Opinion
J-S50009-15 No. 2292 EDA 2014
09-18-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. MARCO BULLOCK Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order July 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0701821-2006
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J. MEMORANDUM BY PANELLA, J.
Appellant, Marco Bullock, appeals pro se from the order entered July 10, 2014, in the Court of Common Pleas of Philadelphia County, which denied his petition filed pursuant to the Post Conviction Relief Act ("PCRA"). No relief is due.
This Court previously summarized the facts of this case as follows.
A group of about eight friends gathered together on 9th and Cantrell Streets in the city of Philadelphia around 11 o'clock on the evening of May 6, 2004. About 20 minutes later, co-defendant Bullock, who used to live in that neighborhood, joined the crowd. Everyone in the group got along; they smoked blunts, drank and socialized.
Approximately 20 minutes following Bullock's arrival, co-defendant [Kiyiem] Hagwood appeared at the scene wearing a hoodie; no one other than Bullock seemed to personally know
him. Hagwood asked one of the girls in the group for her phone number and then inquired if anyone had marijuana. When the victim, 18-year-old Andrew Rivera, indicated he had some marijuana, the two men walked about two houses away from the group. Less than one minute later, Rivera yelled for help and an eyewitness saw someone hit him over the head with the handle of a gun[,] which caused Rivera to collapse. One eyewitness testified he then heard eight shots fired at the victim; the bullets penetrated the victim's arm, flank, chest, abdomen and groin. While the shots were being fired[,] the entire group retreated to one of the neighborhood girls' homes for safety. Bullock was the only one from the group who did not do so.
Ten months after the shooting, Lamar Garfield, also co-defendant Bullock's cousin, was stopped by police for a traffic violation; Bullock was a passenger in the vehicle. Although both men used aliases when stopped, the police quickly determined Garfield's real name and brought him in for questioning in relation to the Rivera murder. Bullock was permitted to leave the scene of the stop. It was during this questioning that Garfield gave a statement implicating Hagwood and Bullock for the Rivera murder. That statement, which was introduced at the preliminary hearing and trial, related a conversation Garfield had with the co-defendants two day after the shooting. Specifically, Garfield relayed the following discourse among the men:
Hagwood: I don't know what happened.
Bullock: That was the wrong guy, you got the wrong guy. You didn't have to pop him cuz. It was only supposed to be a "jamming" [i.e, robbery] and that was the wrong person anyway.
Commonwealth v. Bullock , 3174 EDA 2008 at 3-5 (Pa. Super., filed April 28, 2010) (unpublished memorandum) (footnotes omitted), appeal denied , 16 A.3d 502 (Pa. 2011).
Statement of Lamar Garfield, 3/6/2005, at 1.
Garfield, however, recanted this statement at both the preliminary hearing and at trial; he testified he made up the entire conversation he had with the co-defendants about the shooting. N.T. Preliminary Hearing, 7/5/2006 at 62; N.T. Trial, 9/4/2008, at 81, 83. Essentially[,] he testified that the police told him the co-defendants had implicated him in the shooting, and because he "was not going to take credit for something he did not do," he "came up with a story and told the detectives that [Bullock and Hagwood] did it." Id. at 94. Garfield also testified that the cops told him if he did not consent to have the statement videotaped, they were going to charge him for the
Rivera murder. Id. at 91. By contrast, at trial Garfield's arresting officers testified that they never intimidated Garfield into giving the incriminating statement and that, prior to him giving the incriminating statement regarding Bullock and Hagwood, the officers never told him that Hagwood and Bullock had "dimed" on him regarding the murder.
A jury found Bullock guilty of third-degree murder, robbery, possession of an instrument of crime and criminal conspiracy to commit robbery. The trial court sentenced Bullock to an aggregate term of imprisonment of 40-80 years. On appeal, this Court affirmed Bullock's judgment of sentence and the Pennsylvania Supreme Court denied allocatur.
Hagwood was convicted of second-degree murder, robbery, criminal conspiracy and PIC and was sentenced to life imprisonment.
Bullock filed a timely pro se PCRA petition. The PCRA court appointed counsel who later filed a petition to withdraw and a Turner/Finley no-merit letter. Bullock filed two sets of objections to counsel's petition to withdraw and requested counsel to draft a brief or permit Bullock to proceed pro se. Counsel then filed an amended no-merit letter. The PCRA court conducted a Grazier hearing, after which Bullock withdrew his request to proceed pro se. On June 9, 2014, the PCRA court filed notice of its intent to dismiss Bullock's PCRA petition in accordance with Rule 907 of the Pennsylvania Rules of Criminal Procedure; Bullock filed a response to the Rule 907 notice. On July 10, 2014, the PCRA court dismissed Bullock's petition and granted appointed counsel permission to withdraw. This timely pro se appeal followed.
Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988).
Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998).
Bullock raises the following issues for our review:
1) Whether counsel was ine[f]fective, for failing to advance appellant's sixth amendment right, to have compulsory process for obtaining witnesses in his favor/ whether appellant's due process / equal protection of the law was violated, fourteenth amendment?Appellant's Brief at iv.
2) Whether trial counsel was ineffective, for failing to object to the judge charging the jury on criminal conspiracy to commit third degree murder/ whether trial judge abused discretion by allowing jury to return with guilty verdict under third degree/ whether defendant's due process right's [sic] were violated?
3) Whether defendant's due process right's [sic] and equal protection of the law fourteenth amendment/ sixth amendment right of fair trial was violated, for failure to request mere presence charge was the result of counsel's ineffectiveness/ defendant's right to be present on a public street?
4) Whether this court should reverse the prior judgment of the lower court, because the same robbery that was the basis of appellan't [sic] conviction for third degree murder cannot be an act of unintentional killing which does not support guilt under third degree murder/ Whether appellant was sentenced 'illegally' upon felony murder and robbery, criminal conspiracy to commit robber is a question of 'legality' of a sentence that can never be waived/ Whether sentences imposed as singal [sic] trial, double jeopardy prevents this court from exceeding it [sic] legislative authorization by imposing multiple punishments for the 'same offense'?
5) Whether defendant's confrontation clause right's [sic] were violated under the sixth amendment where out-of-court statement was used to incriminate defendant and co-defendant, where defendant had not cross-examined co-defendant as to what witness said and without a limiting instructing being provided to the jury, that the statements used could not be considered as evidence against defendant, where co-defendant had not authenticated the statement being made by another?
"On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Edmiston , 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v . Pennsylvania , 134 S. Ct. 639 (2013). "[Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level." Commonwealth v. Koehler , 36 A.3d 121, 131 (Pa. 2012) (citation omitted). "[T]his Court applies a de novo standard of review to the PCRA court's legal conclusions." Commonwealth v. Spotz , 18 A.3d 244, 259 (Pa. 2011) (citation omitted).
In order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated nor waived. See 42 Pa.C.S. § 9543(a)(3).
As this Court has repeatedly stated,
[t]o plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act. Commonwealth v. Chmiel , 612 Pa. 333, 30 A.3d 1111, 1127 (2011).Commonwealth v. Rykard , 55 A.3d 1177, 1189-1190 (Pa. Super. 2012), appeal denied , 64 A.3d 631 (Pa. 2013). A failure to satisfy any prong of the Pierce test will require rejection of the claim. See Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014).
Preliminarily, we note that Bullock has waived his fifth issue raised on appeal, wherein he argues that the use of Garfield's statement at trial violated the Confrontation Clause. This allegation should have been raised on direct appeal, but was not. An allegation is waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S.A. § 9544(b); see also Commonwealth v. Elliott , 80 A.3d 415, 430 (Pa. 2013). We further note that Bullock's failure to include this claim in his PCRA petitions provides additional grounds for waiver. See Pa.R.Crim.P. 902(B) ("Failure to state ... a ground [for relief] in the [PCRA] petition shall preclude the defendant from raising that ground in any proceeding for post-conviction collateral relief."). Accordingly, we are precluded from addressing the merits of this claim.
We have reviewed Bullock's remaining issues raised on appeal, along with the briefs of the parties, the certified record and the applicable law. The Honorable Barbara A. McDermott's July 10, 2014 opinion ably and comprehensively disposes of Bullock's issues raised on appeal, with appropriate reference to the record and without legal error. We affirm on the basis of that decision. See PCRA Court Opinion, 7/10/14 at 6-7, 10, 14-15, (finding: 1) even assuming proposed witnesses existed and were willing to testify on Bullock's behalf, their testimony would not have changed the outcome of the trial given fact that jury chose to believe Garfield's statement that Bullock planned the robbery that resulted in the murder; 2) conspiracy to commit third degree murder is a cognizable offense under Pennsylvania law, therefore trial counsel had no basis on which to object to Bullock's charge or conviction thereof; 3) trial counsel could not be ineffective for failing to instruct mere presence jury instruction where trial court did, in fact, issue a mere presence instruction; and 4) Bullock's convictions of robbery, third-degree murder and conspiracy did not merge for sentencing purposes and thus did not constitute an illegal sentence).
Order affirmed.
Judge Jenkins joins the memorandum.
Judge Mundy concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2015
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