Opinion
J-S79038-17 No. 1742 EDA 2016
12-19-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. PHILIP HUMMEL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 31, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011100-2008 BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Philip Hummel, appeals from the order entered in the Philadelphia Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9541-9546. We affirm.
Appellant's first name is spelled variously throughout the certified record as both "Philip" and "Phillip."
In its opinion, the PCRA court set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. We add that during Appellant's direct appeal, our Supreme Court denied petition for allowance of appeal on December 31, 2012. Commonwealth v. Hummel , 619 Pa. 700, 63 A.3d 1244 (2012). Appellant timely filed a notice of appeal on June 9, 2016, from the denial of PCRA relief. On August 29, 2016, the PCRA court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on September 9, 2016.
Appellant raises the following issues for our review:
WHETHER THE COURT ERRED IN DENYING [APPELLANT'S] PCRA PETITION WITHOUT AN EVIDENTIARY HEARING ON THE ISSUES RAISED IN THE AMENDED PCRA PETITION REGARDING [TRIAL] COUNSEL'S INEFFECTIVENESS.(Appellant's Brief at 8).
WHETHER THE COURT ERRED IN NOT GRANTING RELIEF ON THE PCRA PETITION ALLEGING COUNSEL WAS INEFFECTIVE.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Sierra Thomas Street, we conclude Appellant's issues merit no relief. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented. ( See PCRA Court Opinion, filed May 9, 2017, at 11-18) (finding: (1) review of record reveals none of Appellant's PCRA claims entitled him to relief; evidentiary hearing served no further purpose; (2) regarding Appellant's claim that trial counsel was ineffective for failing to file post-sentence motion challenging weight of evidence, evidence admitted at trial firmly established Appellant's guilt; Victim provided detailed testimony that Appellant was actively involved in shooting that led to Victim's hospitalization; moments before shooting, Victim observed Appellant and Co-defendant (shooter) ten feet away on sidewalk; Appellant said Victim's name aloud before shooting occurred, and Victim identified Appellant due to his "sad, unique voice"; immediately after shooting, Victim told Ms. Ayers (eyewitness): "[Appellant] shot me. As a matter of fact, he didn't do it. He got somebody else to do it"; police report states that Victim told police "possible known doer goes by Phil"; Victim also gave Appellant's name to police in ambulance on way to hospital; on day after shooting, Victim positively identified Appellant in photo array; Ms. Ayers' testimony corroborated Victim's physical descriptions of Appellant and Co-defendant, along with sequence of events; forensic evidence recovered at scene supported testimony of Victim and Ms. Ayers about events of shooting; Appellant's face was partially obscured during shooting, but Victim testified that he was able to identify Appellant based on his unique voice and their prior interactions; Ms. Ayers' inability to see Appellant's face during shooting does not upset Victim's positive identification of Appellant; rather, Ms. Ayers' physical description of Appellant corroborated Victim's description; Victim's testimony at preliminary hearing about uncertainty of Co-defendant's identity stemmed from Victim's disbelief that his friend (Co-defendant) could have been involved, as well as intimidation Victim suffered at school following shooting; Victim consistently identified Appellant as non-shooter from night of incident through trial; thus, court would have denied any post-sentence motion raising weight of evidence claim and counsel is not ineffective for failing to file one on that ground; regarding Appellant's claim that trial counsel was ineffective for failing to file post-sentence motion challenging discretionary aspects of sentencing, court imposed sentence within guideline range and considered Appellant's confinement as consistent with protection of public, gravity of offense as it relates to impact on life of Victim, and Appellant's rehabilitative needs; court noted very serious nature of offense and that Appellant abandoned his house arrest prior to trial; Victim suffered serious injuries as result of Appellant's crimes; further, due to Appellant's abandonment of house arrest and failure to appear at trial, Appellant did not request counsel to file post-sentence motion; Appellant's claim of ineffective assistance of trial counsel for failure to file post-sentence motion to reconsider sentence fails; regarding Appellant's claim that appellate counsel was ineffective for failing to raise sufficiency of evidence challenge to Appellant's firearm conviction, sufficient evidence demonstrated Appellant's intent to promote or facilitate Co-defendant's unlicensed carrying of concealed firearm; Co-defendant's non-licensure was plainly evident because he was less than twenty-one years old at time of offense, which is minimum age to apply for license to carry firearms in Pennsylvania; Appellant's actions and statements before shooting demonstrated his intent to facilitate crime; Appellant and Co-defendant together approached Victim, and Appellant said Victim's name aloud to signal Co-defendant to begin shooting; jury had sufficient evidence to convict Appellant of firearms charge; thus, Appellant's claim of appellate counsel's ineffectiveness merits no relief). Accordingly, we affirm based on the PCRA court opinion.
In his appellate brief, Appellant argues that a break during Victim's testimony at trial to allow him to take medication clouded his judgment and cast doubt on his testimony. Appellant claims this issue affects the weight of the evidence. Appellant's Rule 1925(b) statement, however, did not specify this claim; and the PCRA court did not address this particular argument in its opinion. Therefore, Appellant's "medication" issue is waived. See Commonwealth v. Castillo , 585 Pa. 395, 888 A.2d 775 (2005) (holding any issue not raised in Rule 1925(b) statement is deemed waived for appellate review); Commonwealth v. Reeves , 907 A.2d 1 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007) (stating Rule 1925(b) statement that is too vague for trial court to identify and address issue Appellant wishes to raise on appeal can result in waiver). --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/19/2017
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