “‘[r]easonable probability’
            is defined as ‘a probability sufficient to undermine
            confidence in the outcome.’” Id. at 309, 724 A.2d at


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            331, quoting Strickland, 466 U.S. at 694, 104 S.Ct.
            2052.

Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal

denied, 832 A.2d 435 (Pa. 2003).        “We presume counsel is effective and

place upon Appellant the burden of proving otherwise. Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)

(citations omitted).

      First, appellant argues that the trial court erred by giving the jury a

transferred intent instruction on aggravated assault. Appellant argues that

the instruction was inappropriate where his intended victim was Denise Burt

and no one was injured.        This issue was preserved at trial; however,

appellant contends that counsel was ineffective for failing to raise it on direct

appeal.

      The trial court instructed the jury as follows:

            As I said, as with the attempt to commit murder, you
            can infer or transfer intent. You can infer one’s
            intent, the natural and the probable consequences of
            his acts. Thus in case if [sic] you find beyond a
            reasonable doubt that the defendant intended to and
            attempted to cause serious bodily injury to
            Denise Burt, but that his acts effected [sic] or put at
            risk the other four occupants of the vehicle as well,
            put them at the same risk of which he placed Denise
            Burt, and that the acts that he took and the other
            steps that he took, constituted a substantial step
            toward the commission of the infliction of serious
            bodily injury, then you may find the defendant guilty
            of aggravated assault, and as to the other four
            victims as well.


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Notes of testimony, 7/9/10 at 143.

      In Commonwealth v. Jackson, 955 A.2d 441 (Pa.Super. 2008),

appeal denied, 967 A.2d 958 (Pa. 2009), the target of the shooting was

Charles Wesley (“Wesley”), but others, including several police officers, were

in the line of fire. As in this case, the appellant argued that he only intended

to shoot Wesley and there was no evidence he intended to inflict injury upon

the other individuals. The appellant argued that the doctrine of transferred

intent did not apply where no one was actually injured.       Id. at 448.   The

Commonwealth countered that the appellant’s admitted intent to shoot and

cause Wesley serious bodily harm satisfied the intent element for his

aggravated assault convictions of the other persons. Id.

      Relying on Commonwealth v. Thompson, 739 A.2d 1023 (Pa.

1999), cert. denied, 531 U.S. 829 (2000), this court agreed.                 In

Thompson,      the   defendant    shot   and   killed   the   intended   victim,

Donovan “George” Aitken (“Aitken”). Jackson, 955 A.2d at 449. However,

Francisco Forbes (“Forbes”) was also in the immediate area at the time of

the shooting and had to duck and run to escape injury. Id. The defendant

was found guilty of first-degree murder as to Aitken and aggravated assault

as to Forbes. Id. Despite the fact that Forbes was not an intended victim

and suffered no harm, our supreme court held that the defendant’s intent for

the aggravated assault charge as to Forbes could be satisfied by application

of the transferred intent doctrine:


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            [I]n order to sustain the conviction for aggravated
            assault, the Commonwealth only needed to establish
            that appellant attempted to cause serious bodily
            injury. There is no requirement that the victim
            actually be injured. Moreover, appellant’s argument
            that the transferred intent instruction was not
            warranted because he did not intend to shoot Forbes
            ignores the essence of the transferred intent
            doctrine, that is, the person who ultimately is the
            victim not be the original intended victim. “The
            transferred intent theory provides that if the intent
            to commit a crime exists, this intent can be
            transferred for the purpose of finding the intent
            element of another crime.”         The evidence here
            demonstrated that appellant shot in the direction of
            Forbes even though he may have only intended to
            shoot Aitken. This evidence was sufficient to warrant
            the transferred intent instruction.

Id. at 449-450, quoting Thompson, 739 A.2d at 1029 (citations and

footnote omitted) (emphasis in original).

      Following Thompson, the Jackson court reluctantly concluded2 that

the doctrine of transferred intent also applied in that case:

            It is an established fact that Appellant specifically
            intended to cause serious bodily injury to Wesley
            with a deadly weapon.          Under the doctrine,
            Appellant’s intent in this regard is transferred to
            Detective Waring, Officer Hood, Officer Allen, Sharee
            Norton, Sharron Norton, Shanya Wesley, and Gene
            Palmer. Therefore, the intent element for Appellant’s
            aggravated assault convictions as to these persons
            was met.



2
  The court in Jackson urged our supreme court to revisit Thompson,
opining that the better rule, as set forth by the Supreme Court of Maryland
in State v. Brady, 903 A.2d 870 (Md. 2006), is that the unintended victim
must be actually injured for the transferred intent doctrine to apply. Id. at
450 n.6.


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Id. at 450.

      This court is bound by Thompson and Jackson.           Even if appellant

only intended to inflict injury upon Burt, he could be found guilty of

aggravated assault as to the other persons in the car as well, under the

transferred intent doctrine.    Therefore, the trial court did not err in

instructing the jury on transferred intent, and counsel had no basis for

raising the issue on appeal. Counsel cannot be deemed ineffective for failing

to raise a baseless or meritless claim. Poplawski, supra.3

      Next, appellant raises two legality of sentencing claims.      First, he

argues that his sentences should have merged where there was only one

victim, Denise Burt.   According to appellant, he could not be convicted of

multiple counts of aggravated assault where he only intended to shoot Burt.

Appellant also argues that he committed a solitary criminal act by firing

inside the vehicle.

      “A claim that the trial court imposed an illegal sentence by failing to

merge sentences is a question of law. Accordingly, our standard of review is

plenary.”     Commonwealth v. Snyder, 870 A.2d 336, 349 (Pa.Super.



3
  To the extent appellant also argues the trial court erred in issuing the
instruction regarding criminal attempt to commit murder, we note that
appellant was found not guilty of those charges. Similarly, appellant argues
that the trial court’s instruction contained a mandatory presumption on the
element of intent. (Appellant’s brief at 18-19.) Again, however, this only
pertains to the attempted murder instruction, not aggravated assault. In
addition, the issue regarding the mandatory presumption language was
never raised in the PCRA court; as such, it is waived. Pa.R.A.P. 302(a).


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2005), quoting Commonwealth v. Duffy, 832 A.2d 1132, 1137 (Pa.Super.

2003), appeal denied, 845 A.2d 816 (Pa. 2004).

            Our Courts have long held that where a defendant
            commits multiple distinct criminal acts, concepts of
            merger do not apply.           Commonwealth v.
            Anderson, 538 Pa. 574, 650 A.2d 20 (1994);
            [Commonwealth v. Johnson, 874 A.2d 66, 70
            (Pa.Super. 2005), appeal denied, 587 Pa. 720, 899
            A.2d 1122 (2006)]; see also 42 Pa.C.S.A. § 9765
            (“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.”)

Commonwealth       v.   Robinson,   931      A.2d   15,   24   (Pa.Super.   2007)

(en banc) (emphasis in original).

     Appellant argues that he fired a single shot inside the vehicle,

intending to strike Burt. (Appellant’s brief at 35.) Appellant claims that no

one actually saw him fire additional shots into the vehicle.           However,

appellant mischaracterizes the record and misconstrues our standard of

review.   Viewing the testimony in the light most favorable to the verdict

winner, the Commonwealth, there was ample evidence that appellant fired

multiple shots at the vehicle before it finally crashed into a garage. (Trial

court opinion, 10/30/13 at 4.) Therefore, appellant did not commit a single

criminal act as he contends on appeal.

     In addition, as stated above, under the doctrine of transferred intent,

appellant could be found guilty of five separate counts of aggravated assault

for five individual victims. The Crimes Code defines aggravated assault, in


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relevant part, as follows:     “(a) Offense defined.--A person is guilty of

aggravated assault if he:      (1) attempts to cause serious bodily injury to

another, or causes such injury intentionally, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of human

life[.]”   18 Pa.C.S.A. § 2702(a)(1) (emphasis added).     As Section 2702 is

written with regard to an attempt to cause serious bodily injury to an

individual person, a separate offense is committed for each such attempt.

The legislature has authorized multiple sentences for multiple victims, even

arising from a single criminal act or episode. Therefore, the trial court did

not err in imposing multiple sentences for each of the five victims.

Commonwealth v. Garcia-Rivera, 983 A.2d 777 (Pa.Super. 2009) (trial

court did not err in imposing multiple, consecutive sentences for involuntary

manslaughter, 18 Pa.C.S.A. § 2504, for each of the two victims killed in a

single automobile accident).

       Appellant also claims that his sentence violates Alleyne v. United

States, 133 S.Ct. 2151 (U.S. 2013), in that the trial court imposed an

aggravated range sentence based on factors not submitted to the jury,

including that his actions put at risk innocent people living in the area of the

city where the incident occurred. The trial court observed at sentencing that

bullets passed through the home of at least one resident, and that Burt’s

vehicle eventually ran off the road and crashed into a garage.        (Notes of




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testimony, 11/9/10 at 8.)    According to appellant, this judicial fact-finding

violated Alleyne and resulted in an illegal sentence.

            According to the Alleyne Court, a fact that increases
            the sentencing floor is an element of the crime.
            Thus, it ruled that facts that mandatorily increase
            the range of penalties for a defendant must be
            submitted to a fact-finder and proven beyond a
            reasonable doubt. The Alleyne decision, therefore,
            renders those Pennsylvania mandatory minimum
            sentencing statutes that do not pertain to prior
            convictions constitutionally infirm insofar as they
            permit a judge to automatically increase a
            defendant’s sentence based on a preponderance of
            the evidence standard.

Commonwealth v. Thompson, 93 A.3d 478, 493-494 (Pa.Super. 2014),

quoting Commonwealth v. Watley, 81 A.3d 108, 117 (Pa.Super. 2013)

(footnote omitted).

      Appellant was not sentenced to a mandatory minimum sentence.

Rather, the trial court exercised its sentencing discretion to impose an

aggravated range sentence, still well within the statutory maximum, based

on certain sentencing factors including the outrageousness of appellant’s

conduct.   This did not violate Alleyne or the Apprendi line of cases.      As

Mr. Justice Thomas explained in Alleyne,

            In holding that facts that increase mandatory
            minimum sentences must be submitted to the jury,
            we take care to note what our holding does not
            entail. Our ruling today does not mean that any fact
            that influences judicial discretion must be found by a
            jury.     We have long recognized that broad
            sentencing     discretion,    informed    by   judicial
            factfinding, does not violate the Sixth Amendment.
            See, e.g., Dillon v. United States, 560 U.S.          ,


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                , 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010)
            (“[W]ithin established limits[,] . . . the exercise of
            [sentencing] discretion does not contravene the
            Sixth Amendment even if it is informed by
            judge-found facts” (emphasis deleted and internal
            quotation marks omitted)); [Apprendi v. New
            Jersey, 530 U.S. 466, 481 (2000)] (“[N]othing in
            this history suggests that it is impermissible for
            judges    to    exercise    discretion—taking      into
            consideration various factors relating both to offense
            and offender—in imposing a judgment within the
            range prescribed by statute”).[Footnote 6]

                   [Footnote 6] See also United States v.
                   Tucker, 404 U.S. 443, 446, 92 S.Ct.
                   589, 30 L.Ed.2d 592 (1972) (judges may
                   exercise sentencing discretion through
                   “an inquiry broad in scope, largely
                   unlimited either as to the kind of
                   information [they] may consider, or the
                   source from which it may come”);
                   Williams v. New York, 337 U.S. 241,
                   246, 69 S.Ct. 1079, 93 L.Ed. 1337
                   (1949) (“[B]oth before and since the
                   American colonies became a nation,
                   courts in this country and in England
                   practiced a policy under which a
                   sentencing judge could exercise a wide
                   discretion in the sources and types of
                   evidence    used   to  assist  him    in
                   determining the kind and extent of
                   punishment to be imposed within limits
                   fixed by law”).

Alleyne, 133 S.Ct. at 2163.         Therefore, appellant’s sentence was not in

violation of Alleyne and was not illegal.

      Finally, appellant   claims    that   trial   and appellate   counsel were

ineffective for failing to litigate a weight of the evidence claim. (Appellant’s

brief at 36-37.)    Appellant offers no meaningful analysis or citation to



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pertinent legal authority in support of a weight claim. (Id.) Appellant does

not explain why the issue would have resulted in a new trial either at the

trial level or on direct appeal.      As such, the issue is waived.         See

Commonwealth v. Murchinson, 899 A.2d 1159, 1162 (Pa.Super. 2006)

(applying Pa.R.A.P. 2119(a) to find waiver where the appellant failed to

develop meaningful argument with specific reference to the record in support

of his claims) (citations omitted); Commonwealth v. Hakala, 900 A.2d

404, 407 (Pa.Super. 2006), appeal denied, 909 A.2d 1288 (Pa. 2006)

(finding waiver where the appellant failed to offer either analysis or case

citation in support of his request for relief, admonishing that “[i]t is not this

Court’s function or duty to become an advocate for the appellants”), quoting

Commonwealth v. Birdseye, 637 A.2d 1036, 1043 (Pa.Super. 1994). It is

well established that pro se status confers no special benefit and “a pro se

litigant must comply with the procedural rules set forth in the Pennsylvania

Rules of the Court.”    Commonwealth v. Lyons, 833 A.2d 245, 251-252

(Pa.Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005) (citation

omitted).   To the extent appellant sets forth any argument whatsoever, it

seems he harkens back to his argument regarding lack of specific intent to

harm anyone other than Burt, which we have already addressed supra.

      Order affirmed.



Judgment Entered.



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Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/25/2015




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