J-S82024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LAMARUS MONROE                             :
                                               :
                       Appellant               :   No. 1114 EDA 2018

                  Appeal from the PCRA Order March 16, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0005442-2007


BEFORE:      LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                            FILED FEBRUARY 28, 2019

       Appellant, Lamarus Monroe, appeals from the order entered on March

16, 2018, denying his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       We briefly summarize the facts and procedural history of this case as

follows.   On July 30, 2009, a jury convicted Appellant of second-degree

murder, robbery, possession of an instrument of crime, and carrying a firearm

without a license.1 The trial court sentenced Appellant to an aggregate term

of life imprisonment.      We affirmed Appellant’s judgment of sentence in an

unpublished memorandum on November 5, 2010.              See Commonwealth v.

Monroe, 22 A.3d 1058 (Pa. Super. 2010) (unpublished memorandum). Our




____________________________________________


1   18 Pa.C.S.A. §§ 2502(b), 3701, 907, and 6106, respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Supreme Court denied further review. See Commonwealth v. Monroe, 20

A.3d 1210 (Pa. 2011).

       On July 22, 2011, Appellant filed a pro se PCRA petition. The PCRA court

appointed current PCRA counsel to represent Appellant on February 3, 2016.

Counsel filed an amended PCRA petition on June 1, 2017.2 On January 19,

2018, the PCRA court issued notice of its intent to dismiss Appellant’s PCRA

petition without an evidentiary hearing pursuant to Pa.R.Crim.P. 907.       On

March 16, 2018, the PCRA court denied Appellant relief. This timely appeal

resulted.3

       On appeal, Appellant presents the following issue for our review:

       1. Did the Honorable PCRA [c]ourt err when it dismissed
          [Appellant’s PCRA] [p]etition without a hearing, and all where

____________________________________________


2  It is not entirely clear from our review of the record why there was an
almost six-year gap between the original and amended PCRA filings. It does
appear, however, that the judge who originally heard the case retired and the
case was reassigned.

3  Appellant filed a timely notice of appeal on April 16, 2018. See Pa.R.A.P.
903(a) (notice of appeal shall be filed within 30 days after the entry of the
order from which the appeal is taken); see also 1 Pa.C.S.A. § 1908 (omitting
weekends from statutory computation of time if the last day falls on a
weekend). On April 18, 2018, the PCRA court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant complied timely on May 8, 2018. The PCRA court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on June 28, 2018. Moreover, we
note that on September 27, 2018, the Commonwealth filed a notice pursuant
to Pennsylvania Rule of Professional Conduct 1.12(c)(2) to inform this Court
and Appellant that the First Assistant District Attorney in Philadelphia had
previously participated as a judge in this matter and that she disqualified and
screened herself from any participation in this matter. Appellant did not
respond to this notice.

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          [Appellant] properly pled, and would have been able to prove,
          that he was entitled to relief?

Appellant’s Brief at 3.

       While Appellant presents a sole question for our review, his current claim

involves two distinct issues.       First, Appellant claims that trial counsel was

ineffective for failing to advance a sufficiency of evidence challenge on direct

appeal. Appellant’s Brief at 8-11. Appellant argues that, on direct appeal,

this Court found Appellant’s sufficiency of the evidence claim waived and,

thus, undecided on the merits. Id. at 9. Thus, he contends that under the

PCRA, his sufficiency claim “cannot be considered to have been finally

litigated.” Id.     Appellant claims that trial counsel was ineffective because

“there is reasonable doubt as to whether a robbery was occurring” in order to

support his conviction for second-degree murder.4        Id. at 10-11. Appellant

argues there was no announcement of a robbery and there was no evidence

that property was taken forcefully from the victim. Id. at 10. Thus, Appellant

avers that he “did not shoot the victim in furtherance of a felony but rather in

furtherance of protecting his life.” Id. at 11.       He maintains that he is not

currently arguing that he acted in self-defense; rather, he claims that it cannot

be “logically [] concluded that [Appellant] was acting in the course of a felony

when he shot in response to the victim’s gun play[.]” Id. at 11.


____________________________________________


4   Appellant has not challenged trial counsel’s advocacy with regard to
possession of an instrument of crime or carrying a firearm without a license.
Thus, we confine our review to Appellant’s convictions for second-degree
murder and robbery.

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      Initially, we note that on direct appeal a prior panel of this Court

determined that Appellant waived his sufficiency challenge and, alternatively,

found it was otherwise without merit. The prior panel based its decision upon

the fact that Appellant presented a different basis for relief in his concise

statement pursuant to Pa.R.A.P. 1925(b) than he presented on appeal. In his

Rule 1925(b) statement on direct appeal, similar to his current PCRA issue,

Appellant claimed the evidence was insufficient to support a finding that the

murder occurred during the commission of a robbery.        Before this Court,

however, he argued insufficient evidence based upon witness inconsistencies.

Thus, we found waiver. However, we also found the issue as set forth in the

Rule 1925(b) concise statement to be without merit. See Commonwealth

v. Monroe, 22 A.3d 1058 (Pa. Super. 2010) (unpublished memorandum) at

*7, n.2. “Where a decision rests on two or more grounds equally valid, none

may be relegated to the inferior status of obiter dictum.” Commonwealth v.

Aikens, 990 A.2d 1181, 1184 (Pa. Super. 2010) (citation omitted).          An

alternative holding also becomes the law of the case. Id. Here, our Court’s

prior decision found one version of Appellant’s sufficiency claim waived and

alternatively examined, and rejected, the merits of the sufficiency issue

Appellant currently advances under the guise of trial counsel ineffectiveness.

      Our standard of review is well-settled:

      In reviewing the denial of PCRA relief, we examine whether the
      PCRA court's determinations are supported by the record and are
      free of legal error. The PCRA court's credibility determinations,
      when supported by the record, are binding on this Court; however,


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      we apply a de novo standard of review to the PCRA court's legal
      conclusions.

      In order to obtain relief on an ineffectiveness claim, a petitioner
      must establish:

            (1) the underlying claim has arguable merit; (2) no
            reasonable basis existed for counsel's actions or
            failure to act; and (3) petitioner suffered prejudice as
            a result of counsel's error such that there is a
            reasonable probability that the result of the
            proceeding would have been different absent such
            error. Trial counsel is presumed to be effective, and
            Appellant bears the burden of pleading and proving
            each of the three factors by a preponderance of the
            evidence.

      A court is not required to analyze the elements of an
      ineffectiveness claim in any particular order of priority; instead, if
      a claim fails under any necessary element of the ineffectiveness
      test, the court may proceed to that element first.

Commonwealth v. Goodmond, 190 A.3d 1197, 1200 (Pa. Super. 2018)

(internal citations and quotations omitted).

      As a general rule, in order to be eligible for relief under the PCRA, the

petitioner must plead and prove by a preponderance of the evidence that the

allegation of error has not been previously litigated.             42 Pa.C.S.A.

§ 9543(a)(3). An issue has been previously litigated if “the highest appellate

court in which the petitioner could have had review as a matter of right has

ruled on the merits of the issue[.]” 42 Pa.C.S.A. § 9544(a)(2). However, our

Supreme Court has also determined:

      Collateral claims of trial counsel ineffectiveness deriving from an
      underlying claim of error that was litigated on direct appeal cannot
      automatically be dismissed as “previously litigated.” Rather, Sixth
      Amendment claims challenging counsel's conduct at trial are


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       analytically distinct from the foregone claim of trial court error
       from which they often derive, and must be analyzed as such.

Commonwealth v. Puksar, 951 A.2d 267, 274 (Pa. 2008) (citations

omitted).

       Viewing the evidence in the light most favorable to the verdict winner,

we examine whether there was sufficient evidence to enable the fact-finder to

find   every   element    of   each   crime   beyond    a   reasonable   doubt.

Commonwealth v. Brown, 23 A.3d 544, 559 (Pa. Super. 2011) (en banc)

(citation omitted). Moreover, reviewing courts

       may not weigh the evidence and substitute [] judgment for [that
       of] the fact-finder. In addition, [] 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 trier 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.

Id. at 559-560.

       A person is guilty of robbery if, in the course of committing a theft, he

inflicts serious bodily injury upon another. See 18 Pa.C.S.A. § 3701(a)(1)(i).

“An act shall be deemed ‘in the course of committing a theft’ if it occurs in an

attempt to commit theft or in flight after the attempt or commission.” 18

Pa.C.S.A. § 3701(2) (emphasis added).




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       “A criminal homicide constitutes murder of the second degree when it is

committed while defendant was engaged as a principal or an accomplice in

the perpetration of a felony.” 18 Pa.C.S.A. § 2502(b). Perpetration of a felony

is defined as “[t]he act of the defendant in engaging in or being an accomplice

in the commission of, or an attempt to commit, or flight after committing,

or attempting to commit robbery, rape, or deviate sexual intercourse by

force or threat of force, arson, burglary or kidnapping.”        18 Pa.C.S.A.

§ 2502(d) (emphasis added).

       On direct appeal, the trial court found there was sufficient evidence to

support Appellant’s robbery conviction, which in turn, supported his

second-degree murder conviction, as the murder was committed during the

commission of a felony. The facts at trial reveal that Appellant and another

man talked about robbing the victim when they saw him counting money on

the street.    They followed the victim into a store and when all three men

reemerged, Appellant approached the victim from behind and pushed a

firearm into his back. When the victim turned quickly, Appellant shot him.5

An eyewitness testified at trial to this version of events.   Moreover, when

police arrested Appellant, he had a firearm in his possession.       Appellant

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5     We outright reject Appellant’s suggestion that because there was no
robbery announced and there was no evidence that items were removed by
force from the victim, there was insufficient evidence of a robbery. Here,
there was evidence that Appellant discussed robbing the victim prior to holding
a gun to his back and shooting and killing him. This was sufficient to support
a finding that Appellant was engaged in the commission of a theft when he
inflicted serious bodily injury that ultimately resulted in the victim’s death.

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admitted to police that he shot the victim, but claimed that was not his

intention and that he simply reacted to the victim’s sudden movements.

Police recovered two fired bullet cartridge casings from the scene and ballistics

testing revealed that they were fired from the gun recovered from Appellant.

Police did not find a wallet or money on the victim’s person. The trial court

found that this evidence was sufficient to support Appellant’s convictions. On

direct appeal, we found the sufficiency issue waived, but otherwise without

merit.   Thus, the issue was previously litigated on direct appeal.

      However, we are mindful that we must analyze the sufficiency claim

under the ineffective assistance of counsel rubric. We similarly conclude that

Appellant’s current collateral claim lacks merit. Because there was sufficient

evidence showing Appellant shot and killed the victim during the commission

of a robbery, we agree with the PCRA court that Appellant’s “sufficiency of the

evidence claim, even if it had been properly presented on appeal, would have

been rejected on the merits” and, thus, Appellant “could not have been

prejudiced by [] counsel’s error.” PCRA Court Opinion, 6/28/2018, at 6. As

such, Appellant’s first appellate sub-issue fails.

      Next, Appellant posits, “[p]rior counsel was also ineffective where

counsel failed to raise and brief the issue of the weight of the evidence and

where that issue was a meritorious issue.” Appellant’s Brief at 11. Appellant

bases this claim on the same argument he advanced regarding the sufficiency

of the evidence, namely that there was no evidence of a robbery. Id. at 12-

13. Appellant claims he “is entitled to a new trial as the verdict in this matter

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does shock one’s sense of justice making the award of a new trial imperative.”

Id. at 11-12.

      This Court has previously determined:

      A motion for a new trial based on a claim that the verdict is against
      the weight of the evidence is addressed to the discretion of the
      trial court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. Rather, the role of
      the trial judge is to determine that notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.
      It has often been stated that a new trial should be awarded when
      the jury's verdict is so contrary to the evidence as to shock one's
      sense of justice and the award of a new trial is imperative so that
      right may be given another opportunity to prevail.

      An appellate court's standard of review when presented with a
      weight of the evidence claim is distinct from the standard of review
      applied by the trial court:

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question
            of whether the verdict is against the weight of the
            evidence. Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court's determination
            that the verdict is against the weight of the evidence.
            One of the least assailable reasons for granting or
            denying a new trial is the lower court's conviction that
            the verdict was or was not against the weight of the
            evidence and that a new trial should be granted in the
            interest of justice.

Commonwealth v. Thomas, 194 A.3d 159, 167–168 (Pa. Super. 2018)

(citation and original emphasis omitted).




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      In this case, the PCRA court concluded that the evidence established

that Appellant “shot and killed [the victim] while in the course of robbing him.”

PCRA Court Opinion, 6/28/2018, at 8. Accordingly, the PCRA court stated that

      any motion before the trial court for a new trial based upon the
      weight of the evidence would have been properly denied. For that
      reason, [Appellant] could not have been prejudiced by counsel’s
      failure to make such a motion.

Id. at 8-9.   Moreover, the PCRA court found that, because the underlying

weight claim lacked merit, counsel could not have rendered ineffective

assistance for failing to raise or preserve a weight issue. Id. at 9.

      Upon review, we agree with the PCRA court’s assessment regarding

Appellant’s ineffective assistance of counsel claims.        Here, viewing the

evidence in the light most favorable to the Commonwealth as verdict winner,

the evidence was sufficient to permit the jury to determine that Appellant

killed the victim during the commission of an armed robbery. The jury was

permitted to believe all, part, or none of the evidence presented and we may

not usurp the jury’s findings. Appellant’s sufficiency challenge lacks arguable

merit. For related reasons, we conclude that the jury’s verdict was simply not

so contrary to the evidence as to shock one’s sense of justice. As such, trial

counsel could not be deemed ineffective for failing to challenge the weight of

the evidence.   Hence, Appellant’s second sub-issue fails. Accordingly, for all

of the reasons set forth above, Appellant is not entitled to relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/19




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