Opinion
J-S15021-14 No. 1036 MDA 2013
03-31-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. LEVILAYSHA MAY HOOVER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order of May 15, 2013,
In the Court of Common Pleas of Berks County
Criminal Division, at No(s): CP-06-CR-0002716-2008
BEFORE: BOWES, OLSON AND FITZGERALD, JJ. MEMORANDUM BY OLSON, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Levilaysha May Hoover, appeals from the order entered on May 15, 2013 denying her petition filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court accurately summarized the factual and procedural history of this case as follows:
This case arises from the attempted murder of Darien Zeiber [("Zeiber")] on the evening of April 7, 2008. It was on that date that Appellant, and a co-defendant, Brenda DeBooth-Smith, who is Appellant's mother, approached [Zeiber], accused her of taking things from them[,] and then assaulted her. Brenda DeBooth-Smith swung her pocket book at [Zeiber] and then Appellant stabbed [Zeiber] in the neck. [Zeiber] put her right hand over her neck. Appellant continued to stab [Zeiber], hitting her hand five times. [Zeiber] was afraid for her life. She stumbled, got behind a car[,] and then managed to get away. [Zeiber] ended up at [c]ity [h]all, where a security guard called 911. She was taken to the trauma area of the Reading Hospital where she underwent a CAT scan and surgery on her neck.PCRA Court Opinion, 8/7/13, at 1-2 (footnote omitted).
Appellant was charged with [c]riminal [a]ttempt to [c]ommit [m]urder of the [f]irst [d]egree, [two] counts of [a]ggravated [a]ssault, [two] counts of [c]onspiracy to [c]ommit [a]ggravated [a]ssault, [one] count of [reckless endangerment of a]nother [p]erson, [one] count of [c]onspiracy to [c]ommit [reckless endangerment of a]nother [p]erson, [two] counts of [s]imple [a]ssault, [two] counts of [c]onspiracy to [c]ommit [s]imple [a]ssault, and [one] count of [p]ossessing [i]nstruments of [c]rime. After a trial by jury, Appellant was found guilty of [c]riminal [a]ttempt to [c]ommit [m]urder of the [f]irst [d]egree, [two] counts of [a]ggravated [a]ssault, [one] count of [reckless endangerment of a]nother [p]erson, [one] count of [c]onspiracy to [c]ommit [reckless endangerment of a]nother [p]erson, [two] counts of [s]imple [a]ssault, [two] counts of [c]onspiracy to [c]ommit [s]imple [a]ssault, and [one] count of [p]ossessing [i]nstruments of [c]rime. On July 2, 2009, Appellant was sentenced to, inter alia, not less than ten years nor more than twenty years['] imprisonment] for [c]riminal [a]ttempt to [c]ommit [f]irst[-d]egree [m]urder. On August 3, 2009, Appellant filed a [n]otice of [a]ppeal to th[is] Court. . . . On August 20, 2010, th[is] Court affirmed the judgment of sentence. [ Commonwealth v. Hoover, 11 A.3d 1033 (Pa. Super. 2010) (unpublished memorandum).] On September 12, 2011, Appellant, through counsel, filed a PCRA petition. On April
26, 2012, the Commonwealth was ordered to file an [a]nswer, which was filed on May 15, 2012. An evidentiary hearing was . . . held on February 28, 2013. The parties were given the opportunity to file briefs. On May 15, 2013, Appellant's PCRA petition was denied. On June 10, 2013, Appellant filed a [n]otice of [a]ppeal to th[is] Court. On June 13, 2013, [the PCRA court] ordered Appellant to file a concise statement of the errors complained of on appeal, which she timely filed on June 27, 2013. [The PCRA court issued its Rule 1925(a) opinion on August 7, 2013.]
Appellant presents two issues for our review:
1. Whether the [PCRA] court erred in denying the Appellant's [PCRA] petition where the Appellant's [trial and appellate] counsel were ineffective for failing to challenge the sentence in post-[sentence] motions or on appeal where the sentence was excessive and an abuse of discretion?Appellant's Brief at 5 (capitalization removed).
2. Whether the [PCRA] court erred in d[enying] the PCRA petition where [] trial counsel was ineffective for failing to ask for a new jury panel and new trial where the jury panel was not composed of a jury of her peers?
As most PCRA appeals involve mixed questions of fact and law, "[o]ur standard of review of a [PCRA] court order granting or denying relief under the PCRA calls upon us to [consider] whether the determination of the PCRA court is supported by the evidence of record and is free of legal error." Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013) (internal quotation marks and citation omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citation omitted).
Appellant's claims relate to the purported ineffectiveness of her trial and appellate counsel. A "defendant's right to counsel guaranteed by the Sixth Amendment to the United States Constitution and Article I, [Section] 9 of the Pennsylvania Constitution is violated where counsel's performance so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) (internal quotation marks and citation omitted). "Counsel is presumed to be effective." Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012) (citation omitted).
In order to overcome the presumption that counsel was effective, Appellant must establish that "(1) the underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his client's interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different." Commonwealth v. Luster, 71 A.3d 1029, 1039 (Pa. Super. 2013) (internal alterations, quotation marks, and citation omitted). "The burden of proving ineffectiveness rests with the appellant," and "[t]he failure to satisfy any one of the prongs of the test for ineffective assistance of counsel requires rejection of the claim." Commonwealth v. Hill, 42 A.3d 1085, 1089-1090 (Pa. Super. 2012), appeal granted on other grounds, 58 A.3d 749 (Pa. 2012) (citations omitted).
Appellant first claims that her counsel were ineffective for failing to challenge the discretionary aspects of her sentence. We conclude that the PCRA court correctly determined that the underlying claim lacks arguable merit. Pursuant to statute, Appellant did not have an automatic right to appeal the discretionary aspects of her sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant would have been required to petition this Court for permission to appeal the discretionary aspects of her sentence. Id. To obtain leave of this Court to challenge the discretionary aspects of her sentence, Appellant was required to raise a substantial question that her sentence was contrary to the sentencing code or fundamental norms of the sentencing process. See Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (citation omitted).
Appellant's first claim is that counsel improperly failed to object to the excessive nature of her sentence. She alleges that counsel should have presented additional mitigating evidence, including additional character witnesses and Appellant's lack of an extensive criminal history. Appellant would not have been able to raise a substantial question on direct appeal with respect to the discretionary aspects of her sentence. Because Appellant's challenge to the discretionary aspects of her sentence would not raise a substantial question, neither trial nor appellate counsel may be deemed ineffective for failing to raise the issue.
Appellant was sentenced to 120 to 240 months' imprisonment for her attempted murder conviction. The standard guideline range was 98 to 480 months' imprisonment. Thus, Appellant's sentence fell within the standard range. "[W]here a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code." Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013) (citation omitted). At sentencing, the trial court explained that it agreed with the Commonwealth's rationale for requesting a significant sentence. However, it chose to sentence Appellant to less time than the Commonwealth was seeking because the act may have been out of character for Appellant. N.T., 7/2/09, at 20-21. Appellant makes only general comments about the harshness of her sentence and points to no specific error on the part of the trial court in sentencing. "[A] claim that the court failed to consider certain mitigating factors does not present a substantial question[.]" Commonwealth v. Corley, 31 A.3d 293, 297 (Pa. Super. 2011) (citation omitted). Appellant was sentenced to one-quarter of the high end of the standard guideline range. Such a sentence is not unduly harsh and Appellant has advanced no claim that raises a substantial question as to the propriety of her punishment. "We can find no reason to place this case outside of the standard range, which is presumptively where a defendant should be sentenced." Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006) (citation omitted). As such, Appellant's underlying claim lacks arguable merit and Appellant was not entitled to PCRA relief.
Appellant, who is African-American, next contends that her trial counsel was ineffective for not objecting to the venire as the racial makeup of the venire differed significantly from that of Berks County. As our Supreme Court has explained, in order to establish a prima facie case that Appellant's constitutional right to trial by a jury of her peers was violated, she must "demonstrate that an identifiable group is not fairly and reasonably represented in the jury pool, and that this is the result of systematic exclusion of the group from the selection process." Commonwealth v. Sanchez, 907 A.2d 477, 482 (Pa. 2006) (citation omitted).
At the hearing on her PCRA petition, Appellant testified that there were no minorities in the venire. N.T., 2/28/13, at 9. Her trial counsel testified that there were two minorities in the venire. Id. at 16-17. Appellant testified that the venire was comprised of approximately 50 persons. Id. at 8. The PCRA court found Appellant's trial counsel's testimony credible regarding the racial composition of the venire. PCRA Court Opinion, 8/7/13, at 8. We conclude that the PCRA court's credibility determination is supported by the record. See In re Merlo, 58 A.3d 1, 16 (Pa. 2012) (citation omitted). Thus, we proceed with the understanding that two of the approximately 50 venire members were minorities.
Elementary statistics shows that this racial composition did not differ in a statistically significant manner from the racial composition of Berks County. Furthermore, the Berks County jury selection plan has been upheld by our Supreme Court on at least three separate occasions. See Commonwealth v. Johnson, 838 A.2d 663, 681-682 (Pa. 2003); Commonwealth v. Johnson, 815 A.2d 563, 575 (Pa. 2002); Commonwealth v. Bridges, 757 A.2d 859, 867-868 (Pa. 2000), abrogated in part on other grounds, Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003). Appellant presented no evidence that the circumstances changed between our Supreme Court's prior decisions and her trial to show that racial minorities were unconstitutionally excluded from the jury pool in Berks County. Accordingly, we conclude that Appellant's underlying claim lacks arguable merit as she did not prove her prima facie case regarding the racial makeup of the venire.
The probability of having 2 or fewer racial minorities in a venire of 50 individuals when 89.3% of the population is Caucasian is 8.57% above the commonly accepted threshold of 5% for statistical significance. See, e.g., R.A. Fisher, Statistical Methods for Research Workers 44 (13th ed. 1958).
The United States District Court for the Eastern District of Pennsylvania granted Bridges habeas corpus relief on other grounds; however, it found that he was not entitled to habeas relief on his claim regarding the racial composition of his Berks County jury. See Bridges v. Beard, 941 F. Supp. 2d 584, 644-646 (E.D. Pa. 2013).
Order affirmed. Judgment Entered. ___________________
Joseph D. Seletyn, Esq.
Prothonotary