Opinion
J-S41005-19 No. 590 MDA 2019
11-01-2019
COMMONWEALTH OF PENNSYLVANIA v. JACK ARTHUR MASSEY, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered April 1, 2019
In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000654-2017 BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
Jack Arthur Massey, Jr., appeals from the order, entered in the Court of Common Pleas of Franklin County, dismissing his petition for relief filed under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Massey argues his trial attorney was ineffective for failing to object to jury instructions. After careful review, we affirm on the basis of the opinion authored by the Honorable Angela R. Krom.
Massey was charged with involuntary deviate sexual intercourse (IDSI), aggravated indecent assault, indecent assault, and corruption of minors. While Massey was initially charged with IDSI under section 3123(a)(7)—complainant less than 16 years of age, following the victim's testimony, the Commonwealth moved to amend the information and proceeded under section 3123(a)(1)—IDSI by forcible compulsion. The trial court granted the motion. Following the trial on May 10, 2019, the jury found Massey guilty on all charges. On June 20, 2018, Massey was sentenced to an aggregate term of 123 to 384 months' incarceration. Massey did not file any post-sentence motions.
18 Pa.C.S. § 6401(a)(1)(ii).
On July 9, 2018, while still represented by counsel, Massey filed a pro se appeal. The court noted that the notice of appeal did not contain counsel's signature, but that it would recognize the notice insofar as it preserved his direct appeal rights. The court requested a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On July 23, 2018, Massey's counsel withdrew the appeal and informed the court that Massey would be filing a PCRA petition arguing ineffective assistance of counsel. After informing the court, Massey's trial counsel ceased involvement in the case. On July 25, 2018, Massey filed his pro se PCRA petition. The court appointed new counsel, who filed an amended PCRA petition on November 14, 2018. On March 4, 2019, an evidentiary hearing was held and the PCRA court dismissed the petition on March 29, 2019. This appeal follows.
Massey argues that his trial counsel was ineffective for failing to object to jury instructions for IDSI by forcible compulsion that discussed elements relevant to subsection 3123(a)(2) even though Massey was charged under subsection 3123(a)(1).
Massey's issue concerns trial counsel's effectiveness. We presume counsel was effective, and it is Massey's burden to prove otherwise. See Commonwealth v. Fears , 86 A.3d 795, 804 (Pa. 2014). To prevail on an ineffectiveness claim, Massey must establish:
(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) [appellant] suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.Commonwealth v. Lesko , 15 A.3d 345, 373 (Pa. 2011). Massey must prove each element; merely alleging each element is not sufficient. See Commonwealth v. Mason , 130 A.3d 601, 618 (Pa. 2015). A reasonable basis does not require that counsel chose the most logical course of action, but that the decision had some reasonable basis. Commonwealth v. Bardo , 105 A.3d 678, 684 (Pa. 2014). "To demonstrate prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's actions or inactions, the result of the proceeding would have been different." Mason , 130 A.3d at 618 (citing Strickland v. Washington , 466 U.S. 668, 684 (1984)).
"A trial court's charge to the jury must contain a correct statement of the law." Commonwealth v. Patosky , 656 A.2d 499, 505 (Pa. Super. 1995) (citations omitted). When addressing challenges to a jury instruction, we consider the challenged portion in light of the entire instruction. Commonwealth v. Ly , 980 A.2d 61, 88 (Pa. 2009).
After a thorough review of the record, the parties' briefs, the applicable law, and the well-reasoned opinion of Judge Krom, we conclude that there is no merit to the issue Massey has raised on appeal and that the jury charge was appropriate. We find that trial court opinion thoroughly disposes of Massey's claim. Accordingly, we affirm on the basis of Judge Krom's succinct opinion. See Trial Court Opinion, 4/11/19.
Furthermore, our Supreme Court has found an attorney's decision not to object to standard jury instructions reasonable. See Commonwealth v. Washington , 927 A.2d 586, 603 (Pa. 2007) (finding counsel reasonable when he did not object to standard jury instructions that had been previously approved by the Court); Commonwealth v. Trigno , 750 A.2d 243, 253 (Pa. 2000) (holding that counsel acts reasonably by not objecting to standard jury instruction, even if instruction is later found improper). There is a single suggested standard jury instruction for both IDSI by forcible compulsion and IDSI by threat of forcible compulsion. See Pa. SSJI (Crim) 15.3123A. At trial, Judge Krom read the standard jury instruction. N.T. Trial, 5/10/19, at 31-34. We agree with the trial court that Massey's claim does not warrant post-conviction relief.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/1/2019
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