Opinion
J-A21010-17 No. 819 WDA 2016
11-20-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DOUGLAS EUGENE STEPHENSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered May 9, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016742-2009 BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J. MEMORANDUM BY BENDER, P.J.E.:
Appellant, Douglas Eugene Stephenson, appeals from the post-conviction court's May 9, 2016 order denying his petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
Briefly, a jury convicted Appellant of second-degree murder, robbery, and conspiracy to commit robbery, based on evidence that he and a cohort, Travis Hawkins, attempted to rob a jitney driver, during which Hawkins shot and killed the driver. Appellant was sentenced to a term of life incarceration, without the possibility of parole, for his murder conviction, and a consecutive term of 72 to 144 months' incarceration for his conspiracy offense. This Court affirmed Appellant's judgment of sentence on August 6, 2013, and our Supreme Court denied his subsequent petition for allowance of appeal. Commonwealth v. Stephenson , 83 A.3d 1058 (Pa. Super. 2013) (unpublished memorandum), appeal denied, 81 A.3d 77 (Pa. 2013).
For a detailed recitation of the facts of Appellant's case, see PCRA Court Opinion (PCO), 1/19/17, at 2-5.
On April 2, 2014, [Appellant] filed the pro se PCRA petition that underlies the present appeal. Counsel was appointed and an amended petition was filed on Appellant's behalf on September 9, 2015. Following a PCRA hearing on May 9, 2016, the court issued an order denying Appellant's petition. Appellant filed a timely notice of appeal, and he also timely complied with the PCRA court's order to file a Pa.R.A.P. 1925(b) statement. Thereafter, the court filed a Rule 1925(a) opinion addressing the following three claims that Appellant raises herein:
I. Whether trial counsel gave ineffective assistance for failing to request a full and proper instruction advising that the jury cannot use certain statements made by witnesses as substantive evidence but they are only to be used as impeachment?Appellant's Brief at 5.
II. Whether trial counsel gave ineffective assistance for failing to object to written instructions being sent to the jury, in lieu of oral instructions, which violated Pa.R.Crim.P. 646(C)(4)?
III. Whether the trial court gave an illegal sentence [on] conspiracy to commit robbery when, under the facts of this case, criminal conspiracy merged for purposes of sentencing with the crime of second-degree murder?
We have reviewed the certified record, the briefs of the parties, and the applicable law. We have also reviewed the Rule 1925(a) opinion of The Honorable Randal B. Todd of the Court of Common Pleas of Allegheny County. We conclude that Judge Todd's well-reasoned decision accurately disposes of the three issues raised by Appellant herein. See PCO at 5-11 (rejecting Appellant's first issue, as he failed to demonstrate that he was prejudiced by trial counsel's not objecting to the jury instruction); id. at 11-12 (finding no merit to Appellant's second issue, as he failed to establish arguable merit in, or resulting prejudice from, his claim that trial counsel should have objected to the court's sending a note to the jury in response to a question); id. at 14-15 (rejecting Appellant's contention that his sentence is illegal because his conspiracy for robbery conviction should have merged for sentencing purposes with his second-degree murder offense). Accordingly, we adopt Judge Todd's rationale as our own, and affirm the order denying Appellant's PCRA petition on that basis.
We note that Appellant presented four issues in his Rule 1925(b) statement, but he has abandoned one of those claims in his brief to this Court. Thus, we do not rely on the portion of Judge Todd's decision which addresses Appellant's abandoned issue. See PCO at 12-14.
In response to Appellant's illegal sentencing claim, we add one brief note. Appellant's argument rests on the premise that the felony offense underlying his second-degree murder conviction was conspiracy to commit robbery and, therefore, his sentence for conspiracy must merge with his murder sentence. This argument is meritless for several reasons, but two are worth mentioning. First, conspiracy to commit robbery is not a felony offense that can underlie a second-degree murder conviction. See 18 Pa.C.S. §§ 2502(b) ("A criminal homicide constitutes murder of the second degree when it is committed while [the] defendant was engaged as a principal or an accomplice in the perpetration of a felony."); 2502(d) (defining "Perpetration of a felony" as: "The act of the defendant engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping."). Second, Appellant was convicted of robbery in this case, and that offense merged with his murder conviction for sentencing purposes. See Order of Sentence, 11/7/11. Thus, Appellant's argument that his conspiracy to commit robbery conviction should also merge is meritless. --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/20/2017
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