J-S66026-17

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RONALD GRAYSON GILMORE, 

 Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 288 WDA 2017

Appeal from the PCRA Order July 16, 2015

In the Court of Common Pleas of Lawrence County Criminal Division at 

No(s): CP-37-CR-0000555-2005

BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT*, J.

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 8, 2018

Appellant Ronald Grayson Gilmore appeals from the Order entered by 

the Lawrence County Court of Common Pleas denying his Petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. 

He contends, inter alia, that trial and appellate counsel provided ineffective 

assistance for failing to raise issues regarding jury instructions and the 

verdict slip. After careful review, we affirm the denial of Appellant’s PCRA 

Petition.

This Court previously set forth the facts underlying Appellant’s 

conviction in our disposition of his direct appeal and we, thus, will not repeat 

them in detail here. On May 8, 2007, a jury found Appellant guilty of 

Conspiracy to Commit Murder and not guilty of First- and Third-Degree 

Murder and Persons Not to Possess a Firearm, in connection with the 2005 
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death of Carmen Oliva who was shot three times in the head after Appellant 

and others suspected that he was a police informant.

1

 The court sentenced 

Appellant to 171⁄2 to 35 years’ incarceration. This Court affirmed the 

Judgment of Sentence, and our Supreme Court denied allocatur on March 

23, 2010. See Commonwealth v. Gilmore, 1630 MDA 2008, 984 A.2d 

1012 (Pa. Super. filed Aug. 17, 2009), appeal denied, 991 A.2d 310 (Pa. 

2010). 

Appellant filed a pro se PCRA Petition on March 24, 2011, which 

subsequently-appointed counsel amended twice.

2

 After many continuances, 

the court held an evidentiary hearing on April 2, 2014, with Appellant 

represented by his third PCRA attorney. Appellant testified as to the issues

he had wanted to raise in his PCRA Petition. After several more

continuances, a second day of the hearing occurred on January 9, 2015, at 

which Appellant’s trial counsel testified. After receiving many extensions, 

Appellant filed a legal memorandum in which he asserted, inter alia, that the 

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1 The Commonwealth had charged Appellant with Criminal Homicide in 

violation of 18 Pa.C.S. § 2501(a), Criminal Conspiracy with the Intent to 

Commit Criminal Homicide, 18 Pa.C.S. § 2501(a), 18 Pa.C.S. § 903(a); and, 

Persons Not to Possess a Firearm, 18 Pa.C.S. § 6105(a)(1). 

2 The court appointed one PCRA attorney on May 2011. The court granted 

that attorney’s Motion to Withdraw in August 2011. The court appointed a 

second PCRA attorney, who failed to appear at a scheduled hearing in March 

2012. On May 2, 2012, a third attorney entered her appearance on behalf of 

Appellant. 
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verdict violated Apprendi v. New Jersey, 530 U.S. 466 (2000). By Order 

and Opinion dated July 16, 2015, the PCRA court denied relief. 

Appellant filed a timely pro se Notice of Appeal and counsel thereafter 

filed an amended Notice of Appeal. The PCRA court appointed new counsel 

to represent Appellant on appeal. Appellant submitted a counseled Pa.R.A.P. 

1925(b) Statement. The PCRA court did not file a 1925(a) Opinion.

Appellant presents the following Statement of the Questions Involved

in his Brief:

1. Whether the lower court erred when it denied [Appellant’s] 

claim that the jury verdict of Conspiracy to Commit Murder 

was in error, in violation of his Fifth, Fourteenth and Sixth 

Amendment Rights of the U.S[.]

2. Whether the lower court erred when it denied [Appellant’s] 

claim that the assistance of trial counsel was ineffective for 

failing to raise objections to the verdict slip.

3. Whether the assistance of appellate counsel was ineffective 

for failing to argue additional claims of the ineffective 

assistance of trial counsel for failure to object to the jury 

instructions.

Appellant’s Brief at 4.

STANDARD AND SCOPE OF REVIEW

We review the denial of a PCRA Petition to determine whether the 

record supports the PCRA court’s findings and whether its order is otherwise 

free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 

2014). This Court grants great deference to the findings of the PCRA court if 

the record supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 
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(Pa. Super. 2007). We give no such deference, however, to the court’s legal 

conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 

2012). 

We will address Appellant’s three issues together. In his first issue, 

Appellant argues the trial court erred in its jury instructions and verdict 

sheet. Recognizing that he waived these issues because he failed to object

at trial, Appellant contends in his second and third issues that trial counsel 

provided ineffective assistance of counsel by failing to object to the verdict 

form and jury instructions. He further asserts that “appellate counsel failed 

to argue that trial counsel was ineffective for failing to instruct on Criminal 

Homicide, including instructions for Involuntary Manslaughter,” and states,

“there was no strategic decision given for the failure ... to raise the issue in a 

post[-] conviction petition.” Appellant’s Brief at 35. Appellant, thus, 

challenges the effective assistance of trial, appellate, and PCRA counsel 

based on the underlying claim raised in his first issue. 

INEFFECTIVE ASSISTANCE OF COUNSEL 

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The 

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy 

this burden, Appellant must plead and prove by a preponderance of the 

evidence that: “(1) his underlying claim is of arguable merit; (2) the 

particular course of conduct pursued by counsel did not have some 
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reasonable basis designed to effectuate his interests; and, (3) but for 

counsel’s ineffectiveness, there is a reasonable probability that the outcome 

of the challenged proceeding would have been different.” Commonwealth 

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the 

test will result in rejection of the appellant’s ineffective assistance of counsel 

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

With respect to layered ineffectiveness claims, the Pennsylvania 

Supreme Court has provided the following guidance:

[I]n order for a petitioner to properly raise and prevail on a 

layered ineffectiveness claim, sufficient to warrant relief if 

meritorious, he must plead, present, and prove the 

ineffectiveness of Counsel 2 (appellate counsel), which as we 

have seen, necessarily reaches back to the actions of Counsel 1 

(trial counsel). To preserve (plead and present) a claim that 

Counsel 2 was ineffective in our hypothetical situation, the 

petitioner must: (1) plead, in his PCRA petition, that Counsel 2 

was ineffective for failing to allege that Counsel 1 was ineffective 

for not [taking the suggested actions], see Commonwealth v. 

Marrero, [ ] 748 A.2d 202, 203, n. 1 (2000); and (2) present

argument on, i.e., develop, each prong of the Pierce test as to 

Counsel 2's representation, in his briefs or other court 

memoranda.

Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003) (emphasis in 

original). 

“Where, however, the petitioner fails to plead, present[,] and prove all 

three prongs of the Pierce test regarding the underlying issue of trial 

counsel's ineffectiveness, ... [a] petitioner is unable to establish the requisite 

arguable merit prong of his layered claim of appellate counsel's 
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ineffectiveness.” Commonwealth v. Reyes, 870 A.2d 888, 897 (Pa. 2005) 

(citation omitted). 

Additionally, it is well-settled that an appellant may not raise 

challenges to PCRA counsel’s effectiveness for the first time on appeal. See

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (citing 

cases).

After reviewing the record, we conclude that Appellant’s 

ineffectiveness claims warrant no relief as he has failed prove that the 

underlying issues have arguable merit.

Verdict Slip/Jury Instructions

Appellant asserts that “the court erred when it sent a verdict slip to 

the jury with Criminal Conspiracy to Commit Murder,” instead of Conspiracy 

to Commit Homicide. Appellant’s Brief at 28. He also argues the jury should 

have been instructed on manslaughter and involuntary manslaughter as they 

are also crimes that fall within the definition of “homicide.” He avers trial 

counsel was ineffective for failing to request such an instruction and for 

approving the verdict slip before it went to the jury. He also asserts that all 

subsequent counsel provided ineffective assistance by failing to raise the 

issue on appeal and to assert trial counsel’s ineffectiveness. 

The Commonwealth charged Appellant with Criminal Homicide in 

violation of 18 Pa.C.S. § 2501(a), Criminal Conspiracy with the Intent to 
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Commit Criminal Homicide, 18 Pa.C.S. § 2501(a), 18 Pa.C.S. § 903(a); and, 

Persons Not to Possess a Firearm, 18 Pa.C.S. § 6105(a)(1). 

18 Pa.C.S. § 2501 provides:

(a) Offense defined.--A person is guilty of criminal homicide if 

he intentionally, knowingly, recklessly or negligently causes the 

death of another human being.

(b) Classification.--Criminal homicide shall be classified as 

murder, voluntary manslaughter, or involuntary manslaughter.

In the Crimes Code, the legislature created “one major homicide

offense, that of criminal homicide.” Commonwealth v. Polimeni, 378 

A.2d 1189, 1194 (Pa. 1977). “[T]he several types of homicide, namely, 

murder of any of the three named degrees and voluntary and involuntary 

manslaughter are constituent subsidiary offenses within the single major 

offense. All grades of unlawful killing thus have been made lesser included

offenses of the overall crime of criminal homicide.” Id. at 1194–95 

(footnote omitted).

Both First- and Third-Degree Murder involve malice. Pursuant to 18 

Pa.C.S. § 2501(a), a conviction of First-Degree Murder requires proof that 

there was an “intentional killing,” i.e., malice aforethought, which 

distinguishes it from any other type of homicide. Commonwealth v. 

Weinstein, 451 A.2d 1344, 1348 (Pa. 1982). Third-Degree Murder includes 

“[a]ll other kinds of murder,” i.e., killings that occur with an element of 

malice. See Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005) 

(noting that the requisite level of malice for third-degree murder is 
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“wickedness of disposition, hardness of heart, recklessness of consequences,

[or] a mind regardless of social duty”). In order to be found guilty of 

voluntary manslaughter, the evidence must show that the defendant killed 

the victim as a result of “sudden and intense passion resulting from serious 

provocation.” 18 Pa.C.S. § 2503. Involuntary manslaughter requires that 

the evidence show that the killing resulted from an “unlawful act” done in a 

“reckless or grossly negligent manner.” 18 Pa.C.S. § 2504. 

“Because the legislature has classified both murder and []

manslaughter as subdivisions of the major offense of criminal homicide, a 

defendant who has been charged with murder is entitled on request to have 

the jury instructed on the elements of [ ] manslaughter at least where 

evidence is presented at his trial on which a verdict of that less 

serious offense could rationally be based.” Polimeni, supra at 1196

(emphasis added).

Appellant avers that trial counsel was ineffective for failing to request 

a jury instruction on voluntary and involuntary manslaughter. He also avers 

that the verdict slip should have contained those offenses for the jury’s 

consideration.

The verdict slip contained the following offenses for the jury to 

consider:

1. Murder in the First Degree;

2. Murder in the Third Degree;

3. Criminal Conspiracy to Commit Murder; and

4. Person not to Possess, Use a Firearm.
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Verdict Slip, dated May 8, 2007.

Appellant argues that because the verdict slip did not say “criminal 

conspiracy to commit homicide,” the jury was unable to consider the full 

range of possible homicide offenses, i.e., manslaughter and involuntary 

manslaughter, in addition to First- and Third-Degree murder. See

Appellant’s Brief at 26–33.

The PCRA court aptly analyzed Appellant’s claim regarding trial 

counsel’s alleged ineffectiveness regarding failing to request the jury 

instructions and failing to object to the verdict slip regarding the notation 

“Conspiracy to Commit Murder.” After reviewing in detail the facts 

presented at trial, as well as relevant statutory and case law, the court 

concluded:

In the current case, the Court did not instruct the jury on the

charges of voluntary or involuntary manslaughter as there was 

no evidence presented at trial to suggest those instructions 

were appropriate. The evidence presented at trial demonstrated 

[that Appellant] conspired with Kailin Stewart and Andrae 

Jackson to perpetrate the intentional killing of the victim in order 

to rectify the problem [that] he was an alleged “snitch”. There 

is no evidence [that Appellant] killed the victim in a state of rage 

or through an unreasonable belief [that] justification to kill the 

victim existed as [Appellant] and the victim decided to return to 

the Biker Clubhouse to confront Ms. Natale concerning the rumor 

the victim was working as a confidential informant for the police. 

The record lacks any reference to [Appellant] being enraged by 

the victim at any time while they were in each other’s 

presence[,] nor is there any indication [that] justification for the 

victim’s murder existed. Furthermore, there was no evidence 

presented at trial [that Appellant] killed the victim through his 

recklessness or gross negligence. The allegations and facts on 

record demonstrate the victim’s death was caused by three 
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gunshot wounds intentionally inflicted upon the victim. Thus, 

the Court was not required to instruct the jury concerning 

voluntary and involuntary manslaughter. Since there was no 

basis to instruct the jury on manslaughter, the Court utilized the 

term Conspiracy to Commit Murder on its verdict slip as to avoid 

confusing the jury and murder was the only degree of homicide 

charged.

Trial Court Opinion, dated 7/16/15, at 11-12. 

Appellant attempts to rely on Apprendi, supra, and Commonwealth 

v. Weimer, 977 A.2d 1103 (Pa. 2009),3to argue that it was up to the jury 

to determine whether conviction for manslaughter was an appropriate 

disposition. Apprendi provides that, other than the fact of prior convictions, 

“any fact that increases the penalty for a crime beyond the statutory 

maximum must be submitted to a jury, and proved beyond a reasonable 

doubt.” Id. at 490 (emphasis added). 

Here, Appellant conversely argues that the jury should have had the 

opportunity to consider Manslaughter because such a finding would have 

decreased the penalty imposed. Appellant’s argument misses the point of 

Apprendi’s constitutional analysis. Furthermore, no court has stretched 

and contorted the holding of Apprendi as Appellant does to support a

complaint about jury instructions and a verdict slip pertaining to lesser-

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3 The Weimer Court addressed the elements required to establish Criminal 

Conspiracy before concluding that the appellant’s convictions of ThirdDegree Murder and Conspiracy to Commit Criminal Homicide were proper. 

977 A.2d at 1105.
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included offenses. As the facts of this case do not lend themselves to such a 

consideration, we decline to conduct such an analysis here. 

Moreover, and most significantly, Appellant’s argument ignores the 

basic underlying premise that there must be evidence presented at trial

upon which a manslaughter verdict could “rationally be based.” Polimeni, 

supra at 1196. See, e.g., Commonwealth v. Carter, 466 A.2d 1328, 

1329 (Pa. 1983) (concluding the trial court properly refused to charge the 

jury on voluntary manslaughter “unreasonable belief” as there was no 

evidence to support a verdict on that charge); Commonwealth v. Keaton, 

431 A.2d 999, 1000-01 (Pa. 1981) (finding trial court properly refused to 

instruct jury on involuntary manslaughter where there was no evidence to 

support the charge). Our review of the record, including the transcripts 

from Appellant’s trial, supports the PCRA court’s conclusion there was no 

evidence presented at trial to support a Manslaughter verdict. Accordingly, 

the jury instruction that Appellant now avers should have been requested 

would have been unwarranted and inappropriate. Consequently, the 

omission of Manslaughter from the verdict slip was proper.

Because the issues underlying Appellant’s ineffective assistance of 

counsel claims have no merit, Appellant is not entitled to relief. Accordingly, 

the PCRA court did not abuse its discretion in denying Appellant’s PCRA 

Petition.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/8/2018