HomeMy WebLinkAboutCP-21-CR-0003479-2012
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. :
:
TYLER MITCHELL :
BRADSHAW : CP-21-CR-003479-2012
IN RE: OPINION IN SUPPORT OF DENIAL
OF PETITIONER’S MOTION FOR POST-
CONVICTION COLLATERAL RELIEF
Peck, J., May 2, 2017.
This Opinion is written in regards to Petitioner’s pro se Motion for Post-
Conviction Collateral Relief, filed October 6, 2016, the Petition to Withdraw as Counsel,
filed by appointed counsel on February 23, 2017, and a hearing on the PCRA Motion and
on the Petition to Withdraw as Counsel held on February 27, 2017. For the foregoing
reasons, this Court intends to DENY Petitioner’s Motion for Post-Conviction Collateral
Relief, and intends to GRANT Counsel’s Petition to Withdraw.
BRIEF FACTS AND PROCEDURAL HISTORY
On the night of November 18, 2012, store clerk Linda Ness was shot and killed by
a single gunshot wound to the neck and chest while working at the Hess Station on
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Carlisle Pike in Silver Spring Township, Cumberland County. Petitioner and three co-
conspirators planned in advance to rob the Hess Station. One conspirator remained in a
vehicle parked outside; another, co-defendant Shante Rice, went into the store first as a
“scout” before exiting and signaling to the other two; and the remaining two conspirators,
including Petitioner, entered the store intending to carry out a robbery. Petitioner and his
co-conspirator were dressed in black, and wearing masks and gloves. Soundless
surveillance video and the conspirators’ statements to investigators established that
Petitioner approached the counter and pulled a gun from his waistband. Petitioner
1
See, In re: Jury Trial, Transcript of Proceedings, Vol. 1-4, September 8-10, 2014 (Peck, J.)
pointed the gun at Ms. Ness and told her to turn around and take the money out of the
register. The gun discharged and Ms. Ness collapsed. After shooting Ms. Ness,
Petitioner and his co-conspirator left the store.
During subsequent police interviews, Petitioner told the investigating officers he
never intended to shoot Ms. Ness and that the gun just went off. Co-defendant Rice said
that he had provided the gun to Petitioner about an hour before the shooting occurred. At
trial, Petitioner and Shante Rice were tried together. The other two conspirators were to
2
be tried separately and testified against Petitioner and co-defendant Rice.
Following a jury trial Petitioner was found guilty at Count 1, criminal homicide in
the second degree, a felony of the first degree, as well as criminal conspiracy to commit
criminal homicide in the second degree, robbery, and criminal conspiracy to commit
3
robbery, all felonies of the first degree. Petitioner was sentenced to incarceration for life
at Count 1, and between 60 to 240 months each on the other counts, with all sentences to
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run concurrently. Petitioner filed a direct appeal, which was denied after oral argument.
On October 6, 2016, Petitioner filed a pro se motion for post-conviction collateral
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relief. Petitioner attempted to argue that he was unlawfully convicted and sentenced on
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Count 1, criminal homicide in the second degree. Petitioner believed that to be
convicted on the charge, the jury would have had to find that the firearm involved in the
underlying incident was an instrument of crime, and that since he was not charged with
the unlawful use of the firearm, the Commonwealth could not establish the requisite
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intent to commit a felony.
2
The other two co-defendants later entered guilty pleas for lesser sentences.
3
Order of Court, In Re: Verdict; Directed to Appear for Sentencing (September 11, 2014).
4
Order of Court, In Re: Sentence (December 16, 2014).
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Commonwealth v. Bradshaw, 114 MDA 2015 (Pa. Super 2015). Petitioner alleged two errors, neither of
which related to the issue raised by Petitioner in his pro se motion for Post-Conviction Collateral Relief.
The record does not reflect any Petition for Allowance of Appeal filed at the Supreme Court.
6
Motion for Post-Conviction Collateral Relief, October 6, 2016.
7
Id.; In re: Defendant’s Pro Se Motion for Post-Conviction Relief Act, Transcript of Proceedings,
February 27, 2017 (Peck, J.) This Court notes Petitioner’s motion as written is garbled such that the legal
issues raised are not clear.
8
Id.
On October 17, 2016, Marlin Markley, Esq., was appointed to represent Petitioner
in regard to his Motion for Post-Conviction Collateral Relief, and granted leave to file an
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amended motion for post-conviction collateral relief, if appropriate. No such amended
motion was filed. On February 23, 2017, Attorney Markley filed a Petition to Withdraw
as Counsel, and filed of record a “no-merit” letter pursuant to Commonwealth v. Finley,
550 A.2d 213 (Pa. Super. 1998) and Commonwealth v. Turner, 554 A.2d 927 (Pa. Super.
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1988). Attorney Markley’s letter indicated the claim Petitioner attempted to allege in
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his pro se motion was without legal basis. He noted case law describing the three
elements the Commonwealth needed to prove to allow Defendant to be convicted on the
charge of second degree homicide; none of the three elements relates to use of a
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firearm.
On February 27, 2017, a hearing was held on the PCRA Motion and on the
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Petition to Withdraw. The hearing was not a full evidentiary hearing, but rather
intended to provide the Court with an opportunity to hear further evidence on the Petition
to Withdraw and Turner-Finley letter. Attorney Markley presented no additional
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evidence or argument. He indicated that he had at least two conversations with
Defendant, and that Defendant understood the nature of the Petition to Withdraw and
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Turner-Finley letter. Defendant, who was present, affirmed he had a chance to review
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the letter. He affirmed that counsel was correct in identifying the erroneous claim
Defendant tried to raise in his PCRA Motion, that he thought the Commonwealth had to
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charge him with, and prove, unlawful use of a firearm. He affirmed that counsel
explained to him the legal position laid out in counsel’s letter, that the Commonwealth
9
Order of Court, In re: Motion for Post-Conviction Collateral Relief, October 17, 2016 (Peck, J.)
10
Letter from Marlin L. Markley, Esq., February 23, 2017.
11
Id.
12
Id.
13
In re: Defendant’s Pro Se Motion for Post-Conviction Relief Act, Transcript of Proceedings, February
27, 2017 (Peck, J.)
14
Id. at 3.
15
Id.
16
Id. at 3-4.
17
Id.
was not required to charge him with (or prove) unlawful use of a firearm in order to
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convict him for criminal homicide in the second degree.
DISCUSSION
a.The Petition for Post-Conviction Collateral Relief is Without Merit
As a threshold matter, the courts require petitioners seeking post-conviction
collateral relief to establish that they have been convicted and sentenced for a crime
where the conviction or sentence resulted from one of the seven categories of error or
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constitutional violations found in 42 Pa.C.S. §9543(a)(2). Under Pennsylvania Rule of
Criminal Procedure 907(1), a trial court reviewing a petition for post-conviction collateral
relief may deny that petition without an evidentiary hearing if 1) there are no genuine
issues concerning any material fact, and 2) the defendant is not entitled to post-conviction
collateral relief, and 3) no purpose would be served by any further proceedings.
Pa.R.Crim.P. 907(1). On appeal, the standard of review is whether the findings of the
PCRA court are supported by the record and free of legal error. Commonwealth v.
Smith, 995 A.2d 1143, 1149 (Pa. 2010).
In his pro se motion for post-conviction collateral relief, Petitioner alleged errors
under 42 Pa.C.S. §9543(a)(2)(i), related to Constitutional or legal errors, and
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§9543(a)(2)(ii), related to ineffective assistance of counsel. Petitioner attempted to
argue that he was unlawfully convicted and sentenced on Count 1, criminal homicide in
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the second degree. Petitioner believed that to be convicted on the charge, the jury
would have had to find that the firearm involved in the underlying robbery incident was
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Id.
19
42 Pa.C.S. §9543.
20
Motion for Post-Conviction Collateral Relief, October 6, 2016.
21
Motion for Post-Conviction Collateral Relief, October 6, 2016; In re: Defendant’s Pro Se Motion for
Post-Conviction Relief Act, Transcript of Proceedings, February 27, 2017 (Peck, J.). As noted, the legal
argument in Petitioner’s motion as written is unclear. Petitioner seems to misunderstand the crime of
unlawful use of a firearm and possession of an instrument of a crime. See 18 Pa.C.S.A. §§6105, 907. It is
clear, however, that he complains of an “omitted firearm charge”, noting that his use of a firearm was not
charged as an instrument of a crime. Nevertheless, we note that Attorney Markley reported in his letter
and at the hearing that he met with petitioner and clarified Petitioner’s claim to be the claim analyzed
herein.
an instrument of crime, and that since he was not charged with the unlawful use of a
firearm or possessing an instrument of a crime, the Commonwealth could not establish
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the requisite intent to commit a felony. In essence, Petitioner seemed to argue that the
crime of robbery, as the subject felony underlying the second degree homicide
conviction, required the jury to also find that Defendant committed a firearm offense
(such as unlawful use of a firearm or possession of an instrument of a crime). If, as
Petitioner attempted to allege in his pro se Petition, unlawful use of a firearm or
possession of an instrument of a crime was an element of robbery or criminal homicide in
the second degree, and the Commonwealth did not prove that element beyond a
reasonable doubt at trial, he might be eligible for relief under one or both of the cited
sections. However, unlawful use of a firearm or possessing an instrument of a crime
is not an element of either crime.
A person is guilty of robbery if, “in the course of committing a theft, he . . . inflicts
serious bodily injury upon another \[or\] threatens another with or intentionally puts him in
fear of immediate serious bodily injury\[.\]" 18 Pa.C.S.A. §§3701(a)(1)(i), (ii). “In the
course of committing a theft” includes attempt to commit theft. 18 Pa.C.S.A.
§3701(a)(2). While a firearm might be the means used to inflict or threaten serious
bodily injury, the Commonwealth is not required to specifically establish that a firearm
was used.
Petitioner was convicted of second degree murder under the “felony murder”
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theory. Pursuant to section 2502(b) of the Crimes Code, "\[a\] criminal homicide
constitutes murder of the second degree when it is committed while defendant was
engaged as a principal or an accomplice in the perpetration of a felony." 18 Pa.C.S.A.
§2502(b). The Commonwealth must prove four elements: 1) the victim is dead, 2) that
the defendant was a partner in committing or attempting a robbery, 3) that the victim was
killed by a defendant in furtherance of a robbery, and 4) that the defendant who did the
22
Motion for Post-Conviction Collateral Relief, October 6, 2016
23
N.T. Vol. 4 at 41.
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killing was acting with malice. See, Commonwealth v. Tolbert, 670 A.2d 1172 (Pa.
Super. 1995). Thus, the prosecution only needs to prove the defendant committed an
underlying felony; the prosecution need not prove a gun was used in commission of the
felony.
Here, the record shows Petitioner shot and killed Ms. Ness while threatening her
with serious bodily injury (by threatening her with a gun) in an attempt to commit a theft,
where the theft was planned in advance by the co-conspirators. The firearm was the
means used to threaten and inflict the serious bodily injury, but the Commonwealth was
not in fact required to prove that it was an instrument of either robbery or criminal
homicide in the second degree. Therefore, Petitioner’s conviction for criminal homicide
in the second degree was not defective because the Commonwealth did not charge him
with a firearm offense.
In his pro se Motion, Petitioner also alleged, “the imposition of a life sentence for
an unintended result of a specific ‘intent’ to commit a felony or serious bodily harm, not
murder, amounts to a disproportionate punishment for the crime charged in violation of
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the Eight and Fourteenth Amendments to the Constitution of the United States.”
Though Petitioner’s argument is not clear, and neither Petitioner or Attorney Markley
raised the issue at the hearing, Petitioner seems to argue that he did not have the mens rea
necessary to be convicted for criminal homicide in the second degree where he alleges he
never intended to kill Ms. Ness. However, under the felony murder theory, the
Commonwealth has deemed certain felonies, such as robbery, as inherently dangerous to
human life; in such cases “the malice or intent to commit the underlying crime is imputed
to the killing to make it second-degree murder, regardless of whether the defendant
actually intended to physically harm the victim”. Commonwealth v. Lambert, 795 A.2d
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1010, 1023 (Pa. Super. 2002)(internal citations omitted). The courts have reasoned:
24
See, N.T. Vol. 4 at 41. (The jury received instructions based jury instruction based on Pennsylvania
Suggested Standard Criminal Jury Instruction 15.205B).
25
Motion for Post-Conviction Collateral Relief, October 6, 2016, at 4.
26
See also, Id.
When an actor engages in one of the statutorily enumerated felonies and a
killing occurs, the law, via the felony murder rule, allows the finder of fact
to infer the killing was malicious from the fact the actor was engaged in a
felony of such a dangerous nature to human life the actor, as held to the
standard of the reasonable man, knew or should have known that death
might result from the felony.
Id. at 1023.
Petitioner killed Ms. Ness in the commission of a robbery, one of the felonies
enumerated in 18 Pa.C.S.A. §2502(b), (d). Therefore, the malice necessary to convict him
for murder was established. Furthermore, the courts have specifically held a mandatory
life sentence for second degree murder does not violate the Eighth or Fourteenth
Amendments to the Constitution. Commonwealth v. Middleton, 467 A.2d 841 (Pa.
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Super. 1983).
In light of the forgoing, Petitioner has failed to establish his conviction for
criminal homicide in the second degree resulted from one of the seven categories of error
required by 42 Pa.C.S. §9543(a)(2). There are no genuine issues of material fact
regarding this issue left to be resolved. Petitioner is not eligible for relief on the legal
grounds he alleged and no purpose would be served by further proceedings. Therefore,
pursuant to the procedures laid out in Pa.R.Crim.P. 907(1), this Court gives notice to the
parties that this Court intends to deny the Motion for Post-Conviction Collateral Relief
without further hearing. Petitioner Bradshaw may respond to the proposed dismissal
within twenty days of the date of the accompanying order giving such notice.
b.The Motion to Withdraw is Meritorious and Shall be Granted
There are six requirements that a court and PCRA Counsel must fulfill before a
Motion to Withdraw may be granted. Commonwealth v. Friend states that:
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The Commonwealth’s Supreme Court ruled mandatory life sentences without parole for juvenile
offenders violated the federal constitution in Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013), but that
rule does not apply to Petitioner.
1) As part of an application to withdraw as counsel, PCRA counsel must
attach to the application a "no-merit" letter,
2) PCRA counsel must, in the "no-merit" letter, list each claim the
petitioner wishes to have reviewed, and detail the nature and extent of
counsel's review of the merits of each of those claims,
3) PCRA counsel must set forth in the "no-merit" letter an explanation of
why the petitioner's issues are meritless,
4) PCRA counsel must contemporaneously forward to the petitioner a copy
of the application to withdraw, which must include (i) a copy of both the
"no-merit" letter, and (ii) a statement advising the PCRA petitioner that, in
the event the trial court grants the application of counsel to withdraw, the
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petitioner has the right to proceed pro se, or with the assistance of
privately retained counsel;
5) the court must conduct its own independent review of the record in the
light of the PCRA petition and the issues set forth therein, as well as of the
contents of the petition of PCRA counsel to withdraw; and
6) the court must agree with counsel that the petition is meritless.
Commonwealth v. Friend, 896 A.2d 607, 615 (2006) (abrogated on other grounds by
Commonwealth v. Pitts, 981 A.2d 875 (2009)).
Attorney Markley fulfilled his obligations under the first four requirements set out
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in Commonwealth v. Friend. This Court reviewed the record and the case law and, as
discussed, supra, agrees with counsel that Petitioner’s claims are without merit. This
Court therefore intends to grant the Petition for Leave to Withdraw as Counsel by
separate order of Court. Petitioner Bradshaw may respond to the proposed dismissal
within twenty days of the date of this notice.
BY THE COURT,
Christylee L. Peck, J.
28
See, Letter from Marlin L. Markley, Esq., February 23, 2017. In re: Defendant’s Pro Se Motion for
Post-Conviction Relief Act, Transcript of Proceedings, February 27, 2017 (Peck, J.).
Charles J. Volkert, Esq.
Chief Deputy District Attorney
Marlin L. Markley, Esq.
3920 Market Street
Suite 303
Camp Hill, PA 17011
Tyler Bradshaw, LW-0320
SCI-Forest
P.O. Box 945
Marienville, PA 16239