J-S62023-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  Appellee                 :
                                           :
                    v.                     :
                                           :
SHAWN ANTHONY THOMPSON,                    :
                                           :
                  Appellant                :     No. 591 MDA 2017

              Appeal from the PCRA Order February 27, 2017
             in the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0002146-2012

BEFORE:    STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED DECEMBER 19, 2017

     Shawn Anthony Thompson (Appellant) appeals from the order entered

on February 27, 2017, denying his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

            A brief summary of the relevant facts and procedural history
     is as follows. At approximately 2:10 A.M. on February 26, 2012,
     Harrisburg Bureau of Police (“HBP”) received a call for a fight
     outside of Dragonfly night club and the Hardware Bar. The
     Dragonfly and the Hardware Bar had just closed for the evening
     and a crowd of people were gathered outside.

           [Appellant] and Tyrone Manley, Jr. (the “Victim”) became
     engaged in a fist fight. [Appellant] then stabbed the Victim four
     times. The stab wounds were located on the right upper chest,
     on the back of the left arm, on the left lower chest, and on the left
     abdomen. The Victim died as a result of the stab wounds.

           After stabbing the Victim, [Appellant] dropped the knife and
     ran through the crowd. A cab was parked in a parking lot with the
     rear sliding door open. [Appellant] jumped into and attempted to
     take over the cab. A struggle ensued between [Appellant] and
     the cab driver, at which time, the rear-view mirror of the cab was

*Retired Senior Judge assigned to the Superior Court.
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      broken. HBP Officer Nicholas Ishman (“Officer Ishman”) arrived
      at the scene and commanded Thompson to get out of the cab.
      Officer Ishman testified that [Appellant] had his left arm around
      the neck – around the back of the neck of the driver and his right
      hand was on the gearshift. [Appellant] was trying to force the
      gearshift down to put the vehicle in drive. Officer Ishman was
      able to pull [Appellant] out of the cab and handcuff him despite
      [Appellant’s] struggle.

           [Appellant] was charged with murder and criminal attempt-
      robbery of a motor vehicle. A jury trial was held on April 1-4,
      2013. On April 4, 2013, the jury issued guilty verdicts on the
      charges of murder of the third degree and attempted robbery of a
      motor vehicle.

Commonwealth v. Thompson, 105 A.3d 32 (Pa. Super. 2014) (unpublished

memorandum at 1) (internal citations and quotation marks omitted).

      On June 17, 2013, Appellant was sentenced to 20 to 40 years of

incarceration for the third-degree murder conviction and a consecutive term

of five to ten years of incarceration for the attempted robbery conviction. On

June 13, 2014, this Court affirmed Appellant’s judgment of sentence. Id. On

January 15, 2015, our Supreme Court denied Appellant’s petition for

allowance of appeal. Commonwealth v. Thompson, 106 A.3d 726 (Pa.

2015).

      On April 20, 2015, Appellant timely filed a PCRA petition. The PCRA

court appointed counsel. On August 5, 2015, counsel filed a “no merit” letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (en banc),

and Commonwealth v. Finley, 550 A.2d 214 (Pa. Super. 1988), and

requested leave to withdraw from the case. The PCRA court permitted counsel



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to withdraw and dismissed Appellant’s petition without a hearing. Appellant

timely filed a notice of appeal to this Court.

      On appeal, this Court affirmed in part and reversed in part the PCRA

court’s order. Specifically, this Court concluded that an issue of arguable merit

existed as to whether trial counsel was ineffective for failing to ensure the trial

court charged the jury properly “on the meaning of ‘intent.’” Commonwealth

v. Thompson, 158 A.3d 185 (Pa. Super. 2016) (unpublished memorandum

at 2). This Court set forth the following.

            The failure to adequately define and explain a felony or
      serious misdemeanor constitutes fundamental error. The absence
      of an instruction on the applicable mens rea requirements
      warrants a new trial. Commonwealth v. Ketterer, 725 A.2d
      801, 807 (Pa. Super. 1999).

            The Crimes Code provides: “A person commits an attempt
      when, with intent to commit a specific crime, he does any act
      which constitutes a substantial step toward the commission of that
      crime.” 18 Pa.C.S. § 901(a). Moreover, the Crimes Code provides
      that a person acts “intentionally” with respect to a material
      element of an offense:

            when: (i) if the element involves the nature of his
            conduct or a result thereof, it is his conscious object
            to engage in conduct of that nature or to cause such
            a result; and (ii) if the element involves the attendant
            circumstances, he is aware of the existence of such
            circumstances or he believes or hopes that they exist.

      18 Pa.C.S. § 302(b)(1). Pennsylvania’s Suggested Standard Jury
      Instructions provide a different definition of intent in its instruction
      on attempt: “A person cannot be guilty of an attempt to commit
      a crime unless he ... has a firm intent to commit that crime. If he
      ... has not definitely made up his ... mind—if his ... purpose is
      uncertain or wavering—he ... lacks the kind of intent that is
      required for an attempt.” SSJI 12.901A(5). It is clear from these


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     definitions that “intent” has a specialized meaning under the law
     which the jury must learn in order to decide the issue of
     “attempted” robbery.

           Here, the court instructed the jury that attempt requires
     intent[], but failed to provide the definition of “intent” within
     section 302(b)(1) or SSJI 12.901A(5). This fundamental defect
     may entitle [Appellant] to a new trial on the charge of attempted
     robbery of a motor vehicle.

           Ketterer provides a useful analogy to this case. There, the
     defendant was charged with aggravated assault by vehicle while
     driving under influence, which the Vehicle Code defines as an
     assault “negligently” committed. 75 Pa.C.S. § 3735.1. The trial
     court failed to instruct the jury as to the meaning of “negligently”
     under section 302(b)(4), a stricter definition than the definition of
     negligence under tort law. Ketterer, 725 A.2d at 806-07; see
     also 18 Pa.C.S. § 302(b)(4) ([providing that] “[a] person acts
     negligently ... when he should be aware of a substantial and
     unjustifiable risk ... [that is] of such a nature and degree that the
     actor’s failure to perceive it ... involves a gross deviation from
     the standard of care that a reasonable person would observe in
     the actor’s situation”) (emphasis added). We held that the lack of
     a negligence instruction under section 302(b)(4) “permit[ed] the
     jury to convict Appellant upon a showing of ordinary negligence,”
     an error that required a new trial. Ketterer, 725 A.2d at 807.

           The present case involves much the same error as in
     Ketterer. Merely stating that [Appellant] must act with “intent,”
     as the trial court did here, improperly permitted the jury to apply
     its own lay understanding of “intent” to the evidence. Thus, we
     agree with [Appellant] that the court’s failure to define the
     element of intent has arguable merit.

           But because the court did not hold a hearing on [Appellant’s]
     PCRA petition, we find that further proceedings in the [PCRA] court
     are advisable. The [PCRA] court should have the opportunity to
     determine in the first instance whether [Appellant] fulfills the
     other two prongs of the test for ineffectiveness, i.e., whether the
     course of conduct pursued by counsel lacked any reasonable
     basis, and whether counsel’s ineffectiveness prejudiced
     [Appellant]. We remand this case for an evidentiary hearing on
     these issues.


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Thompson, 158 A.3d 185 (unpublished memorandum at 2-3).

      Upon remand, the PCRA court appointed counsel on Appellant’s behalf.

A hearing was held on January 20, 2017. At that hearing, trial counsel for

Appellant, Matthew Monaghan, Esquire, testified.           He testified that he was

primarily concerned with defending the murder charge and the defense to that

was self-defense.     In fact, he considered the attempted robbery charge a

“throwaway charge.” N.T., 1/20/2017, at 5. In addition, Attorney Monaghan

pointed out that in connection with the murder-related charges,1 the jury was

instructed as to the definition of specific intent. Id. at 7; see N.T., 4/1-

4/2013, at 271 (“A person has the specific intent to kill if he has a fully-formed

intent to kill and is conscious of his own intention. As my earlier definition of

malice indicated, a killing by a person who has the specific intent to kill is a

killing with malice. Stated differently, a killing is with specific intent to kill if it

is willful, deliberate and premeditated.”). Attorney Monaghan testified that

he did not believe it was necessary for the trial court to re-iterate the definition

of specific intent for the robbery charge. See N.T., 1/20/2017, at 7-8.

      The PCRA court concluded that counsel was not ineffective. Specifically,

the PCRA court found that trial counsel’s strategy of focusing on the murder-

related charges was reasonable, and that there was not a reasonable




1The jury was instructed on the elements of first-degree murder, third-degree
murder, and voluntary manslaughter.

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probability that the outcome of the trial would have been different. PCRA Court

Opinion, 2/27/2017, at 4. Appellant timely filed a notice of appeal, and both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      On appeal, Appellant sets forth one issue for our review: “Was

Appellant’s trial counsel ineffective as a matter of law for his failure to object

to defective jury instructions?” Appellant’s Brief at 6.

      We set forth the relevant principles of law for our review of a PCRA

court’s conclusion regarding the effective assistance of trial counsel.

            In reviewing the rulings of a PCRA court, we examine
      whether the PCRA court’s determination is supported by the
      record and free of legal error.

                                       ***

             The U.S. Supreme Court has stressed that there is a strong
      presumption that counsel was effective, and the burden of
      overcoming the presumption rests with the defendant. Strickland
      v. Washington, 466 U.S. 668, 690 [] (1984). To obtain relief,
      the defendant must demonstrate that counsel’s performance was
      constitutionally deficient and that the deficient performance
      prejudiced him. Strickland, 466 U.S. at 687[]. In Pennsylvania,
      we have applied the Strickland test by looking to three elements,
      two concerning performance, and one concerning prejudice.
      Respecting counsel’s performance, the petitioner must establish
      that his underlying claim is of arguable merit and that no
      reasonable trial strategy existed for counsel’s action or inaction.
      Commonwealth v. Pierce, [] 527 A.2d 973, 975 ([Pa.] 1987).
      The reasonableness of counsel’s conduct is objectively
      measured[.] Respecting prejudice, we employ the Strickland
      actual prejudice test, which requires a showing of a reasonable
      probability that the outcome of the proceeding would have been
      different but for counsel’s constitutionally deficient performance.
      “[A] reasonable probability is a probability that is sufficient to
      undermine confidence in the outcome of the proceeding.”
      Commonwealth v. Spotz, [] 84 A.3d 294, 312 ([Pa.] 2014)


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      (citations omitted)[.] A failure to satisfy any prong of the
      ineffectiveness test requires rejection of the claim.

Commonwealth v. Daniels, 104 A.3d 267, 280-81 (Pa. 2014) (some

citations omitted).

      This Court concluded previously that there is arguable merit to

Appellant’s position that trial counsel was ineffective for failing to request a

complete jury instruction for intent with respect to attempted robbery of a

motor vehicle. However, Appellant still must prove the other two prongs of

the test.   We first consider whether Appellant was prejudiced by the

incomplete instruction.

      The trial court offered the following relevant instructions.

            In order to find the defendant guilty of attempting to commit
      a crime, you must be satisfied that the following elements have
      been proven beyond a reasonable doubt:

            First, that the defendant did a certain act. You heard the
      description of what occurred that evening.

          Second, that the defendant did the act with the intent to
      commit the crime of robbery of a motor vehicle.

            Third, that the act that the defendant did constituted a
      substantial step toward the commission of that crime.

            So, the crime is really, “What do we mean by this element
      called substantial step?” That’s really what you have to decide.

                                      ***

            A person cannot be guilty of attempt to commit a crime
      unless he does an act that constitutes a substantial step toward
      the commission of that crime. An act is a substantial step if it is
      a major step toward the commission of the crime and also strongly


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      corroborates the jury’s belief that the person at the time he did
      the act had a firm intent to commit the crime.

N.T., 4/1-4/2013, at 258-59 (emphasis added).2

      Thus, compared to the standard instruction, the only statement missing

from the trial court’s instruction was the following: “If he … has not definitely

made up his … mind—if his … purpose is uncertain or wavering—he … lacks

the kind of intent that is required for an attempt.” SSJI 12.901A(5).

      At trial, Appellant testified that he “dove into the back slider passenger

door” of the vehicle. N.T., 4/1-4/2013, at 193. Appellant asked the driver,

“‘Can you go, go, go?’” Id. According to Appellant, his “intent was just ask

him, “‘Can you take me off?’ Can you take me from out of the area.” Id. at

193-94. Appellant testified that he and the driver engaged in a “struggle.”

Id. at 193.

      Based on the foregoing, Appellant’s testimony confirms that he intended

to utilize the vehicle to get away from the scene and was willing to engage in

a struggle to do so. Appellant never wavered in this intent and only stopped

when Officer Ishman was able to pull Appellant out of the car and into custody.

      Because Appellant has set forth a claim that trial counsel was ineffective,

he is required “to show that counsel’s conduct had an actual adverse effect on




2 In this Court’s prior memorandum, it referenced only the first time “intent”
was stated, but did not reference the second time, where “intent” was clarified
to mean “firm intent.” Commonwealth v. Thompson, 158 A.3d 185
(unpublished memorandum at 3).

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the outcome of the proceedings.”     Commonwealth v. Fanase, 667 A.2d

1166, 1172 (Pa. Super. 1995).         Here, because Appellant’s testimony

established his intent was not uncertain or wavering, we conclude that

including the additional intent-related language in the jury instruction would

not have resulted in a different outcome for Appellant. Therefore, Appellant

was not prejudiced by trial counsel’s failure to request this instruction. See

id. (holding counsel was not ineffective in failing to request a no-adverse

inference instruction, even where the trial court would have had to give it had

it been requested, because Fanase could not demonstrate that he was

prejudiced). Accordingly, Appellant cannot prevail on his claim of ineffective

assistance of counsel.3

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/19/2017




3 Because we have concluded that Appellant did not satisfy the prejudice
prong, we need not consider whether counsel had a reasonable basis for failing
to request this instruction.

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