J-S31002-24
2024 PA Super 253
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAHLEEL C. DAVIS :
:
Appellant : No. 2638 EDA 2023
Appeal from the PCRA Order Entered September 15, 2023
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0006720-2017
BEFORE: BOWES, J., McLAUGHLIN, J., and BECK, J.
OPINION BY BOWES, J.: FILED OCTOBER 31, 2024
Jahleel C. Davis appeals from the order denying his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
In 2017, Appellant and his co-defendant, Jamal Jones, shot Kendall
Rosendary multiple times. Mr. Rosendary, whom police later learned “was in
the wrong place at the wrong time[,]” survived the attack but was unable to
identify his shooters. See Commonwealth v. Davis, 266 A.3d 614,
2021
WL 4617988, at *2 (Pa.Super. 2021) (non-precedential decision). This Court
previously detailed the investigation that led to Appellant’s arrest and joint
jury trial with Jones, and we need not recount it at length here. Id. at *1-2.
In brief, the jury adjudged Appellant guilty of attempted murder, conspiracy
to commit murder, aggravated assault, conspiracy to commit aggravated
assault, and possession of an instrument of crime. Appellant was sentenced
to concurrent terms of twenty to forty years of incarceration for the murder-
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related charges, and a consecutive term of one to two years of incarceration
for possession of an instrument of crime.
On direct appeal to this Court, Appellant argued that the Commonwealth
had violated his rights pursuant to Pa.R.Crim.P. 573 and Brady v. Maryland,
373 U.S. 83 (1963), by withholding information regarding Tyrique Lyons, the
individual whom police subsequently determined to be the intended target of
the shooting. We rejected these claims. However, we sua sponte vacated
Appellant’s sentence for conspiracy to commit murder because an individual
may not be convicted of more than one inchoate offense for the same object
crime, and the trial court had already sentenced him to a term of confinement
for attempted murder. See 18 Pa.C.S. § 906.1 Our Supreme Court denied
Appellant’s petition for allowance of appeal. See Commonwealth v. Davis,
275 A.3d 79 (Pa. 2022).
The instant PCRA proceedings began with a timely filed pro se PCRA
petition. Wana Saadzoi, Esquire, was appointed and filed an amended
petition, raising three claims related to Appellant’s attempted murder
conviction and sentence. Namely, PCRA counsel contended that (1)
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1 The rule provides that “[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. However, our Supreme Court “has
clarified that the term ‘convicted’ in [§] 906 refers to the entry of a judgment
of sentence, not a finding of guilt by the jury.” Commonwealth v. King, 234
A.3d 549, 570 n.17 (Pa. 2020) (cleaned up). Thus, this Court vacated
Appellant’s conspiracy to commit murder sentence but did not disturb his
conviction.
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Appellant’s sentence for attempted murder was illegal because the jury did
not make a finding that Mr. Rosendary suffered serious bodily injury, (2) the
court issued a defective response to the jury’s question about the elements of
attempted murder, and (3) trial counsel rendered ineffective assistance by
failing to object to the re-instruction. After hearing oral argument, the PCRA
court rejected the sentencing claim due to the parties’ stipulation at trial that
Mr. Rosendary suffered serious bodily injury from his thirteen gunshot
wounds. As for the jury question claims, the PCRA court found that the trial
court properly included concepts of conspiracy in its response and counsel was
not ineffective for deciding not to object because the outcome would have
been the same even without the conspiracy language.
This timely appeal followed. The PCRA court appointed new counsel,
who filed a Pa.R.A.P. 1925(b) concise statement as ordered, challenging, inter
alia, the effectiveness of Attorney Saadzoi during the PCRA proceedings. 2 The
PCRA court authored a Rule 1925(a) opinion explaining its reasoning for
denying Appellant’s petition. Appellant now raises two issues:
1. Did the [PCRA] court err by not addressing, and therefore not
finding, trial counsel provided ineffective assistance of counsel
for failing to object to the trial court’s instructions on conspiracy
to commit attempted murder, which should have been raised
by [Attorney Saadzoi] in Appellant’s amended PCRA petition[?]
2. Did the [PCRA] court err by not finding trial counsel provided
ineffective assistance of counsel for failing to object to the trial
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2 Appellant appropriately raised this issue for the first time in his Rule 1925(b)
statement, which was filed after being appointed new counsel. See
Commonwealth v. Parrish, 273 A.3d 989, 1002-03 (Pa. 2022).
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court’s re-instruction on attempted murder, which included
reference to the improper instruction to conspiracy[?]
Appellant’s brief at 8 (numbering added, capitalization altered).
We review orders denying PCRA relief “to determine whether the ruling
of the PCRA court is supported by the record and free of legal error. We apply
a de novo standard of review to the PCRA court’s legal conclusions.”
Commonwealth v. Pitt, 313 A.3d 287, 293 (Pa.Super. 2024) (cleaned up).
Since Appellant’s issues assail the effectiveness of counsel, we consider them
according to the following tenets:
[C]ounsel is presumed to be effective, and the petitioner bears
the burden of proving otherwise. To do so, he must establish the
following three elements: (1) the underlying claim has arguable
merit; (2) no reasonable basis existed for counsel’s action or
failure to act; and (3) the petitioner suffered prejudice as a result
of counsel’s error, with prejudice measured by whether there is a
reasonable probability that the result of the proceeding would
have been different. Failure to prove any of the three elements
will result in dismissal of the ineffectiveness claim. Additionally,
we are not required to analyze the elements of an ineffectiveness
claim in any particular order.
Id. (cleaned up).
We begin with Appellant’s first challenge, that Attorney Saadzoi was
ineffective for failing to raise trial counsel’s ineffectiveness in the amended
PCRA petition. This layered ineffectiveness claim is premised upon the trial
court conflating conspiracy to commit murder and attempted murder.
Specifically, the court instructed the jury on the invalid crime of conspiracy to
commit attempted murder instead of conspiracy to commit murder, and this
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error, combined with trial counsel’s failure to object, resulted in Appellant
being found guilty of a fake crime. See Appellant’s brief at 24-26.
We do not reach the merits of this claim because, even assuming the
court erred in so instructing the jury and trial counsel should have objected,
it is clear from the record that Attorney Saadzoi could not have been
ineffective for failing to raise this claim in Appellant’s amended PCRA petition.
The PCRA mandates that a petitioner prove he has been convicted of a crime
and, as is pertinent here, is currently serving a sentence for the crime or is
waiting to serve a sentence for the crime, to be eligible for PCRA relief. See
42 Pa.C.S. § 9543(a)(1).3
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3 In full, this subsection provides:
(a) General rule.--To be eligible for relief under this subchapter,
the petitioner must plead and prove by a preponderance of the
evidence all of the following:
(1) That the petitioner has been convicted of a crime under
the laws of this Commonwealth and is at the time relief is
granted:
(i) currently serving a sentence of imprisonment,
probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the
crime;
(iii) serving a sentence which must expire before the
person may commence serving the disputed
sentence; or
(iv) has completed a sentence of imprisonment,
probation or parole for the crime and is seeking relief
(Footnote Continued Next Page)
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In Commonwealth v. Smith, 17 A.3d 873 (Pa. 2011), our High Court
deemed Smith ineligible for PCRA relief on his claim that counsel was
ineffective for failing to move to quash possession and conspiracy charges
because, despite being sentenced to death for first-degree murder, the
maximum aggregate sentence for the challenged convictions had expired at
the time the PCRA court ruled on the petition. In so holding, the Court
reiterated that our appellate courts have read § 9543 “to preclude PCRA relief
where the petitioner is no longer serving a sentence for the crime at the time
the PCRA court renders a decision.” Smith,
17 A.3d at 904 (cleaned up).
In other words, when a petitioner raises a PCRA claim attacking a
specific conviction, he “is ineligible for relief under the PCRA once the sentence
for the challenged conviction is completed.” Commonwealth v. Matin, 832
A.2d 1141, 1143 (Pa.Super. 2003) (citation omitted). It makes no difference
whether the sentence is deemed completed because the imposed period of
supervision expired, an appellate court vacated the sentence, or the trial court
imposed no penalty or granted credit for time served. 4 The bottom line is that
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based upon DNA evidence obtained under section
9543.1(d) (relating to postconviction DNA testing).
42 Pa.C.S. § 9543(a)(1). This opinion does not involve the scenario presented
in § 9543(a)(1)(iv) because Appellant did not seek PCRA relief after obtaining
postconviction DNA testing pursuant to § 9543.1.
4 Recognizing that defendants will be statutorily ineligible for PCRA relief if
they are sentenced to time served or no further penalty, our Supreme Court
carved an exception to the general rule against raising ineffectiveness claims
(Footnote Continued Next Page)
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if a petitioner’s PCRA claim assails a particular conviction, pursuant to the
plain language of § 9543(a)(1), the petitioner must be serving or waiting to
serve a sentence for that conviction in order to be eligible for relief on that
claim.
Here, Appellant is challenging his conviction for conspiracy to commit
murder. As already detailed, this Court vacated his sentence at that count on
direct appeal. Thus, Appellant is no longer serving or waiting to serve a
sentence for the conviction he challenges and, consequently, is statutorily
precluded from PCRA relief on this claim. See 42 Pa.C.S. § 9543(a)(1).
Accordingly, Attorney Saadzoi cannot be held ineffective for failing to raise it
in Appellant’s amended petition. See Commonwealth v. Spotz, 896 A.2d
1191, 1210 (Pa. 2006) (“Counsel will not be deemed ineffective for failing to
raise a meritless claim.” (cleaned up)).
In his remaining issue, Appellant argues that the PCRA court erred in
denying his claim that trial counsel was ineffective for failing to object to the
court’s re-instruction on the elements of attempted murder. See Appellant’s
brief at 34. We consider this mindful of the following principles:
[W]hen evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
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on direct appeal for such petitioners. See Commonwealth v. Delgros, 183
A.3d 352, 361 (Pa. 2018) (“[T]o ensure that defendants are afforded an
opportunity to challenge trial counsel’s stewardship, we adopt an additional
exception to [the] general deferral rule, requiring trial courts to address claims
challenging trial counsel’s performance where the defendant is statutorily
precluded from obtaining subsequent PCRA review.”).
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further note that, it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury for
its consideration. Only where there is an abuse of discretion or
an inaccurate statement of the law is there reversible error.
Commonwealth v. Roane, 142 A.3d 79, 95 (Pa.Super. 2016) (cleaned up).
At the outset, we observe that the PCRA court denied relief, in part,
because it concluded that trial counsel had objected to the re-instruction. See
PCRA Court Opinion, 1/24/24, at 6. Appellant maintains that counsel’s
reticence to provide a new instruction to the jury did not amount to a specific
objection regarding the inclusion of conspiracy language, and therefore the
PCRA court’s finding that the claim lacked merit was unfounded. See
Appellant’s brief at 36-37; N.T. Jury Trial Volume VI, 11/2/18, at 1397
(responding to the court’s question if anyone objected to the court’s proposed
re-instruction and the Commonwealth’s request to include conspiracy
language, that “we’ve already read the instructions[,] I think that it would be
improper to read them anything different”). We agree with Appellant that this
objection did not amount to a sufficiently specific challenge to the re-
instruction provided, and therefore the court’s finding that counsel objected
was in error.
Nonetheless, the PCRA court also determined that Appellant’s claim
lacked arguable merit because “it is almost inconceivable that the outcome at
trial would have been different with or without the conspiracy language on the
re-instruction based upon the facts presented at trial.” Id. at 7 (footnote
omitted). With this conclusion, we wholly agree.
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By way of background, during the initial charge to the jury, the trial
court read the standard instructions for attempted murder, aggravated
assault, and possession of an instrument of crime. Immediately after, the
court explained that one co-defendant could be held responsible for the acts
of the other if the jury determined that he had acted as an accomplice or co-
conspirator. The court then charged the jury on accomplice liability and
conspiracy generally, before providing instruction on conspiracy as charged
and self-defense.
During deliberations, the jury queried about the elements of attempted
murder and aggravated assault. The court proffered to simply re-read the
elements of the crimes. The Commonwealth asked the trial court to instead
add in language about conspiracy for both crimes “because they can be guilty
of attempted murder even if they didn’t do the actual firing.” N.T. Jury Trial
Volume VI, 11/2/18, at 1396. Accepting the Commonwealth’s request, the
court provided the following re-instruction in response to the attempted
murder question:
The defendants have been charged with attempted murder.
To find a defendant guilty of this offense, you must find that the
following three elements have been proven beyond a reasonable
doubt:
First, that the defendant did a certain act; that is, he shot
or conspired to shoot Kendall Rosendary.
Second, that at the time of this alleged act, the defendant
had the specific intent to kill Kendall Rosendary; that is, he had a
fully formed intent to kill and was conscience of his own intention;
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And, third, that the act constituted a substantial step toward
the commission of the killing the defendant intended to bring
about.
Let me explain the meaning of a “substantial step.” A
person cannot be guilty of an attempt to commit a crime unless
he or she does an act that constitutes a substantial step towards
the commission of the crime. An act is a substantial step if it is a
major step toward the commission of the crime and also strongly
corroborates the jury’s belief that the person at the time he did
the act had a firm intent to commit that crime. An act can be a
substantial step even though other steps would have to be taken
before the crime could be carried out.
If you are satisfied that the three elements of attempted
murder have been proven beyond a reasonable doubt, you should
find the defendant or defendants guilty; otherwise, you must find
the defendant or defendants not guilty of this crime.
N.T. Jury Trial Volume VI, 11/2/18, at 1401-02.
The trial court’s re-instruction tracks the suggested standard jury
instruction for the crime of attempted murder, except, as noted, it adds in the
concept of conspiring to shoot Mr. Rosendary. See Pa. SSJI (Crim)
§ 12.901A.1. Regardless of whether the trial court properly truncated the
accomplice and co-conspirator liability concepts into the attempted murder re-
instruction, it is clear from the record that Appellant was not convicted as an
accomplice; he was convicted of attempted murder because both he and Jones
shot Mr. Rosendary. Indeed, Appellant’s own testimony conceded that he
“drew his gun and returned fire,” though he claimed to have done so in
response to being targeted. See Davis, 2021 WL 4617988, at *2. In other
words, Appellant’s conviction for attempted murder was premised on his act
of intentionally shooting the victim, not upon accomplice or co-conspirator
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liability. In such a circumstance, our Supreme Court has explained that “there
is no factual predicate to [a petitioner’s] argument that the trial court’s
instruction improperly permitted the jury to convict him as an accomplice or
co-conspirator, and he cannot prevail on his claim that counsel was ineffective
for failing to object to this charge.” Smith, 17 A.3d at 909–10. Accordingly,
we hold that the PCRA court did not err in rejecting this claim.
Based on the foregoing, we affirm the order of the PCRA court denying
Appellant’s PCRA petition.
Order affirmed.
Date: 10/31/2024
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