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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARKAL TREY MUNFORD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1271 MDA 2018

Appeal from the PCRA Order Entered July 6, 2018

In the Court of Common Pleas of York County 

Criminal Division at No(s): CP-67-CR-0004001-2014

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED: MAY 20, 2019

Markal Trey Munford appeals from the order entered on July 6, 2018, 

denying, after a hearing, his first, counseled petition filed pursuant to the 

Pennsylvania Post Conviction Relief Act (PCRA).1 Munford seeks relief from 

the judgment of sentence of 61⁄4 to 121⁄2 years’ imprisonment, imposed after 

a jury convicted Munford of one count each of person not to possess firearms, 

receiving stolen property (RSP), firearms not to be carried without a license, 

and possession of a controlled substance.

2

 Munford contends the PCRA court 

erred in denying relief where appellate counsel was ineffective for not raising 

a claim on direct appeal that the evidence was insufficient to sustain his 

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1 42 Pa.C.S.A. §§ 9541–9546.

2 18 Pa.C.S.A. §§ 6105(a)(1), 3925(a), and 6106(a)(1), respectively; and 35 

P.S. § 780-113(a)(16). 
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conviction for RSP. See Munford’s Brief at 7. Based on the following, we 

reverse the denial of PCRA relief and remand with instructions.

We take the underlying facts and procedural history in this matter from 

this Court’s decision on direct appeal and our independent review of the 

certified record:

On February 21, 2014, at approximately 1:45 a.m., [Munford] was 

a passenger in a Ford Ranger pick-up truck driven by his father 

when two York City police officers stopped the vehicle for having 

a suspended registration. As police officers pulled up behind the 

pick-up truck, the driver got out and walked away from the vehicle 

toward the officers, saying he lived right across the street. The 

officers told him several times to get back in the vehicle. As they 

escorted the driver back to his vehicle, the officers saw 

[Munford’s] head slightly pop up in the passenger seat. They were 

unable to see his hands until they got around to the front of the 

vehicle, at which point they saw [Munford] hunched over the front 

seat with his hands in his lap.

After [Munford] and his father provided the police officers with 

identification, the officers discovered that the probation and parole 

department had issued a warrant for [Munford’s] detention. The 

officers arrested and searched [Munford]. In his pockets, 

[Munford] had $1,000 in cash and two small baggies containing 

blue pills, later determined to be Methylone (known as “bath 

salts”), a Schedule I controlled substance. Because the car was 

unregistered and uninsured, the officers impounded the vehicle 

and searched it. They discovered a stolen, loaded .357 Magnum 

revolver underneath the passenger seat where [Munford] had 

been sitting. A background check revealed [Munford] was a 

person not permitted to possess firearms.

The Commonwealth charged [Munford] with Person Not to Possess 

Firearms, [RSP], Firearms Not to be Carried Without a License, 

and Possession of Controlled Substance by Person Not Registered. 

[Munford] filed a [m]otion to [s]uppress, which the trial court 

denied.

A jury trial proceeded, at which the arresting officers testified 

regarding the events leading up to and including [Munford’s] 
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arrest. They testified that [Munford] was hunched over in the 

front seat so that they did not even know he was there until they 

neared the vehicle while returning [Munford’s] father to the car. 

The officer who found the gun testified that it had been pushed 

“pretty far back” under the passenger seat, and because it was 

“so shoved back,” the gun would have been accessible to the 

driver only if he were to get out of the car, walk around to the 

passenger side, and reach under the seat. 

[Munford] testified that the truck belonged to his father who used 

it in his construction business, but that [Munford] registered it in 

his (Munford’s) name because his father had “had problems with 

his license.” Munford further testified that he had been drinking 

at a bar the night of the incident and had called his father for a 

ride home. He testified that when police officers stopped the 

vehicle, he was hunched over the front seat because he “was 

basically in a relaxed position.” [Munford] denied ever seeing the 

gun, and denied knowing how the gun ended up underneath the 

passenger seat of the truck. 

The jury found [Munford] found guilty of all charges. The court 

subsequently sentenced [Munford] to an aggregate term of 

incarceration of 6 years, 3 months to 12 years, 6 months.

Munford timely appealed.

Commonwealth v. Munford, 2016 WL 3155101, at ** 1-2 (Pa. Super. Jun. 

6, 2016) (unpublished memorandum) (footnote and record citations omitted). 

On June 6, 2016, this Court affirmed the judgment of sentence. Id. at 

*1. On December 7, 2016, the Pennsylvania Supreme Court denied leave to 

appeal. Commonwealth v. Munford, 163 A.3d 408 (Pa. 2016).

On March 27, 2017, Munford, acting pro se, filed a timely PCRA petition. 

On March 31, 2017, the PCRA court appointed counsel, who filed an amended 

PCRA petition on November 14, 2017. The PCRA court held an evidentiary 

hearing on March 29, 2018.
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At the hearing, PCRA counsel withdrew all issues except the alleged 

ineffectiveness of appellate counsel for failing to raise on appeal issues 

challenging the trial court’s denial of Munford’s motion to suppress and the 

sufficiency of the evidence underlying his conviction for RSP. N.T. PCRA 

Hearing, 3/29/2018, at 3-4. Munford testified at the hearing that he had 

requested, in writing, that appellate counsel raise both those issues.3 Id. at 

9-10.

Anthony Tambourino, Esquire, who represented Munford on direct 

appeal, also testified at the hearing. Id. at 13. With respect to the issue of 

failing to challenge the sufficiency of the evidence underlying the receiving 

stolen property conviction, Mr. Tambourino stated that his general philosophy 

was to raise any issues he felt might have possible merit in the Rule 1925(b) 

statement so as to preserve them for appeal but only to raise the strongest 

issues on appeal. Id. at 17. Mr. Tambourino testified that he believed that 

the evidence was sufficient to sustain the conviction for receiving stolen 

property because the vehicle in which Munford was a passenger was registered 

in his name, he constructively possessed the gun, and he made furtive 

movements in an attempt to conceal the weapon under his seat. Id. at 18. 

On cross-examination, he reiterated that he believed that the evidence 

demonstrated that the “gun was clearly stolen.” Id. at 21.

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3 Munford has abandoned this issue on appeal. Munford’s Brief, at 7.
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On July 6, 2018, the PCRA court issued an order and opinion denying 

Munford’s PCRA petition. The instant, timely appeal followed. On August 9, 

2018, in response to the PCRA court’s order, Munford filed a timely concise 

statement of errors complained of on appeal. On August 16, 2018, the PCRA 

court issued an opinion adopting its earlier, July 6, 2018 opinion.

Munford challenges the denial of his PCRA petition. Our standard of 

review is well settled:

This Court analyzes PCRA appeals in the light most favorable to 

the prevailing party at the PCRA level. Our review is limited to 

the findings of the PCRA court and the evidence of record and we 

do not disturb a PCRA court’s ruling if it is supported by evidence 

of record and is free of legal error. Similarly, [w]e grant great 

deference to the factual findings of the PCRA court and will not 

disturb those findings unless they have no support in the record. 

However, we afford no such deference to its legal conclusions. 

[W]here the petitioner raises questions of law, our standard of 

review is de novo and our scope of review is plenary. Finally, we 

may affirm a PCRA court’s decision on any grounds if the record 

supports it.

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (quotation 

marks and citations omitted). Furthermore, where, as here, the defendant 

alleges appellate counsel rendered ineffective assistance, we note:

[W]e begin with the presumption that counsel is effective. To 

prevail on an ineffectiveness claim, [a]ppellant must satisfy, by a 

preponderance of the evidence, the performance and prejudice 

standard set forth in Strickland v. Washington, 466 U.S. 668, 

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court has divided 

the performance component of Strickland into two subparts 

dealing with arguable merit and reasonable strategy. 

Commonwealth v. Baumhammers, 625 Pa. 354, 92 A.3d 708, 

719 (Pa. 2014); Commonwealth v. Pierce, 515 Pa. 153, 527 

A.2d 973, 975-77 (Pa. 1987). With regard to “reasonable basis” 

in the appellate context, “[i]t is well settled that appellate counsel 
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is entitled, as a matter of strategy, to forego even meritorious 

issues in favor of issues he believes pose a greater likelihood of 

success.” Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032, 

1043 (Pa. 2012). See also Commonwealth v. Robinson, 581 

Pa. 154, 864 A.2d 460, 479 n.28 (Pa. 2004), cert denied, 546 U.S. 

983, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005) (“Th[e] process of 

‘winnowing out weaker arguments on appeal and focusing on’ 

those more likely to prevail, far from being evidence of 

incompetence, is the hallmark of effective appellate advocacy.”) 

(quoting Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 

91 L.Ed.2d 434 (1986). Accord Jones v. Barnes, 463 U.S. 745, 

746, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)) (“Experienced 

advocates since time beyond memory have emphasized the 

importance of winnowing out weaker arguments on appeal and 

focusing on one central issue if possible, or at most on a few key 

issues.”). To establish Strickland/Pierce prejudice in the 

appellate representation context, the petitioner must show that 

there is a reasonable probability that the outcome of the direct 

appeal proceeding would have been different but for counsel’s 

deficient performance.

Commonwealth v. Blakeney, 108 A.3d 739, 749-750 (Pa. 2014), cert. 

denied, 135 S.Ct. 2817 (2015).

“The threshold inquiry in ineffectiveness claims is whether the 

issue/argument/tactic which counsel has foregone and which forms the basis 

for the assertion of ineffectiveness is of arguable merit . . .” Pierce, supra 

at 194. “Counsel cannot be found ineffective for failing to pursue a baseless 

or meritless claim.” Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.

Super. 2007), appeal denied, 951 A.2d 1163 (2008) (citation omitted). Here, 

our review of the applicable law demonstrates that Munford’s claim that 

counsel should have challenged the sufficiency of the evidence underlying his 

RSP conviction has arguable merit.
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When examining a challenge to the sufficiency of the evidence, our 

standard of review is as follows:

The determination of whether sufficient evidence exists to support 

the verdict is a question of law; accordingly, our standard of 

review is de novo and our scope of review is plenary. In assessing 

[a] sufficiency challenge, we must determine whether viewing all 

the evidence admitted at trial in the light most favorable to the 

[Commonwealth], there is sufficient evidence to enable the 

factfinder to find every element of the crime beyond a reasonable 

doubt. [T]he facts and circumstances established by the 

Commonwealth need not preclude every possibility of innocence. 

. . . [T]he finder of fact while passing upon the credibility of 

witnesses and the weight of the evidence produced, is free to 

believe all, part[,] or none of the evidence. 

Commonwealth v. Edwards, 177 A.3d 963, 969-970 (Pa. Super. 2018) 

(quotation marks and citations omitted). Moreover, “[t]he Commonwealth 

may sustain its burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial evidence.” 

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citation 

omitted), appeal denied, 32 A.3d 1275 (Pa. 2011). 

The jury found Munford guilty of RSP, which we define as:

(a) Offense defined.—A person is guilty of theft if he 

intentionally receives, retains, or disposes of movable property of 

another knowing that it has been stolen, or believing that it has 

probably been stolen, unless the property is received, retained, or 

disposed with intent to restore it to the owner.

18 Pa.C.S.A. § 3925(a). Our Court has described the elements of the crime 

as follows: (1) intentionally acquiring possession of the movable property of 

another; (2) with knowledge or belief that it was probably stolen; and (3) the 
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intent to deprive permanently. Commonwealth v. Nero, 58 A.3d 802, 807 

(Pa. Super. 2012) (citation omitted), appeal denied, 72 A.3d 602 (Pa. 2013).

Here, Munford argues, “the trial record and PCRA record are devoid of 

any evidence that [he] knew that the property [was] stolen, or [believed] that 

it had probably been stolen.” Munford’s Brief, at 11. With respect to this 

element, we have stated:

Importantly, the Legislature expressly defined the required mental 

state as “knowing” or “believing.” Because the Legislature 

excluded mental states such as recklessness, negligence, or 

naïveté about the stolen status of the property, those mental 

states are insufficient. This reasoning is consistent with the 

common recognition that penal statutes are to be strictly 

construed. Thus, courts may not hold that a less culpable mental 

state satisfies a criminal statute where the statute demands proof 

of the more culpable mental state. 

Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa. Super. 2015) (en 

banc) (citations omitted).

Thus, it was the Commonwealth’s burden to demonstrate either that 

Munford knew someone had stolen the weapon, or believed that someone had 

probably stolen it. At trial, the parties stipulated that the gun belonged to 

Dustin Ayala, who reported it stolen to the West Manchester Police 

Department on March 30, 2013. N.T. Trial, 7/08/2015, at 109-110, 119-1120. 

However, the Commonwealth does not point to any direct evidence that 

Munford knew that someone had stolen the handgun. Commonwealth’s 

Brief, at 12-16. Instead, it argues that it produced sufficient circumstantial 

evidence to show that Munford should have known someone had stolen it. Id. 
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Specifically, the Commonwealth highlights: (1) that, as a convicted felon, 

Munford could not legally possess a gun; (2) his furtive movements at the 

time of the traffic stop and Munford’s “hunched over” position; and (3) that 

the gun was located under the passenger seat of the car. Id. at 14, 16. We 

disagree.

In Robinson, supra, this Court held that the mere fact that the 

appellant could not legally possess firearms was not sufficient to sustain a 

conviction for RSP. Robinson, supra at 267. Moreover, we stated:

[l]ikewise, none of the other recognized indicia of knowledge of 

the stolen nature of the property is present. The handgun in 

Robinson’s possession was located in an unremarkable location 

(his coat pocket), and it had not been altered in any way to 

conceal its stolen status, as the manufacturer’s serial number 

remained plainly visible. Robinson’s conduct at the time of arrest 

likewise provided no indicia of guilty knowledge, as he merely 

stared “stone-faced” in response to Officer Dinger’s inquiries, and 

he did not offer any false explanation for his possession of the 

handgun or make any effort to flee apprehension. In sum, the 

Commonwealth introduced no evidence whatsoever at trial 

regarding how, when, or where Robinson acquired the handgun, 

or from whom. Instead, the Commonwealth proved only that 

Robinson possessed stolen property, which, as indicated, by itself 

is not sufficient to prove guilty knowledge.

Id. at 269 (citation omitted).

We discern little difference between the facts in Robinson, and those 

in the present case. The Commonwealth did not offer evidence that anyone 

had altered the gun in any way or that the serial number was altered or 

obliterated. Further, with respect to Munford’s actions at the traffic stop, the 

police could not see his hands and did not see him attempt to hide anything, 
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or attempt to flee. Munford, supra at *1. To extrapolate that because he 

could not legally purchase a gun, Munford had knowledge that someone had

stolen the gun 11 months earlier is mere conjecture. Thus, because the 

evidence, or the lack thereof, presented at trial closely resembles the facts in 

Robinson, supra, Munford has demonstrated that his claim has arguable 

merit.

We next examine whether counsel had a reasonable basis for foregoing 

the sufficiency claim. Our Supreme Court has stated:

When assessing whether counsel had a reasonable basis for his 

act or omission, the question is not whether there were other 

courses of action that counsel could have taken, but whether 

counsel’s decision had any basis reasonably designed to effectuate 

his client’s interest. As the Commonwealth accurately states, this 

cannot be a hindsight evaluation of counsel’s performance, but 

requires an examination of “whether counsel made an informed 

choice, which at the time the decision was made reasonably could 

have been considered to advance and protect [the] defendant’s 

interests.” Our evaluation of counsel’s performance is “highly 

deferential.” 

[S]trategic choices made after thorough investigation 

of law and facts relevant to plausible options are 

virtually unchallengeable; and strategic choices made 

after less than complete investigation are reasonable 

precisely to the extent that reasonable professional 

judgments support the limitations on investigation. In 

other words, counsel has a duty to make reasonable 

investigations or to make a reasonable decision that 

makes particular investigations unnecessary. In any 

ineffectiveness case, a particular decision not to 

investigate must be directly assessed for 

reasonableness in all the circumstances, applying a 

heavy measure of deference to counsel’s judgments.

Strickland, 466 U.S. at 690–91, 104 S.Ct. 2052; see also

Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 535–
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36 (2009) (“The duty to investigate, of course, may include a duty 

to interview certain potential witnesses; and a prejudicial failure 

to fulfill this duty, unless pursuant to a reasonable strategic 

decision, may lead to a finding of ineffective assistance.”).

Commonwealth v. Williams, 141 A.3d 440, 463 (Pa. 2016) (most citations 

omitted).

We have held that counsel is permitted to winnow out weaker claims in 

favor of pursuing claims that counsel believes offer a better chance of relief. 

Id. at 471. “Appellate counsel need not (and should not) raise every 

nonfrivolous claim, but rather may select from among them in order to 

maximize the likelihood of success on appeal.” Id.

Even though counsel testified that PCRA counsel had not given him 

sufficient notice of the hearing and, therefore, he was unable to review 

Munford’s file, much of his testimony concerned his general philosophy and 

practice rather than his specific decision-making process in the instant matter. 

See N.T. PCRA Hearing, 3/29/2018 at 14-17. 

The sole issue counsel raised on appeal was that Munford did not 

constructively possess the gun and, therefore, the evidence was insufficient 

to sustain his conviction for firearm possession. See Munford, supra at *2. 

Given that possession was an element of both offenses, if counsel believed 

that the evidence was insufficient to demonstrate constructive possession for 

purposes of possessing a firearm, then logically it would have been insufficient 

for purposes of RSP. 
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Moreover, counsel stated that he believed that this was not a viable 

issue because “the reasonable inference that could be drawn is that [Munford] 

knew it was stolen given that he is a person not to possess and it is a stolen 

firearm.” N.T. PCRA Hearing, 3/29/2018 at 22. This statement falls squarely 

afoul of our holding in Robinson. See Robinson, supra at 271. 

Furthermore, handgun transfers between family members do not require a 

background check and both Munford and his father were in the same vehicle 

where the gun was found.

Given this, it appears that rather than winnowing claims to raise only 

the strongest issue, counsel actually raised a weaker issue, as the evidence 

underlying the weapons charge was actually stronger than the evidence 

underlying the RSP charge. See id.; see Munford, supra at **2-3. We can 

discern no reasonable strategic basis for counsel’s failure to challenge the 

sufficiency of the evidence underlying the RSP conviction on direct appeal.

Turning to the final prong, prejudice, the question is whether “there is 

a reasonable probability that, but for [appellate] counsel’s errors, the result 

of the proceeding would have been different.” Id. at 465 (citations omitted). 

Here, as discussed above, based upon our decision in Robinson, supra, there 

is a substantial likelihood that the outcome of Munford’s appeal would have 

been different had appellate counsel raised this issue on direct appeal. Had 

the appeal succeeded, we would have reversed the conviction of RSP and 

vacated the judgment of sentence. While Munford’s sentence for RSP was 
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shorter than his sentence for possession of a firearm, the trial court imposed 

it consecutively. See Trial Court Opinion, 7/06/2018, at 2. Thus, had the 

judgment for RSP been vacated, it would have disturbed the overall sentencing 

scheme and the trial court could have resentenced Munford to a lesser 

sentence. Thus, Munford has demonstrated that appellate counsel’s failure

prejudiced him.

Accordingly, we reverse the PCRA court’s order denying relief as to 

Munford’s claim regarding direct appeal counsel’s ineffectiveness for failing to 

raise the issue of the sufficiency of the evidence underlying the RSP conviction. 

Moreover, we direct the PCRA court to reinstate Munford’s direct appeal rights

nunc pro tunc with respect to the sufficiency of the evidence underlying the 

RSP conviction only, and, if necessary, appoint new counsel for Munford.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/20/2019
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