J-S42014-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDMOND JACKSON,

Appellant No. 2527 EDA 2014

Appeal from the PCRA Order August 15, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0305882-2005, CP-51-CR-0603441-

2005

BEFORE: SHOGAN, MUNDY, and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 14, 2015

Edmond Jackson (“Appellant”) appeals from the order denying his 

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S. §§ 9541-9546. We vacate and remand.

We previously summarized the facts and procedural history underlying 

Appellant’s convictions in our disposition of Appellant’s direct appeal:

On the evening of October 14, 2004, Detective Ronald Dove, 

Detective James Waring, Officer Thomas Hood, and Officer 

Edward Allen were investigating a shooting incident that 

occurred earlier in the day in the neighborhood of 33rd and 

Cumberland Streets in Philadelphia. Charles Wesley was the 

target of that shooting. Detectives Dove and Waring were 

standing on 33rd Street, speaking to Gene Palmer about the 

incident. Officers Hood and Allen were sitting in a Ford Taurus 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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parked nearby on the street. Wesley was walking south on 33rd 

Street, with Sharee Norton and her two children, Sharron Norton 

and Shanya Wesley.

A group of men, which included Appellant, Kyle Little, 

Mufusta McCloud, Ronald Alston, and Leroy Fair was walking 

toward them. The men were armed. As they neared Wesley, 

they started shooting. The officers exited their vehicle. Officer 

Allen pushed Palmer to the ground. Officer Hood radioed for 

assistance from other officers in the area. Detective Waring, 

Norton, and her children took cover. Detective Dove saw that the 

gunmen were firing in his direction, and took particular note of 

Appellant, who was in a white T-shirt. Detective Dove crouched 

to the ground. In total, between 50 and 80 shots were fired by 

the gunmen. Detective Dove fired four shots toward the 

gunmen. No one was injured. Wesley ran north on 33rd Street. 

The gunmen ran west on Cumberland toward 34th Street. The 

detectives and the officers pursued the gunmen. When Detective 

Dove rounded the corner of 33rd and Cumberland, he saw 

Appellant. Appellant turned, looked over his right shoulder at 

Detective Dove, and raised his gun toward the detective. In 

response, Detective Dove fired one shot at Appellant. Ultimately, 

Appellant and the other gunmen were apprehended.

On October 14, 2004, Appellant was charged with, inter 

alia, two counts of attempted murder, seven counts of 

aggravated assault, carrying firearms without a license, and 

criminal conspiracy. 18 Pa.C.S.A. §§ 2502, 2702, 6106, 901, 

903.

Appellant waived his right to a jury trial. Appellant’s trial 

began on November 7, 2005. On November 17, 2005, the trial 

court found Appellant guilty of all charges. On July 21, 2006, the 

trial court sentenced . . . Appellant to 13 1⁄2 to 27 years 

incarceration.

Commonwealth v. Jackson, 955 A.2d 441, 442–443 (Pa. Super. 2008) 

(footnote omitted). The panel affirmed Appellant’s judgment of sentence, 

id. at 450, and the Pennsylvania Supreme Court denied Appellant’s petition 
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for allowance of appeal. Commonwealth v. Jackson, 967 A.2d 958 (Pa. 

2009).

Appellant filed a timely pro se PCRA petition on March 9, 2010. The 

PCRA court appointed counsel who filed an amended petition on April 4, 

2013, and an addendum on December 19, 2014. The Commonwealth filed a 

motion to dismiss and a reply to the addendum on January 21, 2014, and 

May 14, 2014, respectively. Pursuant to Pa.R.Crim.P. 907, the PCRA court 

sent a notice of its intent to dismiss Appellant’s petition on July 15, 2014. 

The PCRA court dismissed Appellant’s petition without a hearing on August 

15, 2014. Appellant filed a timely appeal and, along with the PCRA court, 

complied with Pa.R.A.P. 1925.

On appeal, Appellant presents the following questions for our review:

I. Was the PCRA court’s dismissal of the Appellant’s PCRA 

Petition unsupported by the record and based on legal 

error because Appellant’s sentence is illegal and violates 

the provisions of the United States Constitution and the 

Pennsylvania Constitution barring double jeopardy and 

prior counsel was ineffective for failing to argue these 

issues?

II. Was the PCRA court’s dismissal of the Appellant’s PCRA 

Petition unsupported by the record and based on legal 

error because Appellant’s convictions violated the Due 

Process Clause of the Fourteenth Amendment to the United 

States Constitution and Due Process Clause of the 

Pennsylvania Constitution and prior counsel was ineffective 

for failing to argue this issue?

III. Was the PCRA court’s dismissal of the Appellant’s PCRA 

Petition unsupported by the record and based on legal 

error because prior counsel was ineffective when he failed 
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to object to Detective Dove’s testimony that the Detective 

had known Mr. Jackson for two years?

IV. Was the PCRA court’s dismissal of the Appellant’s PCRA 

Petition without a hearing an error because newly 

discovered evidence will demonstrate Appellant’s 

conviction for the attempted murder of Detective Dove 

should be vacated?

V. In the alternative, should this matter be remanded back to 

the PCRA Court because after filing of Appellant’s appeal, 

Ronald Dove was charged with a number of crimes 

stemming from his misconduct as a police officer?

Appellant’s Brief at 5.

When reviewing the propriety of an order denying PCRA relief, this 

Court is limited to determining whether the evidence of record supports the 

conclusions of the PCRA court and whether the ruling is free of legal error. 

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). We 

grant great deference to the PCRA court’s findings that are supported in the 

record and will not disturb them unless they have no support in the certified 

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

In order to obtain collateral relief, a PCRA petitioner must establish by 

a preponderance of the evidence that his conviction or sentence resulted 

from one or more of the circumstances enumerated in 42 Pa.C.S. § 

9543(a)(2). Instantly, Appellant asserted in his PCRA petition the existence 

of ineffective assistance of counsel (“IAC”) pursuant to 42 Pa.C.S. § 

9543(a)(2)(ii). To plead and prove ineffective assistance of counsel, a 

petitioner must establish: (1) that the underlying issue has arguable merit; 
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(2) counsel’s actions lacked an objective reasonable basis; and (3) actual 

prejudice resulted from counsel’s act or failure to act. Rykard, 55 A.3d 

1177, 1189–1190 (Pa. Super. 2012). A claim of ineffectiveness will be 

denied if the petitioner’s evidence fails to meet any one of these prongs. 

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010); Commonwealth 

v. Barnett, ___ A.3d ___, 2015 PA Super 162 (Pa. Super., filed July 29, 

2015). “We do not employ a hindsight analysis in comparing trial counsel’s 

actions with other efforts he may have taken.” Commonwealth v. Stultz, 

114 A.3d 865, 881 (Pa. Super. 2015). Moreover, counsel is presumed to 

have rendered effective assistance. Commonwealth v. Montalvo, 114 

A.3d 401, 410 (Pa. 2015). We have explained that trial counsel cannot be 

deemed ineffective for failing to pursue a meritless claim. Commonwealth 

v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

Appellant first contends that prior counsel was ineffective in failing to 

argue that Appellant’s sentence violates the provisions of the United States 

and Pennsylvania Constitutions barring double jeopardy. Appellant’s Brief 

at 17. Additionally, Appellant argues that the aggravated assault 

convictions violate Pennsylvania’s merger doctrine. Id. at 20. 

As the Pennsylvania Supreme Court has explained:

[t]he proscription against twice placing an individual in jeopardy 

of life or limb is found in the Fifth Amendment to the United 

States Constitution, made applicable to the states through the 

Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 

794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The double 

jeopardy protections afforded by our state constitution are 
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coextensive with those federal in origin; essentially, both 

prohibit successive prosecutions and multiple punishments for 

the same offense. Commonwealth v. Fletcher, 580 Pa. 403, 

861 A.2d 898, 912 (Pa. 2004). We have described double 

jeopardy rights as “freedom from the harassment of successive 

trials and the prohibition against double punishment.” 

Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313, 318 (Pa. 

1980) (plurality).

Commonwealth v. States, 938 A.2d 1016, 1019 (Pa. 2007). Thus, “[a]n 

individual may be punished only once for a single act which causes a single 

injury to the Commonwealth.” Commonwealth v. Williams, 753 A.2d 

856, 864 (Pa. Super. 2000) (citing Commonwealth v. Owens, 649 A.2d 

129 (Pa. Super. 1994)). 

However, where more than one person is threatened or injured by a 

single act of a defendant, the defendant is criminally liable for the harm 

done to each victim. Commonwealth v. Yates, 562 A.2d 908, 910 (Pa. 

Super. 1989). We stated in Yates:

Thus, it remains the law of this Commonwealth that the 

life and safety of each citizen is to be protected individually. 

There is no “two for one discount” in the Pennsylvania Crimes 

Code, and we will not permit criminals to imply one through 

distortion of the common-law merger doctrine. It shall not be a 

defense to liability that an indiscriminant force employed by a 

criminal injured or placed at risk more or different persons than 

intended. To the contrary, the only effective way for a criminal 

to limit potential liability in that respect is to choose more 

discriminant tools for achieving the criminal objective(s) sought, 

i.e., to stop using firearms and other instruments of crime which 

place bystanders at risk.

Yates, 562 A.2d at 911 (emphasis in original; footnote omitted). “[T]he 

merger doctrine is generally ‘a rule of statutory construction designed to 
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determine whether the legislature intended for the punishment of one 

offense to encompass that for another offense arising from the same 

criminal act or transaction.’” Commonwealth v. Davidson, 938 A.2d 198, 

217 (Pa. 2007) (quoting Commonwealth v. Collins, 764 A.2d 1056, 1057 

(Pa. 2001)). “The purpose of the merger doctrine is double jeopardy-based, 

i.e., to safeguard against multiple punishments for the same act. . . . The 

test for sentencing merger is the same test utilized to decide whether more 

than one offense has been committed in the double jeopardy context.” Id.

at 217–218. 

Our legislature has addressed the mandatory merger of crimes for the 

purpose of sentencing in section 9765 of the sentencing code, which 

provides as follows:

§ 9765. Merger of sentences

No crimes shall merge for sentencing purposes unless the crimes 

arise from a single criminal act and all of the statutory elements 

of one offense are included in the statutory elements of the 

other offense. Where crimes merge for sentencing purposes, the 

court may sentence the defendant only on the higher graded 

offense.

42 Pa.C.S. § 9765. To determine if two offenses merge for sentencing 

purposes, the sentencing court must “assess whether the charges arose out 

of a single set of facts and whether all the statutory elements of one offense 

coincide with the statutory elements of the other offense.” Commonwealth 

v. Martz, 926 A.2d 514, 526 (Pa. Super. 2007) (emphasis in original).
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Here, the PCRA court disposed of Appellant’s double-jeopardy-based 

merger issue with the following analysis:

In the petition, counsel went on to cite and discuss in support [of 

Appellant’s argument] the holdings in Weakland and Williams, 

which are cited and discussed in Anderson.

[1]

 [Appellant’s] 

argument would be perfectly sound if [Appellant] had been 

convicted of both the attempted murder and aggravated assault 

of the intended victim, and/or both the attempted murder and 

aggravated assault of the bystanders. What [Appellant] failed to 

mention is that in all of those cases the convictions were for 

crimes which were perpetrated upon a single victim; there were 

no bystanders to whom those criminal acts were also directed. 

In Anderson, the defendant shot the single victim, was tried by a 

jury and convicted of aggravated assault and attempted murder, 

was sentenced to consecutive terms for each offense, and the 

Court ruled, of course, that those two convictions should have 

merged and it vacated the sentence for the assault.

* * *

Counsel’s error here is in equating a single physical act, firing a 

bullet at an intended victim while bystanders are in the line of 

fire, with a single legally criminal act, attempted murder, and 

then equating that criminal act with the separate legally criminal 

acts of assaulting the bystanders. All of the defendants in the 

transferred intent cases discussed above were convicted and 

sentenced for more than one assault, those against the intended 

victims and those against the bystanders, based upon the single 

physical act of shooting at or assaulting the intended victim with 

the specific intent to injure him, which intent then transferred to 

the bystanders because they were in the line of fire. . . . 

[Appellant] was not charged with or convicted of aggravated 

assault on the intended victim, nor was he charged with or 

convicted of the attempted murder of the bystanders. Had he 

been convicted of both attempting to murder and assaulting 

either the intended victim and/or the bystanders then counsel’s 

____________________________________________

1 Commonwealth v. Weakland, 559 A.2d 25 (Pa. 1989), Commonwealth 

v. Williams, 555 A.2d 1228 (1989), and Commonwealth v. Anderson, 

650 A.2d 20 (Pa. 1994), respectively.
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argument would have merit, but that is not what happened. He 

was simply convicted of committing separate crimes by having 

fired a single shot at one person while others were present and 

placed in harm’s way.

PCRA Court Opinion, 11/19/14, at 24, 26–27 (footnotes omitted).

Upon review, we conclude that the PCRA court’s analysis is supported 

by the record. Appellant fired multiple shots at the intended victim while 

bystanders were present, thereby exposing multiple people to the risk of 

serious bodily injury or death. N.T., 11/10/15, at 4–24, 55. Thus, Appellant 

committed the crime of attempted murder against the intended victim and 

the crime of aggravated assault against each of the seven bystandervictims.2

 Appellant was convicted of and sentenced on these eight separate 

crimes. There was no lesser charge to merge into the attempted murder 

conviction related to the intended victim, and there were no greater charges 

into which the aggravated assault convictions related to the seven 

bystanders could merge. Appellant may not escape responsibility for the 

crimes he committed against the intended victim and the seven bystanders. 

____________________________________________

2

 Attempt is defined by statute as follows: “[A] person commits an attempt 

when with the intent to commit a specific crime, he does any act which 

constitutes a substantial step towards the commission of the crime.” 18 

Pa.C.S. § 901(a). A person may be convicted of attempted murder “if he 

takes a substantial step toward the commission of a killing, with the specific 

intent in mind to commit such an act.” Commonwealth v. Dale, 836 A.2d 

150, 152–153 (Pa. Super. 2003). “A person is guilty of aggravated assault if 

he: (1) attempts to cause serious bodily injury to another, or causes such 

injury intentionally, knowingly or recklessly under circumstances manifesting 

extreme indifference to the value of human life.” 18 Pa.C.S. § 2702(a)(1).
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He is not entitled to a “discount” because his reckless conduct threatened 

multiple victims. Yates, 562 A.2d at 911.

Based on the foregoing, we discern no legal error in the PCRA court’s 

conclusion that Appellant’s sentence did not violate the federal or state 

prohibitions against double jeopardy or Pennsylvania’s merger doctrine. 

Consequently, Appellant’s underlying claim lacks merit, and prior counsel 

cannot be ineffective in failing to present this argument. Loner, 836 A.2d at 

132.

The Commonwealth points out that Appellant “tacks on a claim that his 

sentences are illegal under 18 Pa.C.S. § 906 because he was supposedly 

convicted of ‘multiple inchoate crimes for the same act.’” Commonwealth’s 

Brief at 11 (citing Appellant’s Brief at 23). Specifically, Appellant argues 

that, “based on a singular set of facts, [he] was convicted of more than one 

inchoate crime: attempt to murder and attempt to cause serious bodily 

injury. These crimes were required to merge at sentencing and they were 

not merged. For this reason, Appellant’s sentence is illegal.” Appellant’s 

Brief at 23. The PCRA court implicitly ruled that Appellant waived this issue 

by failing to preserve and/or plead it. Then, the PCRA court “simply 

reiterate[d] that [Appellant’s] convictions were based on completely 

separate and distinct criminal acts, albeit based on a single physical one.” 

PCRA Court Opinion, 12/19/14, at 27 (footnote omitted). Unlike the PCRA 

court, we conclude that Appellant has raised a legality of sentence claim 
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which we may review. See Commonwealth v. Berry, 877 A.2d 479, 487 

(Pa. Super. 2005) (“[A] legality of sentence claim retains its non-waivable 

status so long as the [PCRA’s] jurisdictional time limitations are satisfied.”). 

Upon review, we conclude that Appellant’s position is untenable.

Section 906 of the Crimes Code states: “[a] person may not be 

convicted of more than one of the inchoate crimes of criminal 

attempt, criminal solicitation or criminal conspiracy for conduct 

designed to commit or to culminate in the commission of the 

same crime.” 18 Pa.C.S. § 906. “Section 906 was designed to 

prevent multiple inchoate charges that carry with them the same 

criminal intent.” Commonwealth v. Davis, 704 A.2d 650, 653 

(Pa.Super.1997). Under section 906, “inchoate crimes merge 

only when directed to the commission of the same crime, not 

merely because they arise out of the same incident.” 

Commonwealth v. Graves, 510 Pa. 423, 508 A.2d 1198 

(1986) (emphasis added).

Commonwealth v. Welch, 912 A.2d 857, 859 (Pa. Super. 2006).

To the extent Appellant posits that aggravated assault is one of the 

multiple inchoate crimes, he is incorrect. “Statutes that make an attempt to 

accomplish something sufficient to complete the crime say so explicitly.” 

See Commonwealth v. Sims, 883 A.2d 593, 597 (Pa. 2005), rev’d on 

other grounds, 919 A.2d 931 (Pa. 2007) (citing simple assault, 18 Pa.C.S. § 

2701; aggravated assault, 18 Pa.C.S. § 2702; and robbery, 18 Pa.C.S. § 

3701(2)). In other words, notwithstanding its “attempt to cause serious 

bodily injury” component, aggravated assault is not an inchoate offense. 

Furthermore, we observe that Appellant was charged with—and convicted 

of—two counts of one inchoate crime, i.e., attempted murder. Although the 

two attempts arose out of the same criminal incident, they were intended to 
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culminate in the commission of two different crimes, the death of the 

intended victim and the death of Detective Ronald Dove (“Dove”). 

Therefore, Appellant’s sentences do not run afoul of section 906, and 

Appellant’s legality of sentence challenge fails.

Next, Appellant contends that prior counsel was ineffective for failing 

to argue that his convictions violated the due process clauses of the United 

States and Pennsylvania Constitutions. Appellant’s Brief at 26. According to 

Appellant, the Commonwealth failed to prove beyond a reasonable doubt the 

mens rea element of his aggravated assault convictions. Id. at 27. 

Essentially, Appellant challenges the sufficiency of the evidence as an IAC 

claim that prior counsel failed to challenge the doctrine of transferred intent 

as a “constitutional issue of a violation of Due Process.” Id. at 28.

The Commonwealth counters that Appellant’s underlying claim was 

previously litigated on direct appeal and, therefore, is not reviewable 

pursuant to 42 Pa.C.S. § 9543(a)(3). Commonwealth’s Brief at 13. The 

Commonwealth further submits that an issue has been previously litigated if 

“the highest appellate court in which the petitioner could have had review as 

a matter of right has ruled on the merits of the issue.” Id. at 13 (citing 42 

Pa.C.S. § 9544(a)(2)).

The PCRA court agreed with the Commonwealth that Appellant’s

underlying claim was previously litigated:

Our Supreme Court in Thompson, and this Court in 

[Appellant’s] direct appeal, have specifically ruled that the 
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transfer of the perpetrator’s intent to harm the intended victim 

to the unintended victims provided sufficient proof of the intent 

element of the crime of assault upon the latter, which, to 

intentionally belabor the point, is just another way of saying that 

[Appellant was] not . . . deprived of [his] liberty without full 

comport with the due process of law. PCRA counsel’s theory that 

applying transferred intent violates the due process clauses is 

not only not a new theory, it is the specific theory that was 

raised and rejected in [Appellant’s] direct appeal and he cannot 

be allowed to relitigate that theory under the sham pretext of a 

claim of ineffective assistance of counsel.

PCRA Court Opinion, 11/19/14, at 23 (internal quoted material and citation 

omitted). 

The PCRA court is correct. Although Appellant currently frames this 

challenge as an IAC claim, this Court previously addressed the underlying 

contention as a challenge to “the sufficiency of the evidence to sustain his 

convictions for the aggravated assaults of Detective Waring, Officer Hood, 

Officer Allen, Sharee Norton, Sharron Norton, Shanya Wesley, and Gene 

Palmer.” Jackson, 955 A.2d at 445. We examined Appellant’s challenge in 

depth, as follows:

While Appellant admits that he intended to shoot Wesley, 

Appellant contends that these other persons were simply in the 

way. Appellant argues that the Commonwealth failed to 

establish that he had the specific intent to cause serious bodily 

injury to any of these persons, and thus, the requisite intent for 

his aggravated assault convictions is lacking.

Under the Crimes Code, a person is guilty of aggravated 

assault if he:

(1) attempts to cause serious bodily injury to another, or 

causes such injury intentionally, knowingly or recklessly 

under circumstances manifesting extreme indifference to 

the value of human life;
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* * *

(4) attempts to cause or intentionally or knowingly causes 

bodily injury to another with a deadly weapon[.]

18 Pa.C.S.A. § 2702(a)(1), (4). An attempt under § 2702(a), 

requires a showing of a substantial step toward causing serious 

bodily injury to another, accompanied by an intent to inflict 

serious bodily injury. 18 Pa.C.S.A. § 901(a); Commonwealth 

v. Matthew, 589 Pa. 487, 909 A.2d 1254, 1257 (2006). 

“Serious bodily injury” is defined as “bodily injury which creates 

a substantial risk of death or which causes serious, permanent 

disfigurement, or protracted loss or impairment of the function 

of any bodily member or organ.” 18 Pa.C.S.A. § 2301. A 

“[d]eadly weapon” is “[a]ny firearm, whether loaded or 

unloaded, or any device designed as a weapon and capable of 

producing death or serious bodily injury[.]” 18 Pa.C.S.A. § 

2301.

“A person acts intentionally with respect to a material 

aspect of an offense when ... it is his conscious object to engage 

in conduct of that nature or to cause such a result[.]” 18 

Pa.C.S.A. § 302(b)(1)(i). “‘As intent is a subjective frame of 

mind, it is of necessity difficult of direct proof.’” Matthew, 909 

A.2d at 1257 (citations omitted). “The intent to cause serious 

bodily injury may be proven by direct or circumstantial 

evidence.” Id.

In Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 

887 (1978), the Pennsylvania Supreme Court articulated a 

totality of the circumstances test for determining whether a 

defendant, who was charged under the attempt provision of the 

aggravated assault statute, possessed the intent to inflict serous 

[sic] bodily injury. The test the Court provided consisted of a 

non-exhaustive list of factors to be considered on a case-by-case 

basis. The list included evidence of a significant difference in 

size or strength between the defendant and the victim, any 

restraint on the defendant preventing him from escalating the 

attack, the defendant’s use of a weapon or other implement to 

aid his attack, and statements or actions that might indicate his 

intent to inflict injury. Id. at 889. Recently, in Matthew, the 

Supreme Court re-affirmed the totality of the circumstances test 

announced in Alexander, and held that the test should be used 
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to decide whether there is sufficient evidence to convict a 

defendant charged with aggravated assault for attempting to 

inflict serious bodily injury upon another. Matthew, 909 A.2d at 

1259.

In this case, there is no direct evidence of Appellant’s 

intent to cause serious bodily injury to Detective Waring, Officer 

Hood, Officer Allen, Sharee Norton, her two children, or Gene 

Palmer. Thus, any evidence of Appellant’s intent to do so must 

be gleaned from the other circumstances surrounding the shots 

Appellant fired on the evening of October 14, 2004. The 

evidence shows that these persons were near Wesley, the 

person Appellant admitted he intended to shoot. The evidence 

also establishes that these persons were in the line of fire when 

Appellant started shooting at Wesley.

* * *

As noted, on the issue of Appellant’s intent in the present 

case, the evidence shows that Detective Waring, Officer Hood, 

Officer Allen, Sharee Norton, Sharron Norton, Shanya Wesley, 

and Gene Palmer were near Appellant’s intended victim. The 

evidence also shows that Appellant fired a deadly weapon toward 

them. There is, however, no other evidence, in the form of 

circumstances, actions or words, occurring before, during, or 

after the shooting, that tends to demonstrate that Appellant 

specifically intended to inflict injury upon these particular 

persons. Therefore, the only circumstance in the record from 

which it may be inferred that Appellant had the intent to cause 

these persons serious bodily injury was his firing a deadly 

weapon in their direction. Based on the totality of the 

circumstances, we conclude that the evidence was insufficient to 

establish beyond a reasonable doubt that Appellant harbored the 

specific intent to cause serious bodily injury with a deadly 

weapon to any of these persons.

Nonetheless, the Commonwealth contends that Appellant’s 

convictions for aggravated assault must stand. The 

Commonwealth argues that even if the evidence is insufficient to 

establish that Appellant had the specific intent to seriously injure 

these persons, the intent element is satisfied under the doctrine 

of transferred intent.4 The Commonwealth argues that under 

the doctrine, Appellant’s admitted intent to shoot and cause 

Wesley serious bodily harm, satisfies the intent element for 
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Appellant’s aggravated assault convictions of these persons. 

Appellant counters that the doctrine of transferred intent does 

not apply in this case because these persons were not actually 

injured. It is Appellant’s position that the doctrine is not meant 

to apply and has not been applied to a charge of aggravated 

assault, when criminal liability is premised on the attempt to 

cause serious bodily injury to another. See, e.g., State v. 

Brady, 393 Md. 502, 903 A.2d 870 (2006), cited in 

Commonwealth v. Bullock, 590 Pa. 480, 913 A.2d 207, 219 n. 

11 (2006), (concluding that the transferred intent doctrine does 

not apply to crimes of attempt because the defendant has 

committed a complete crime against the intended victim). 

Appellant further argues that 18 Pa.C.S.A. § 303(b), enacted to 

reflect existing law, reveals that the doctrine is to be used only 

where a defendant shoots a gun at a person, intending to cause 

serious bodily injury, but hits another, or where the defendant 

shoots the intended victim, but the bullet does not cause serious 

harm.

4

 The doctrine of transferred intent was codified in 

18 Pa.C.S.A. § 303. Commonwealth v. Devine, 

750 A.2d 899, 904 (Pa.Super.2000), appeal denied, 

564 Pa. 703, 764 A.2d 1065 (2000). The statute 

provides in relevant part:

§ 303. Causal relationship between conduct 

and result

(b) Divergence between result designed or 

contemplated and actual result.—When 

intentionally or knowingly causing a particular result 

is an element of an offense, the element is not 

established if the actual result is not within the intent 

or the contemplation of the actor unless:

(1) the actual result differs from that designed or 

contemplated as the case may be, only in the 

respect that a different person or different property 

is injured or affected or that the injury or harm 

designed or contemplated would have been more 

serious or more extensive than that caused; or

(2) the actual result involves the same kind of injury 

or harm as that designed or contemplated and is not 
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too remote or accidental in its occurrence to have a 

bearing on the actor's liability or on the gravity of his 

offense.

18 Pa.C.S.A. § 303(b).

* * *

In Commonwealth v. Thompson, 559 Pa. 229, 739 A.2d 

1023 (1999), cert. denied, 531 U.S. 829, 121 S.Ct. 79, 148 

L.Ed.2d 41 (2000), our Supreme Court considered the doctrine 

of transferred intent. Based upon the Court’s pronouncement in 

Thompson regarding the doctrine, we are compelled to agree 

with the Commonwealth that the doctrine applies in Appellant’s 

case. In Thompson, the evidence established that Francisco 

Forbes drove to Donovan “George” Aitken’s apartment. Forbes 

was involved in Aitken’s marijuana business. When Forbes 

exited his vehicle, the defendant approached him and asked for 

a cigarette. Forbes indicated that he did not smoke, crossed the 

street, and entered Aitken’s apartment building. Later, Forbes, 

Aitken, and Aitken’s girlfriend exited the building. As Forbes was 

crossing the street towards his car, he saw the defendant pull 

out a handgun and begin firing. Forbes ducked, ran toward the 

apartment building, and escaped injury. Aitken was shot and fell 

to the ground. The defendant shot Aitken several more times. 

Aitken died from the gunshot wounds.

The defendant was charged and convicted of, inter alia, 

first-degree murder as to Aitken and aggravated assault as to 

Forbes. The Commonwealth’s theory on the element of intent

for the aggravated assault charge incorporated the doctrine of 

transferred intent. The trial court found that the doctrine applied 

and charged the jury accordingly.

On appeal to the Supreme Court, the defendant challenged 

the sufficiency of the evidence on his conviction for aggravated 

assault as to Forbes. The defendant also asserted that the trial 

court erred in instructing the jury on the doctrine. The 

defendant argued that the instruction was not warranted 

because Forbes was not an intended victim and because Forbes 

suffered no harm.

The Supreme Court rejected the defendant’s argument, 

ruling that the doctrine of transferred intent applied in his case. 
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In doing so, the Court made clear that the defendant’s intent for 

the aggravated assault charge as to Forbes could be satisfied by 

application of the doctrine, even though Aitken, and not Forbes, 

was the intended victim, and despite the fact that Forbes was 

not injured. The Court stated:

[I]n order to sustain the conviction for aggravated 

assault, the Commonwealth only needed to establish that 

appellant attempted to cause serious bodily injury. There 

is no requirement that the victim actually be injured. 

Moreover, appellant’s argument that the transferred intent 

instruction was not warranted because he did not intend to 

shoot Forbes ignores the essence of the transferred intent 

doctrine, that is, the person who ultimately is the victim 

not be the original intended victim. “The transferred intent 

theory provides that if the intent to commit a crime exists, 

this intent can be transferred for the purpose of finding the 

intent element of another crime.” The evidence here 

demonstrated that appellant shot in the direction of Forbes 

even though he may have only intended to shoot Aitken. 

This evidence was sufficient to warrant the transferred 

intent instruction. Where the evidence is sufficient to 

support an instruction, a new trial is not warranted. Hence, 

this claim warrants no relief.

Id. at 1029 (citations and footnote omitted) (emphasis in 

original).

We conclude that Thompson controls and teaches that the 

doctrine of transferred intent applies in Appellant’s case. It is an 

established fact that Appellant specifically intended to cause 

serious bodily injury to Wesley with a deadly weapon. Under the 

doctrine, Appellant’s intent in this regard is transferred to 

Detective Waring, Officer Hood, Officer Allen, Sharee Norton, 

Sharron Norton, Shanya Wesley, and Gene Palmer. Therefore, 

the intent element for Appellant’s aggravated assault convictions 

as to these persons was met. Viewing the evidence in the light 

most favorable to the Commonwealth as verdict winner, together 

with all the reasonable inferences to be drawn, we conclude that 

the evidence was sufficient to sustain Appellant’s convictions for 

aggravated assault.

Jackson, 955 A.2d at 445–446, 448-450 (some footnotes omitted).
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This Court already determined that Appellant’s aggravated assault 

convictions were supported by sufficient evidence of intent through 

application of the doctrine of transferred intent. Therefore, we conclude that 

application of the transferred-intent doctrine did not result in a violation of 

Appellant’s due process rights. We further conclude that counsel was not 

ineffective for failing to argue that the convictions violated the federal and 

state due-process clauses.

Through his third question, Appellant asserts that trial counsel was 

ineffective for failing to object to the testimony of Dove that Dove had 

known Appellant for two years. Appellant’s Brief at 34. Appellant contends 

that this testimony was prejudicial because it raised an inference that 

Appellant had committed other crimes, and it stripped him “of the 

presumption of innocence.” Id. at 35. 

The challenged testimony arose during Dove’s direct examination:

Q: Had you ever seen – you said you arrested Edmond 

Jackson?

A: Yes.

Q: Had you ever seen him before?

A: Yes.

Q: How long before October 14, 2004 had you seen Mr. 

Jackson?

A: I’ve known of him for maybe two years, I probably seen 

him a couple times in between that.

N.T., 11/15/05, at 97–98.
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The PCRA court rejected Appellant’s argument with the following 

analysis:

PCRA counsel described the testimony as follows: “The 

Detective explained that he was able to identify [Appellant] 

because he had known him for ‘maybe two years.’ [(](N.T.) 

11/15/05 at 97–98) and had seen [Appellant] a couple of times 

during that period.”; counsel then went on to acknowledge that 

“Although the Detective did not explicitly state that he knew 

[Appellant] from prior criminal contacts, but then leapt to the 

conclusion that that was the obvious implication.” 

* * *

[O]ur courts have made explicitly clear that, as long as any 

references that the police make as to their prior personal 

knowledge of a defendant’s identity are devoid of any 

suggestions of prior criminal acts, those references would not be 

improper. . . . Even if a judge or jury would have assumed that 

the officer’s prior knowledge of the defendant’s identity did mean 

that he had prior criminal run-ins with the law, it would not have 

amounted to undue prejudice in view of all of the other relevant 

incriminating evidence.

* * *

In the amended petition, counsel went on to note that 

when the prosecutor began to ask the officer about knowing the 

other defendants, their attorneys objected but were overruled, 

but then concluded with the bald assumptions that [Appellant’s] 

trial counsel had no reasonable strategic basis for not objecting 

or requesting a mistrial, that had he objected and cited Clark

and Trowery,

[3] he would have been sustained, and that 

“Significant prejudice resulted because [i]f the Court had not 

known about [Appellant’s] prior contacts with the law, there is a 

reasonable likelihood the outcome of the trial would have been 

different. Of course, prior counsel’s “reasonable strategic basis 

____________________________________________

3

 Commonwealth v. Clark, 309 A.2d 589 (Pa. 1973), and 

Commonwealth v. Trowery, 235 A.2d 171 (Pa. Super. 1967), 

respectively.
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for not objecting or requesting a mistrial” was obviously the 

ethical duty of every attorney not to burden the court with 

completely frivolous objections or motions. Equally, of course, 

the next three conclusions are solely based on the unsupported 

assumptions that the officer’s comment did, in fact, imply “prior 

contacts with the law” and was, therefore, prejudicial and, was, 

therefore, objectionable, all of which assumptions every court 

quoted above clearly stated are erroneous if the comment does 

not contain any indication of prior criminal activity on the part of 

the defendant. Other than that, the defendant made no 

attempts to demonstrate how those simple innocuous remarks 

had any effect on his convictions or that the outcome of the trial 

would have been different had his attorney objected and been 

sustained.

Shorn of all those assumptions, [Appellant’s] argument is 

reduced to simply saying that his prior counsel erred and 

[Appellant] was thereby prejudiced, which is clearly both a 

failure to properly plead a case for PCRA relief, to plead and 

prove by a preponderance of the evidence that the underlying 

claim has arguable merit, counsel had not reasonable basis for 

his inaction and [Appellant] suffered prejudice as a result to the 

extent that the truth-determining process was so undermined 

that no reliable adjudication of guilty could have taken place, 

and, more particularly, a failure to preserve the issue for appeal, 

since he does not specify any of those alleged, or any other, 

deficiencies in counsels’ conduct in the 1925(b) Statement. In 

any event, since [Appellant] agrees that the officer only said he 

know him, period, this court need only point out that there 

would have been no basis for any objection and, therefore, his 

trial counsel cannot be faulted for not raising a frivolous one. 

And, finally, even if the trial judge did reach an inference of prior 

criminal activity, it would properly have been considered 

harmless in view of all of the other evidence.

PCRA Court Opinion, 11/19/14, at 7–12 (footnote and internal citations 

omitted).

Pennsylvania courts have addressed the issue Appellant now presents 

in myriad cases. Commonwealth v. Sanders, 442 A.2d 817, 818 (Pa. 

Super. 1982); Commonwealth v. Potts, 460 A.2d 1127 (Pa. Super. 1983); 
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Commonwealth v. Smith, 552 A.2d 1053 (Pa. Super. 1988); 

Commonwealth v. Robinson, 864 A.2d 460 (Pa. 2004). Specifically, in 

Smith, we reviewed a PCRA petitioner’s claim that the trial court erred in 

allowing various police officers to refer to their prior contacts with the 

petitioner and that trial counsel was ineffective for failing to preserve this 

claim for review. Smith, 552 A.2d at 1060. We acknowledged that 

reference to prior criminal activity by the accused, either expressly or by 

reasonable implication, is impermissible. Id. (citing Commonwealth v. 

Percell, 454 A.2d 542, 544 (Pa. 1982)). We further recognized, however, 

that “not everything a policeman says about a person constitutes an 

inference of prior criminal activity on the part of that person.” Id. (quoting 

Sanders, 442 A.2d at 818). Indeed:

[m]erely because a police officer knows someone or 

knows where [he] may be found does not suggest that 

the person has been engaged in prior criminal activity. A 

policeman may know someone because they reside in the 

same neighborhood or for any number of reasons. We 

refuse to hold that a policeman’s statement to the effect 

that he knew someone, knew his nickname, or was 

familiar with the person’s whereabouts raises an 

inference of prior criminal activity.

Smith, 552 A.2d at 1060 (quoting Sanders, 442 A.2d at 818).

Here, Dove testified, “I’ve known of [Appellant] for maybe two years, I 

probably seen him a couple times in between that.” N.T., 11/15/05, at 97–

98. Because the officer testified only that he knew Appellant and had seen 

him a couple of times, Appellant’s claim that this testimony raised an 
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impermissible inference of prior criminal activity is meritless. Smith and 

Sanders; see also Commonwealth v. Riggins, 386 A.2d 520, 524 (Pa. 

1978) (police detective’s testimony that he knew where defendant lived 

“cannot be said to have given the jury the impression that appellant must 

have been involved in prior criminal activity”). Accordingly, we hold that 

trial counsel was not ineffective for failing to preserve a claim relating to the 

admissibility of Dove’s testimony.

Appellant’s fourth issue challenges the dismissal of his petition without 

a hearing based upon newly discovered evidence. Appellant’s Brief at 37. 

According to Appellant, his conviction for the attempted murder of Dove 

should be vacated based on news of Dove’s official firing from the 

Philadelphia Police Department on or before December 6, 2013, for 

withholding evidence in multiple homicide cases. Id. at 38.4 Citing 

Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014), Appellant 

acknowledges that a newspaper article, in and of itself, does not constitute 

newly discovered evidence. Appellant’s Brief at 40. For that reason, 

Appellant complains that the PCRA court denied his request for permission 

and funding to conduct discovery regarding Dove’s misconduct “and the 

____________________________________________

4

 Based on Dove’s testimony that he knew Appellant, that he saw a man in 

a white shirt raise a gun toward him, and that Appellant was wearing a white 

shirt when apprehended, Appellant was the only co-defendant charged with 

and convicted of the attempted murder of Dove. N.T., 11/15/05, at 74–78, 

81–82, 97–98.
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implications for Appellant’s case.” Id. at 38–39, 40. Also relying on the 

Castro decision, the PCRA court dismissed Appellant’s petition without 

allowing discovery or conducting a hearing because Appellant “did not 

present any real evidence or the identities of any witnesses who could 

supply such evidence to support his after discovered evidence claim.” PCRA 

Court Opinion, 11/19/14, at 31.

The Castro decision addressed “whether a newspaper article 

submitted as the sole support for a motion for new trial on the basis of afterdiscovered evidence warrants the grant of a hearing.” Castro, 93 A.3d at 

819. Castro was convicted of drug offenses based on evidence that 

Philadelphia Police Officer Cujdik gave pre-recorded money to a confidential 

informant, who then entered the defendant’s home and purchased drugs. 

Four days after Castro’s trial, the Philadelphia Daily News published an 

article alleging that Officer Cujdik was under investigation for corruption and 

falsification of evidence in another case involving the same confidential 

informant. Holding that allegations in the article did not constitute evidence, 

the Pennsylvania Supreme Court reversed this Court’s order remanding for a 

hearing on Castro’s after-discovered evidence claim. Id. at 828.

Here, Appellant acknowledges that, at the time of his PCRA petition 

and addendum, his “only proof of [Dove’s] misconduct was media reports.” 

Appellant’s Brief at 38. For that reason, Appellant requested leave “to send 

subpoenas for Dove’s internal affairs files, personnel file, disciplinary file, 
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and his departmental file.” Id. at 40. According to Appellant, “additional 

discovery was appropriate and necessary” to show that Dove “flouted 

departmental policies and routinely lied during homicide investigations.” Id. 

We note that the denial of a request for post-conviction discovery is 

reviewed for an abuse of discretion. Commonwealth v. Collins, 957 A.2d 

237, 272 (Pa. 2008). Discovery in PCRA proceedings cannot be used as an 

excuse for engaging in a “fishing expedition.” Commonwealth v. Lark, 

746 A.2d 585, 591 (Pa. 2000). 

Appellant’s argument is not persuasive for two reasons. First, the 

Castro Court expressly rejected newspaper articles, absent more, as 

sufficient evidence to warrant a new trial or—by extension under the PCRA—

an evidentiary hearing. Second, Appellant can only speculate as to what he 

would have found in Dove’s files if he had been permitted discovery. We 

discern no abuse of the PCRA court’s discretion in refusing to allow a fishing 

expedition based on a newspaper article and Appellant’s speculation. Lark, 

746 A.2d at 591.

We reach the opposite conclusion with regard to Appellant’s fifth issue, 

which, because of timing, the PCRA court did not address. According to 

Appellant, while this appeal from the denial of collateral relief was pending, 

“Ronald Dove was arrested and charged with: obstructing justice, unsworn 

falsification to authorities, tamp[er]ing with/fabricating evidence, hindering 

prosecution, flight, and conspiracy.” Appellant’s Brief at 42 (citing Appellate 
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Brief Appendix D, “Dove Docket” at 2). We take judicial notice of the 

criminal docket at CP-51-CR-0001382-2015, Commonwealth v. Ronald S. 

Dove, and the charges listed therein as set forth by Appellant. Moreover, 

we take judicial notice of the following docket entries: “Case relisted for 

status of negotiations/possible non-trial disposition on 9/8/15 courtroom 

1008. Trial readiness conference scheduled for 2/15/16 courtroom 1008. 

Jury Trial date scheduled for 2/17/16 courtroom 1008. Defendant is on bail 

and has signed service.” Docket No. CP-51-CR-0001382-2015 at 4.

In light of the change in Dove’s status from “under investigation” to 

“facing charges,” Appellant requests that we remand for an evidentiary 

hearing. Appellant’s Brief at 43. To be entitled to relief under the PCRA on 

this basis:

the petitioner must plead and prove by a preponderance of the 

evidence “[t]he unavailability at the time of trial of exculpatory 

evidence that has subsequently become available and would 

have changed the outcome of the trial if it had been introduced.” 

42 Pa.C.S.A. § 9543(a)(2)(vi). As our Supreme Court has 

summarized:

To obtain relief based on after-discovered evidence, 

[an] appellant must demonstrate that the evidence:

(1) could not have been obtained prior to the 

conclusion of the trial by the exercise of reasonable 

diligence; (2) is not merely corroborative or 

cumulative; (3) will not be used solely to impeach 

the credibility of a witness; and (4) would likely 

result in a different verdict if a new trial were 

granted.

Commonwealth v. Pagan, 597 Pa. 69, 106, 950 A.2d 270, 292 

(2008) (citations omitted). “The test is conjunctive; the 

[appellant] must show by a preponderance of the evidence that 
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each of these factors has been met in order for a new trial to be 

warranted.” Commonwealth v. Padillas, 997 A.2d 356, 363 

(Pa.Super.2010) (citation omitted). Further, when reviewing the 

decision to grant or deny a new trial on the basis of afterdiscovered evidence, an appellate court is to determine whether 

the PCRA court committed an abuse of discretion or error of law 

that controlled the outcome of the case. Commonwealth v. 

Reese, 444 Pa.Super. 38, 663 A.2d 206 (1995).

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012).

Upon application of the four-prong test to Appellant’s after-discoveredevidence claim, we conclude that he is entitled to an evidentiary hearing. 

First, Appellant could not have obtained evidence regarding Dove’s alleged 

official misconduct prior to the conclusion of his trial because the initial 

newspaper article was not published until years after Appellant’s trial 

concluded. Second, as Appellant submits, evidence of Dove’s alleged 

misconduct “was not cumulative because nothing offered at trial 

demonstrated that Dove habitually manipulated evidence or improperly 

interfered with homicide investigations.” Appellant’s Brief at 41. Third, 

although evidence of Dove’s misconduct in other homicide cases would serve 

to impeach Dove’s testimony, such evidence—if connected to Appellant’s 

case and believed—could also result in a different verdict because Dove’s 

testimony was the sole basis for Appellant’s second attempted-murder 

conviction and sentence.5 Accord Commonwealth v. Rivera, 939 A.2d 

____________________________________________

5

 Compare Foreman, 55 A.3d at 537 (where appellant did not establish a 

nexus between his case and detective’s alleged misconduct, other evidence 

(Footnote Continued Next Page)
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355, 359 (Pa. Super. 2007) (holding that appellant was entitled to 

evidentiary hearing where he could not have discovered expert witness’ 

alleged criminal activities before his trial ended; this after-discovered 

evidence was neither corroborative nor cumulative; the after-discovered 

evidence called into serious question the type and amount of drug upon 

which appellant’s conviction and sentence were based).

In sum, we conclude that Appellant’s first four claims do not establish 

a basis for PCRA relief. However, in his fifth claim, Appellant presents more 

than a newspaper article alleging misconduct by Dove. Actual charges 

implicating the former detective’s role in Appellant’s case have been filed 

against Dove. Thus, we conclude that Appellant’s final issue warrants an 

evidentiary hearing to determine if collateral relief in the form of a new trial 

is warranted based upon after-discovered evidence. 

Order vacated. Case remanded for an evidentiary hearing consistent 

with this Memorandum. Jurisdiction relinquished.

(Footnote Continued) _______________________

of appellant’s guilt existed, and detective was eventually found not guilty of 

all charges, appellant’s assertion that detective committed misconduct in his 

case was pure conjecture and would not compel a different jury verdict); 

Commonwealth v. Estepp, 17 A.3d 939, 943 (Pa. Super. 2011) 

(“Appellant can only speculate about possible corruption that has not been 

corroborated.”). But see Foreman, 55 A.3d at 539 (Wecht, J. dissenting) 

(“[If] the goal is to find justice, there well may be circumstances where 

after-discovered evidence that goes only to attack credibility may justify a 

new trial.”) (citing Commonwealth v. Choice, 830 A.2d 1005 (Pa. Super. 

2003) (Klein, J. dissenting)).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/14/2015