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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                       v.

MARLAND MOORE

                             Appellant                  No. 1247 EDA 2013


                    Appeal from the PCRA Order April 4, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0016332-2009


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED JUNE 04, 2015

        Appellant, Marland Moore, appeals from the order entered in the

Philadelphia County Court of Common pleas, which denied his petition filed

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

        In its opinion, the PCRA court fully set forth the facts of this case.

Therefore, we will only briefly summarize them.         On November 25, 2009,

Officer Momme stopped Appellant, whom he recognized from a previous

traffic stop on October 9, 2009, for disregarding a stop sign; when Officer

Momme approached Appellant’s car and asked Appellant to hand over his

license and registration, Appellant put his car in drive and turned the vehicle

toward the officer.         Appellant hit the officer with the car, knocking him
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1
    42 Pa.C.S.A. §§ 9541-9546.
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backwards.    Appellant accelerated away at a high speed and crashed into

several other vehicles.

      Procedurally, following a bench trial, the court convicted Appellant of

aggravated assault, simple assault, recklessly endangering another person,

possessing instruments of crime, criminal mischief, fleeing or attempting to

elude police officer, and accidents involving death or personal injury.   On

November 8, 2010, the court sentenced Appellant to an aggregate term of

one (1) to two (2) years’ incarceration, followed by one (1) year of

probation. Appellant did not file a direct appeal.

      Appellant filed a timely pro se PCRA petition on May 5, 2011.       The

PCRA court appointed counsel, who filed an amended petition on July 23,

2012. Following an evidentiary hearing, the PCRA court denied Appellant’s

petition on April 4, 2013. On April 29, 2013, Appellant filed a timely notice

of appeal. The court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely

complied.

      Appellant raises two issues for our review:

         WAS THE PCRA COURT’S DISMISSAL OF…APPELLANT’S
         PCRA PETITION UNSUPPORTED BY THE RECORD AND
         BASED ON LEGAL ERROR BECAUSE PRIOR COUNSEL WAS
         INEFFECTIVE WHEN COUNSEL FAILED TO OBJECT TO THE
         AGGRAVATED ASSAULT VERDICT ON PROPER GROUNDS
         AND FAILED TO FILE A POST-TRIAL MOTION ON THOSE
         GROUNDS?

         WAS THE PCRA COURT’S DISMISSAL OF…APPELLANT’S
         PCRA PETITION UNSUPPORTED BY THE RECORD AND

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          BASED ON LEGAL ERROR BECAUSE PRIOR COUNSEL WAS
          INEFFECTIVE WHEN COUNSEL FAILED TO FILE A NOTICE
          OF APPEAL?

(Appellant’s Brief at 4).

      In his first issue, Appellant argues the trial court did not specify under

which subsection of the aggravated assault statute (18 Pa.C.S.A. § 2702) it

convicted Appellant. Appellant contends the court’s statements in support of

its verdict implied the conviction fell under subsection (a)(2).      Appellant

asserts the court found the evidence was insufficient to prove Appellant

attempted to injure the officer.      Appellant likewise submits the court’s

finding of recklessness was insufficient to convict Appellant of aggravated

assault without actual injury to the victim. Appellant also claims the court

could not have convicted him of aggravated assault under subsection (a)(6)

because there was no evidence, or finding by the court, that Appellant put

the officer in fear of imminent serious bodily injury. Appellant argues trial

counsel was ineffective when he failed to challenge the verdict on the ground

that reckless conduct is insufficient to support an aggravated assault

conviction, pursuant to subsection (a)(2), in the absence of serious bodily

injury.   Appellant asserts counsel’s inaction was not part of a reasonable

strategy and prejudiced Appellant because it allowed an improper conviction

to stand.    Appellant concludes this Court should vacate his aggravated

assault conviction as relief for trial counsel’s ineffectiveness. We disagree.

      Our standard of review of the denial of a PCRA petition is limited to


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examining    whether    the   evidence    of   record     supports     the     court’s

determination     and   whether   its    decision   is   free   of     legal    error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal

denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference

to the findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).           We owe no deference,

however, to the court’s legal conclusions.      Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a post-conviction

court’s credibility determination, it is binding on the appellate court.

Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa.Super. 1999), appeal

denied, 563 Pa. 659, 759 A.2d 383 (2000).

      The   law   presumes    counsel    has   rendered    effective     assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).                     When

asserting a claim of ineffective assistance of counsel, a petitioner is required

to make the following showing: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and,

(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).

The failure to satisfy any prong of the test for ineffectiveness will cause the

claim to fail. Williams, supra.


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     “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot

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

Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal

denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v.

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

        Once this threshold is met we apply the “reasonable basis”
        test to determine whether counsel’s chosen course was
        designed to effectuate his client’s interests. If we conclude
        that the particular course chosen by counsel had some
        reasonable basis, our inquiry ceases and counsel’s
        assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

        Prejudice is established when [a defendant] demonstrates
        that counsel’s chosen course of action had an adverse
        effect on the outcome of the proceedings. The 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.             A reasonable
        probability is a probability sufficient to undermine
        confidence in the outcome. In [Kimball, supra], we held
        that a “criminal defendant alleging prejudice must show
        that counsel’s errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).

     The following principles of review apply to challenges to the sufficiency

of evidence:

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          The standard we apply in reviewing the sufficiency of the
          evidence is whether viewing all the evidence admitted at
          trial in the light most favorable to the verdict winner, there
          is sufficient evidence to enable the fact-finder to find every
          element of the crime beyond a reasonable doubt. In
          applying [the above] test, we may not weigh the evidence
          and substitute our judgment for the fact-finder.            In
          addition, we note that the facts and circumstances
          established by the Commonwealth need not preclude every
          possibility of innocence.        Any doubts regarding a
          defendant’s guilt may be resolved by the fact-finder unless
          the evidence is so weak and inconclusive that as a matter
          of law no probability of fact may be drawn from the
          combined circumstances. The Commonwealth may sustain
          its burden of proving every element of the crime beyond a
          reasonable doubt by means of wholly circumstantial
          evidence. Moreover, in applying the above test, the entire
          record must be evaluated and all evidence actually
          received must be considered. Finally, the [finder] of fact
          while passing upon the credibility of witnesses and the
          weight of the evidence produced, is free to believe all, part
          or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

     The Crimes Code defines aggravated assault as follows:

          § 2702. Aggravated assault

          (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;

             (2) attempts to cause or intentionally, knowingly
             or recklessly causes serious bodily injury to any of

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          the officers, agents, employees or other persons
          enumerated in subsection (c) or to an employee of
          an agency, company or other entity engaged in
          public transportation, while in the performance of
          duty;

          (3) attempts to cause or intentionally or knowingly
          causes bodily injury to any of the officers, agents,
          employees or other persons enumerated in
          subsection (c), in the performance of duty;

          (4) attempts to cause or intentionally or knowingly
          causes bodily injury to another with a deadly
          weapon;

          (5) attempts to cause or intentionally or knowingly
          causes bodily injury to a teaching staff member,
          school board member or other employee, including a
          student employee, of any elementary or secondary
          publicly-funded   educational     institution,   any
          elementary or secondary private school licensed by
          the Department of Education or any elementary or
          secondary parochial school while acting in the scope
          of his or her employment or because of his or her
          employment relationship to the school;

          (6) attempts by physical menace to put any of the
          officers, agents, employees or other persons
          enumerated in subsection (c), while in the
          performance of duty, in fear of imminent serious
          bodily injury;

          (7) uses tear or noxious gas as defined in section
          2708(b) (relating to use of tear or noxious gas in
          labor disputes) or uses an electric or electronic
          incapacitation device against any officer, employee
          or other person enumerated in subsection (c) while
          acting in the scope of his employment;

          (8) attempts to cause or intentionally, knowingly
          or recklessly causes bodily injury to a child less than
          six years of age, by a person 18 years of age or
          older; or


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              (9) attempts to cause or intentionally, knowingly
              or recklessly causes serious bodily injury to a child
              less than 13 years of age, by a person 18 years of
              age or older.

            (b) Grading.—Aggravated assault under subsection
            (a)(1), (2) and (9) is a felony of the first degree.
            Aggravated assault under subsection (a)(3), (4), (5), (6),
            (7) and (8) is a felony of the second degree.

            (c) Officers, employees, etc., enumerated.—The
            officers, agents, employees and other persons referred to
            in subsection (a) shall be as follows:

              (1)   Police officer.

                                      *    *    *

18 Pa.C.S.A. § 2702.

      Instantly, the Commonwealth presented the following evidence at

trial: Officer Momme stopped Appellant, whom he recognized from a

previous traffic stop, for disregarding a stop sign; when Officer Momme

approached Appellant’s car and asked Appellant to hand over his license and

registration, Appellant put his car in drive and turned the vehicle toward the

officer; Appellant hit the officer with the car, knocking him backwards;

Appellant accelerated away at a high speed and crashed into several other

vehicles.     Viewed in the light most favorable to the Commonwealth, the

evidence was sufficient to find Appellant attempted by physical menace to

put Officer Momme in fear of imminent serious bodily injury.      See Jones,

supra.       Therefore, the evidence was sufficient to convict Appellant of

aggravated assault pursuant to 18 Pa.C.S.A. § 2702(a)(6).        The charging


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documents charged Appellant generally with aggravated assault. At the end

of trial, the court stated: “I find [Appellant] guilty of aggravated assault

graded as an F2.”           (N.T. Trial, 9/27/10, at 55).       The sentencing order

likewise indicated that Appellant was convicted of aggravated assault as a

second-degree felony.          Aggravated assault under subsection (a)(6) is a

second-degree felony, whereas a conviction under subsection (a)(2) is a

first-degree felony.        See 18 Pa.C.S.A. § 2702.        Thus, the record belies

Appellant’s claim that he was convicted under subsection (a)(2) rather than

(a)(6).      Additionally, in its opinion, the PCRA court confirmed it had

concluded at trial that Appellant had placed Officer Momme in fear of

imminent serious bodily injury by physical menace.2 The evidence presented

at trial was sufficient to convict Appellant of aggravated assault pursuant to

18 Pa.C.S.A. § 2702(a)(6).            Accordingly, Appellant’s ineffectiveness claim

fails because he suffered no prejudice from trial counsel’s failure to raise a

sufficiency challenge in a post-trial motion or direct appeal. See Williams,

supra; Chambers, supra.

        In   his   second    issue,   Appellant   argues   he   asked   trial   counsel

immediately after trial to file a direct appeal.           Appellant asserts counsel

failed to honor that request and file a notice of appeal (or a petition to

withdraw coupled with a brief pursuant to Anders v. California, 386 U.S.

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2
    The PCRA jurist was the same person who presided over Appellant’s trial.



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738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)).            Appellant disputes trial

counsel’s testimony at the PCRA hearing that counsel was satisfied with the

verdict and Appellant did not at any time request an appeal.           Appellant

contends the trial transcript shows counsel was concerned about the legality

of the verdict, corroborating Appellant’s testimony at the PCRA hearing that

counsel said he was going to file an appeal “because the [j]udge did some

illegal stuff.” (Appellant’s Brief at 17 (quoting N.T. PCRA Hearing, 4/4/13, at

4)). Appellant claims the record fails to support the PCRA court’s credibility

findings. Appellant submits trial counsel’s failure to file a notice of appeal

had no reasonable strategic basis and prejudiced Appellant by depriving him

of his fundamental right to effective appellate counsel. Appellant concludes

trial counsel rendered ineffective assistance by failing to file a direct appeal,

and this Court should vacate Appellant’s aggravated assault conviction or, in

the alternative, reinstate Appellant’s direct appeal rights nunc pro tunc. We

disagree.

      “Before a court will find ineffectiveness of counsel for failing to file a

direct appeal, the defendant must prove that he requested an appeal and

that counsel disregarded that request.”       Knighten, supra at 682 (citing

Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999) (holding

counsel will be deemed ineffective if counsel is unjustified in failing to file

requested direct appeal)). “Mere allegation will not suffice; the burden is on

Appellant to plead and prove that his request for an appeal was ignored or


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rejected by trial counsel.”   Commonwealth v. Harmon, 738 A.2d 1023,

1024 (Pa.Super. 1999), appeal denied, 562 Pa. 666, 753 A.2d 815 (2000).

      Instantly, Appellant testified at the PCRA hearing that he had asked

trial counsel, at the conclusion of the trial, to file a direct appeal. Appellant

claimed counsel agreed to “put the paperwork in [for the appeal] because

the [j]udge did some illegal stuff.”    (N.T. PCRA Hearing at 4).      Following

sentence imposition, trial counsel told Appellant: “You have ten days to ask

Your Honor to reconsider her sentence and 30 days to appeal to [the]

Superior Court. Should you wish to do either of those things, if you contact

my office, we will do that for you.”           (N.T. Sentencing, 11/8/10, at 8).

Appellant testified he did not ask trial counsel to file a direct appeal after

sentencing, because Appellant had already asked counsel to do so on the

date of trial.

      Trial counsel testified that his case file indicated Appellant did not

request a direct appeal at any time. Counsel disputed Appellant’s claim that

counsel said he would file an appeal.      Counsel also had no recollection of

telling Appellant the trial court did “illegal stuff.” Counsel acknowledged he

sought clarification of the trial court’s verdict after it was announced, but

was satisfied with the court’s response.

      In reviewing Appellant’s claim, the PCRA court stated:

          There is nothing in the record indicating [Appellant] asked
          [trial counsel] either to file an appeal or for information
          about the appellate process during or directly after the trial
          or sentencing. The only evidence [Appellant] has brought

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           forth to support his assertion that he asked [trial counsel]
           to file an appeal is [Appellant’s] own handwritten
           statement filed on May 5, 2011,[3] as well as [Appellant’s]
           testimony at the Evidentiary Hearing on April 4, 2013.

           [Trial counsel] did not recall [Appellant] requesting an
           appeal. [Trial counsel] did not indicate that information on
           his case file, as is protocol, or in his handwritten notes.
           [Trial counsel] did not recall [Appellant] asking in person
           or through correspondence for an appeal.

           Because there is no documentation to rely on, the court
           had to weigh the credibility of [Appellant] and [trial
           counsel]. Ultimately, the court found [trial counsel] to be
           credible…regarding whether [A]ppellant requested an
           appeal.

(PCRA Court Opinion, filed September 23, 2014, at 7) (internal citations to

the record omitted).         The record supports the PCRA court’s credibility

determination.       See Knighten, supra.          Appellant failed to prove he

requested trial counsel to file a direct appeal, and counsel unjustifiably

disregarded that request. See Lantzy, supra; Knighten, supra; Harmon,

supra.     Therefore, Appellant’s claim that trial counsel was ineffective for

failing to file a direct appeal merits no relief. See Kimball, supra; Boyd,

supra. Based on the foregoing, we affirm the order denying PCRA relief.

        Order affirmed.




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3
    This statement was part of Appellant’s original pro se PCRA petition.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/2015




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