Com. v. Jackson, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOSEPH JACKSON
Appellant No. 1352 MDA 2021
Appeal from the PCRA Order entered September 23, 2021
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0002027-2017
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: JUNE 13, 2022
Appellant, Joseph Jackson, appeals from the September 23, 2021
order entered in the Court of Common Pleas of York County, granting in
part1 and denying in part his petition for collateral relief filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant,
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* Former Justice specially assigned to the Superior Court.
1 The PCRA court granted the petition with respect to sentencing. In its
opinion accompanying the September 23, 2021 order, the PCRA court
conceded its error in calculating Appellant’s prior record score and in failing
to merge Appellant’s convictions for sentencing; acknowledged the sentence
should be vacated; and advised it would resentence Appellant upon return of
jurisdiction to that court. PCRA Court Opinion, 9/23/21, at 38-41.
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who was convicted of robbery and terroristic threats,2 contends the PCRA
court erred when it did not find trial counsel ineffective for failing to request
a jury instruction on the definition of theft. For the reasons set forth herein,
we affirm the PCRA court’s order with respect to the jury instruction.
Further, we remand for resentencing using the correct prior record score and
merging Appellant’s terroristic threats conviction with his robbery conviction.
On direct appeal, this Court affirmed Appellant’s judgment of sentence.
In a memorandum opinion, we incorporated the factual and procedural
background set forth in the trial court’s Rule 1925(a) opinion as follows:
On February 7, 2017, at approximately 9:28 a.m., the West
Manchester Township Police Department was dispatched to Taco
Bell located at 2189 White Street, Manchester Township, in
response to a reported armed robbery. Upon arrival, the shift
manager, Lisa Ericson, reported to officers that a man, who had
been lurking in the parking lot, confronted her at her vehicle as
she was carrying a Citizens Bank deposit bag, grabbed her
vehicle door, and told her to start the ignition of her vehicle or
he would shoot her with a gun. Ms. Ericson complied with the
man’s demand to start her car then she grabbed the deposit bag
from the front passenger seat before exiting her vehicle;
however, the man directed Ms. Ericson to leave the deposit bag
on the seat. She left the deposit bag on the seat, exited her
vehicle, and went back inside of Taco Bell, leaving the man in
the driver’s seat of her vehicle. Once back inside of Taco Bell,
she immediately sounded the alarm, called 911 emergency, and
reported the incident to a co-worker.
Upon Sergeant Jeffrey S. Snell’s arrival to Taco Bell, Ms. Ericson
provided the description that her assailant was a light-skinned
black male, approximately 5’6” in height who was wearing a
green jacket, blue jeans, a black beanie and sunglasses.
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2 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 2706(a)(1), respectively.
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Responding officers from York City converged on the area and
after a brief foot pursuit, located Appellant hiding amongst
construction equipment near the northeast corner of Rt. 74 and
Rt. 30. Officers transported Appellant to Taco Bell at which time
Ms. Ericson positively identified him as the man who robbed her
of the deposit bag.
York County Assistant Public Defender Eric W. White, Esquire,
represented Appellant during trial proceedings. Following a jury
trial on November 2, 2017, a jury unanimously convicted
Appellant of Count 1 (Robbery) and Count 3 (Terroristic Threats)
of the Criminal Information. The jury acquitted Appellant of
Count 2 (Criminal Attempt of Robbery of a Motor Vehicle). On
December 18, 2017, Appellant was sentenced to a term of ten
(10) to twenty (20) years of confinement for Count 1 and a term
of one (1) to two (2) years of confinement for Count 3, to run
consecutively to Count 1, for an aggregate sentence of eleven
(11) to twenty-two (22) years.
Commonwealth v. Jackson, No. 303 MDA 2018, unpublished
memorandum at 1-2 (Pa. Super. filed January 24, 2019) (quoting Trial Court
Opinion, 6/5/18, at 2-4) (brackets omitted). After this Court affirmed his
judgment of sentence, Appellant filed a petition for allowance of appeal,
which our Supreme Court denied on August 6, 2019.
On July 31, 2020, Appellant filed a timely pro se PCRA petition
asserting twelve claims of ineffectiveness of preliminary hearing counsel,
trial counsel, and direct appeal counsel. On November 6, 2020, appointed
PCRA counsel filed an amended petition incorporating Appellant’s petition
and clarifying two grounds raised in the pro se petition, specifically Grounds
9 and 10, relating to Appellant’s prior record score and merger of sentences,
respectively. Following an evidentiary hearing conducted over two days, the
PCRA court issued its September 23, 2021 order, granting in part and
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denying in part Appellant’s amended petition. The petition was granted with
respect to the prior record score and merger of sentences,3 but was denied
in all other respects. This timely appeal followed. Both Appellant and the
PCRA court complied with Pa.R.A.P. 1925.
On appeal, Appellant asks us to consider the following issue:
[Whether t]he PCRA court erred when it denied Appellant’s
petition because trial counsel was ineffective for not
requesting an instruction on the definition of theft.
Appellant’s Brief at 4.
“On appeal from the denial of PCRA relief, our standard of review is
whether the findings of the PCRA court are supported by the record and free
of legal error.” Commonwealth v. Abu-Jamal, 833 A.2d 719, 723 (Pa.
2003) (citation omitted). “We view the findings of the PCRA court and the
evidence of record in a light most favorable to the prevailing party.”
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citation
omitted).
To prevail on a claim of ineffective assistance of counsel, a petitioner
must plead and prove: (1) that the underlying issue is of arguable merit; (2)
that counsel had no reasonable strategic basis for the action or inaction; and
(3) that counsel’s error prejudiced the petitioner, such that the outcome of
the underlying proceeding would have been different but for counsel’s error.
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3 See n. 1.
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Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014). A petitioner’s
failure to prove any of the three prongs is fatal to the petition. Id. at 311.
We presume that counsel was effective, and the petitioner bears the burden
of proving that counsel’s performance was deficient and that such deficiency
prejudiced him. Id.
Appellant’s sole issue on appeal involves a claim of trial counsel
ineffectiveness for failing to request a jury instruction defining theft, a crime
with which Appellant was not charged. As noted, Appellant was charged
with, and convicted of, robbery. In his brief filed in the instant appeal,
Appellant acknowledges, “[Appellant] testified on his own behalf at trial. He
admitted he committed theft, but denied having a gun or threatening
Ericson.” Appellant’s Brief at 7 (citing Notes of Testimony, Trial, 11/2/17, at
197-99). Following the close of testimony, the trial court instructed the jury
on robbery as follows:
The first offense, to find the Defendant guilty of this offense, you
must find that the following two elements have been proven
beyond a reasonable doubt:
First, that the Defendant threatened the victim with
serious bodily injury, or intentionally put the victim in fear
of serious bodily injury, or committed or threatened to
immediately commit the felony of aggravated assault.
And second, the Defendant did this during the course of
committing a theft.
Notes of Testimony, Trial, 11/2/17, at 249.
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In his brief, Appellant acknowledges that “[t]heft is an undefined
element of robbery under the Pennsylvania Crimes Code.” Appellant’s Brief
at 12. Appellant argues:
Though [Appellant] was not charged with theft, the crux of the
defense presented at trial was that [Appellant] did not commit
robbery by threatening to shoot the victim before taking the
money bag from her vehicle, but instead only took the money
bag from the seat of her vehicle and ran off. Based on the
evidence presented at trial, the jury could have rationally found
[Appellant] only committed theft, and since theft was not
charged, acquit him of the robbery and terroristic threats.
Id.
Rejecting Appellant’s assertion, the PCRA court explained:
Trial counsel testified that he had a reasonable basis for not
requesting this jury instruction due to his strategy of attempting
to receive an entire acquittal on the robbery by arguing to the
jury [Appellant] did not take the bank bags by force. [Notes of
Testimony, PCRA Hearing, 5/10/21, at 46, 54.] “The goal of
seeking compete acquittal does not constitute ineffective
assistance [of] counsel.” Commonwealth v. Harrison, 663
A.2d 238, 241 (Pa. Super. 1995). Trial counsel articulated a
reasonable trial strategy for not seeking an instruction on a
lesser charge, and therefore the ineffective assistance of counsel
claim fails.
PCRA Court Opinion, 9/23/21, at 15-16.
This Court considered a similar challenge recently in Commonwealth
v. Pugh, 2021 WL 5232437 (Pa. Super. November 10, 2021.)4 In Pugh,
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4 See Pa.R.A.P. 126(b) (providing that unpublished non-precedential
memorandum decisions of the Superior Court filed after May 1, 2019 may be
cited for their persuasive value).
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the appellant was convicted of robbery. On direct appeal, he asserted, inter
alia, a challenge to the sufficiency of evidence supporting his robbery
conviction. After this Court rejected his sufficiency claim and affirmed his
judgment of sentence, Pugh filed a PCRA petition, which was denied. On
appeal from that denial, he argued PCRA court error for failing to find trial
counsel ineffective based on counsel’s failure to request a jury instruction for
theft.
This Court dismissed Pugh’s argument, holding:
Because theft is an element of the offense of robbery, the failure
to request a theft charge where a defendant was charged with
robbery is an ineffectiveness claim of arguable
merit. See Commonwealth v. Humpheys, 532 A.2d 836, 840
(Pa. Super. 1987) (citing Commonwealth v. Robinson, 425
A.3d 748, 750-51 (Pa. Super. 1980)). However, this is not a
rule of ineffectiveness per se. Rather, the petitioner must still
plead and prove prejudice. Id. Where the evidence supports a
finding of theft, the failure to object to an incomplete charge is
not prejudicial. See Commonwealth v. Ennis, 574 A.2d 1116,
1121 (Pa. Super. 1990) (trial counsel not ineffective for failing to
object to omission of the definition of theft from instructions for
robbery where this Court already held the evidence to be
sufficient to sustain the robbery conviction).
The evidence here supported a finding of theft. Pugh’s argument
does not address the evidence introduced at trial. Instead, he
baldly concludes without further argument that a reliable
determination of guilt could not take place. Pugh's Br. at 15.
Theft of movable property, as is at issue here, occurs when a
person “unlawfully takes, or exercises unlawful control over,
movable property of another with intent to deprive [the other
person] thereof.” 18 Pa.C.S.A. § 3921(a). The testimony at trial
was that Pugh brandished a gun, demanded the victim’s cell
phone and wallet, and the victim gave them to him. That was
sufficient to prove theft.
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Pugh failed to prove that he was prejudiced by the omission of
the jury instruction for theft. He is not entitled to relief. Ennis,
574 A.2d at 1121.
Id. at *2.
In the instant case, as in Pugh, this Court similarly concluded on
direct appeal “that the victim’s testimony was sufficient to prove that in the
course of committing a theft, Appellant threatened the victim and
intentionally put her in fear of immediate serious bodily injury. This
evidence aptly satisfied every element of the crime of robbery as charged.”
Jackson, supra, at 5-6. Therefore, because this Court determined on direct
appeal that the evidence was sufficient to sustain Appellant’s robbery
conviction, Appellant cannot prove he was prejudiced by the omission. See
Pugh, supra, at *2.
Whether based on the PCRA court’s determination that counsel
articulated a reasonable trial strategy for not seeking an instruction defining
theft (i.e., Appellant failed to establish the second prong of the
ineffectiveness test, see Spotz, 84 A.3d at 311), or based on our agreement
with this Court’s conclusion in Pugh that Appellant was not prejudiced by
the omission (i.e., Appellant failed to establish the third prong of the
ineffectiveness test, see Spotz, id. at 311), we conclude that Appellant’s
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ineffectiveness claim fails.5 Again, the failure to prove any prong of the
ineffectiveness test is fatal to the petition. Spotz, 84 A.3d at 311.
Consequently, Appellant’s issue on appeal is meritless.
We find that the PCRA court’s rejection of Appellant’s jury instruction
issue is supported by the record and free of legal error. However, we
recognize that the PCRA court conceded Appellant’s prior record score and
merger issues had merit. See PCRA Court Opinion, 9/23/21, at 38-41. The
Commonwealth does not contest that determination. Therefore, while we
affirm the PCRA court’s order with respect to the jury instruction issue, we
must vacate Appellant’s judgment of sentence and remand for resentencing
based on the correct prior record score and recognizing that Appellant’s
conviction for terroristic threats merges with his robbery conviction for
sentencing.
Order affirmed. Case remanded for further proceedings in accordance
with this Memorandum. Jurisdiction relinquished.
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5It is well established that “this Court may affirm a PCRA court’s order on
any legal basis.” Commonwealth v. Parker, 249 A.3d 590, 595 (Pa.
Super. 2021).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/13/2022
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