February 11, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
BYRON HAMMOND, Appellant
Appeal from the Order Dated December 10, 2012 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001576-2008
BEFORE: BENDER, P.J., SHOGAN, J., and FITZGERALD, J. [*]
Appellant, Byron Hammond, appeals pro se from the trial court's December 10, 2012 order denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. For the following reasons, we affirm.
On May 8, 2009, a jury convicted Appellant of third-degree murder, conspiracy, burglary, and aggravated indecent assault. Appellant's convictions stemmed from his and two other individuals' act of burglarizing the home of O'Neill and Marquita Blackwood on September 27, 2007. During the burglary, Mrs. Blackwood was sexually assaulted and Mr. Blackwood was shot and killed. On July 21, 2009, Appellant was sentenced to an aggregate term of 45 to 90 years' incarceration. He filed a timely direct appeal, and this Court affirmed his judgment of sentence on February 28, 2011. Commonwealth v. Hammond, 24 A.3d 468 (Pa.Super. 2011) (unpublished memorandum). Appellant did not seek permission to appeal to our Supreme Court.
On October 13, 2011, Appellant filed a timely pro se PCRA petition and counsel was appointed. Rather than filing an amended petition on Appellant's behalf, counsel filed a petition to withdraw on October 2, 2012. On October 4, 2012, the court granted counsel's petition to withdraw and, at the same time, the court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's PCRA petition. Appellant did not respond to the Rule 907 notice. On December 10, 2012, the PCRA court issued an order dismissing his petition.
Appellant filed a timely pro se notice of appeal, as well as a timely Rule 1925(b) concise statement of errors complained of on appeal. Herein, he raises three issues for our review:
1. Wheather [sic] council [sic] was ineffective by not following through on alibi witnesses presented by [Appellant] in statement, that it posed so much of a [sic] error that [Appellant] could not recieve [sic] a fair trial[?]
2. Did the trial court … impose an illegal sentence for the crime of burglary, the underlying felony for Appellant's third[-]degree murder conviction, where the sentence was imposed consecutively to the sentence for third[-]degree murder[?]
3. That the prosecutor so inflamed the jury by flagrant comments made in her summations were indeed making jurors hostile and … biased so much so that [Appellant] could not recieve [sic] a clear and impartial verdic [sic] from jurors[?]
Appellant's Brief at 3 (unnumbered pages; unnecessary capitalization omitted).
Initially, we note that in the argument portion of his brief, Appellant does not discuss (or even mention) the third issue set forth supra. He also did not raise this assertion in his Rule 1925(b) statement. Therefore, Appellant's third claim is waived. See Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived."); Commonwealth v. Hernandez, 39 A.3d 406, 412 (Pa.Super. 2012) (stating that the appellant's failure to develop an argument with citations to pertinent caselaw or other authority waives claim for appellate review).
Likewise, in the argument portion of Appellant's brief, he avers that his PCRA counsel was ineffective. Not only was this claim omitted from Appellant's "Statement of Questions Involved" section of his brief, but it also was not raised in response to the PCRA court's Rule 907 notice or counsel's petition to withdraw. Accordingly, this claim is also waived. See Pa.R.A.P. 2116(a) ("No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby."); Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."); Commonwealth v. Pitts, 981 A.2d 875, 879 n.3 (Pa. 2009) (noting that petitioner's failure to challenge adequacy of PCRA counsel's representation before the PCRA court waived that issue on appeal).
In the two issues Appellant preserved for our review, he contends that his trial counsel was ineffective for failing to call certain witnesses, and that his sentence is illegal because his convictions for burglary and third-degree murder should have merged for sentencing purposes. We will review these claims ad seriatim. Initially, we note that "[t]his Court's standard of review from the grant or denial of post-conviction relief is limited to examining whether the lower court's determination is supported by the evidence of record and whether it is free of legal error." Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).
Appellant first asserts that his trial counsel rendered ineffective representation.
A claimant establishes ineffective assistance of counsel when he demonstrates that  the underlying claim is of arguable merit;  that counsel's action or inaction was not grounded on any reasonable basis designed to effectuate the appellant's interest; and finally,  that counsel's action or inaction was prejudicial to the client. For an action (or inaction) by counsel to be considered prejudicial to the client, there must be a reasonable probability that the outcome of the proceedings would have been different. All three prongs of this test must be satisfied. If an appellant fails to meet even one prong of the test, his conviction will not be reversed on the basis of ineffective assistance of counsel.
Commonwealth v. O'Bidos, 849 A.2d 243, 249 (Pa.Super. 2004) (internal quotation marks and citations omitted). Moreover, it is well-established that "we begin with the presumption that counsel was effective." Id. (citations omitted).
Here, Appellant argues that his trial counsel's representation was deficient where counsel failed to call three witnesses, Edward Walker, Corey Husbands, and Gordine Bradley, to testify on Appellant's behalf. Appellant's Brief at 5 (unnumbered pages). In reviewing this claim, we are guided by the following:
To establish ineffectiveness for failure to call a witness, Appellant must establish that: (1) the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or counsel should otherwise have known of him; (4) the witness was prepared to cooperate and testify for Appellant at trial; and (5) the absence of the testimony prejudiced Appellant so as to deny him a fair trial. A defendant must establish prejudice by demonstrating that he was denied a fair trial because of the absence of the testimony of the proposed witness. Further, ineffectiveness for failing to call a witness will not be found where a defendant fails to provide affidavits from the alleged witnesses indicating availability and willingness to cooperate with the defense.
O'Bidos, 849 A.2d at 249 (quoting Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa.Super. 2002) (citations omitted)).
Appellant has not provided this Court with affidavits from the proposed witnesses indicating that they would have testified on his behalf. Furthermore, it appears that in his pro se PCRA petition, Appellant did not even identify the three witnesses he now alleges that counsel failed to call. See PCRA Court Opinion at 6 (stating that Appellant "failed to identify any alibi witnesses, show that a witness was available, that a witness was willing to testify for the defense, and that the absence of testimony was so prejudicial to [Appellant] to have denied him a fair trial"); see also Commonwealth's Brief at 14 (citing Appellant's PCRA Petition, 10/13/11, at 3) (claiming that Appellant's "PCRA petition identified no alibi witnesses who [Appellant] alleged existed, were available and willing to testify, and who were known to trial counsel").
Moreover, Appellant does not elaborate on what testimony these three witnesses would have offered had they taken the stand at his trial, other than the bald claim that they would have "impeached the [Commonwealth's] key witness' identification of [A]ppellant as the perpetrator of the alleged crime." Appellant's Brief at 5. Without a more specific discussion, Appellant has not satisfied his burden of proving that his underlying claim has arguable merit, or that he was prejudiced by counsel's failure to call these witnesses. Accordingly, Appellant's ineffectiveness claim is meritless.
Appellant next contends that "[t]he trial court committed an error of law in imposing a separate and consecutive sentence of 10 to 20 years for [Appellant's] conviction of the crime of [b]urglary, [where] [b]urglary was the predicate felony buttressing [Appellant's] conviction for felony murder." Appellant's Brief at 8. Essentially, Appellant avers that his sentence for burglary should have merged with his sentence for murder because burglary is a "lesser included offense of felony murder, " and because "all of the offenses arose from a single act…." Id. at 9. While Appellant's sentencing claim is cognizable under the PCRA,  it is meritless for the following reasons.
First, and most notably, Appellant was not convicted of 'felony' murder, i.e. murder of the second degree. See 18 Pa.C.S. § 2502(b) (defining murder of the second degree as a homicide "committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony"). Instead, he was convicted of third-degree murder, which is "a killing done with legal malice but without the specific intent to kill required in first-degree murder." Commonwealth v. Seibert, 622 A.2d 361, 364 (Pa.Super. 1993) (citation omitted).
Moreover, it is amply clear that third-degree murder and burglary do not merge for sentencing purposes.
Pennsylvania's merger doctrine is codified within 42 Pa.C.S.A. § 9765. This statute provides:
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765.
As our Supreme Court has explained, the "mandate of [Section 9765]is clear. It prohibits merger unless two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other." [Commonwealth v.] Baldwin, 985 A.2d 830[, ] 833 [(Pa. 2009)].
Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa.Super. 2013) (emphasis added).
Based on the elements of burglary and third-degree murder, it is clear that these offenses are distinct. The Crimes Code defines burglary as follows:
(a) Offense defined.--A person commits the offense of burglary if, with the intent to commit a crime therein, the person:
(1) enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense any person is present;
18 Pa.C.S. § 3502(a)(1). As stated supra, third-degree murder requires proof that a homicide was committed with malice. See Seibert, 622 A.2d at 364. Therefore, burglary and third-degree murder each involve elements not shared by the other. Consequently, they do not merge for sentencing purposes.
In sum, Appellant's challenge to trial counsel's representation, and his attack on the legality of his sentence, are both meritless. Accordingly, the PCRA court did not err in denying Appellant's petition.