Opinion
J. S37031/19 No. 3181 EDA 2018
09-23-2019
COMMONWEALTH OF PENNSYLVANIA v. ALI GALLOWAY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered September 28, 2018, in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0002930-2009 BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Ali Galloway appeals pro se from the September 28, 2018 order entered in the Court of Common Pleas of Philadelphia County dismissing his second PCRA petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court set forth the procedural history as follows:
On May 11, 2010, [appellant] was convicted of robbery (18 Pa.C.S.[A.] § 3701(a)(1)(ii)), aggravated assault (18 Pa.C.S.[A.] § 2702(a)), and criminal conspiracy to commit both aggravated assault and robbery (18 Pa.C.S.[A.] § 903(a)). On June 22, 2010, the [trial c]ourt imposed consecutive terms of 5 to 10 years for robbery, 5 to 10 years for aggravated assault, and 5 to 10 years for criminal conspiracy, for an aggregate sentence of 15 to 30 years['] incarceration.
On October 7, 2011, the Superior Court affirmed [appellant's] judgment of sentence. [Appellant] then filed a pro se petition under the Post Conviction Relief Act ("PCRA") on August 16, 2013. On February 28, 2014, Joseph Schultz, Esquire was appointed to represent [appellant]. On November 9, 2015, pursuant to Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988), Mr. Schultz filed a motion to withdraw as counsel and a letter stating that [appellant's] petition was untimely (" Finley letter"). On November 10, 2015, the [PCRA c]ourt issued notice, pursuant to Pa.R.Crim.P. 907 ("907 Notice") of its intention to dismiss [appellant's] petition without a hearing. [Appellant] submitted a response to the [PCRA c]ourt's 907 Notice ("907 Response") on November 29, 2015, claiming that he had requested appellate counsel to file a petition for allowance of appeal in the Pennsylvania Supreme Court. Thereafter, Mr. Schultz filed an amended PCRA petition alleging that appellate counsel was ineffective for failing to petition for allowance of appeal. Following an evidentiary hearing on the issue, on July 1, 2016, the [PCRA c]ourt reinstated [appellant's] right to file a petition for allowance of appeal. Thereafter, [appellant] filed a petition for allowance of appeal, and, on January 31, 2017, the Supreme Court denied the petition.
[Appellant] filed a second pro se PCRA petition as well as a Brief In Support of Petition For Relief Under the Post Conviction Relief Act (hereinafter, "Brief in Support of Petition") on March 2, 2018. Joseph L. Coleman, Esquire was appointed to represent [appellant] on March 20, 2018. On June 4, 2018, Mr. Coleman filed a motion to withdraw as counsel and a Finley letter stating that there was no merit to [appellant's] claims for collateral relief. On June 15, 2018, the [PCRA c]ourt issued notice, pursuant to Pa.R.Crim.P. 907 ("907 Notice") of its intention to dismiss [appellant's] petition without a hearing. [Appellant] submitted a response to the [PCRA c]ourt's 907 Notice ("907 Response") on August 28, 2018. On September 28, 2018, the [PCRA c]ourt
dismissed [appellant's] PCRA petition and granted Mr. Coleman's motion to withdraw his appearance.PCRA court opinion, 12/27/18 at 1-2. The PCRA court ordered appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The PCRA court subsequently filed its Rule 1925(a) opinion.
[Appellant] has now appealed the [PCRA c]ourt's dismissal of his PCRA petition . . . .
Appellant raises the following issue for our review:
Was trial defense counsel ineffective in failing to demurrer and/or request a directed verdict of acquittal in relation to the charges of criminal conspiracy to commit robbery; robbery; and criminal conspiracy to commit aggravated assault?Appellant's brief at vi.
We note that pursuant to Pa.R.Crim.P. 606, the term "demurrer" for challenges to the sufficiency of the evidence is now referred to as a motion for judgment of acquittal. See Pa.R.Crim.P. 606 (A)(1) and Comment. Similarly, "[a] motion for directed verdict is the same as a motion for judgment of acquittal." Commonwealth v. Sunealitis , 153 A.3d 414, 420 (Pa.Super. 2016). Therefore, we shall address appellant's claim in terms of counsel's alleged ineffectiveness for failing to file a motion for judgment of acquittal.
We note that appellant does not contend that trial counsel was ineffective for failing to file a motion for judgment of acquittal on the charge of aggravated assault. (Appellant's brief at 7-11.)
Proper appellate review of a PCRA court's dismissal of a PCRA petition is limited to the examination of "whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Miller , 102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). We review the appeal "in the light most favorable to the prevailing party at the PCRA level[,]" and "[o]ur review is limited to the findings of the PCRA court and the evidence of record." Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa.Super. 2014) ( en banc ). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Lawson , 90 A.3d 1, 4 (Pa.Super. 2014) (citations omitted). "This [c]ourt grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding." Commonwealth v. Hickman , 799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).
When presented with a claim of ineffective assistance of counsel, this court has held:
[t]o be eligible for relief based on a claim of ineffective assistance of counsel, a PCRA petitioner must demonstrate, by a preponderance of the evidence, that (1) the underlying claim is of arguable merit; (2) no reasonable basis existed for counsel's action or omission; and (3) there is a reasonable probability that the result of the proceeding would have been different absent such error.Commonwealth v. Matias , 63 A.3d 807, 810 (Pa.Super. 2013) (citation omitted), appeal denied , 74 A.3d 1030 (Pa. 2013). "The failure to satisfy any one of the prongs requires rejection of the petitioner's claim." Commonwealth v. Williams , 141 A.3d 440, 454 (Pa. 2016) (citation omitted).
This court has long held that trial counsel cannot be ineffective for failing to present a motion for judgment of acquittal at the conclusion of the prosecution's case "when the prosecution has presented a prima facie case and there was sufficient evidence to sustain a guilty verdict." Commonwealth v. Stewart , 450 A.2d 732, 735 (Pa.Super. 1982); see also Pa.R.Crim.P. 606(A)(1) (stating, "[a] defendant may challenge the sufficiency of the evidence to sustain a conviction of one or more of the offenses charged in . . . a motion for judgment of acquittal at the close of the Commonwealth's case-in-chief."). "The test for ruling upon a motion for judgment of acquittal is whether 'the prosecution's evidence, and all inferences arising therefrom, considered in the light most favorable to the prosecution are insufficient to prove beyond a reasonable doubt that the accused is guilty of the crimes charged.'" Stewart , 450 A.2d at 735, citing Commonwealth v. Finley , 383 A.2d 1259, 1260 (Pa. 1978); see also Sunealitis , 153 A.3d at 420 (stating, "[a] motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge.").
Here, appellant argues that trial counsel was ineffective for failing to file a motion for judgment of acquittal on the charges of robbery, conspiracy to commit robbery, and conspiracy to commit aggravated assault. (Appellant's brief at 1-13.) In so arguing, appellant asserts an underlying challenge to the sufficiency of the evidence to support each of the before-mentioned crimes. ( Id. at 1.)
After careful review, we find that the Honorable Glenn B. Bronson in his Rule 1925(a) opinion, ably and comprehensively disposes of appellant's ineffectiveness claim by analyzing the sufficiency of the evidence to support the convictions of robbery, conspiracy to commit robbery, and conspiracy to commit aggravated assault with appropriate reference to the record and without error of law. ( See PCRA court opinion, 12/27/18 at 5-9.) We adopt this portion of the opinion as our own.
The PCRA court concluded that in viewing the Commonwealth's evidence admitted at the conclusion of its case, and all inferences arising therefrom, considered in the light most favorable to the Commonwealth, there was sufficient evidence to sustain a guilty verdict and that the Commonwealth presented its prima facie case on the aforementioned charges. This conclusion is supported by the record and free of legal error. Specifically, the record reveals that there was sufficient evidence to support the robbery conviction in that appellant demanded money from the victim; upon refusal, appellant ordered the co-defendant to shoot the victim; the victim, while attempting to flee, was shot by the co-defendant; and as a result of the gunshot wounds, the victim was paralyzed from the waist down with complete spinal injury. ( Id. at 7-8.) The record further supports that appellant and co-defendant committed numerous overt acts in furtherance of their agreement to rob and assault the victim including evidence that appellant and co-defendant approached the victim together; appellant demanded money from the victim; appellant ordered co-defendant to shoot the victim; and the co-defendant shot the victim. ( Id. at 8-9.)
As the underlying claim of insufficient evidence to support the charges of robbery, conspiracy to commit robbery, and conspiracy to commit aggravated assault is without arguable merit, appellant's collateral claim that trial counsel was ineffective for failing to motion for judgment of acquittal fails. Therefore, the PCRA court did not err in dismissing appellant's PCRA petition.
We note appellant's boilerplate allegations that "[t]here is no reasonable strategic basis designed to effectuate [appellant's] interest by defense counsel's failure to challenge the sufficiency of evidence" and "[appellant] was prejudiced by defense counsel's inaction." (Appellant's brief at 12.) These allegations fail to satisfy the second and third prongs of an ineffectiveness claim. See Commonwealth v. Paddy , 15 A.3d 431, 443 (Pa. 2011) (stating, "We stress that boilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner's burden to prove that counsel was ineffective.").
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/23/19
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