Com. v. Hill, L.

Opinion

J. S23010/14

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : LOUIS HILL, : No. 3387 EDA 2012 : Appellant :

Appeal from the PCRA Order, November 20, 2012, in the Court of Common Pleas of Delaware County Criminal Division at Nos. CP-23-CR-0000494-2008, CP-23-CR-0002291-2009, CP-23-CR-0002303-2009, CP-23-CR-0004875-2008, CP-23-CR-0000493-2008

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND WECHT, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 08, 2014

Appellant appeals from the order denying his first petition filed

§§ 9541-9546. Finding no error, we affirm.1

On September 24, 2009, a jury found appellant guilty of attempted

murder, aggravated assault, and possessing a firearm without a license in

connection with an incident in Darby Township on October 22, 2007, during

which appellant repeatedly shot the victim following an earlier quarrel with

1 ket number CP-23-CR-0000493- docket number and conviction. Appellant improperly added these additional docket numbers to a later pleading. J. S23010/14

On November 18, 2009, the trial court sentenced appellant to an

a 20 to 40-year sentence for attempted murder. On February 28, 2011, this

court affirmed the judgment of sentence, and on July 7, 2011, our supreme

court denied appeal. Commonwealth v. Hill, 24 A.3d 468 (Pa.Super.

2011) (unpublished memorandum), appeal denied, 24 A.3d 362

(Pa. 2011). On August 8, 2011, appellant timely filed the instant PCRA

petition. Counsel was appointed, but was subsequently permitted to

withdraw on October 16, 2012, following the filing of a motion to withdraw

- Turner-Finley practice.2 By that same

order, the PCRA court issued notice, pursuant to Pa.R.Crim.P., Rule 907,

42 Pa.C.S.A., of its intention to dismiss the petition without hearing. On

October 23, 2012, appellant filed a response, and on November 20, 2012,

the PCRA court denied the petition. This timely appeal followed.

Appellant raises the following issues on appeal:

1. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO: (A) OBJECT TO EVIDENCE OF DEFENDANT'S PRIOR BAD ACTS, MOVE FOR A MISTRIAL, AND GIVE A PROPER JURY INSTRUCTION REGARDING THE EVIDENCE OF DEFENDANT'S PRIOR BAD ACTS; and (B) OBJECT TO THE COMMONWEALTH'S EVIDENCE RELATING TO HEARSAY TESTIMONY AND MOVE FOR A MISTRIAL?

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

-2- J. S23010/14

2. WHETHER PCRA COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE TRIAL COUNSEL AND DIRECT APPEAL COU INEFFECTIVENESS?

3. WHETHER THE COURT ERRED IN DISMISSING DEFENDANT'S FIRST PCRA PETITION ON THE - AND GRANTING COUNSEL'S APPLICATION TO WITHDRAW APPEARANCE?

4. WHETHER DEFENDANT IS ENTITLED TO THE APPOINTMENT OF COUNSEL?

5. WHETHER THE MANDATORY SENTENCES IMPOSED ON THE DEFENDANT ARE EXCESSIVE AND UNCONSTITUTIONAL;

6. WHETHER DEFENDANT IS ENTITLED TO A HEARING PURSUANT TO COMMONWEALTH-v- GRANT; and

7. WHETHER DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING. 3 Ap

review of the record, the briefs of the parties, the applicable law, and the

well-reasoned opinion of the trial court, it is our determination that there is

no meri -page

opinion, filed on August 28, 2013, thoroughly discusses and properly

disposes of the questions presented. We will adopt it as our own and affirm

on that basis with the following additional analysis.

treating the cover page as page 1.

-3- J. S23010/14

In discussing issue 3, the trial court erroneously states that superior

-8.)

withdraw. (See Order, 10/16/12; Record Document No. 11.) Aside from

that error, the analysis is otherwise correct.

In Issue 5, appellant argues that his sentence was excessive which the

trial court correctly dismisses because challenges to the discretionary

aspects of sentence not cognizable under the PCRA. However, within his

brief appellant makes claims that his sentence is improper because nowhere

in the statutes of Pennsylvania is there a provision criminalizing attempted

murder, nor is there a provision setting the penalty for attempted murder.

-month

sentence for attempted murder.

Legislature has provided for murder as a crime at 18, Pa.C.S.A. § 2502,

while criminal attempt is provided for at 18 Pa.C.S.A. § 901. The crime of

attempted murder results from the interplay of these statutes. Under

Section 901, if a defendant takes an action constituting a substantial step

toward murder with the intent to commit murder, as appellant did when he

pumped bullet after bullet into his helpless victim, he is guilty of attempted

murder. As for the statute setting the penalty for attempted murder, it is

found here:

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§ 1102. Sentence for murder, murder of unborn child and murder of law enforcement officer

(c) Attempt, solicitation and conspiracy.-- Notwithstanding section 1103(1) (relating to sentence of imprisonment for felony), a person who has been convicted of attempt, solicitation or conspiracy to commit murder, murder of an unborn child or murder of a law enforcement officer where serious bodily injury results may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years. Where serious bodily injury does not result, the person may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 20 years.

18 Pa.C.S.A. § 1102(c). Because the victim suffered serious bodily injury,

Accordingly, finding no merit to the issues raised on appeal, we will

affirm the order below.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/8/2014

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