J-S43036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LAMONT ELLISON

Appellant No. 3191 EDA 2014

Appeal from the PCRA Order October 31, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0008480-2008

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

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 27, 2015

Appellant, Lamont Ellison, appeals from the ordered entered in the 

Philadelphia County Court of Common Pleas, which denied his first petition 

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm. 

The PCRA court opinion sets forth the relevant facts and procedural 

history of this case as follows: 

On January 15, 2010, following a bench trial before the 

Honorable Steven R. Geroff, [Appellant] was found guilty 

of murder of the third degree and possessing an 

instrument of crime. On April 1, 2010, [Appellant] was 

sentenced to seventeen and a half (17.5) to thirty five (35) 

years of imprisonment for third-degree murder and a 

concurrent term of two and a half (2.5) to five (5) years of 

imprisonment for possessing an instrument of crime. 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. 
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[Appellant] filed a direct appeal. Judgment of sentence 

was affirmed by the Pennsylvania Superior Court on 

February 18, 2011. The Pennsylvania Supreme Court 

denied [Appellant’s] request for allocatur on August 11, 

2011. On June 25, 2012, [Appellant] filed a timely pro se

petition for post-conviction collateral relief. On November 

19, 2013, counsel filed an Amended Petition claiming that 

appellate counsel was ineffective for failing to raise a 

sufficiency-of-the-evidence claim for [Appellant’s] 

conviction of third-degree murder. The Commonwealth 

filed a motion to dismiss on August 13, 2014. On October 

31, 2014, the petition was dismissed for lack of merit....[2]

(PCRA Court Opinion, filed February 27, 2015, at 1-2). Appellant filed a 

timely notice of appeal on November 12, 2014. The court did not order 

Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b), and Appellant filed none. 

Appellant raises the following issue for our review:

DID THE [PCRA] COURT ERR IN NOT REINSTATING 

APPELLANT’S RIGHT TO APPEAL THE JUDGMENT OF 

SENTENCE NUNC PRO TUNC WHEN APPELLATE DEFENSE 

COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THE 

ISSUE THAT THE EVIDENCE WAS INSUFFICIENT TO FIND 

APPELLANT GUILTY OF THIRD DEGREE MURDER ON 

APPEAL FROM THE JUDGMENT OF SENTENCE?

(Appellant’s Brief at 2).

____________________________________________

2 The docket entry for October 1, 2014, indicates the court issued an order 

granting a motion for continuance and states: “Continue for formal dismissal 

on 10-31-14. 907 notice to be sent.” Notwithstanding this notation on the 

docket, the record is unclear whether the court in fact gave notice of its 

intent to dismiss Appellant’s PCRA petition without a hearing, pursuant to 

Pa.R.Crim.P. 907. Nevertheless, Appellant does not claim on appeal that the 

court failed to give Rule 907 notice, which constitutes waiver of that issue. 

See Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa.Super. 2007), 

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). 
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Our standard of review of the denial of a PCRA petition is limited to 

examining whether the record evidence supports the court’s determination 

and whether the court’s decision is free of legal error. Commonwealth v. 

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 

A.2d 319 (2008). This Court grants great deference to the findings of the 

PCRA court if the record contains any support for those findings. 

Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). A petitioner is 

not entitled to a PCRA hearing as a matter of right; the PCRA court can 

decline to hold a hearing if there is no genuine issue concerning any material 

fact, the petitioner is not entitled to PCRA relief, and no purpose would be 

served by any further proceedings. Commonwealth v. Hardcastle, 549 

Pa. 450, 701 A.2d 541 (1997). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Steven R. 

Geroff, we conclude Appellant’s issue merits no relief. The PCRA court 

opinion comprehensively addresses and properly disposes of the question 

presented. (See PCRA Court Opinion at 4-5) (finding: on evening before 

day of incident, victim’s mother saw Appellant drive slowly by victim, roll 

down car window, make hand gesture simulating gun pointed at victim, and 

say, “pow, pow”; victim’s sister found victim lying in street with multiple 

gunshot wounds; victim told sister Appellant had shot victim; Appellant’s 

friend told police Appellant had shot victim; while incarcerated, Appellant 
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confided in cellmate that Appellant had shot victim; Appellant used deadly 

weapon on vital part of victim’s body; evidence at trial was sufficient for 

court to find Appellant was perpetrator of crime and acted with malice;

because evidence was sufficient to sustain Appellant’s third-degree murder 

conviction, Appellant’s claim lacks arguable merit; therefore, appellate 

counsel was not ineffective for failing to raise sufficiency challenge on direct 

appeal). Accordingly, we affirm on the basis of the PCRA court opinion. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/27/2015
1 

Petitioner's request for allocatur on August 11, 2011. On June 25, 2012, the Petitioner filed a 

Pennsylvania Superior Court on February 18, 2011. The Pennsylvania Supreme Court denied 

The Petitioner filed a direct appeal. Judgment of sentence was affirmed by the 

years of imprisonment for possessing an instrument of crime. 

of imprisonment for third-degree murder and a concurrent term of two and a half (2.5) to five (5) 

On April 1, 2010, Petitioner was sentenced to seventeen and a half (17.5) to thirty five (35) years 

Petitioner was found guilty of murder of the third degree and possessing an instrument of crime. 

On January 15, 2010, following a bench trial before the Honorable Steven R. Geroff, the 

I. PROCEDURAL HISTORY 

Petition pursuant to the Post Conviction Relief Act, 42 Pa.CS.A. § 9541 et seq. 

Petitioner, Lamont Ellison, has filed an appeal of this court's order denying his Amended 

1111111111111111111111111 

7263636221 

FEBRUARY 27, 2015 CP·51-CR..Q008480-200B Comm. v. Ellison, Lamont GEROFF, J. Opinion 

LAMONT ELLISON 

SUPERIOR COURT 

NO. 3191 EDA 2014 

FILED 

FEB 2 7 2015 

Criminal Appeal~ Unit 

First Judioia\ Distnct of PA 

OPINION 

vs. 

COMMONWEAL TH OF PENNSYLVANIA CP-51-CR-0008480-2008 

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

TRIAL DIVISION - CRIMINAL SECTION 

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2 

An ineffectiveness claim raised pursuant to the Post Conviction Relief Act must establish 

that counsel's mistake so undermined the truth-determining process that no reliable adjudication 

of guilt or innocence could have taken place. 42 Pa.C.S. § 9543(a)(2)(ii). See Commonwealth v. 

Kimball, 5 55 Pa. 299, 312, 724 A.2d 326, 333 (Pa. 1999). To establish ineffectiveness under the 

PCRA, a petitioner must demonstrate: (l) that the underlying claim is of arguable merit; (2) that 

counsel's performance lacked a reasonable basis; and (3) that the ineffectiveness of counsel 

caused the petitioner prejudice. Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 245 

(2008), citing Commonwealth v. Carson, 590 Pa. 50 l, 913 A.2d 220, 233 (2006), cert. denied, --- 

U.S.----, 128 S.Ct. 384, 169 L.Ed.2d 270 (2007) (citing Commonwealth v. Pierce, 515 Pa. 153, 

527 A.2d 973, 975 (1987) (adopting U.S. Supreme Court's holding in Strickland v. Washington, 

466 U.S. 668, 104 S.Ct. 2052, 80 L.Eq.2d 674 (1984)). The law presumes that trial counsel is 

effective and, therefore, a petitioner carries the burden of proving ineffectiveness. 

Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663, 673 ( 1992). A failure to satisfy any prong 

of the test for ineffectiveness requires rejection of tbe entire claim. Commonwealth v. Jones, 571 

Pa. 112, 811 A.2d 994, 1002 (2002). 

II. STANDARDOFREVIEW 

timely prose petition for post-conviction collateral relief. On November 19, 2013, counsel filed 

an Amended Petition claiming that appellate counsel was ineffective for failing to raise a 

sufficiency-of-the-evidence claim for the Petitioner's conviction of third-degree murder. The 

Commonwealth filed a motion to dismiss on August 13, 2014. On Octo her 31, 2014, the petition 

was dismissed for lack of merit pursuant to 42 Pa.C.S.A. §9541 et. seq. The Petitioner filed a 

timely notice of appeal. 

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The Petitioner argues that appellate counsel was ineffective for failing to raise a 

sufficiency-of-the-evidence claim against his conviction of third-degree murder because 

insufficient evidence was presented at trial to identify the Petitioner as the perpetrator of the 

offense, and because insufficient evidence was presented at trial to establish that the Petitioner 

acted with the requisite mens rea, or criminal intent. 

Murder of the third degree is an unlawful killing with malice. Pa.C.S.A. § 2502(c), 

Commonwealth v, Carter, 481 Pa. 95, 393 A.2d 13, 15 (Pa. Super. 1978). Malice is defined as 

"wickedness of disposition, hardness of the heart, cruelty, recklessness of consequences, and a 

mind regardless of social duty." Commonwealth v, Shaffer, 722 A.2d 195, 199 (Pa. Super. 

1998). Malice may be inferred from the attending circumstances, such as the use of a deadly 

3 

Here, the underlying claim is that the evidence was insufficient to convict the Petitioner 

of murder of the third degree. In evaluating a challenge to the sufficiency of the evidence, a 

reviewing court must determine whether, viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of 

fact could have found that each and every element of the crimes charged was established beyond 

reasonable doubt. Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000). 

III. DISCUSSION 

A claim has arguable merit where the factual averments, if accurate, could establish cause 

for relief. See Commonwealth v. Jones, 583 Pa. 130, 876 A.2d 380, 385 (2005). If a petitioner 

raises allegations, which, even if accepted as true, do not establish the underlying claim, he or 

she will have failed to establish the arguable merit prong related to the claim. Id Whether the 

facts rise to the level of arguable merit is a legal determination. Commonwealth v, Saranchak, 

581 Pa. 490, 866 A.2d 292, 304 n. 14 (2005). 

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4 

I The victim's mother identified the Petitioner in court as the man who had driven by her son. Id. at 95. 

2 The victim's sister knew the Petitioner and knew that his nickname was "Poodie." Id. at 115. 

3 The victim was known by that nickname because he had a twin brother, Joseph (N.T. 01/13/2010, 91-92). 

next day. 

demonstrated that the Petitioner acted deliberately and with malice when he shot the victim the 

prior to the murder and make an obvious gesture threatening to kill him. The evidence clearly 

O 1/15/2010, 5-7). The victim's mother saw the Petitioner drive slowly past her son the night 

with the victim sustaining multiple gunshot wounds to his stomach, foot, and knee. (N.T. 

The murder was committed with the use of a deadly weapon on a vital part of the victim's body, 

There are additional reasons to support a finding that the Petitioner acted with malice. 

(N.T. 01/13/2010, 36-43). 

Petitioner confided to a cellmate that he had shot the victim, to whom he referred as "Twin."3 

shot the victim. (N.T. 01/14/2010, 91-103). After the shooting and while incarcerated, the 

114). Immediately after the shooting, Petitioner's own friend told police that the Petitioner had 

victim what had happened, he stated, "Poodie (the Petitioner) shot me."2 (N.T. 01/13/2010, 108- 

the victim shot and lying in the street, fading in and out of consciousness. When she asked the 

"Pow, pow," she heard the Petitioner say. (N.T. 01/13/2010, 91-95).1 The victim's sister found 

down the window of the car, and make a hand gesture simulating a gun pointing at the victim. 

the Petitioner shot the victim, the victim's mother saw the Petitioner slowly drive by her son, roll 

trier of fact to find that the Petitioner acted with malice. The evening prior to the day on which 

that the Petitioner was the perpetrator of the crime, and was overwhelmingly sufficient for the 

The evidence presented at trial was overwhelmingly sufficient for the trier of fact to find 

Sufficiency ofthe Evidence. 

250, 301 A.2d 837, 840 (1973). 

weapon on a vital part of the body of another human being. Commonwealth v. Paquette, 451 Pa. 

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5 

STEVEN R. GEROFF, 

....... ~·-·· 

BY THE COURT: 

For the reasons stated above, the Petitioner's Amended Petition for Post Conviction 

Relief was properly denied. 

The Petitioner's underlying claim, that there was insufficient evidence to establish his 

guilt for his conviction of third-degree murder, is without arguable merit. Since the Petitioner's 

ineffectiveness claim lacks arguable merit, the Petitioner has failed the first prong of the 

ineffectiveness test. To establish ineffectiveness, a petitioner must plead and prove all three 

prongs of the ineffectiveness test. The Petitioner's failure to plead and prove the first prong of 

the test means that his entire ineffectiveness claim must be rejected. 

IV. CONCLUSION 

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