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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

SHAWN ANTHONY THOMPSON

                            Appellant                   No. 16 MDA 2016


                Appeal from the PCRA Order December 22, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002146-2012


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED SEPTEMBER 22, 2016

        Shawn Thompson appeals from an order dismissing his petition for

relief under the Post Conviction Relief Act (“PCRA”).1      We affirm in part,

reverse in part, and remand for further proceedings.

        A jury found Thompson guilty of third degree murder and attempted

robbery of a motor vehicle.2            On June 17, 2013, the court sentenced

Thompson to 20-40 years’ imprisonment for third degree murder and a

consecutive term of 5-10 years’ imprisonment for attempted robbery of a

motor vehicle. On July 23, 2014, this Court affirmed on direct appeal. On



____________________________________________


1
    42 Pa.C.S. § 9541 et seq.
2
    18 Pa.C.S. §§ 2502(c) and 901, respectively.
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February 5, 2015, our Supreme Court denied Thompson’s petition for

allowance of appeal.

         On April 20, 2015, Thompson filed a timely PCRA petition. The court

appointed PCRA counsel.        On August 5, 2015, counsel filed a “no merit”

letter     pursuant    to   Commonwealth        v.   Finley,   550    A.2d     214

(Pa.Super.1988), and Commonwealth v. Turner, 544 A.2d 927 (Pa.1988),

and requested leave to withdraw from the case. Counsel’s “no merit” letter

and motion to withdraw did not mention an issue that we find critical to the

outcome of this case – the trial court’s failure to define “intent”, an element

of the offense of attempted robbery of a motor vehicle.

         On November 30, 2015, the court granted counsel leave to withdraw

and entered a notice of intent to dismiss without a hearing. On December

22, 2015, the court dismissed Thompson’s PCRA petition. Thompson filed a

timely notice of appeal, and both Thompson and the PCRA court complied

with Pa.R.A.P. 1925.

         Thompson raises the following issues in this appeal, which we have

renumbered for purposes of disposition:

         1. Whether the trial court erred when it charged the jury with a
         defective reasonable doubt instruction.

         2. Whether the trial court erred when it failed to correctly
         instruct the jury on all elements of the offense of criminal
         attempt robbery of a motor vehicle as required for a verdict of
         guilty or not guilty beyond a reasonable doubt.

         3. Whether the trial court erred when its instruction on malice
         as it relates to third degree murder … was defective for failing to


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      include the language ‘not simply meaning hatred, spite, or ill will’
      as a whole regarding the definition of malice.

      4. Whether trial counsel was ineffective for failing to object to
      the faulty jury instructions.

      5. Whether the trial court erred as a matter of law and abused
      its discretion when it denied Appellant’s PCRA Petition without a
      hearing.

Brief For Appellant, at 5.   In effect, Thompson contends that trial counsel

was ineffective for failing to object to the jury instructions referenced in his

first, second and third issues above.

      “Our standard of review from the grant or denial of post-conviction

relief is limited to examining whether the PCRA court’s determination is

supported by the evidence of record and whether it is free of legal error. We

will not disturb findings that are supported by the record.” Commonwealth

v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011).          “The court’s scope of

review is limited to the findings of the PCRA court and the evidence on the

record of the PCRA court’s hearing, viewed in the light most favorable to the

prevailing party.” Commonwealth v. Duffey, 889 A.2d 56, 61 (Pa.2005).

      Further, counsel is presumed effective, and an appellant bears the

burden to prove otherwise. See Commonwealth v. McDermitt, 66 A.3d

810, 813 (Pa.Super.2013). The test for ineffective assistance of counsel is

the same under both the Federal and Pennsylvania Constitutions. See

Strickland v. Washington, 466 U.S. 668, 687 (1984); Commonwealth v.

Jones, 815 A.2d 598, 611 (Pa.2002). An appellant must demonstrate


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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 counsel’s ineffectiveness, there is

a reasonable probability that the outcome of the proceedings would have

been different.    See Commonwealth v. Pierce, 786 A.2d 203, 213

(Pa.2001), abrogated on other grounds by Commonwealth v. Grant, 813

A.2d 726 (Pa.2002).       “A failure to satisfy any prong of the test for

ineffectiveness will require rejection of the claim.” Jones, 815 A.2d at 611.

      When we review jury instructions, we

      will not review a charge to the jury by focusing on one or two
      words taken out of the context within which they were spoken.
      When evaluating the adequacy of jury instructions, the charge
      must be read in its entirety. Error cannot be predicated on
      isolated excerpts of the charge; it is the general effect that
      controls.

Commonwealth v. Murphy, 739 A.2d 141, 146 (Pa.1999). “The 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.” Commonwealth v. Smith, 17 A.3d 873,

906 (Pa.2011). “Merely because the trial court did not choose the precise

language suggested by Appellant does not render the charge inadequate.”

Commonwealth v. Koehler, 36 A.3d 121, 157 (Pa.2012). A review of jury

instructions will not turn on the presence or absence of “magic words”.

Commonwealth v. Montalvo, 986 A.2d 84, 99 (Pa.2009).




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      In his first issue on appeal, Thompson argues that the jury instruction

on reasonable doubt was defective. Examination of Thompson’s brief shows

that he does not actually object to the instruction on reasonable doubt but to

the instructions on the elements of the charges against him (attempted

robbery of a motor vehicle and third degree murder). Brief For Appellant, at

12-14.   In any event, the instruction on reasonable doubt, N.T. 249-251,

mirrors the language used in Pennsylvania’s Standard Jury Instructions and

is consistent in every respect with language that our Supreme Court deems

acceptable.    See Commonwealth v. Cook, 952 A.2d 594, 633-34

(Pa.2008) (collecting cases). Thus, this issue lacks arguable merit.

      In his second issue, Thompson contends that the trial court erred by

failing to instruct the jury on all elements of the offense of attempted

robbery of a motor vehicle. We conclude that this issue has arguable merit

due to the trial court’s failure to charge the jury on the meaning of “intent”.

      The failure to adequately define and explain a felony or serious

misdemeanor constitutes fundamental error. Commonwealth v. Johnson,

211 A.2d 100, 104 (Pa.Super.1965). The absence of an instruction on the

applicable mens rea requirements warrants a new trial. Commonwealth v.

Ketterer, 725 A.2d 801, 807 (Pa.Super.1999).

      The Crimes Code provides: “A person commits an attempt when, with

intent to commit a specific crime, he does any act which constitutes a

substantial step toward the commission of that crime.” 18 Pa.C.S. § 901(a).


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Moreover, the Crimes Code provides that a person acts “intentionally” with

respect to a material element of an offense:

      when: (i) if the element involves the nature of his conduct or a
      result thereof, it is his conscious object to engage in conduct of
      that nature or to cause such a result; and (ii) if the element
      involves the attendant circumstances, he is aware of the
      existence of such circumstances or he believes or hopes that
      they exist.

18   Pa.C.S.   §   302(b)(1).    Pennsylvania’s   Suggested    Standard    Jury

Instructions provide a different definition of intent in its instruction on

attempt: “A person cannot be guilty of an attempt to commit a crime unless

he … has a firm intent to commit that crime. If he … has not definitely made

up his … mind – if his … purpose is uncertain or wavering – he … lacks the

kind of intent that is required for an attempt.” SSJI 12.901A(5). It is clear

from these definitions that “intent” has a specialized meaning under the law

which the jury must learn in order to decide the issue of “attempted”

robbery.

      Here, the court instructed the jury that attempt requires intent, N.T. at

258, but failed to provide the definition of “intent” within section 302(b)(1)

or SSJI 12.901A(5).     This fundamental defect may entitle Thompson to a

new trial on the charge of attempted robbery of a motor vehicle.

      Ketterer provides a useful analogy to this case. There, the defendant

was charged with aggravated assault by vehicle while driving under

influence, which the Vehicle Code defines as an assault “negligently”

committed. 75 Pa.C.S. § 3735.1. The trial court failed to instruct the jury

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as to the meaning of “negligently” under section 302(b)(4), a stricter

definition than the definition of negligence under tort law.       Ketterer, 725

A.2d at 806-07; see also 18 Pa.C.S. § 302(b)(4) (“[a] person acts

negligently ... when he should be aware of a substantial and unjustifiable

risk ... [that is] of such a nature and degree that the actor's failure to

perceive it ... involves a gross deviation from the standard of care that a

reasonable person would observe in the actor's situation”) (emphasis

added).    We held that the lack of a negligence instruction under section

302(b)(4) “permit[ed] the jury to convict Appellant upon a showing of

ordinary negligence,” an error that required a new trial. Ketterer, 725 A.2d

at 807.

      The present case involves much the same error as in Ketterer.

Merely stating that Thompson must act with “intent,” as the trial court did

here, improperly permitted the jury to apply its own lay understanding of

“intent” to the evidence.    Thus, we agree with Thompson that the court’s

failure to define the element of intent has arguable merit.

      But because the court did not hold a hearing on Thompson’s PCRA

petition, we find that further proceedings in the lower court are advisable.

The lower court should have the opportunity to determine in the first

instance whether Thompson fulfills the other two prongs of the test for

ineffectiveness, i.e., whether the course of conduct pursued by counsel

lacked    any   reasonable   basis,   and    whether   counsel’s   ineffectiveness


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prejudiced Thompson. Pierce, 786 A.2d at 213. We remand this case for

an evidentiary hearing on these issues.

      Thompson’s third argument challenges the instructions that the court

used to define the charge of third degree murder. According to Thompson,

the trial court failed to instruct the jury that malice, an element of third

degree murder, must include “hatred, spite or ill will.” We disagree.

      Third degree murder “occurs when a person commits a killing which is

neither intentional nor committed during the perpetration of a felony, but

contains the requisite malice.” Commonwealth v. Truong, 36 A.3d 592,

597 (Pa.Super.2012) (en banc). This Court has defined “malice” as:

      wickedness of disposition, hardness of heart, cruelty,
      recklessness of consequences, and a mind regardless of social
      duty, although a particular person may not be intended to be
      injured[.] Malice may be found where the defendant consciously
      disregarded an unjustified and extremely high risk that his
      actions might cause serious bodily injury.         Malice may be
      inferred by considering the totality of the circumstances.

Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa.Super.2011).

Nothing in this definition requires the court to include the terms “hatred,

spite or ill will”. Therefore, this claim lacks arguable merit.

      In Thompson’s final two arguments, he claims that trial counsel was

ineffective for failing to object to faulty jury instructions, and that the trial

court erred in denying his PCRA Petition without a hearing.            We have

addressed these arguments above in the course of resolving Thompson’s

first, second and third arguments.        We agree with Thompson that an


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evidentiary hearing is necessary to address whether he is entitled to relief on

his conviction for attempted robbery of a motor vehicle due to ineffective

assistance of trial counsel.   Otherwise, we conclude that Thompson is not

entitled to relief.

      Order affirmed with regard to conviction for third degree murder.

Order reversed with regard to conviction for attempted robbery of motor

vehicle.    Case remanded for evidentiary hearing, consistent with this

memorandum, as to Thompson’s claim of ineffective assistance of counsel

claim on conviction for attempted robbery of motor vehicle.        Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2016




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