Opinion
J-S17040-17 No. 1460 EDA 2016
04-27-2017
COMMONWEALTH OF PENNSYLVANIA v. TERON KRIS UTSEY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order April 26, 2016 in the Court of Common Pleas of Montgomery County, Criminal Division, No(s): CP-46-CR-0003508-2012 BEFORE: OLSON, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Teron Kris Utsey ("Utsey"), pro se, appeals from the Order denying his first Petition for Relief filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
42 Pa.C.S.A. §§ 9541-9546.
On March 26, 2011, Utsey and several co-conspirators entered into an agreement to steal money and pills from Scott Hopper ("Hopper"), at his residence in Hatboro, Montgomery County, Pennsylvania. Utsey entered Hopper's residence, while possessing a semi-automatic gun. One of Utsey's co-conspirators possessed a crow-bar. As a result of the home invasion, Hopper sustained serious injuries.
In March 2011, a jury convicted Utsey of burglary and criminal conspiracy to commit robbery. The jury found Utsey not guilty of robbery, terroristic threats and firearms not to be carried without a license. The trial court subsequently sentenced Utsey to an aggregate prison term of 7½ to 20 years. Utsey filed a post-sentence Motion, which the trial court denied. On February 5, 2015, this Court affirmed Utsey's judgment of sentence. Commonwealth v. Utsey , 120 A.3d 369 (Pa. Super. 2015) (unpublished memorandum). Utsey did not petition for allowance of appeal to the Pennsylvania Supreme Court.
See 18 Pa.C.S.A. §§ 3502(a), 903.
See 18 Pa.C.S.A. §§ 3701, 2706, 6105.
On December 16, 2015, Utsey filed the instant, pro se, PCRA Petition. The PCRA court appointed counsel to represent Utsey. Appointed counsel subsequently filed a detailed no-merit letter and a Petition to Withdraw from representation, pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc). On April 26, 2016, after Pa.R.A.P. 907 Notice, the PCRA court granted counsel's Petition to Withdraw, and dismissed Utsey's PCRA Petition without a hearing. Thereafter, Utsey filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Utsey, pro se, presents the following claims for our review:
I. Did the trial court commit reversible error where it instructed the jury on "false in one, false in all," which is an instruction that is clearly contrary to established federal and state laws governing the "reasonable doubt standard[,]" [and] easing the prosecution of its burden of proof?
II. Did the trial court commit error in allowing [Utsey's] conviction for the conspiracy-to-robbery to stand where robbery was presented by the prosecution as a spontaneous act in furtherance of the burglary offense, and robbery was presented as the underlying conspiratorial act[,] of which a conspiracy conviction under [18 Pa.C.S.A.] § 903(c) could stand[,] violating Pennsylvania's statutory laws and established federal precedent?Brief for Appellant at vi (emphasis in original, some capitalization omitted).
"In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Montalvo , 114 A.3d 401, 409 (Pa. 2015) (citation and internal quotation marks omitted). Our scope of review
is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party, in this case, the Commonwealth. See , e.g., Commonwealth v. Duffey , 585 Pa. 493, 889 A.2d 56, 61 (Pa. 2005); Commonwealth v. Meadius , 582 Pa. 174, 870 A.2d 802[, 805] (Pa. 2005). In addition, "[t]he level of deference to the hearing judge may vary depending upon whether the decision involved matters of credibility or matters of applying the governing law to the facts as so determined." Commonwealth v. Reaves , 592 Pa. 134, 923 A.2d 1119, 1124 (Pa. 2007) (citations omitted).Commonwealth v. Fahy , 959 A.2d 312, 316 (Pa. 2008).
In his first claim, Utsey argues that the trial court improperly issued the "false in one, false in all" jury instruction. Brief for Appellant at 1. According to Utsey, the jury showed its confusion over the instruction when it asked to hear the instruction a second time. Id. Utsey disagrees with his former PCRA counsel's assessment, i.e., that his challenge to the jury instruction is not cognizable under the PCRA. Id. at 3-5. In this regard, Utsey claims his PCRA counsel rendered ineffective assistance. Id. at 5. Utsey advances no argument regarding trial counsel's representation.
We note that in his PCRA Petition, Utsey alleged that his trial counsel rendered ineffective assistance by not objecting to the "false in one, false in all" jury instruction. PCRA Petition (Pro Se), 12/14/15, at 3. Accordingly, we will address Utsey's challenge to the jury instruction in the context of his claim of ineffective assistance of trial counsel.
As this Court has explained,
[t]o be entitled to relief on an ineffectiveness claim, [the petitioner] must prove the underlying claim is of arguable merit, counsel's performance lacked a reasonable basis, and counsel's ineffectiveness caused him prejudice. Prejudice in the context of ineffective assistance of counsel means demonstrating there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. This standard is the same in the PCRA context as when ineffectiveness claims are raised on direct review. Failure to establish any prong of the test will defeat an ineffectiveness claim.Commonwealth v. Solano , 129 A.3d 1156, 1162-63 (Pa. 2015) (citations omitted).
In its Opinion, the PCRA court addressed Utsey's first claim and concluded that it lacks merit. See PCRA Court Opinion, 6/30/16, at 5-6. We agree with the sound reasoning of the PCRA court, as expressed in its Opinion, and affirm on this basis as to Utsey's first claim. See id.
Further, Utsey failed to preserve a challenge to PCRA counsel's ineffectiveness in a response to the PCRA court's Pa.R.A.P. 907 Notice. See Commonwealth v. Ford , 44 A.3d 1190, 1198 (Pa. Super. 2012) (stating that "when counsel files a Turner/Finley no-merit letter to the PCRA court, a petitioner must allege any claims of ineffectiveness of PCRA counsel in a response to the court's notice of intent to dismiss") (citation omitted).
In his second claim of error, Utsey asserts that the trial court improperly upheld his conviction for conspiracy to commit robbery, "where robbery was presented by the prosecution as a spontaneous act in furtherance of the burglary offense," yet identified as the criminal act underlying the charge of conspiracy. Brief for Appellant at 6. Utsey asserts that his role in planning the burglary "serves as the only conspiracy that is cognizable under [18 Pa.C.S.A. §] 903(c)[.]" Brief for Appellant at 9. Utsey directs this Court's attention to evidence that he had remained in his car, a block away from the residence, when his co-conspirators entered the home and robbed the occupant. Id. Utsey claims that there is no evidence that he conspired to commit a robbery. Id. at 10.
In its Opinion, the trial court addressed this claim and concluded that it lacks merit, as the claim is not cognizable under the PCRA. See Trial Court Opinion, 6/30/16, at 4-5. We affirm on the basis of the trial court's stated reasoning with regard to this claim. See id.
See also Utsey , 120 A.3d 369 (unpublished memorandum at 2-7) (summarizing the evidence and concluding that it is sufficient to establish the crime of criminal conspiracy to commit robbery). --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/27/2017
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