J-S42014-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. EDMOND JACKSON, Appellant No. 2527 EDA 2014 Appeal from the PCRA Order August 15, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0305882-2005, CP-51-CR-0603441- 2005 BEFORE: SHOGAN, MUNDY, and FITZGERALD, * JJ. MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 14, 2015 Edmond Jackson (“Appellant”) appeals from the order denying his petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We vacate and remand. We previously summarized the facts and procedural history underlying Appellant’s convictions in our disposition of Appellant’s direct appeal: On the evening of October 14, 2004, Detective Ronald Dove, Detective James Waring, Officer Thomas Hood, and Officer Edward Allen were investigating a shooting incident that occurred earlier in the day in the neighborhood of 33rd and Cumberland Streets in Philadelphia. Charles Wesley was the target of that shooting. Detectives Dove and Waring were standing on 33rd Street, speaking to Gene Palmer about the incident. Officers Hood and Allen were sitting in a Ford Taurus ____________________________________________ * Former Justice specially assigned to the Superior Court.
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65 · Appellant filed a timely pro se PCRA petition on March 9, 2010. The PCRA court appointed counsel who filed an amended petition
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J-S42014-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
EDMOND JACKSON,
Appellant No. 2527 EDA 2014
Appeal from the PCRA Order August 15, 2014 In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0305882-2005, CP-51-CR-0603441-2005
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 14, 2015
Edmond Jackson (“Appellant”) appeals from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We vacate and remand.
We previously summarized the facts and procedural history underlying
Appellant’s convictions in our disposition of Appellant’s direct appeal:
On the evening of October 14, 2004, Detective Ronald Dove,
Detective James Waring, Officer Thomas Hood, and Officer Edward Allen were investigating a shooting incident that
occurred earlier in the day in the neighborhood of 33rd and Cumberland Streets in Philadelphia. Charles Wesley was the
target of that shooting. Detectives Dove and Waring were
standing on 33rd Street, speaking to Gene Palmer about the incident. Officers Hood and Allen were sitting in a Ford Taurus
____________________________________________
* Former Justice specially assigned to the Superior Court.
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parked nearby on the street. Wesley was walking south on 33rd
Street, with Sharee Norton and her two children, Sharron Norton and Shanya Wesley.
A group of men, which included Appellant, Kyle Little,
Mufusta McCloud, Ronald Alston, and Leroy Fair was walking toward them. The men were armed. As they neared Wesley,
they started shooting. The officers exited their vehicle. Officer Allen pushed Palmer to the ground. Officer Hood radioed for
assistance from other officers in the area. Detective Waring, Norton, and her children took cover. Detective Dove saw that the
gunmen were firing in his direction, and took particular note of Appellant, who was in a white T-shirt. Detective Dove crouched
to the ground. In total, between 50 and 80 shots were fired by the gunmen. Detective Dove fired four shots toward the
gunmen. No one was injured. Wesley ran north on 33rd Street.
The gunmen ran west on Cumberland toward 34th Street. The detectives and the officers pursued the gunmen. When Detective
Dove rounded the corner of 33rd and Cumberland, he saw Appellant. Appellant turned, looked over his right shoulder at
Detective Dove, and raised his gun toward the detective. In response, Detective Dove fired one shot at Appellant. Ultimately,
Appellant and the other gunmen were apprehended.
On October 14, 2004, Appellant was charged with, inter alia, two counts of attempted murder, seven counts of
aggravated assault, carrying firearms without a license, and criminal conspiracy. 18 Pa.C.S.A. §§ 2502, 2702, 6106, 901,
903.
Appellant waived his right to a jury trial. Appellant’s trial
began on November 7, 2005. On November 17, 2005, the trial court found Appellant guilty of all charges. On July 21, 2006, the
trial court sentenced . . . Appellant to 13 ½ to 27 years incarceration.
Commonwealth v. Jackson, 955 A.2d 441, 442–443 (Pa. Super. 2008)
(footnote omitted). The panel affirmed Appellant’s judgment of sentence,
id. at 450, and the Pennsylvania Supreme Court denied Appellant’s petition
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for allowance of appeal. Commonwealth v. Jackson, 967 A.2d 958 (Pa.
2009).
Appellant filed a timely pro se PCRA petition on March 9, 2010. The
PCRA court appointed counsel who filed an amended petition on April 4,
2013, and an addendum on December 19, 2014. The Commonwealth filed a
motion to dismiss and a reply to the addendum on January 21, 2014, and
May 14, 2014, respectively. Pursuant to Pa.R.Crim.P. 907, the PCRA court
sent a notice of its intent to dismiss Appellant’s petition on July 15, 2014.
The PCRA court dismissed Appellant’s petition without a hearing on August
15, 2014. Appellant filed a timely appeal and, along with the PCRA court,
complied with Pa.R.A.P. 1925.
On appeal, Appellant presents the following questions for our review:
I. Was the PCRA court’s dismissal of the Appellant’s PCRA Petition unsupported by the record and based on legal
error because Appellant’s sentence is illegal and violates the provisions of the United States Constitution and the
Pennsylvania Constitution barring double jeopardy and prior counsel was ineffective for failing to argue these
issues?
II. Was the PCRA court’s dismissal of the Appellant’s PCRA
Petition unsupported by the record and based on legal error because Appellant’s convictions violated the Due
Process Clause of the Fourteenth Amendment to the United States Constitution and Due Process Clause of the
Pennsylvania Constitution and prior counsel was ineffective for failing to argue this issue?
III. Was the PCRA court’s dismissal of the Appellant’s PCRA
Petition unsupported by the record and based on legal error because prior counsel was ineffective when he failed
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to object to Detective Dove’s testimony that the Detective
had known Mr. Jackson for two years?
IV. Was the PCRA court’s dismissal of the Appellant’s PCRA Petition without a hearing an error because newly
discovered evidence will demonstrate Appellant’s conviction for the attempted murder of Detective Dove
should be vacated?
V. In the alternative, should this matter be remanded back to the PCRA Court because after filing of Appellant’s appeal,
Ronald Dove was charged with a number of crimes stemming from his misconduct as a police officer?
Appellant’s Brief at 5.
When reviewing the propriety of an order denying PCRA relief, this
Court is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). We
grant great deference to the PCRA court’s findings that are supported in the
record and will not disturb them unless they have no support in the certified
(Pa. 2001)). “The purpose of the merger doctrine is double jeopardy-based,
i.e., to safeguard against multiple punishments for the same act. . . . The
test for sentencing merger is the same test utilized to decide whether more
than one offense has been committed in the double jeopardy context.” Id.
at 217–218.
Our legislature has addressed the mandatory merger of crimes for the
purpose of sentencing in section 9765 of the sentencing code, which
provides as follows:
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.
42 Pa.C.S. § 9765. To determine if two offenses merge for sentencing
purposes, the sentencing court must “assess whether the charges arose out
of a single set of facts and whether all the statutory elements of one offense
coincide with the statutory elements of the other offense.” Commonwealth
v. Martz, 926 A.2d 514, 526 (Pa. Super. 2007) (emphasis in original).
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Here, the PCRA court disposed of Appellant’s double-jeopardy-based
merger issue with the following analysis:
In the petition, counsel went on to cite and discuss in support [of
Appellant’s argument] the holdings in Weakland and Williams, which are cited and discussed in Anderson.[1] [Appellant’s]
argument would be perfectly sound if [Appellant] had been convicted of both the attempted murder and aggravated assault
of the intended victim, and/or both the attempted murder and aggravated assault of the bystanders. What [Appellant] failed to
mention is that in all of those cases the convictions were for crimes which were perpetrated upon a single victim; there were
no bystanders to whom those criminal acts were also directed. In Anderson, the defendant shot the single victim, was tried by a
jury and convicted of aggravated assault and attempted murder,
was sentenced to consecutive terms for each offense, and the Court ruled, of course, that those two convictions should have
merged and it vacated the sentence for the assault.
* * *
Counsel’s error here is in equating a single physical act, firing a bullet at an intended victim while bystanders are in the line of
fire, with a single legally criminal act, attempted murder, and then equating that criminal act with the separate legally criminal
acts of assaulting the bystanders. All of the defendants in the transferred intent cases discussed above were convicted and
sentenced for more than one assault, those against the intended victims and those against the bystanders, based upon the single
physical act of shooting at or assaulting the intended victim with
the specific intent to injure him, which intent then transferred to the bystanders because they were in the line of fire. . . .
[Appellant] was not charged with or convicted of aggravated assault on the intended victim, nor was he charged with or
convicted of the attempted murder of the bystanders. Had he been convicted of both attempting to murder and assaulting
either the intended victim and/or the bystanders then counsel’s ____________________________________________
1 Commonwealth v. Weakland, 559 A.2d 25 (Pa. 1989), Commonwealth v. Williams, 555 A.2d 1228 (1989), and Commonwealth v. Anderson,
650 A.2d 20 (Pa. 1994), respectively.
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argument would have merit, but that is not what happened. He
was simply convicted of committing separate crimes by having fired a single shot at one person while others were present and
placed in harm’s way.
PCRA Court Opinion, 11/19/14, at 24, 26–27 (footnotes omitted).
Upon review, we conclude that the PCRA court’s analysis is supported
by the record. Appellant fired multiple shots at the intended victim while
bystanders were present, thereby exposing multiple people to the risk of
serious bodily injury or death. N.T., 11/10/15, at 4–24, 55. Thus, Appellant
committed the crime of attempted murder against the intended victim and
the crime of aggravated assault against each of the seven bystander-
victims.2 Appellant was convicted of and sentenced on these eight separate
crimes. There was no lesser charge to merge into the attempted murder
conviction related to the intended victim, and there were no greater charges
into which the aggravated assault convictions related to the seven
bystanders could merge. Appellant may not escape responsibility for the
crimes he committed against the intended victim and the seven bystanders.
____________________________________________
2 Attempt is defined by statute as follows: “[A] person commits an attempt
when with the intent to commit a specific crime, he does any act which constitutes a substantial step towards the commission of the crime.” 18
Pa.C.S. § 901(a). A person may be convicted of attempted murder “if he takes a substantial step toward the commission of a killing, with the specific
intent in mind to commit such an act.” Commonwealth v. Dale, 836 A.2d 150, 152–153 (Pa. Super. 2003). “A person is guilty of aggravated assault if
he: (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life.” 18 Pa.C.S. § 2702(a)(1).
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He is not entitled to a “discount” because his reckless conduct threatened
multiple victims. Yates, 562 A.2d at 911.
Based on the foregoing, we discern no legal error in the PCRA court’s
conclusion that Appellant’s sentence did not violate the federal or state
prohibitions against double jeopardy or Pennsylvania’s merger doctrine.
Consequently, Appellant’s underlying claim lacks merit, and prior counsel
cannot be ineffective in failing to present this argument. Loner, 836 A.2d at
132.
The Commonwealth points out that Appellant “tacks on a claim that his
sentences are illegal under 18 Pa.C.S. § 906 because he was supposedly
convicted of ‘multiple inchoate crimes for the same act.’” Commonwealth’s
Brief at 11 (citing Appellant’s Brief at 23). Specifically, Appellant argues
that, “based on a singular set of facts, [he] was convicted of more than one
inchoate crime: attempt to murder and attempt to cause serious bodily
injury. These crimes were required to merge at sentencing and they were
not merged. For this reason, Appellant’s sentence is illegal.” Appellant’s
Brief at 23. The PCRA court implicitly ruled that Appellant waived this issue
by failing to preserve and/or plead it. Then, the PCRA court “simply
reiterate[d] that [Appellant’s] convictions were based on completely
separate and distinct criminal acts, albeit based on a single physical one.”
PCRA Court Opinion, 12/19/14, at 27 (footnote omitted). Unlike the PCRA
court, we conclude that Appellant has raised a legality of sentence claim
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which we may review. See Commonwealth v. Berry, 877 A.2d 479, 487
(Pa. Super. 2005) (“[A] legality of sentence claim retains its non-waivable
status so long as the [PCRA’s] jurisdictional time limitations are satisfied.”).
Upon review, we conclude that Appellant’s position is untenable.
Section 906 of the Crimes Code states: “[a] person may not be
convicted of more than one of the inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy for conduct
designed to commit or to culminate in the commission of the same crime.” 18 Pa.C.S. § 906. “Section 906 was designed to
prevent multiple inchoate charges that carry with them the same criminal intent.” Commonwealth v. Davis, 704 A.2d 650, 653
(Pa.Super.1997). Under section 906, “inchoate crimes merge
only when directed to the commission of the same crime, not merely because they arise out of the same incident.”