Com. v. Collins, J. ( 2019 )


Menu:
  • J-S81042-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    JOHNNY MARCELLUS COLLINS                   :
    :
    Appellant               :   No. 1175 MDA 2018
    Appeal from the PCRA Order Entered July 5, 2018
    In the Court of Common Pleas of Dauphin County Criminal Division at
    No(s): CP-22-CR-0006085-2010
    BEFORE:      STABILE, J., DUBOW, J., and STEVENS*, P.J.E.
    MEMORANDUM BY STEVENS, P.J.E.:                          FILED MARCH 19, 2019
    Appellant, Johnny Marcellus Collins, appeals pro se from the order
    entered by the Court of Common Pleas of Dauphin County dismissing his first
    petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
    §§ 9541-9546. Based on the holdings in Alleyne v. United States, 
    133 S.Ct. 2151
     (2013) and Commonwealth v. Cardwell, 
    105 A.3d 748
     (Pa.Super.
    2014), we reverse the order of the PCRA court only with respect to Appellant’s
    legality of sentence claim, vacate the judgment of sentence, and remand for
    resentencing.
    On October 19, 2010, authorities arrested Appellant for his alleged
    unlawful delivery of a controlled substance1 to a confidential informant during
    ____________________________________________
    1   35 P.S. § 780-113(a)(30).
    ____________________________________
    * Former Justice specially assigned to the Superior Court.
    J-S81042-18
    a September 16, 2010, controlled buy. A search of his person incident to the
    arrest revealed contraband supporting additional charges, including one count
    of possession with the intent to deliver a controlled substance (“PWID”).2
    The PCRA court aptly sets forth the subsequent procedural history as
    follows:3
    Appellant, through the assistance of Brian Perry, Esq., filed an
    Omnibus Pre-trial Motion on August 2, 2011. On September 20,
    2011, a Pre-trial Suppression Hearing was held before [the trial
    court]. Thereafter, the parties were ordered to submit briefs. On
    October 3, 2011, Appellant informed [the trial court] through pro
    se correspondence that he wanted to fire his private counsel of
    record. On October 14, 2011, Brian Perry, Esq. filed a Brief in
    Support of the Omnibus Pre-Trial Motion. The Commonwealth
    submitted [its] Brief in Opposition on October 25, 2011. Shortly
    thereafter, on November 15, 2011, Appellant filed a pro se
    Application to Proceed in Forma Pauperis, a Motion to go pro se,
    and a pro se Motion for Change of Custody. These Motions were
    distributed to counsel of record, Brian Perry, Esq., pursuant to
    Rule 576(A)(f). However, on November 21, 2011, Brian Perry,
    Esq. filed a Motion to Withdraw as Counsel. In consideration of
    Appellant’s October 3, 2011, correspondence, said withdrawal was
    granted that same day.
    ***
    Finally, [after the court’s disposition of serial pro se filings], on
    January 11, 2012, a hearing was held before [the trial court]
    wherein Appellant’s Omnibus Pre-Trial Suppression Motion and his
    various other pro se Motions were denied. Moreover, pursuant to
    Appellant’s pro se Motion for Speedy Trial, a trial date was set.
    [After the court’s continued disposition of serial pro se filings], on
    February 27, 2012, trial was continued and Karl Romminger, Esq.,
    entered his appearance on behalf of Appellant.
    ____________________________________________
    235 P.S. § 780-113(a)(30).
    3The PCRA court’s Pa.R.A.P. 1925(a) opinion also provides a detailed account
    of pertinent facts, which we need not reproduce for our present purposes.
    -2-
    J-S81042-18
    A jury trial commenced on May 7, 2012. On May 8, 2012, the jury
    returned a guilty verdict on all counts. Sentencing was deferred
    pending a pre-sentence investigation.
    Appellant was sentenced on July 25, 2012, [to a three to six year
    sentence of incarceration for Unlawful Delivery of a Controlled
    substance; a five to ten year sentence of incarceration for PWID;
    a   one    to   two    year   sentence    of   incarceration   for
    Tampering/Fabricating Physical Evidence; a twelve month
    sentence of state supervision; and no further sentence for
    Unlawful Possession of a Small Amount of Marijuana]. Sentences
    were ordered to run consecutively, plus a fine of $50 and costs
    imposed on each count.
    On August 24, 2012 Appellant filed a direct appeal with the
    Superior Court of Pennsylvania. . . . The Superior Court affirmed
    judgment of sentence on or around October 18, 2013.
    On February 2, 2014, Appellant filed a pro se PCRA [petition. A
    counseled amended petition followed, which resulted in the PCRA
    court reinstating Appellant’s direct appeal rights nunc pro tunc.
    Appellant filed a timely counseled direct appeal nunc pro tunc with
    the Pennsylvania Superior Court, which, by its order and
    memorandum of February 19, 2016, rejected Appellant’s claim
    based on the “hot pursuit” exception provided in the Municipal
    Police Jurisdictional Act (MPJA).
    ***
    On May 4, 2016, Appellant filed a pro se PCRA [petition] and
    Memorandum of Law. On May 2, 2016, [the PCRA] court ordered
    the Commonwealth to respond. Subsequently, [the PCRA court]
    appointed [PCRA] counsel . . . as it would be considered
    [Appellant’s] first PCRA [petition].
    On February 1, 2017, after numerous extensions of time, counsel
    filed a Motion to Withdraw which was granted on February 2,
    2017. New counsel, Christopher Wilson, Esq., was simultaneously
    appointed. After numerous extensions of time, Attorney Wilson’s
    Motion to Withdraw was filed on January 1, 2018. [The PCRA
    court] granted [counsel’s motion on January 22, 2018.
    Subsequently, the court issued its Notice of Intent to Dismiss
    pursuant to Pa.R.Crim.P. 907. Roughly two weeks later, on June
    13, 2018, Appellant filed a pro se Answer opposing the court’s
    notice of dismissal.    On June 27, 2018, after considering
    -3-
    J-S81042-18
    Appellant’s pro se Answer, the PCRA court dismissed Appellant’s
    petition. This timely appeal followed].
    PCRA Court Opinion, 10/30/18, at 1-4.
    Appellant presents the following ten questions for our review:4
    1. Whether trial counsel was ineffective for failing to seek identity
    of informant and failing to file Motion to Suppress physical
    evidence?
    2. Whether appellate counsel was insufficient for failing to raise
    insufficient evidence claim, weight of evidence claim, the claim
    the court shifted burden, discretionary aspect of sentence
    claim, consecutive sentence claim, error in imposing
    mandatory sentence, and manipulated sentence?
    3. Whether the trial court abused its discretion when it illegally
    modified Appellant’s sentence without jurisdiction?
    4. Whether the trial court abused its discretion when it granted
    PCRA counsel’s motion to withdraw without appointing new
    counsel?
    Appellant’s brief, at 3.
    “On appeal from denial of PCRA relief, our standard and scope of review
    is limited to determining whether the PCRA court’s findings are supported by
    the record and without legal error.” Commonwealth v. Edmiston, 
    65 A.3d 339
    , 345 (Pa. 2013) (citation omitted). On questions of law, our scope of
    review is de novo. See 
    id.
    ____________________________________________
    4 Appellant couches seven distinct issues within his second enumerated
    question.
    -4-
    J-S81042-18
    In Appellant’s first issue, he contends trial counsel ineffectively
    represented him during the suppression hearing by failing to seek disclosure
    of the confidential informant’s identity. The record belies this claim.
    To establish a claim of ineffective assistance of counsel, a defendant
    “must show, by a preponderance of the evidence, ineffective assistance of
    counsel which, in the circumstances of the particular case, so undermined the
    truth-determining process that no reliable adjudication of guilt or innocence
    could have taken place.” Commonwealth v. Turetsky, 
    925 A.2d 876
    , 880
    (Pa. Super. 2007) (citation omitted).
    The burden is on the defendant to prove all three of the following
    prongs: “(1) the underlying claim is of arguable merit; (2) that counsel had
    no reasonable strategic basis for his or her action or inaction; and (3) but for
    the errors and omissions of counsel, there is a reasonable probability that the
    outcome of the proceedings would have been different.”              
    Id.
     (citation
    omitted); see also Commonwealth v. Daniels, 
    963 A.2d 409
    , 419 (Pa.
    2009) (“A failure to satisfy any prong of the ineffectiveness test requires
    rejection of the claim of ineffectiveness.” (citation omitted)). “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).
    Moreover, a PCRA petitioner is not automatically entitled to an
    evidentiary hearing on his petition. See Commonwealth v. Smith, 
    121 A.3d 1049
    , 1052 (Pa. Super. 2015).       “[T]he PCRA court can decline to hold a
    hearing if there is no genuine issue concerning any material fact and the
    -5-
    J-S81042-18
    petitioner is not entitled to postconviction collateral relief, and no purpose
    would be served by any further proceedings.” 
    Id.
     On appeal, we “examine
    each of the issues raised in the PCRA petition in light of the record in order to
    determine whether the PCRA court erred in concluding that there were no
    genuine issues of material fact and in denying relief without an evidentiary
    hearing.” 
    Id.
     (citation omitted).
    Appellant filed a counseled omnibus pre-trial motion that included a
    motion to suppress all incriminating evidence as the product of what he
    termed as an unlawful warrantless arrest. On September 20, 2011, the trial
    court conducted a suppression hearing at which Detective Jason Paul of the
    Harrisburg Police Department testified that probable cause for the arrest
    stemmed from a September 16, 2010, controlled buy. N.T. 9/20/11 at 35-
    39. According to Detective Paul, the buy occurred under the supervision of
    Detective Cory Dickerson of the Dauphin County Drug Task Force, who was
    present with a confidential informant (“CI”) and witnessed a hand-to-hand
    exchange of narcotics for money between the CI and Appellant. N.T. at 38.
    Paul explained that Detective Dickerson supplied him with official
    paperwork memorializing Dickerson’s observations, which prompted Paul to
    launch an investigation into Appellant’s ongoing activities. The department,
    therefore, deferred arresting Appellant for the September controlled buy until
    October 19, 2010, when it received word that Appellant would be in possession
    of a large quantity of narcotics intended for sale later that day. N.T. at 35-
    47; 49-53.
    -6-
    J-S81042-18
    Toward the end of the suppression hearing, defense counsel asked the
    court “to consider directing [the Commonwealth] to disclose that information
    [the identity of the confidential informant . . . as it] goes to potential
    credibility. I’ve raised the credibility of the confidential informant.” N.T. at
    70-71. The court declined, noting defense counsel’s argument that the validity
    of the arrest turned on the confidential informant’s credibility ignored pivotal
    evidence demonstrating that Officer Dickerson’s report, based as it was on the
    detective’s first-hand observation of the controlled buy, formed a sufficient
    basis for the arrest. N.T. at 71-75.
    Appellant now contends trial counsel ineffectively failed to move for
    disclosure of the CI’s identity.   As discussed, the record proves false the
    premise of Appellant’s claim, as trial counsel clearly sought such disclosure.
    Moreover, even if trial counsel had not sought disclosure, no prejudice would
    have resulted, for the evidence established that Detective Dickerson’s
    personal observation of Appellant’s September 16, 2010, sale of narcotics to
    the CI supplied probable cause to arrest Appellant. See Commonwealth v.
    Charleston, 
    16 A.3d 505
    , 515-16 (Pa.Super. 2011) (although arresting
    officer did not have probable cause to arrest, detective who ordered
    defendant’s arrest possessed sufficient information giving rise to probable
    cause) (citations omitted); Commonwealth v. Eicher, 
    605 A.2d 337
    , 346
    n.12 (Pa.Super. 1992) (defendant’s warrantless arrest was lawful where police
    officers who effectuated arrest were informed by another officer of his criminal
    -7-
    J-S81042-18
    conduct) (citation omitted).     Hence, Appellant’s first claim of ineffectiveness
    fails.
    Next, Appellant raises numerous claims of appellate counsel’s alleged
    ineffectiveness, which assert failures to challenge: the sufficiency of the
    evidence; the weight of the evidence; the court’s alleged misallocation of the
    burden of proof; the discretionary aspects of Appellant’s sentence; and, the
    imposition of a sentence greater than the statutory maximum. We discern no
    merit to any of the claims.
    We first examine Appellant’s ineffective assistance claim premised on
    appellate counsel’s failure to assail the sufficiency of the evidence.
    Specifically, with respect to his conviction for the September 16, 2010,
    delivery of crack cocaine, Appellant contends no witness positively identified
    him as the seller or claimed to have seen the seller possess the baggie of crack
    cocaine turned over by the CI to Detective Dickerson.
    Our standard of review for a challenge to the sufficiency of the evidence
    is to determine whether, when viewed in a light most favorable to the verdict
    winner, the evidence at trial and all reasonable inferences therefrom are
    sufficient for the trier of fact to find that each element of the crimes charged
    is established beyond a reasonable doubt.        See Commonwealth v. Dale,
    
    836 A.2d 150
    , 152 (Pa. Super. 2003). “The Commonwealth may sustain its
    burden of proving every element of the crime beyond a reasonable doubt by
    means of wholly circumstantial evidence.” Commonwealth v. Bruce, 
    916 A.2d 657
    , 661 (Pa. Super. 2007) (citation omitted).
    -8-
    J-S81042-18
    “[T]he facts and circumstances established by the Commonwealth need
    not preclude every possibility of innocence.” 
    Id.
     (citation omitted). Any doubt
    raised as to the accused's guilt is to be resolved by the fact-finder. See 
    id.
    “As an appellate court, we do not assess credibility nor do we assign weight
    to any of the testimony of record.” Commonwealth v. Kinney, 
    863 A.2d 581
    , 584 (Pa. Super. 2004). Therefore, we will not disturb the verdict “unless
    the evidence is so weak and inconclusive that as a matter of law no probability
    of fact may be drawn from the combined circumstances.” Bruce, 
    916 A.2d at 661
     (citation omitted).
    At trial, Detective Dickerson testified that he prepared for the controlled
    buy by searching the CI prior to entering the Paxton Street Pub, and he found
    no money or contraband on him.         N.T. at 14.    Dickerson also positively
    identified Appellant as the seller with whom the CI and he met on September
    16, 2010, as he was already familiar with Appellant from previous undercover
    work. N.T. at 22.
    Detective Dickerson then described the exchange he witnessed.
    Specifically, he testified that Appellant, the CI, and he were sitting at the bar
    when Appellant went to the bathroom. Dickerson handed the CI $170 pre-
    recorded buy money during this time, and when Appellant returned to his seat
    Dickerson watched him hand a baggie to the CI in exchange for the $170.
    N.T. 5/7/12, at 16-18. The CI never pocketed the baggie but kept it in his
    hand until Appellant left the pub just two minutes later, Dickerson testified, at
    which time the CI immediately handed the baggie to Dickerson. N.T. 17, 34-
    -9-
    J-S81042-18
    35.   Dickerson later field tested the contents of the baggie, which tested
    positive for crack cocaine.
    When reviewing this testimony by taking all reasonable inferences in
    favor of the verdict winner, as we must, we conclude it was sufficient to
    support the jury's conclusion that Dickerson identified Appellant as the seller
    who delivered the baggie of crack cocaine to the CI at the time in question.
    See Commonwealth v. Baker, 
    615 A.2d 23
    , 25–26 (Pa. 1992) (finding facts
    sufficient   to   establish   probable   cause    where   informant's   information
    implicating defendant as seller was corroborated by police officer's first-hand
    observations when he gave informant money to purchase cocaine and saw
    informant enter residence and return from residence with cocaine”). Thus,
    we may not deem appellate counsel ineffective for failing to raise a meritless
    sufficiency claim on direct appeal.
    Appellant also contends appellate counsel ineffectively failed to
    challenge trial counsel’s failure to raise a weight of the evidence claim on the
    delivery charge, as his denial of involvement in the September 16, 2010 sale
    undermined Detective Dickerson’s testimony to the degree that the conviction
    in this matter shocks the conscience. Notably, Appellant references no specific
    testimony or evidence that trial counsel should have raised for the trial court’s
    post-trial consideration.
    An appellate court reviews the denial of a motion for a new trial based
    on a claim that the verdict is against the weight of the evidence for an abuse
    of discretion. Commonwealth v. Clay, 
    64 A.3d 1049
    , 1054–55 (Pa. 2013).
    - 10 -
    J-S81042-18
    “Because the trial judge has had the opportunity to hear and see the evidence
    presented, an appellate court will give the gravest consideration to the
    findings and reasons advanced by the trial judge when reviewing a trial court’s
    determination that the verdict is against the weight of the evidence.” Id. at
    1055 (quoting Commonwealth v. Widmer, 
    744 A.2d 745
    , 753 (Pa. 2000)).
    A trial court should not grant a new trial “because of a mere conflict in
    the testimony.”    
    Id.
       Rather, to grant a new trial, the trial court must
    “determine that notwithstanding all the facts, certain facts are so clearly of
    greater weight that to ignore them or to give them equal weight with all the
    facts is to deny justice.” 
    Id.
     (quoting Widmer, 744 A.2d at 752). Stated
    differently, a trial court should not award a new trial unless the verdict “is so
    contrary to the evidence as to shock one’s sense of justice and the award of
    a new trial is imperative so that right may be given another opportunity to
    prevail.” Id. (quoting Commonwealth v. Brown, 
    648 A.2d 1177
    , 1189 (Pa.
    1994)).
    Our review of the trial transcript reveals that Appellant testified he
    seldom went to the Paxton Street Pub and, therefore, could state with
    certainty that he was not there on September 16, 2010. He also denied ever
    wearing a “peach fuzz” beard as Detective Dickerson said he did on the day
    of the controlled buy, and he introduced pictures of himself attending an
    August 19, 2010, wedding and a mid-September function, respectively, where
    he appears clean-shaven.       N.T. at 153-55, 163-64.        Finally, Appellant
    - 11 -
    J-S81042-18
    altogether denied having ever been in Detective Dickerson’s company. N.T.
    at 164-65.
    Here, faced with conflicting testimony between regarding the September
    2010 controlled buy, the jury clearly credited Detective Dickerson’s testimony
    identifying Appellant as the individual who sold a baggie of crack cocaine to
    the CI while in Dickerson’s immediate presence in the Paxton Street Pub. “It
    is within the province of the fact-finder to determine the weight to be accorded
    to each witness's testimony and to believe all, part, or none of the evidence.”
    Commonwealth v. Williams, 
    176 A.3d 298
    , 306 (Pa.Super. 2017).
    Recognizing the jury’s province in this regard, and guided further by the
    precept stated in Widmer, supra, that a mere conflict in testimony shall not
    serve as the basis for a new trial, we discern no merit to the weight of the
    evidence claim underlying Appellant’s ineffectiveness claim.        It follows,
    therefore, that prior counsel may not be deemed ineffective for failing to
    pursue a meritless weight of the evidence claim.
    Next, Appellant posits that prior counsel ineffectively failed to pursue a
    claim that the trial court impermissibly shifted the burden upon Appellant to
    prove his innocence. This alleged occurrence, Appellant summarily maintains,
    was the product of both the trial court’s refusal to suppress evidence obtained
    from the search incident to his arrest and its allowance of Detective Dickerson
    to offer what Appellant terms as “hearsay testimony” regarding what only the
    CI could have observed during the September 16, 2010, controlled buy.
    - 12 -
    J-S81042-18
    We have already concluded, however, that the trial court properly
    denied Appellant’s motion to suppress evidence obtained from a lawful search
    incident to his arrest, and that Detective Dickerson limited his testimony to a
    description of his own personal observations of the controlled buy. Appellant’s
    undeveloped ineffective assistance of counsel claim predicated on an
    unsubstantiated allegation that the court misallocated the burden of proof,
    therefore, is utterly meritless.
    Appellant’s next ineffective assistance of counsel claim centers on prior
    counsels’ respective failures to challenge the court’s imposition of consecutive
    sentences, which Appellant maintains represented an alleged abuse of its
    sentencing discretion. Initially, we note:
    [o]ur court has held that claims implicating the discretionary
    aspects of sentencing raised in the context of an ineffectiveness
    claim are cognizable under the PCRA.          Commonwealth v.
    Whitmore, 
    860 A.2d 1032
    , 1036 (Pa.Super. 2004), reversed in
    part on other grounds, 
    912 A.2d 827
     (Pa. 2006) (“[A] claim that
    counsel was ineffective for failing to perfect a challenge to the
    discretionary aspects of sentencing is cognizable under the PCRA.”
    (citations omitted)); Commonwealth v. Watson, 
    835 A.2d 786
    ,
    801 (Pa.Super. 2003) (“[A] claim regarding the discretionary
    aspects of [the defendant's] sentence, raised in the context of an
    ineffectiveness claim, would be cognizable under the PCRA”)
    (discussing Commonwealth ex rel. Dadario v. Goldberg, 
    773 A.2d 126
     (Pa. 2001)) (footnote omitted).
    Commonwealth v. Sarvey, --- A.3d ----, 
    2018 PA Super 307
     at *10 (filed
    Nov. 16, 2018).
    The standard of review in an appeal from the discretionary aspects of a
    sentence is well settled.
    - 13 -
    J-S81042-18
    [S]entencing is a matter vested in the sound discretion of the
    sentencing judge, and a sentence will not be disturbed on appeal
    absent a manifest abuse of discretion. An abuse of discretion is
    more than just an error in judgment and, on appeal, the trial court
    will not be found to have abused its discretion unless the record
    discloses that the judgment exercised was manifestly
    unreasonable, or the result of partiality, prejudice, bias or ill-will.
    Commonwealth v. Paul, 
    925 A.2d 825
    , 829 (Pa.Super. 2007) (citation
    omitted).
    Prior to reaching the merits of a discretionary sentencing issue, this
    Court must determine:
    (1) whether appellant has filed a timely notice of appeal, see
    Pa.R.A.P. 902 and 903; (2) whether the issue was properly
    preserved at sentencing or in a motion to reconsider and modify
    sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief
    has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there
    is a substantial question that the sentence appealed from is not
    appropriate under the Sentencing Code, [see] 42 Pa.C.S.A. §
    9781(b).
    Commonwealth v. Moury, 
    992 A.2d 162
    , 170 (Pa.Super. 2010) (citation
    omitted).
    Our initial impression of this issue is that Appellant does not present it
    within a Pa.R.A.P. 2119(f) concise statement of his reasons relied upon for the
    allowance of an appeal from the discretionary aspects.         Such a statement
    appears nowhere in his brief, neither on its own page as Rule 2119(f) requires
    nor anywhere within the Argument section. Indeed, Appellant asserts to the
    contrary in his argument that he has the “absolute right to appeal” his
    sentence. See Appellant’s brief, at 24.
    - 14 -
    J-S81042-18
    An appeal of this type is not of right, however, as an appellant must,
    instead, seek this Court’s allowance of such an appeal through a Rule 2119(f)
    statement.    See Sarvey, supra at n. 11 (noting that the PCRA appellant
    complied with Rule 2119(f) by including a concise statement seeking
    allowance of appeal in her brief). Nevertheless, we decline to find waiver on
    such a basis, because the Commonwealth has not specifically objected to this
    omission. See Commonwealth v. Hudson, 
    820 A.2d 720
    , 727 (Pa.Super.
    2003) (holding waiver required where Commonwealth specifically objects to
    absence of rule 2119(f) statement).
    A substantial question exists when an appellant sets forth “a colorable
    argument that the sentence imposed is either inconsistent with a specific
    provision of the Sentencing Code or is contrary to the fundamental norms
    underlying the sentencing process.” Commonwealth v. Ventura, 
    975 A.2d 1128
    , 1133 (Pa. Super. 2009) (citation omitted).        Here, Appellant’s sole
    discretionary aspects contention is that the court unreasonably decided to run
    his standard range sentences consecutively to form what he claims is a
    manifestly excessive aggregate sentence of nine to 18 years’ incarceration.
    Long standing precedent of this Court recognizes that 42
    Pa.C.S.A. [§] 9721 affords the sentencing court discretion to
    impose its sentence concurrently or consecutively to other
    sentences being imposed at the same time or to sentences already
    imposed. Commonwealth v. Graham, 
    541 Pa. 173
    , 184, 
    661 A.2d 1367
    , 1373 (1995); see also Commonwealth v. Perry,
    
    883 A.2d 599
    , 2005 Pa.Super. Lexis 2892 (Pa. Super. August 10,
    2005), and the cases cited therein. Any challenge to the exercise
    of this discretion ordinarily does not raise a substantial question.
    Commonwealth v. Johnson, 
    873 A.2d 704
    , 709 n. 2 (Pa. Super.
    - 15 -
    J-S81042-18
    2005); see also Commonwealth v. Hoag, 
    445 Pa. Super. 455
    ,
    
    665 A.2d 1212
    , 1214 (1995) (explaining that a defendant is not
    entitled to a “volume discount” for his or her crimes).
    Commonwealth v. Marts, 
    889 A.2d 608
    , 612 (Pa. Super. 2005). A limited
    exception to this rule was recognized in Commonwealth v. Dodge, 
    957 A.2d 1198
     (Pa. Super. 2008), appeal denied, 
    980 A.2d 605
     (Pa. 2009), where a
    panel of this Court concluded the defendant's aggregate sentence of 58½ to
    128 years' imprisonment was excessive and clearly unreasonable, when the
    trial court imposed 37 consecutive, standard range sentences for receiving
    stolen property, much of which consisted of costume jewelry.      See id. at
    1199-1201.
    The facts in the present case are not similar to those in Dodge. The
    Appellant was convicted of drug crimes that represent a significant threat to
    the community, and his ten to eighteen year aggregate sentence was hardly
    tantamount to a virtual life sentence, as was imposed in Dodge. Under the
    circumstances, therefore, we find Appellant has failed to establish that his
    consecutive sentencing scheme is among the exceptional cases that raise a
    substantial question for this Court’s review.
    Even assuming, arguendo, that Appellant presents a substantial
    question, we find the record does not support his position.
    “Sentencing is a matter vested in the sound discretion of the
    sentencing judge, and a sentence will not be disturbed on appeal
    absent a manifest abuse of discretion. In this context, an abuse
    of discretion is not shown merely by an error in judgment. Rather,
    the appellant must establish, by reference to the record, that the
    sentencing court ignored or misapplied the law, exercised its
    - 16 -
    J-S81042-18
    judgment for reasons of partiality, prejudice, bias or ill will, or
    arrived at a manifestly unreasonable decision.
    Commonwealth v. Johnson, 
    125 A.3d 822
    , 826 (Pa.Super. 2015).
    Additionally, our review of the discretionary aspects of a sentence must
    align with the statutory mandates of 42 Pa.C.S. §§ 9781(c) and (d).
    Subsection 9781(c) provides:
    The appellate court shall vacate the sentence and remand the case
    to the sentencing court with instructions if it finds:
    (1) the sentencing court purported to sentence within the
    sentencing guidelines but applied the guidelines erroneously;
    (2) the sentencing court sentenced within the sentencing
    guidelines but the case involves circumstances where the
    application of the guidelines would be clearly unreasonable; or
    (3) the sentencing court sentenced outside the sentencing
    guidelines and the sentence is unreasonable.
    In all other cases[,] the appellate court shall affirm the sentence
    imposed by the sentencing court.
    42 Pa.C.S.A. § 9781(c). When we review the record, we consider the offense,
    the characteristics of the defendant, the trial court's opportunity to observe
    the defendant, the pre-sentence report, the sentencing guidelines and the
    basis for the sentence imposed. 42 Pa .C.S. § 9781(d).
    As noted, Appellant contends that running his sentences consecutively,
    particularly the Delivery and PWID sentences, which together represent the
    lion’s share of the nine to 18 year aggregate sentence imposed upon
    Appellant, resulted in a manifestly excessive sentence.     However, the trial
    court considered Appellant’s long history of recidivism (spanning 23 years,
    - 17 -
    J-S81042-18
    during which his longest time without violating parole was four months), his
    current refusal to accept responsibility for his actions, and the pre-sentence
    investigation report’s determination that he presents an above-average risk
    of re-offending.    N.T. 7/25/12, at 3-7.          Moreover, we note that both the
    Delivery sentence and PWID sentence, respectively, fell within the standard
    guideline range for Appellant given his prior record score. N.T. 7/25/12, at 5.
    This record dispels any concern that the trial court “ignored or
    misapplied the law, exercised its judgment for reasons of partiality, prejudice,
    bias or ill will, or arrived at a manifestly unreasonable decision[]” in exercising
    its   sentencing   discretion    to   run    Appellant’s   sentences   consecutively.
    Commonwealth v. DiSalvo, 
    70 A.3d 900
    , 903 (Pa.Super. 2013).                      The
    sentences fell within the standard range of the guidelines, and the court
    settled on consecutive sentences only after giving due consideration to the
    seriousness of Appellant’s crimes, his lack of remorse, and the high likelihood
    he would repeat such an offense. Accordingly, we conclude that Appellant’s
    aggregate    sentence    is     neither     excessive   nor   unreasonable.     See
    Commonwealth v. Bowen, 
    55 A.3d 1254
    , 1265 (Pa.Super. 2012) (holding
    it is within trial court’s sound discretion whether a sentence should run
    consecutive to or concurrent with another sentence being imposed).
    Appellant raises a second claim implicating the discretionary aspects of
    his sentence when he charges counsel with ineffectively failing to raise a
    sentencing entrapment, or manipulation, claim.             This argument posits that
    police engaged in sentencing manipulation when it deferred his arrest for
    - 18 -
    J-S81042-18
    weeks until a moment when it learned he would be in possession of a larger
    quantity of narcotics.
    As we did with the previous issue, we decline to find waiver for the
    Pa.R.A.P. 2119(f) inadequacies of Appellant’s brief, as the Commonwealth has
    not lodged a corresponding objection. Moreover, our Court has previously
    held a claim of sentencing manipulation creates a substantial question for our
    review, see Commonwealth v. Kittrell, 
    19 A.3d 532
     (Pa.Super. 2011), thus,
    we will address the substantive argument here.
    Sentencing manipulation occurs when “a defendant,
    although predisposed to commit a minor or lesser offense, is
    entrapped in committing a greater offense subject to greater
    punishment.” It often is asserted in narcotics matters, typically
    reverse sting cases, in which government agents determine the
    amount of drugs a target will purchase. Sentencing entrapment
    or manipulation is similar to traditional notions of entrapment in
    that it requires extraordinary misconduct by the government.
    However, it differs from classic entrapment in that it is not a
    complete defense to criminal charges and, therefore, cannot serve
    as a basis for acquittal. Instead, it provides a convicted defendant
    the opportunity for a reduced sentence, typically in the form of a
    downward departure from the sentencing guidelines. It also can
    be used to exclude one of several criminal transactions included
    in a sentencing scheme. It may even provide relief from a
    mandatory sentence.
    Commonwealth v. Paul, 
    925 A.2d 825
    , 830 (Pa.Super. 2007) (internal
    citations omitted).
    This Court has held:
    With our acceptance of the premise underlying sentencing
    entrapment and manipulation, we adopt the standard typically
    applied in such cases, namely, the existence of “outrageous
    government conduct” or “extraordinary government misconduct”
    which is designed to and results in an increased sentence for the
    - 19 -
    J-S81042-18
    convicted defendant. This standard presents a heavy burden for
    the defendant seeking a sentence reduction.          Simply put,
    sentencing entrapment/manipulation is difficult to prove; it is not
    established “simply by showing that the idea originated with the
    government or that the conduct was encouraged by it, ... or that
    the crime was prolonged beyond the first criminal act ... or
    exceeded in degree or kind what the defendant had done before.”
    Commonwealth v. Petzold, 
    701 A.2d 1363
    , 1366–67 (Pa.Super. 1997)
    (citation omitted).
    The extent of Appellant’s sentencing entrapment/manipulation claim is
    that police observed him commit two drug deliveries after September 16,
    2010, without arresting him, before they decided to arrest him on October 19,
    2010 only after receiving a call from a CI stating Appellant possessed a large
    quantity of narcotics and a gun. In response, the Commonwealth points to
    testimony explaining that police intended to arrest Appellant immediately after
    witnessing his second drug sale but lost sight of him, and they did nothing to
    manipulate the quantity of narcotics in Appellant’s possession on the day of
    his arrest.
    By failing to establish that police manipulated him into committing a
    greater offense than that which he was predisposed to commit, Appellant has
    not carried his heavy burden of showing outrageous government behavior
    leading up to his arrest. At most, Appellant’s crime on October 19, 2010,
    merely exceeded in degree or kind that which he was observed to have
    committed on three other occasions in the prior month.             Under our
    jurisprudence discussed supra, such an occurrence does not amount to
    sentencing entrapment or manipulation.
    - 20 -
    J-S81042-18
    Next, we address Appellant’s claim that his sentence is illegal under
    Alleyne (holding any fact, other than fact of a prior conviction, increasing the
    penalty for a crime beyond the prescribed statutory minimum must be
    submitted to jury and proven beyond a reasonable doubt). See id., 131 S.Ct.
    at 2160–61. Although Appellant did not raise an Alleyne-based illegality of
    sentence claim in either his Pa.R.A.P. 1925(b) statement or in his statement
    of questions presented, he has preserved it by raising it in the argument
    section of his brief. See Commonwealth v. Robinson, 
    931 A.2d 15
    , 19-20
    (Pa.Super. 2007) (“a challenge to the legality of the sentence may be raised
    as a matter of right, is non-waivable, and may be entertained so long as the
    reviewing court has jurisdiction.”).5
    ____________________________________________
    5 In its Pa.R.A.P. 1925(a) opinion, the PCRA court dismisses Appellant’s
    Alleyne claim as being part of what it considers a meritless ineffective
    assistance of direct appeal counsel claim. In this regard, the court reasons
    that it cannot deem direct appeal counsel ineffective for failing to predict the
    Alleyne decision handed down in the following year. We question the premise
    of this rationale, however, as it ignores the fact that Appellant was awarded a
    subsequent direct appeal nunc pro tunc after Alleyne was decided, which
    gave appointed counsel the opportunity to raise an Alleyne-based attack on
    Appellant’s sentence at such time.
    Binding decisional law of this Commonwealth has held an Alleyne claim
    constitutes a non-waivable challenge to the legality of a sentence and may be
    raised for the first time in a timely-filed PCRA petition where the petitioner’s
    judgment of sentence was not final when Alleyne was decided. See
    Commonwealth v. Washington, 
    142 A.3d 810
    , 820 (Pa. 2016); see also
    Commonwealth v. Ruiz, 
    131 A.3d 54
     (Pa.Super. 2015). Appellant meets
    this condition, as he filed this timely PCRA petition after his judgment of
    sentence became final in 2016, three years after the Alleyne decision.
    Accordingly, we address Appellant’s Alleyne claim as a properly raised
    challenge to the legality of his sentence.
    - 21 -
    J-S81042-18
    A careful review of the record requires us to conclude that Appellant’s
    sentence is illegal under Alleyne, as the trial court applied weight-based,
    mandatory minimum sentences provided in 18 Pa.C.S. § 75086 in fashioning
    the sentence. See N.T. 7/25/12, at 5, 10-11 (court specifically acknowledges
    Commonwealth’s        citation    to   applicable   mandatories   and   immediately
    conforms minimum sentences thereto). This Court has applied Alleyne to
    find Section 7508 mandatory minimum sentences unconstitutional.                See
    Cardwell, 105 A.3d at 752-55. Accordingly, we vacate Appellant’s sentence
    and remand to the trial court for resentencing consistent with this aspect of
    our decision.7
    ____________________________________________
    6  Section 7508(a)(3)(i) provided for a three-year mandatory minimum
    sentence for, inter alia, Delivery of 2.0 grams or more of cocaine if, at the
    time of sentencing, the defendant has been convicted of another drug
    trafficking offense. Section 7508(a)(3)(ii) provided for a five-year mandatory
    minimum sentence for, inter alia, PWID 10.0 or more grams of cocaine if, at
    the time of sentencing, the defendant has been convicted of another drug
    trafficking offense. See 18 Pa.C.S. § 7508.
    7 We need not review Appellant’s other legality of sentence claim, which
    asserted the court was without jurisdiction to enter its order of March 27,
    2018, clarifying that the instant sentencing order was to run consecutively to
    other sentences involving different offenses that were in effect at the time.
    See Commonwealth v. Pfeiffer, 
    579 A.2d 897
     (Pa.Super. 1990) (claim
    challenging court’s failure to indicate whether state sentence was to run
    concurrent to or consecutive with a unrelated county sentence currently being
    served implicated legality of sentence; hence, untimely motion for
    reconsideration of sentence did not bar claim). Pfeiffer, however, clarifies
    that, “absent any written indication to the contrary, it is presumed that the
    sentences are to run consecutively.” 
    Id. at 900
    . Therefore, to the extent
    Appellant contends his sentence for the above-captioned matter implicitly runs
    - 22 -
    J-S81042-18
    Finally, Appellant submits that the PCRA court abused its discretion
    when it granted PCRA counsel’s motion to withdraw without appointing new
    counsel. On December 29, 2017, Attorney Wilson filed a no-merit letter under
    Turner/Finley in which he set forth a legal analysis explaining why each of
    Appellant’s pro se issues lacked merit.            On January 22, 2018, the court
    determined Attorney Wilson had fulfilled his obligations under Turner/Finley
    and, thus, granted his petition to withdraw.
    Subsequently, on May 31, 2018, the court issued its Notice of Intent to
    Dismiss pursuant to Pa.R.Crim.P. 907. On June 13, 2018, Appellant filed a
    pro se Answer opposing the court’s notice of dismissal. Specifically, Appellant
    contended PCRA counsel’s failure to amend the pro se petition constituted
    ineffective assistance as a matter of law, and he requested an evidentiary
    hearing where he would testify to, inter alia, counsel’s failure to participate
    meaningfully in his PCRA appeal.               On June 27, 2018, after considering
    Appellant’s pro se Answer, the PCRA court dismissed Appellant’s petition.
    Now, it is Appellant’s contention that PCRA counsel’s failure to amend
    his pro se petition leads inexorably to the conclusion that counsel deprived
    him of the right to have appointed counsel “advance his position in acceptable
    ____________________________________________
    concurrently to other sentences imposed by other courts for different matters,
    he is mistaken. Moreover, given our decision to vacate the present sentence
    and remand for resentencing in a manner consistent with Alleyne and its
    progeny, the trial court will have the opportunity to specify whether the new
    sentence shall run concurrent to or consecutively with other sentences.
    - 23 -
    J-S81042-18
    legal terms.” Appellant’s brief, at 32 (quoting Commonwealth v. Sangricco,
    
    415 A.2d 65
    , 133 (Pa. 1980)). We disagree.
    This court has stated “when appointed counsel fails to amend an
    inarticulately drafted pro se [post-conviction] petition, or fails otherwise to
    participate meaningfully, this court will conclude that the proceedings were,
    for all practical purposes, uncounseled and in violation of the representation
    requirement.”    Commonwealth v. Hampton, 
    718 A.2d 1250
    , 1253
    (Pa.Super. 1998) (quoting Commonwealth v. Ollie, 
    450 A.2d 1026
    (Pa.Super. 1982), and Sangricco, 415 A.2d at 133). While it is true that
    PCRA counsel never amended Appellant’s pro se petition, we cannot
    reasonably conclude that Appellant effectively went uncounseled.
    Here, the record shows counsel properly filed a Turner/Finley letter in
    which he undertook an extensive review of Appellant’s case and provided a
    thorough legal analysis in support of his conclusion that there was no
    meritorious claim to make on collateral appeal. While we obviously disagree
    with counsel’s conclusion to the extent it failed to address and acknowledge
    the effect of Alleyne and its progeny on the legality of Appellant’s mandatory
    minimum sentences, we otherwise infer no abandonment of professional
    responsibility from counsel’s otherwise cogent no-merit letter on the
    remaining claims. Accordingly, the PCRA court committed no error of law or
    abuse of discretion in accepting counsel’s no-merit letter as to these other
    claims.
    - 24 -
    J-S81042-18
    For the foregoing reasons, we discern no error or abuse of discretion
    with the PCRA court’s order to the extent it dismisses as meritless all issues
    raised by Appellant other than his challenge to the imposition of mandatory
    minimum sentences.        Under Alleyne and Cardwell, however, we are
    constrained to reverse the PCRA order with respect to Appellant’s legality of
    sentence claim, vacate judgment of sentence, and remand for resentencing,
    where Appellant will be entitled to the appointment of counsel.
    Order reversed only with respect to the legality of Appellant’s sentence.
    Judgment of sentence vacated. Case remanded for proceedings consistent
    with this decision. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 03/19/2019
    - 25 -