J-S49005-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
RASHON BOONE
Appellant No. 1544 EDA 2013
Appeal from the PCRA Order May 17, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0506921-2006
BEFORE: OLSON, OTT and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 25, 2014
Appellant, Rashon Boone, appeals from the order entered on May 17,
2013, dismissing his first petition filed under the Post-Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court has provided us with a thorough and well-written
summary of the underlying facts and procedural posture. As the PCRA court
explained:
On October 15, 2003[,] at approximately 9:28 a.m., [Appellant] approached Joseph Jackson (hereinafter southwest corner of Chadwick and Cumberland Streets in Philadelphia, Pennsylvania[. Appellant] asked [Joseph] for some weed.
[Appellant] pulled an automatic weapon, pointed it at
pocket. Immediately thereafter, a man known as Butter,
walked to the southwest corner of Chadwick and J-S49005-14
Cumberland Streets. [Appellant] turned, fired one shot at James, fled on Cumberland Street, and turned onto Bancroft Street. Joseph chased [Appellant] and saw him get into a black [Chevrolet] that subsequently sped away.
approximately 9:23 a.m. on October 15, 2003, she was standing on the 2400 block of Chadwick Street when
girlfriend, drove up in a black [Chevrolet] Celebrity. Monique warned her
walked up Chadwick Street, turned west on to Cumberland Street, and walked toward 17th Street. Aisha passed [Appellant] as he walked in the opposite direction on Cumberland Street and turned onto Chadwick Street. Approximately [one] minute later, Aisha heard gunshots; she turned and saw [Appellant], chased by Joseph, run from Chadwick Street, turn east on to Cumberland Street, and
[Chevrolet] Celebrity and they sped away.
Before Aisha testified, Monique testified that she had no memory of any of the events on October 15, 2003. She denied that she spoke to Aisha, participated in a robbery, or drove [Appellant] away from the crime scene.
However, [Appellant] testified that Monique dropped him off at the intersection of York and Chadwick Streets so he could buy some marijuana. Unable to find a seller at York Street, [Appellant] proceeded to Cumberland Street. He passed Aisha on Cumberland Street and asked her if there was anyone selling marijuana nearby[.] Aisha turned and pointed to Joseph and James on the corner of Chadwick and Cumberland Streets. [Appellant] met with Joseph at the corner of Chadwick and Cumberland Streets, and got into an argument over the purchase of some marijuana. James
of here . . . [because he was] drawing th a gun. [Appellant] admitted that he turned towards James, drew his gun, and shot him. He stated that he ran to
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car.
Police responded to reports of a shooting, arrived at the corner of Chadwick and Cumberland Streets within minutes and found James lying on the street. James was transported to Temple University Hospital where he was pronounced dead at 10:45 a.m. The medical examiner testified that the cause of death was homicide. James sustained a single [gunshot] wound to the lower abdomen and suffered extensive blood loss; the bullet penetrated and damaged the bowel, the right common iliac artery, and exited the left buttock.
A black [Chevrolet] Celebrity owned by Monique was located on the 2100 block of North 20th Street and [the police searched the vehicle]. A [nine-millimeter, 14-round] capacity gun, loaded with two rounds of Remington brand ammunition and three rounds of Federal brand ammunition, was recovered from under the glove compartment. The firearms expert determined that the fired Speer brand [nine-millimeter] cartridge case recovered 45 feet from the corner of Chadwick and Cumberland Streets and the bullet recovered from the stretcher used to transport James to the hospital were fired from that gun. . . .
Police attempts to locate [Appellant] in Philadelphia after the shooting were unsuccessful. [Appellant] fled Philadelphia and was subsequently found with Monique in Richmond, Virginia on January 31, 2005.
...
On May 15, 2007, following a bench trial . . . , [Appellant] was convicted of [second-degree murder, robbery, criminal conspiracy, and possessing instruments of crime.1] Sentencing was deferred until July 10, 2007, on which date [Appellant] was sentenced to the mandatory term of life imprisonment. . . . [Appellant] filed a timely notice of ____________________________________________
1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 903(a)(1), and 907(a), respectively.
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judgment of sentence on June 25, 2008. [Commonwealth v. Boone, 959 A.2d 457 (Pa. Super. 2008) (unpublished memorandum), at 1-12, vacated in part, Commonwealth v. Boone, ___ A.2d ___, 398 EAL 2008 (Pa. 2009). Appellant] filed a petition for allowance of appeal, which our Supreme Court granted in part[] and denied in part on January 2, 2009.[fn.1]
[fn.1] . . . The case was summarily disposed on [January 2, 2009]; as to the sole issue upon which the petition for allowance of appeal was granted
sentence for robbery, as it had merged with the sentence for second-degree murder pursuant to Commonwealth v. Tarver, 426 A.2d 569, 573 (Pa. -degree murder, conspiracy[, and possessing instruments of crime] remained, the Supreme Court did not remand the case for [resentencing. Commonwealth v. Boone, ___ A.2d ___, 398 EAL 2008 (Pa. 2009)].
On December 24, 2009, [Appellant] filed a timely pro se [PCRA] petition. . . . On July 15, 2011, [Appellant privately retained] Sondra Rodrigues, Esquire [as his counsel]. Ms. Rodrigues filed a consolidated amended PCRA petition and memorandum of law on April 20, 2012.
After the Commonwealth [filed] a motion to dismiss . . . , [the PCRA] court scheduled an evidentiary hearing solely as
advising [Appellant] not to accept favorable offers to plead guilty. The evidentiary hearing took place on December 19, 2012, and continued on December 28, 2012.
On December 28, 2012, at the conclusion of the evidentiary hearing, [the PCRA] court permitted Ms. Rodrigues to withdraw as counsel for health reasons. On that same date, [the PCRA] court informed [Appellant] that [new] counsel would be appointed for the purpose of reviewing an additional claim [Appellant] wanted to raise, as well as for the purpose of representing him on appeal.
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On December 28, 2012, [the PCRA] court [concluded] that
advise [him] of favorable plea bargain offers was without merit, and [the PCRA court] informed [Appellant] of such in op claims and conducting an independent review, on April 16, 2013, [the PCRA] court sent [Appellant] notice pursuant to Pa.R.Crim.P. 907 [] of its intent to deny and dismiss ant] did not respond to [the
On May 23, 2013, [Appellant filed a timely notice of appeal].
PCRA Court Opinion, 11/25/13, at 1-4 (internal citations omitted) (some
internal capitalization and footnotes omitted).
Appellant raises two claims on appeal.
[1.] Did the [PCRA] court [] err in denying PCRA relief where the testimony at the evidentiary hearing established that trial counsel was ineffective for failing to fully communicate plea offers to Appellant and by advising him to go to trial rather than accept any of the favorable pleas offered by the Commonwealth?
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J-S49005-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
RASHON BOONE
Appellant No. 1544 EDA 2013
Appeal from the PCRA Order May 17, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0506921-2006
BEFORE: OLSON, OTT and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 25, 2014
Appellant, Rashon Boone, appeals from the order entered on May 17,
2013, dismissing his first petition filed under the Post-Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court has provided us with a thorough and well-written
summary of the underlying facts and procedural posture. As the PCRA court
explained:
On October 15, 2003[,] at approximately 9:28 a.m., [Appellant] approached Joseph Jackson (hereinafter southwest corner of Chadwick and Cumberland Streets in Philadelphia, Pennsylvania[. Appellant] asked [Joseph] for some weed.
[Appellant] pulled an automatic weapon, pointed it at
pocket. Immediately thereafter, a man known as Butter,
walked to the southwest corner of Chadwick and J-S49005-14
Cumberland Streets. [Appellant] turned, fired one shot at James, fled on Cumberland Street, and turned onto Bancroft Street. Joseph chased [Appellant] and saw him get into a black [Chevrolet] that subsequently sped away.
approximately 9:23 a.m. on October 15, 2003, she was standing on the 2400 block of Chadwick Street when
girlfriend, drove up in a black [Chevrolet] Celebrity. Monique warned her
walked up Chadwick Street, turned west on to Cumberland Street, and walked toward 17th Street. Aisha passed [Appellant] as he walked in the opposite direction on Cumberland Street and turned onto Chadwick Street. Approximately [one] minute later, Aisha heard gunshots; she turned and saw [Appellant], chased by Joseph, run from Chadwick Street, turn east on to Cumberland Street, and
[Chevrolet] Celebrity and they sped away.
Before Aisha testified, Monique testified that she had no memory of any of the events on October 15, 2003. She denied that she spoke to Aisha, participated in a robbery, or drove [Appellant] away from the crime scene.
However, [Appellant] testified that Monique dropped him off at the intersection of York and Chadwick Streets so he could buy some marijuana. Unable to find a seller at York Street, [Appellant] proceeded to Cumberland Street. He passed Aisha on Cumberland Street and asked her if there was anyone selling marijuana nearby[.] Aisha turned and pointed to Joseph and James on the corner of Chadwick and Cumberland Streets. [Appellant] met with Joseph at the corner of Chadwick and Cumberland Streets, and got into an argument over the purchase of some marijuana. James
of here . . . [because he was] drawing th a gun. [Appellant] admitted that he turned towards James, drew his gun, and shot him. He stated that he ran to
-2- J-S49005-14
car.
Police responded to reports of a shooting, arrived at the corner of Chadwick and Cumberland Streets within minutes and found James lying on the street. James was transported to Temple University Hospital where he was pronounced dead at 10:45 a.m. The medical examiner testified that the cause of death was homicide. James sustained a single [gunshot] wound to the lower abdomen and suffered extensive blood loss; the bullet penetrated and damaged the bowel, the right common iliac artery, and exited the left buttock.
A black [Chevrolet] Celebrity owned by Monique was located on the 2100 block of North 20th Street and [the police searched the vehicle]. A [nine-millimeter, 14-round] capacity gun, loaded with two rounds of Remington brand ammunition and three rounds of Federal brand ammunition, was recovered from under the glove compartment. The firearms expert determined that the fired Speer brand [nine-millimeter] cartridge case recovered 45 feet from the corner of Chadwick and Cumberland Streets and the bullet recovered from the stretcher used to transport James to the hospital were fired from that gun. . . .
Police attempts to locate [Appellant] in Philadelphia after the shooting were unsuccessful. [Appellant] fled Philadelphia and was subsequently found with Monique in Richmond, Virginia on January 31, 2005.
...
On May 15, 2007, following a bench trial . . . , [Appellant] was convicted of [second-degree murder, robbery, criminal conspiracy, and possessing instruments of crime.1] Sentencing was deferred until July 10, 2007, on which date [Appellant] was sentenced to the mandatory term of life imprisonment. . . . [Appellant] filed a timely notice of ____________________________________________
1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 903(a)(1), and 907(a), respectively.
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judgment of sentence on June 25, 2008. [Commonwealth v. Boone, 959 A.2d 457 (Pa. Super. 2008) (unpublished memorandum), at 1-12, vacated in part, Commonwealth v. Boone, ___ A.2d ___, 398 EAL 2008 (Pa. 2009). Appellant] filed a petition for allowance of appeal, which our Supreme Court granted in part[] and denied in part on January 2, 2009.[fn.1]
[fn.1] . . . The case was summarily disposed on [January 2, 2009]; as to the sole issue upon which the petition for allowance of appeal was granted
sentence for robbery, as it had merged with the sentence for second-degree murder pursuant to Commonwealth v. Tarver, 426 A.2d 569, 573 (Pa. -degree murder, conspiracy[, and possessing instruments of crime] remained, the Supreme Court did not remand the case for [resentencing. Commonwealth v. Boone, ___ A.2d ___, 398 EAL 2008 (Pa. 2009)].
On December 24, 2009, [Appellant] filed a timely pro se [PCRA] petition. . . . On July 15, 2011, [Appellant privately retained] Sondra Rodrigues, Esquire [as his counsel]. Ms. Rodrigues filed a consolidated amended PCRA petition and memorandum of law on April 20, 2012.
After the Commonwealth [filed] a motion to dismiss . . . , [the PCRA] court scheduled an evidentiary hearing solely as
advising [Appellant] not to accept favorable offers to plead guilty. The evidentiary hearing took place on December 19, 2012, and continued on December 28, 2012.
On December 28, 2012, at the conclusion of the evidentiary hearing, [the PCRA] court permitted Ms. Rodrigues to withdraw as counsel for health reasons. On that same date, [the PCRA] court informed [Appellant] that [new] counsel would be appointed for the purpose of reviewing an additional claim [Appellant] wanted to raise, as well as for the purpose of representing him on appeal.
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On December 28, 2012, [the PCRA] court [concluded] that
advise [him] of favorable plea bargain offers was without merit, and [the PCRA court] informed [Appellant] of such in op claims and conducting an independent review, on April 16, 2013, [the PCRA] court sent [Appellant] notice pursuant to Pa.R.Crim.P. 907 [] of its intent to deny and dismiss ant] did not respond to [the
On May 23, 2013, [Appellant filed a timely notice of appeal].
PCRA Court Opinion, 11/25/13, at 1-4 (internal citations omitted) (some
internal capitalization and footnotes omitted).
Appellant raises two claims on appeal.
[1.] Did the [PCRA] court [] err in denying PCRA relief where the testimony at the evidentiary hearing established that trial counsel was ineffective for failing to fully communicate plea offers to Appellant and by advising him to go to trial rather than accept any of the favorable pleas offered by the Commonwealth?
[2.] Did the PCRA court err in not granting a full evidentiary hearing and in denying relief after Appellant and trial counsel testified and before all relevant testimony was heard?
isted above.
Commonwealth v. Liebel,
825 A.2d 630, 632 (Pa. 2003).
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To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden,
Appellant must plead and prove by a preponderance of the evidence 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 a reasonable probability that the outcome of the challenged proceedings would have been different.
Commonwealth v. Fulton
satisfy any prong of the test for ineffectiveness will require rejection of the
Id.
communicate plea offers to Appellant and [for] advising [Appellant] to go to
trial rather than accept any of the favorable pleas offered by the
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-7. However, within the argument
ineffective for failing to a
offer in the case: that Appellant plead guilty to murder and, in exchange,
the Commonwealth would recommend that the trial court impose a 25 to 50
lawyer who failed
to urge his client to take the proffered plea, however onerous, was not doing 2 Id. at 27. We will consider the claim that Appellant has
raised in the argument section of his brief. However, since Appellant has
failed
waived on appeal. Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa.
Super. 1998) ( llant's counsel. When issues are
not properly raised and developed in briefs, when briefs are wholly
inadequate to present specific issues for review, a court will not consider the
).
ng to advise him
____________________________________________
2 We note that, in Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012) and Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012), the United States Supreme Court held that defendants have a Sixth Amendment right to effective assistance of counsel during the plea process.
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trial counsel testified that, prior to trial, he informed Appellant that
Appellant, himself, was responsible for making the final decision as to
N.T. PCRA Hearing, 12/19/12, at 22-23. Appe
testified that, when he provided Appellant with the above advice, he
chances Id.
that:
beyond a reasonable doubt [] first degree murder[,] that second degree murder was certainly something more viable to the Commonwealth, that either/or had a potential of a mandatory life sentence; that anything less than life is something that should be considered.
ony, Appellant never
testified that his trial counsel failed to properly consult with him as to the
Id. at 8.
Finally, after hearing the testimony in the case, the PCRA court
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more than 50 years [of] imprisonment, that trial counsel discussed the offer
with [Appellant], and that [Appellant] reje
Opinion, 11/25/13, at 8.
Given the above testimony and the factual findings of the PCRA court,
rial counsel consulted
with Appellant and advised Appellant of the advantages and disadvantages
was withi
on appeal fails.
relief after Appellant and trial counsel testified and before all relevant
argument on this issue. Instead, with respect to this issue
consists solely of legal statements and quotations. See
27-
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (
appellate brief fails to . . . develop the issue in any [] meaningful fashion
capable of review, that claim is waived. It is not the obligation of [an
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/25/2014
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