Com. v. Murray

• Citation: 836 A.2d 956
• Court: Pennsylvania Superior Court
• Decision Date: 13 November 2003
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Shawn C. MURRAY, Appellant.

836 A.2d 956

COMMONWEALTH of Pennsylvania, Appellee, v. Shawn C. MURRAY, Appellant.

Superior Court of Pennsylvania.

Submitted July 7, 2003.

Filed November 13, 2003.

Paul T. Schemel, Waynesboro, for appellant.

Todd R. Williams, Asst. Dist. Atty., Chambersburg, for Com., appellee.

BEFORE: JOYCE, MUSMANNO, and CAVANAUGH, JJ.

OPINION BY CAVANAUGH, J.:

¶ 1 This is an appeal from the denial of a first request for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. §§ 9541-9546. We affirm.

¶ 2 On December 22, 2000, appellant-Murray entered a counseled plea of guilty to two counts of driving under the influence and to one count of recklessly endangering another person (REAP). He was sentenced to an aggregate term of state incarceration of no less than fifteen months and no greater than six years. Through counsel, Murray perfected a direct appeal to this court, which affirmed the judgment of sentence on October 18, 2001. Murray filed a pro se petition under the PCRA on September 6, 2002. Counsel was appointed and an evidentiary hearing was held on December 23, 2002, at which Murray and his former counsel presented testimony. The lower court denied relief after the conclusion of the hearing.

¶ 3 On appeal, Murray, proceeding pro se,¹ presents twelve separately enumerated issues, of which several pertain to the legality of sentence and to the propriety of the trial court's exercise of its discretion in imposing sentence. The remainder of the issues challenge the sufficiency of the evidence and the effectiveness of guilty plea counsel at both the trial and appellate levels and challenge the effectiveness of PCRA counsel in pursuit of the instant petition.

¶ 4 The first two issues are as follows:

1. Whether the courts erred when they sentenced appellant outside the Sentencing Guidelines for the two charges of driving under the influence?

2. Whether the courts erred in using appellant's 1988 homicide by vehicle conviction to sentence him to the maximum on all charges?

¶ 5 On direct appeal to this court, appellant pursued, through counsel, a challenge to the sentence imposed for the three charges. The focus of the appeal was whether the trial court erred in sentencing Murray to a term of imprisonment in the state correctional system as opposed to a county sentence. This court treated the issue presented as an appeal from the discretionary aspects of sentence. The court determined that appellant had not presented a substantial question for review and, therefore, dismissed the appeal.

¶ 6 Under the PCRA, issues which have been the subject of previous litigation may not be revisited upon collateral review. 42 Pa.C.S.A. § 9543(a)(3). When an issue has been previously litigated, post-conviction relief is not available where a new theory of relief is proffered. Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516, 521 (1997). A petitioner cannot obtain post-conviction review of claims previously litigated by alleging ineffective assistance of prior counsel and presenting new theories of relief to support previously litigated claims. Commonwealth v. Fisher, 572 Pa. 105, 813 A.2d 761, 768 (2002) (opinion announcing judgment of the court, quoting Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 939 n. 2 (2001) and other recent cases).

¶ 7 We conclude that the first two issues presented constitute an attempt to relitigate claims which have been previously disposed of on appeal before this court. A challenge to the discretionary aspects of Murray's sentence was presented on direct appeal. That a particular claim of abuse of discretion was made, i.e., that the trial court abused its discretion in sentencing Murray to a state, rather than a local, facility, does not change the fact that the direct appeal sought review of the discretionary aspects of sentence. Instantly, Murray's challenge to his sentence under the Sentencing Guidelines and through the use of his 1988 conviction for homicide by vehicle constitutes a claim of abuse of discretion in the imposition of sentence. As such, this issue has been the subject of previous litigation and the new theories advanced do not remove it from the stricture of § 9543(a)(3) and the preclusion of further review under the PCRA.

¶ 8 The next issue is whether the lower court erred in stating that Murray had not requested a hearing on the matters raised in his PCRA petition. This issue is moot since the lower court in fact held an evidentiary hearing on December 23, 2002.

¶ 9 Murray presents three issues relating to the performance of appointed PCRA counsel which we shall treat together. See Brief for Appellant at i-ii, issues IV, XI and XII. First, Murray maintains that appointed counsel, Paul Schemel, did not have enough time to prepare the case before the conduct of the evidentiary hearing. Secondly, Murray argues that Mr. Schemel was in fact unprepared for the hearing and should have asked for a continuance so that he could properly prepare. Thirdly, Murray argues that Mr. Schemel was ineffective for failing to amend the pro se PCRA petition and for "leaving the appellant to defend for himself at the hearing."

¶ 10 In evaluating claims of ineffectiveness of counsel, the following principles apply:

To prevail on a claim that trial counsel was constitutionally ineffective, the appellant must overcome the presumption of competence by showing that: (1) his 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 interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different. ... A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim.

Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 855 (2003) (citations omitted). If it is clear that appellant has not demonstrated prejudice, the first two prongs need not be addressed by the reviewing court. Id. An appellate court is bound by the credibility findings of the lower court which have factual support in the record. Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33, 48 (2002).²

¶ 11 Murray argues in a conclusory fashion that Mr. Schemel, who was appointed on October 3, 2002, did not have enough time to prepare for the December 23rd evidentiary hearing.³ Without citing to any facts that could have been discovered if the hearing had been continued, Murray has failed to sustain his burden of demonstrating that the timing of the hearing resulted in prejudice to him. Murray states, "It is obvious that PCRA counsel, did not have enough time to adequately prepare for the evidentiary hearing. In which, he would not get any documents, other than the PCRA petition, to prepare for the hearing." Brief for Appellant at 13. Contrary to this bare assertion, it is by no means obvious that counsel did not have adequate time to prepare to effectively present appellant's case within the two-month period after his appointment. Absent some showing by Murray of the specific manner in which the presentation of his case was impaired, we find no merit to this contention.

¶ 12 Murray expands this argument by alleging that Mr. Schemel was unprepared for the hearing and should have asked for a continuance. Again, Murray fails to identify the specific manner in which Mr. Schemel's performance and representation would have been enhanced with further preparation. Appellant argues ineffectiveness in a vacuum, See Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981),

affording no basis upon which to grant relief.

¶ 13 Regarding Mr. Schemel's not amending the pro se PCRA petition, we note that we have reviewed this document with its accompanying memorandum of law in support thereof. These submissions raised seven claims involving both sentencing issues and the quality of the representation by guilty plea counsel. On this appeal, Murray has not referred to any other issue which he believes should have been raised by Mr. Schemel. Instead, Murray engages in a broadside attack alleging that Mr. Schemel did no work on his behalf and merely acted as his "spokesman" at the evidentiary hearing. We have reviewed the notes of testimony of the December 23, 2002, hearing, and we disagree with Murray's assessment of his counsel's performance. Rather, counsel effectively presented the direct testimony of both Murray and his trial counsel. He conducted redirect examination of trial counsel and argued in favor of granting the PCRA petition at the close of the evidence. We fail to perceive what counsel might have further done, and nothing has been brought to our attention by Murray. Murray has not borne his burden of demonstrating ineffectiveness. See Pettus, supra.

¶ 14 The next issue is whether the lower court erred in limiting its review to issues pertaining to the ineffectiveness of trial counsel. This argument is premised upon the erroneous supposition that because the testimony presented at the evidentiary hearing referred to trial counsel's effectiveness, the lower court did not rule upon the non-ineffectiveness issues contained in the PCRA petition. The other issues, regarding sentencing and the record support for the REAP charge, required no additional evidence and, therefore, were not the subject of testimony. All issues were fully briefed, and the lower court ruled upon all the claims raised in the PCRA petition. This issue is without merit.

¶ 15 The next issue is whether the sentence for REAP and driving under the influence should have merged. This is a challenge to the legality of sentence which is properly before us for review. Commonwealth v. Kitchen, 814 A.2d 209, 214 (Pa.Super.2002), appeal granted, 573 Pa. 709, 827 A.2d 1201 (2003). In order for two convictions to merge, the crimes must be greater and lesser-included offenses and the crimes must be based on the same facts. Commonwealth v....