J-S33023-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                   Appellee              :
                                         :
           v.                            :
                                         :
KHAMPHOY PHOMMA,                         :
                                         :
                   Appellant             : No. 1713 EDA 2014

                   Appeal from the PCRA Order May 19, 2014,
                  Court of Common Pleas, Philadelphia County,
                Criminal Division at No. CP-51-CR-0402861-2006

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.

MEMORANDUM BY DONOHUE, J.:                           FILED JUNE 10, 2015

     Khamphoy Phomma (“Phomma”) appeals from the May 19, 2014 order

of the Philadelphia County Court of Common Pleas dismissing his petition

filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

(“PCRA”), without a hearing. Upon review, we affirm.

     We previously summarized the facts of this case when deciding

Phomma’s direct appeal as follows:

              On February 1, 2006, Philadelphia Police went to
           an apartment building located at 6344 North Eighth
           Street to investigate a report of a killing inside of
           Apartment 304. Upon arrival, police discovered the
           body of Danh Nguyen. Mr. Nguyen had been stabbed
           and was obviously dead. An autopsy of his body
           revealed that he had been stabbed twice in the left
           chest that caused injuries to his heart and both
           lungs. There were also four other superficial stab
           wounds to the victim’s body observed during the
           autopsy. The manner of death was deemed to be
           homicide.
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             Subsequent investigation revealed that on the
          night of the incident, several people, including the
          victim, Dat Huynh, Thai Lam, John Tieu, and
          someone named Thomas, had gathered at the
          apartment to play cards. Apparently, the victim won
          a lot of money during the game and some of the
          losers stated that they were going to get their
          money back.

             [Phomma] was not present when the game began
          and appeared at the apartment later in the evening.
          Dat Huynh, a resident of the apartment, left prior to
          the killing and as he was leaving, he encountered
          [Phomma],     Lam,   and    Thomas,    outside    his
          apartment. Thai Lam stated he was going to take
          back the money he lost to the victim and Huynh told
          him not to do anything to the victim because he was
          a close friend. When Hyunh returned, police were
          outside his apartment.

             After Huynh departed, [Phomma] and Thai Lam
          entered the apartment. Lam, who had a mask
          covering his face, pulled out a gun and ordered
          everyone to get down. Contemporaneous therewith,
          [Phomma] went into the kitchen and ordered the
          victim to hand over his money. According to John
          Tieu, the victim ignored [Phomma] and the two men
          began fighting. Tieu fled when the fight started and
          learned that the victim had been killed the next day.

             On February 2, 2006, Homicide Detective John
          Verrecchio, acting on information given to police,
          went to [Phomma’s] residence to locate [Phomma’s]
          vehicle and to speak to [Phomma] who had been
          identified as a suspect in the victim’s death. Upon
          arrival, the detective observed that [Phomma’s] car
          was parked across the street from [Phomma’s]
          residence. He then went to [Phomma’s] residence
          and was eventually admitted inside by [Phomma’s]
          sister. Once inside, Detective Verrecchio told
          [Phomma’s] sister that he wanted to speak to
          [Phomma]. [Phomma’s] sister went to [Phomma’s]



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J-S33023-15


          bedroom and had him come downstairs. When
          [Phomma] did so, Detective Verrecchio told him that
          there had been an incident at which time [Phomma]
          volunteered that he had been involved in a fight at
          the location mentioned by the detective.

             After [Phomma] volunteered that he had been
          involved in the fight, Detective Verrecchio placed
          [Phomma] under arrest. [Phomma] was then placed
          inside a police vehicle by uniformed officers so that
          he could be transferred to the Homicide Unit at the
          police headquarters. Prior to leaving the scene,
          however, an officer approached Detective Verrecchio
          and told him that [Phomma] was talking about the
          incident. Detective Verrecchio went to [Phomma]
          and gave him Miranda warnings after which
          [Phomma], without questioning, stated that he
          stabbed the victim. [Phomma] was then transported
          to police headquarters where, [Phomma] gave a
          formal statement upon being administered and then
          formally waiving the rights afforded under Miranda.

             In his statement, [Phomma] first told authorities
          that during the card game, he became frustrated
          because he had lost some money and that after
          losing a hand he threw his cards on top of the
          victim’s money scattering it. The victim, who
          [Phomma] heard had a reputation for being tough,
          became incensed and approached [Phomma].
          [Phomma] stated that he picked up the victim’s knife
          after the victim punched [Phomma] in the mouth
          and stabbed the victim in the side of his chest.
          [Phomma] stated that he stabbed the victim a
          second time when the victim continued to come at
          him. [Phomma] then threw the knife down and fled
          the residence. As he fled, he picked up some of the
          money sitting on the floor.

             [Phomma] recanted much of what he told police
          about the incident after police advised him that they
          wanted to ask him additional questions following
          their review of a statement given by another
          witness.   During    the   supplemental    interview,



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           [Phomma] stated that when he arrived at the
           apartment, he saw Thai Lam outside it and Lam told
           him that he wanted to rob the guy who had won
           money from him. According to [Phomma], Lam
           asked [Phomma] to assist in the robbery but
           [Phomma] refused. [Phomma] then went inside and
           began playing cards. During the game, Lam and a
           friend of the victim’s got into an argument. When the
           victim stood up, [Phomma] believed that the victim
           was about to go after Lam so he grabbed the victim
           from behind and punched him in the back. The
           victim turned around and began swinging at
           [Phomma] who grabbed a knife and stabbed him.
           [Phomma] stated that he and Lam then fled the
           scene. [Phomma] admitted that the victim did not
           punch him in the face.

                [Phomma] further stated that upon leaving the
           apartment he called 911 and told police that four
           black guys had entered the apartment and
           committed a robbery. [Phomma] thereafter told his
           girlfriend and another friend that he had stabbed the
           victim. He also discarded his bloody clothes in a
           sewer located across the street from his house,
           which police later recovered.[FN]
           ______________________
           [FN]
                  Police recovered [Phomma’s] clothing based on
           the information [Phomma] provided during his
           interview. Police also recovered the murder weapon
           from the scene of the incident.

Commonwealth v. Phomma, 122 EDA 2010, 1-4 (Pa. Super. Dec. 9,

2010) (quoting Trial Court Opinion, 3/1/10, at 2-5) (footnote citation to

Miranda omitted).

     Following a bench trial held on June 7, 2007, the trial court convicted

Phomma of third-degree murder and possessing an instrument of crime for

the stabbing death of Danh Nguyen. The trial court acquitted him of robbery




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and criminal conspiracy.    It sentenced Phomma on August 9, 2007 to an

aggregate term of twenty to forty years of imprisonment.

        The lower court reinstated Phomma’s right to file post-sentence

motions and direct appeal rights on December 3, 2009. Phomma filed post-

sentence motions nunc pro tunc on December 16, 2009, and the trial court

denied relief the same day. Phomma appealed his conviction to this Court,

challenging the trial court’s denial of his motion to suppress, the sufficiency

of the evidence to support his conviction of third-degree murder, and

discretionary aspects of his sentence.     A panel of this Court affirmed his

judgment of sentence in an unpublished Memorandum on December 9,

2010.     The Pennsylvania Supreme Court denied Phomma’s request for

allowance of appeal on June 27, 2011.

        Phomma, acting pro se, filed the instant timely PCRA petition on

December 19, 2011.         The PCRA court appointed counsel to represent

Phomma, and counsel filed an amended PCRA petition on August 10, 2012

alleging that prior counsel was ineffective for failing to preserve a challenge

to the weight of the evidence.     The Commonwealth filed a response on

March 5, 2014.      On April 16, 2014, the PCRA court sent notice of its

intention to dismiss Phomma’s PCRA petition without a hearing, and

ultimately dismissed the petition on May 19, 2014.

        Phomma filed a timely notice of appeal, followed by a court-ordered

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.



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1925(b).    The PCRA court filed a responsive opinion pursuant to Pa.R.A.P.

1925(a).

     On appeal, Phomma raises one issue for our review: “Did the PCRA

[c]ourt err when it dismissed [Phomma]’s [a]mended PCRA [p]etition

without a [h]earing even though [Phomma] properly pled and would have

been able to prove that he was entitled to relief?” Phomma’s Brief at 3.

     We review a PCRA court’s decision to determine whether the record

supports it and to ensure it is free of legal error.          Commonwealth v.

Walker, 110 A.3d 1000, 1003 (Pa. Super. 2015).               As stated above, the

PCRA court dismissed Phomma’s petition without an evidentiary hearing

based upon its conclusion that the issue raised therein was meritless.

             The right to an evidentiary hearing on a post-
             conviction petition is not absolute. It is within the
             PCRA court’s discretion to decline to hold a hearing if
             the petitioner’s claim is patently frivolous and has no
             support either in the record or other evidence. It is
             the responsibility of the reviewing court on appeal to
             examine each issue raised in the PCRA petition in
             light of the record certified before it in order to
             determine if the PCRA court erred in its
             determination that there were no genuine issues of
             material fact in controversy and in denying relief
             without conducting an evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted).

     Phomma raises a claim of ineffective assistance of counsel.                  In

resolving   a   question   of   counsel’s   effectiveness,   we   begin   with   the




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presumption that counsel rendered effective assistance.      Commonwealth

v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014).                 To overcome that

presumption, the petitioner must establish:    “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s

error, with prejudice measured by whether there is a reasonable probability

that the result of the proceeding would have been different.” Id. (citation

omitted). If the petitioner fails to prove any of these prongs, the claim is

subject to dismissal. Id.

      Phomma bases his ineffectiveness claim on prior counsel’s failure to

preserve a weight of the evidence claim.     Phomma’s Brief at 8.     Phomma

contends that the verdict was in fact contrary to the weight of the evidence

for two reasons: (1) the Commonwealth failed to disprove that he killed the

victim in self-defense and (2) the Commonwealth failed to prove that he

acted with the requisite malice to support his conviction of third-degree

murder. Id. at 8-10.

      The PCRA court found that both of Phomma’s claims utterly lacked

merit.   In relation to his first argument regarding self-defense, the PCRA

court found as follows:

               [Phomma’s] claim that he acted in self-defense
            rests entirely on a portion of [Phomma’s] statement
            to police wherein he remarked that he stabbed the
            victim after the victim attacked him with a knife.
            However, [Phomma] also told police that he advised



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              his girlfriend that he stabbed the victim over money
              and that after doing so he took money before
              fleeing. (N.T. 6/7/07, 94-105). In addition, other
              evidence established that the victim had been
              stabbed multiple times and struck with a blunt
              object, that [Phomma] admitted entering the
              apartment to commit a robbery, and that after the
              incident occurred [Phomma] took steps to cover up
              his involvement in the crime by making a phone call
              during which he blamed four black men for the killing
              and by throwing his bloody clothes down a sewer.
              (N.T. 6/7/07, 98, 105-106). The fact that this [c]ourt
              did not accept [Phomma’s] self-serving statements
              does not make the verdict against the weight of the
              evidence. This is especially so given that the totality
              of the circumstances established that the killing was
              not committed in self-defense and that the
              Commonwealth met its burden of disproving that it
              was so committed.

PCRA Court Opinion, 9/15/14, at 6-7.              Addressing Phomma’s second

contention in support of his weight of the evidence claim, the PCRA court

found that the Commonwealth adequately proved that Phomma acted with

malice based upon Phomma’s use of a deadly weapon (a knife) on a vital

part of the victim’s body (his chest).      Id. at 8.   It further found that his

attempt to hide evidence after the murder “demonstrated consciousness of

guilt.” Id.

      The law is well settled:

                 A motion for a new trial alleging that the verdict
              was against the weight of the evidence is addressed
              to the discretion of the trial court. An appellate court,
              therefore, reviews the exercise of discretion, not the
              underlying question whether the verdict is against
              the weight of the evidence. The factfinder is free to
              believe all, part, or none of the evidence and to



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            determine the credibility of the witnesses. The trial
            court will award a new trial only when the jury’s
            verdict is so contrary to the evidence as to shock
            one’s sense of justice. In determining whether this
            standard has been met, appellate review is limited to
            whether the trial judge’s discretion was properly
            exercised, and relief will only be granted where the
            facts and inferences of record disclose a palpable
            abuse of discretion. Thus, the trial court’s denial of a
            motion for a new trial based on a weight of the
            evidence claim is the least assailable of its rulings.

Commonwealth v. Weathers, 95 A.3d 908, 910-11 (Pa. Super. 2014),

appeal denied, 106 A.3d 726 (Pa. 2015) (citation omitted).

      Our review of the record comports with the facts and testimony cited

above by the PCRA court.       We observe that the PCRA court judge also

served as the judge at trial. Because the trial court, as factfinder, was free

to believe all, part or none of the evidence presented, there can be no abuse

of discretion in the PCRA court’s determination.

      Furthermore, as stated by the trial court, “The fact-finder may infer

malice and specific intent to kill based on the defendant's use of a deadly

weapon upon a vital part of the victim’s body.”           Commonwealth v.

Towles, 106 A.3d 591, 597 (Pa. 2014), cert. denied sub nom. Towles v.

Pennsylvania, 135 S. Ct. 1494 (U.S. 2015) (citation omitted). A knife is a

deadly weapon, see Commonwealth v. Robertson, 874 A.2d 1200, 1207

(Pa. Super. 2005), and the chest is a vital part of a person’s body, see

Commonwealth v. Johnson, 42 A.3d 1017, 1026 (Pa. 2012).




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      We find no error in the PCRA court’s conclusion that the weight of the

evidence claim was meritless and was unsupported by the record. Counsel

cannot be found to have rendered ineffective assistance for failing to pursue

a meritless claim. Commonwealth v. Eichinger, 108 A.3d 821, 831 (Pa.

2014). As such, the PCRA court did not err by dismissing Phomma’s PCRA

petition without an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/10/2015




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