Com. v. Ellison, L. ( 2015 )

J-S43036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAMONT ELLISON
Appellant No. 3191 EDA 2014
Appeal from the PCRA Order October 31, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008480-2008
BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 27, 2015
Appellant, Lamont Ellison, appeals from the ordered entered in the
Philadelphia County Court of Common Pleas, which denied his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The PCRA court opinion sets forth the relevant facts and procedural
history of this case as follows:
On January 15, 2010, following a bench trial before the
Honorable Steven R. Geroff, [Appellant] was found guilty
of murder of the third degree and possessing an
instrument of crime. On April 1, 2010, [Appellant] was
sentenced to seventeen and a half (17.5) to thirty five (35)
years of imprisonment for third-degree murder and a
concurrent term of two and a half (2.5) to five (5) years of
imprisonment for possessing an instrument of crime.
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
J-S43036-15
[Appellant] filed a direct appeal. Judgment of sentence
was affirmed by the Pennsylvania Superior Court on
February 18, 2011. The Pennsylvania Supreme Court
denied [Appellant’s] request for allocatur on August 11,
2011. On June 25, 2012, [Appellant] filed a timely pro se
petition for post-conviction collateral relief. On November
19, 2013, counsel filed an Amended Petition claiming that
appellate counsel was ineffective for failing to raise a
sufficiency-of-the-evidence claim for [Appellant’s]
conviction of third-degree murder. The Commonwealth
filed a motion to dismiss on August 13, 2014. On October
31, 2014, the petition was dismissed for lack of merit….[2]
(PCRA Court Opinion, filed February 27, 2015, at 1-2). Appellant filed a
timely notice of appeal on November 12, 2014. The court did not order
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.
Appellant raises the following issue for our review:
DID THE [PCRA] COURT ERR IN NOT REINSTATING
APPELLANT’S RIGHT TO APPEAL THE JUDGMENT OF
SENTENCE NUNC PRO TUNC WHEN APPELLATE DEFENSE
COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THE
ISSUE THAT THE EVIDENCE WAS INSUFFICIENT TO FIND
APPELLANT GUILTY OF THIRD DEGREE MURDER ON
APPEAL FROM THE JUDGMENT OF SENTENCE?
(Appellant’s Brief at 2).
____________________________________________
2
The docket entry for October 1, 2014, indicates the court issued an order
granting a motion for continuance and states: “Continue for formal dismissal
on 10-31-14. 907 notice to be sent.” Notwithstanding this notation on the
docket, the record is unclear whether the court in fact gave notice of its
intent to dismiss Appellant’s PCRA petition without a hearing, pursuant to
Pa.R.Crim.P. 907. Nevertheless, Appellant does not claim on appeal that the
court failed to give Rule 907 notice, which constitutes waiver of that issue.
See Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa.Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).
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Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959
A.2d 319 (2008). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). A petitioner is
not entitled to a PCRA hearing as a matter of right; the PCRA court can
decline to hold a hearing if there is no genuine issue concerning any material
fact, the petitioner is not entitled to PCRA relief, and no purpose would be
served by any further proceedings. Commonwealth v. Hardcastle, 549
Pa. 450, 701 A.2d 541 (1997).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Steven R.
Geroff, we conclude Appellant’s issue merits no relief. The PCRA court
opinion comprehensively addresses and properly disposes of the question
presented. (See PCRA Court Opinion at 4-5) (finding: on evening before
day of incident, victim’s mother saw Appellant drive slowly by victim, roll
down car window, make hand gesture simulating gun pointed at victim, and
say, “pow, pow”; victim’s sister found victim lying in street with multiple
gunshot wounds; victim told sister Appellant had shot victim; Appellant’s
friend told police Appellant had shot victim; while incarcerated, Appellant
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confided in cellmate that Appellant had shot victim; Appellant used deadly
weapon on vital part of victim’s body; evidence at trial was sufficient for
court to find Appellant was perpetrator of crime and acted with malice;
because evidence was sufficient to sustain Appellant’s third-degree murder
conviction, Appellant’s claim lacks arguable merit; therefore, appellate
counsel was not ineffective for failing to raise sufficiency challenge on direct
appeal). Accordingly, we affirm on the basis of the PCRA court opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2015
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IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION
COMMONWEAL TH OF PENNSYLVANIA CP-51-CR-0008480-2008
vs.
FILED SUPERIOR COURT
FEB 2 7 2015 NO. 3191 EDA 2014
LAMONT ELLISON
Criminal Appeal~ Unit
First Judioia\ Distnct of PA
OPINION
CP·51-CR..Q008480-200B Comm. v. Ellison, Lamont
GEROFF, J. Opinion FEBRUARY 27, 2015
1111111111111111111111111
7263636221
Petitioner, Lamont Ellison, has filed an appeal of this court's order denying his Amended
Petition pursuant to the Post Conviction Relief Act, 42 Pa.CS.A. § 9541 et seq.
I. PROCEDURAL HISTORY
On January 15, 2010, following a bench trial before the Honorable Steven R. Geroff, the
Petitioner was found guilty of murder of the third degree and possessing an instrument of crime.
On April 1, 2010, Petitioner was sentenced to seventeen and a half (17.5) to thirty five (35) years
of imprisonment for third-degree murder and a concurrent term of two and a half (2.5) to five (5)
years of imprisonment for possessing an instrument of crime.
The Petitioner filed a direct appeal. Judgment of sentence was affirmed by the
Pennsylvania Superior Court on February 18, 2011. The Pennsylvania Supreme Court denied
Petitioner's request for allocatur on August 11, 2011. On June 25, 2012, the Petitioner filed a
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timely prose petition for post-conviction collateral relief. On November 19, 2013, counsel filed
an Amended Petition claiming that appellate counsel was ineffective for failing to raise a
sufficiency-of-the-evidence claim for the Petitioner's conviction of third-degree murder. The
Commonwealth filed a motion to dismiss on August 13, 2014. On Octo her 31, 2014, the petition
was dismissed for lack of merit pursuant to 42 Pa.C.S.A. §9541 et. seq. The Petitioner filed a
timely notice of appeal.
II. STANDARDOFREVIEW
An ineffectiveness claim raised pursuant to the Post Conviction Relief Act must establish
that counsel's mistake so undermined the truth-determining process that no reliable adjudication
of guilt or innocence could have taken place. 42 Pa.C.S. § 9543(a)(2)(ii). See Commonwealth v.
Kimball, 5 55 Pa. 299, 312, 724 A.2d 326, 333 (Pa. 1999). To establish ineffectiveness under the
PCRA, a petitioner must demonstrate: (l) that the underlying claim is of arguable merit; (2) that
counsel's performance lacked a reasonable basis; and (3) that the ineffectiveness of counsel
caused the petitioner prejudice. Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 245
(2008), citing Commonwealth v. Carson, 590 Pa. 50 l, 913 A.2d 220, 233 (2006), cert. denied, ---
U.S.----, 128 S. Ct. 384, 169 L. Ed. 2d 270 (2007) (citing Commonwealth v. Pierce, 515 Pa. 153,
527 A.2d 973, 975 (1987) (adopting U.S. Supreme Court's holding in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L.Eq.2d 674 (1984)). The law presumes that trial counsel is
effective and, therefore, a petitioner carries the burden of proving ineffectiveness.
Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663, 673 ( 1992). A failure to satisfy any prong
of the test for ineffectiveness requires rejection of tbe entire claim. Commonwealth v. Jones, 571
Pa. 112, 811 A.2d 994, 1002 (2002).
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A claim has arguable merit where the factual averments, if accurate, could establish cause
for relief. See Commonwealth v. Jones, 583 Pa. 130, 876 A.2d 380, 385 (2005). If a petitioner
raises allegations, which, even if accepted as true, do not establish the underlying claim, he or
she will have failed to establish the arguable merit prong related to the claim. Id Whether the
facts rise to the level of arguable merit is a legal determination. Commonwealth v, Saranchak,
581 Pa. 490, 866 A.2d 292, 304 n. 14 (2005).
Here, the underlying claim is that the evidence was insufficient to convict the Petitioner
of murder of the third degree. In evaluating a challenge to the sufficiency of the evidence, a
reviewing court must determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of
fact could have found that each and every element of the crimes charged was established beyond
reasonable doubt. Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).
III. DISCUSSION
The Petitioner argues that appellate counsel was ineffective for failing to raise a
sufficiency-of-the-evidence claim against his conviction of third-degree murder because
insufficient evidence was presented at trial to identify the Petitioner as the perpetrator of the
offense, and because insufficient evidence was presented at trial to establish that the Petitioner
acted with the requisite mens rea, or criminal intent.
Murder of the third degree is an unlawful killing with malice. Pa.C.S.A. § 2502(c),
Commonwealth v, Carter, 481 Pa. 95, 393 A.2d 13, 15 (Pa. Super. 1978). Malice is defined as
"wickedness of disposition, hardness of the heart, cruelty, recklessness of consequences, and a
mind regardless of social duty." Commonwealth v, Shaffer, 722 A.2d 195, 199 (Pa. Super.
1998). Malice may be inferred from the attending circumstances, such as the use of a deadly
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weapon on a vital part of the body of another human being. Commonwealth v. Paquette, 451 Pa.
250, 301 A.2d 837, 840 (1973).
Sufficiency ofthe Evidence.
The evidence presented at trial was overwhelmingly sufficient for the trier of fact to find
that the Petitioner was the perpetrator of the crime, and was overwhelmingly sufficient for the
trier of fact to find that the Petitioner acted with malice. The evening prior to the day on which
the Petitioner shot the victim, the victim's mother saw the Petitioner slowly drive by her son, roll
down the window of the car, and make a hand gesture simulating a gun pointing at the victim.
"Pow, pow," she heard the Petitioner say. (N.T. 01/13/2010, 91-95).1 The victim's sister found
the victim shot and lying in the street, fading in and out of consciousness. When she asked the
victim what had happened, he stated, "Poodie (the Petitioner) shot me."2 (N.T. 01/13/2010, 108-
114). Immediately after the shooting, Petitioner's own friend told police that the Petitioner had
shot the victim. (N.T. 01/14/2010, 91-103). After the shooting and while incarcerated, the
Petitioner confided to a cellmate that he had shot the victim, to whom he referred as "Twin."3
(N.T. 01/13/2010, 36-43).
There are additional reasons to support a finding that the Petitioner acted with malice.
The murder was committed with the use of a deadly weapon on a vital part of the victim's body,
with the victim sustaining multiple gunshot wounds to his stomach, foot, and knee. (N.T.
O 1/15/2010, 5-7). The victim's mother saw the Petitioner drive slowly past her son the night
prior to the murder and make an obvious gesture threatening to kill him. The evidence clearly
demonstrated that the Petitioner acted deliberately and with malice when he shot the victim the
next day.
I The victim's mother identified the Petitioner in court as the man who had driven by her son. Id. at 95.
2 The victim's sister knew the Petitioner and knew that his nickname was "Poodie." Id. at 115.
3 The victim was known by that nickname because he had a twin brother, Joseph (N.T. 01/13/2010, 91-92).
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The Petitioner's underlying claim, that there was insufficient evidence to establish his
guilt for his conviction of third-degree murder, is without arguable merit. Since the Petitioner's
ineffectiveness claim lacks arguable merit, the Petitioner has failed the first prong of the
ineffectiveness test. To establish ineffectiveness, a petitioner must plead and prove all three
prongs of the ineffectiveness test. The Petitioner's failure to plead and prove the first prong of
the test means that his entire ineffectiveness claim must be rejected.
IV. CONCLUSION
For the reasons stated above, the Petitioner's Amended Petition for Post Conviction
Relief was properly denied.
BY THE COURT:
....... ~·-··
STEVEN R. GEROFF,
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