Com. v. Noble, R. ( 2019 )

J-S15003-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICARDO NOBLE :
:
Appellant : No. 420 WDA 2018
Appeal from the Judgment of Sentence Entered January 29, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000318-1992
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED APRIL 15, 2019
Appellant, Ricardo Noble, pro se, appeals from the judgment of sentence
of 40 years to life imprisonment, which was imposed at his resentencing
pursuant to his jury trial convictions for murder of the second degree, criminal
conspiracy, and robbery.1 We affirm in part and remand in part, with
instructions.
On October 18, 1991, in Erie, Pennsylvania, Appellant and two other
individuals robbed and murdered a cab driver, whose vehicle they were seen
entering shortly before the victim’s death and whose last contact was with
Appellant and his co-defendants, according to cab company records and
communications. Commonwealth v. Noble, Nos. 1770 Pittsburgh 1992 &
____________________________________________
1 18 Pa.C.S. §§ 2502(b), 903(a)(1), and 3701(a)(1), respectively.
* Retired Senior Judge assigned to the Superior Court.
J-S15003-19
1792 Pittsburgh 1992, unpublished memorandum at 1, 5 (Pa. Super. filed
February 3, 1994) (citing Trial Court Opinion, filed February 8, 1993, at 25).
“At the time of the murder, appellant was 15 years, 8 months of age.” Id. at
2.
Prior to trial, Appellant petitioned the trial court “to decertify this case
and transfer the matter to Juvenile Court,” id. at 1-2, pursuant to 42 Pa.C.S.
§ 6322(a) of the Juvenile Act,2 which articulates the procedure for “[t]ransfer
from criminal proceedings . . . to the division or a judge of the court assigned
to conduct juvenile hearings[.]” Following “a two-day certification hearing in
which testimony was heard from appellant’s relatives, friends, teachers and
psychologists,” the trial court denied Appellant’s petition. Noble, No. 1770
Pittsburgh 1992, at 4.
On June 5, 1992, Appellant was convicted of the aforementioned crimes.
On September 28, 1992, Appellant was sentenced “to a term of life
imprisonment on the murder charge, and a concurrent term of four (4) to ten
(10) years imprisonment on the conspiracy charge.” Id. at 1. On February 3,
1994, this Court affirmed Appellant’s judgment of sentence. Id. at 14.
Appellant petitioned for allowance of appeal to the Supreme Court of
____________________________________________
2 42 Pa.C.S. §§ 6301-6375.
-2-
J-S15003-19
Pennsylvania, which was denied on August 17, 1994. Commonwealth v.
Noble, 647 A.2d 899 (Pa. 1994).
On March 1, 2016, Appellant filed, pro se, a petition pursuant to the Post
Conviction Relief Act (“PCRA”),3 contending that his sentence was illegal. PCRA
Petition, 3/1/2016, at 2, 5 & second of two unnumbered pages between pages
5 and 6. On July 19, 2017, the trial court granted Appellant relief, vacating
his judgment of sentence but not his convictions and ordering a resentencing
hearing scheduled for October 23, 2017. Order, 7/19/2017.
On October 16, 2017, Appellant filed a motion to continue his
resentencing hearing, which the trial court granted two days later, scheduling
the hearing for December 4, 2017. On November 6, 2017, Appellant filed an
ex parte and sealed motion for the appointment of a mitigation specialist, which
the trial court granted three days later. On November 27, 2017, Appellant
again motioned for a continuance, which the trial court granted, rescheduling
the hearing for January 29, 2018. On January 3, 2018, Appellant motioned for
the appointment of a psychologist and, on January 16, 2018, motioned for a
continuance to allow for a psychological evaluation. On January 18, 2018, the
trial court denied both motions.
On January 29, 2018, at the beginning of his resentencing hearing,
Appellant personally (and not through counsel) told the trial court that he
____________________________________________
3 42 Pa.C.S. §§ 9541–9546.
-3-
J-S15003-19
disagreed with the recommendation of 20 to 60 years given by his counsel in
his pre-hearing sentencing memorandum, and the trial court acknowledged
that Appellant “brought it to [the court’s] attention[,]” then repeatedly had to
instruct Appellant to “have a seat,” that he would “be allowed to speak at the
re-sentencing hearing at the appropriate time,” and that, if he was displeased
with his counsel’s representation, he could file a motion for ineffective
assistance of counsel after the hearing. N.T., 1/29/2018, at 2-4.
Appellant later testified on his own behalf, without interruption by his
attorney; however, when he began to protest his innocence, stating that he
“did not kill” and “did not rob” the victim and was “a hundred percent innocent
of all charges[,]” the trial court prevented him from doing so, explaining that
his culpability was not at issue, as he had “already been found guilty of those
offenses.” Id. at 25, 28-32. The trial court informed Appellant that he could
only speak “as to what the [c]ourt should now do with you in terms of
sentencing, not as to culpability in the case, because that’s already been
determined.” Id. at 30. Appellant also attempted to make an argument about
his “1992 decertification hearing,” but the trial court stated that it was “not
going to consider that. That’s done.” Id. at 32.
At the conclusion of the hearing, the trial court resentenced Appellant to
40 years to life imprisonment for murder of the second degree, with no further
penalty on the remaining counts. Id. at 64-65. According to the trial court:
[T]he record does not indicate the Appellant was informed of his
right and time to appeal sentence.2
-4-
J-S15003-19
2 In Erie County, this has historically been done by the district
attorney (or assistant) on the record and before the Court
assumes the bench. The completed rights paperwork is
then, after being signed by all parties, submitted to the Court
for verification and signing. Apparently, this was not done
on this occasion.
Trial Court Opinion, filed August 29, 2018, at 2 (internal quotation marks
omitted). Appellant did not file a post-sentence motion.
On February 20, 2018, Appellant’s counsel filed a motion to withdraw,
which the trial court did not address. Despite this pending motion, on March 9,
2018, Appellant’s counsel filed a “Motion to Reinstate Appellant’s Rights Nunc
Pro Tunc” (hereinafter “Motion to Reinstate”), “requesting that th[e trial c]ourt
allow Counsel for the Defendant to reinstate Mr. Noble’s right to appeal, so
Counsel may file the appropriate Notice of Appeal.” Motion to Reinstate,
3/9/2018, at ¶ 11. The Motion to Reinstate did not request that Appellant’s
right to file a post-sentence motion be reinstated. See generally id. The trial
court granted the Motion to Reinstate later that month. 4 On March 22, 2018,
counsel filed a notice of appeal, along with a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 10, 2018,
____________________________________________
4 The order granting the Motion to Reinstate does not appear in the certified
record, and we cannot speculate as to whether the order specified that
Appellant’s right to file a post-sentence motion was also reinstated, particularly
as the Motion to Reinstate itself did not actually request such relief. In his
brief, Appellant does not state that his right to file a post-sentence motion was
reinstated, and, as of the date of this decision, the Commonwealth did not file
a brief. The trial court opinion merely stated that “Appellant perfected a timely
appeal in this case.” Trial Court Opinion, filed August 29, 2018, at 2.
-5-
J-S15003-19
counsel filed another motion to withdraw, which was denied by the trial court
on April 30, 2018. On May 7, 2018, the official court reporter filed the notes
of testimony from Appellant’s resentencing hearing on January 29, 2018. On
May 16, 2018, Appellant filed a motion to represent himself. On May 23, 2018,
this Court remanded for a Grazier hearing.5 Following the hearing, on
June 15, 2018, the trial court found that Appellant’s request to proceed pro se
was knowing, intelligent, and voluntary, and it granted said request. On July 5,
2018, Appellant requested the trial court’s permission to supplement the
concise statement of errors complained of on appeal, which the trial court
granted on July 16, 2018. On August 8, 2018, Appellant filed a supplemental
concise statement of errors6 and a motion for correction of resentencing
hearing transcript (“Correction Motion”). On August 28, 2018, the trial court
denied Appellant’s Correction Motion, stating: “Both the Court Stenographer
and the Court have certified the record to be accurate and there is no other
record or recording of the proceeding.” Order, 8/28/2018.
In his pro se brief to this Court,7 Appellant raises the following issues for
our review:
____________________________________________
5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
6The trial court filed its opinion on August 29, 2018, with a supplemental
memorandum opinion on November 8, 2018.
7 Appellant’s brief is handwritten and, at times, illegible. We have done our
best to discern what he has written throughout his brief, including in his
statement of questions involved.
-6-
J-S15003-19
[1.] Did court err/abuse discretion by not notifying Appellant of
right and time to appeal sentence?
[2.] Did court err and abuse discretion by sentencing Appellant
to excessive/bias 40 years to life ignoring ex post facto laws,
sentencing Appellant based on consideration of first degree
murder, not second degree murder, and after resentencing an
alleged co-defendant to 20 to 50 years?
[3.] Did court err/abuse discretion by denying motion for
psychologist to do full evaluation of Appellant to make diagnosis
appointed mitigation specialist wasn’t qualified, thus, ignoring
Appellant’s possible and/or actual rehabilitative needs?
[4.] Did court err/abuse discretion at resentencing hearing by
prohibiting Appellant to address/correct false and misleading
documents and averments made against Appellant by Appellant’s
attorney and prosecution in their sentencing memorandums?
[5.] Did court err/abuse discretion by relying on false,
misleading, and inaccurate information to decide sentence?
6. Was counsel ineffective, err, and prejudice Appellant by
maliciously/falsely stating in sentence memorandum that
Appellant is guilty without Appellant’s knowledge or consent?
Appellant always stated (and evidence proved) his innocence of all
charges.
7. Was counsel ineffective, err, and prejudice Appellant by
requesting 20 to 60 years sentence in sentence memorandum
without Appellant’s knowledge or consent, then against Appellant’s
repeated objections at resentencing hearing?
8. Was counsel ineffective/err by withholding documents and
refusing to communicate with Appellant about case?
9. Was counsel ineffective/err by only reviewing and agreeing
with portion of Appellant’s prison file provided by prosecution and
prosecution’s false/misleading interpretation of it?
10. Did evidence support a sentence or conviction on felony
murder, robbery, conspiracy to robbery, and decertification denial?
11. Was counsel ineffective/err by not filing sentence
reconsideration/modification motion?
-7-
J-S15003-19
12. Did mitigation specialist err and prejudice Appellant by
providing incomplete evaluation and report with false/misleading
information and giving undermining weak testimony?
13. Did court reporter and/or the court abuse discretion and
prejudice Appellant’s present and future proceedings by providing
inaccurate resentence hearing transcript/transcription? [sic]
Appellant’s Brief at 2-3 (emphasis in original) (unnecessary capitalization
omitted and issues re-ordered to facilitate disposition).
Appellant first contends that the trial court erred by failing to inform him
of his post-sentence and appellate rights after resentencing him and that this
failure denied him the opportunity to file a motion to modify sentence. Id. at
35-36.
Pa.R.Crim.P. 704 concerns the procedure to be followed by the trial court
at the time of sentencing, including that: “The judge shall determine on the
record that the defendant has been advised . . . of the right to file a post-
sentence motion and to appeal[ and] of the time within which the defendant
must exercise those rights[.]” Pa.R.Crim.P. 704(C)(3)(a) (emphasis added).
“Paragraph (C)(3) requires the judge to ensure the defendant is advised of his
or her rights concerning post-sentence motions and appeal[.]” Comment to
Pa.R.Crim.P. 704 (emphasis added) (citation omitted).8
____________________________________________
8 The Comment to Pa.R.Crim.P. 704(C)(3) further explains:
The rule permits the use of a written colloquy that is read,
completed, signed by the defendant, and made part of the record
of the sentencing proceeding. This written colloquy must be
supplemented by an on-the-record oral examination to determine
that the defendant has been advised of the applicable rights
-8-
J-S15003-19
In the current action, the trial court acknowledges that it failed to follow
the procedural requirements of Pa.R.Crim.P. 704(C)(3)(a). See Trial Court
Opinion, filed August 29, 2018, at 2.
However, the trial court asserts that this “error was harmless[.]” Id.
We disagree. On appeal, Appellant also challenges the discretionary aspects
of his sentence. Appellant’s Brief at 2, 11-16, 34-35.
Challenges to the discretionary aspects of sentencing do not entitle
an appellant to an appeal as of right. Prior to reaching the merits
of a discretionary sentencing issue[, w]e conduct a four-part
analysis to 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;[9]
(3) whether appellant’s brief has a fatal defect, 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, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)
(emphasis added) (quotation marks and some citations omitted), reargument
denied (July 7, 2018).
____________________________________________
enumerated in paragraph (C)(3) and that the defendant has signed
the form.
However, nothing in the certified record indicates that a written colloquy was
employed in this case.
9 Pa.R.Crim.P. 720 sets forth post-sentence procedures, including that “a
written post-sentence motion shall be filed no later than 10 days after
imposition of sentence.” Pa.R.Crim.P. 720(A)(1).
-9-
J-S15003-19
In the current matter, “Appellant perfected a timely appeal in this case.”
Trial Court Opinion, filed August 29, 2018, at 2. Appellant’s brief to this Court
included a separate section pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at
8-11. For the final requirement, whether the question raised by Appellant is a
substantial question meriting our discretionary review --
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. A substantial question
exists only when the appellant advances a colorable argument that
the sentencing judge’s actions were either: (1) inconsistent with
a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.
Manivannan, 186 A.3d at 489 (internal citations and quotation marks
omitted).
Appellant’s Rule 2119(f) statement sets forth the claim that his sentence
was “a manifestly excessive . . . and unreasonable 40 years to life[.]”
Appellant’s Brief at 8. “A claim that a sentence is manifestly excessive such
that it constitutes too severe a punishment raises a substantial question.”
Commonwealth v. Derry, 150 A.3d 987, 995 (Pa. Super. 2016) (citation and
quotation marks omitted).
In addition, Appellant argues in his Rule 2119(f) statement that the
sentence imposed “ignores any possible and/or actual rehabilitative needs of
[A]ppellant” and the “prospect of rehabilitation and other mitigating factors.”
Appellant’s Brief at 9. An allegation that the sentencing court failed to consider
an appellant’s rehabilitative needs constitutes a substantial question, when
presented in conjunction with other relevant factors. See, e.g.,
- 10 -
J-S15003-19
Commonwealth v. Luketic, 162 A.3d 1149, 1160-61 (Pa. Super. 2017);
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (claim that
failure to consider rehabilitative needs and mitigating factors raised a
substantial question); see also, e.g., Commonwealth v. Dodge, 77 A.3d
1263, 1273 (Pa. Super. 2013) (claim that sentencing court disregarded
rehabilitation and the nature and circumstances of the offense raised a
substantial question); Commonwealth v. Hill, 66 A.3d 365 (Pa. Super. 2013)
(claim that sentence was inconsistent with the protection of the public and with
appellant’s rehabilitative needs raised a substantial question).
The Rule 2119(f) statement finally pleads that “[t]he trial court’s actions
are inconsistent with [the] sentence code, 42 Pa.C.S. 9721(b), and contrary to
the norms underlying the sentencing process.” Appellant’s Brief at 10. Section
9721(b) requires the sentencing court to “follow the general principle that the
sentence imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs of
the defendant.” Appellant’s final argument therefore also raises a substantial
question. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa.
Super. 2014) (en banc) (“[a]rguments that the sentencing court failed to
consider the factors proffered in 42 Pa.C.S. § 9721 does present a substantial
question” (citation omitted)).
- 11 -
J-S15003-19
Thus, the Rule 2119(f) statement raised substantial questions, and the
only step that Appellant would have needed to complete to perfect a challenge
to the discretionary aspects of sentencing was to preserve the claim at
sentencing or in a motion to reconsider and to modify sentence. Manivannan,
186 A.3d at 489.
By failing to instruct Appellant on his right to file a post-sentence motion
or to determine on the record that Appellant had been advised of this right,
the trial court denied Appellant the opportunity to preserve his challenge to the
discretionary aspects of his sentence in a post-sentence motion. There is
nothing in the record to indicate that Appellant’s right to file a post-sentence
motion was reinstated at the time that the trial court reinstated his right file a
notice of appeal nunc pro tunc.
In Commonwealth v. DeCaro, 444 A.2d 160, 167-68 (Pa. Super.
1982), when faced with a similar situation where “the trial court[] fail[ed] to
inform appellant of her right to file a motion for modification of sentence, and
of her obligation to do so within ten days,” we “remand[ed] this case to the
lower court[,]” instructing the court to “entertain a timely motion for
modification of sentence nunc pro tunc.” See also Commonwealth v.
Koziel, 432 A.2d 1031, 1032 (Pa. Super. 1981) (where the trial court failed
“to inform” appellant of “his right to petition for modification of sentence within
ten days[,]” this Court remanded to the trial court with directions “to entertain
Appellant’s motion for modification nunc pro tunc”).
- 12 -
J-S15003-19
For these reasons, we are compelled to reinstate Appellant’s right to file
a post-sentence motion and to remand to the trial court for further proceedings
consistent with this decision. See DeCaro, 444 A.2d at 167; Koziel, 432 A.2d
at 1032. Appellant must file his motion for modification of sentence with the
trial court within ten days after the certified record is returned to and this
memorandum is filed with the trial court. See Pa.R.Crim.P. 720(A)(1);
DeCaro, 444 A.2d at 168 (giving Appellant ten days to file modification motion,
following the filing of the record and of this Court’s opinion with the trial court);
Koziel, 432 A.2d at 1032 (same). Due to this remand, we need not address
Appellant’s remaining challenges to the discretionary aspects of his sentence,
re-ordered Issues No. 2 and 5.
Re-ordered Issue No. 3 presents us with a layered claim. This claim
initially challenges the trial court’s denial of Appellant’s request for the
appointment of a psychologist and for a mental health evaluation. Appellant’s
Brief at 16-17. However, this challenge is encompassed in a broader
contention that the trial court failed to consider Appellant’s rehabilitative
needs, including Appellant’s mental health rehabilitation, which Appellant
argues the trial court could not have fully considered nor understood without
an appointed psychologist’s mental health evaluation of him. See id.For the limited evidentiary issue of whether the trial court should have
granted Appellant’s request for a psychologist to perform a mental health
evaluation, our standard of review is: “The admission of evidence is solely
- 13 -
J-S15003-19
within the discretion of the trial court, and a trial court’s evidentiary rulings will
be reversed on appeal only upon an abuse of that discretion.” Manivannan,
186 A.3d at 479.
After a thorough review of the record and Appellant’s brief, we conclude
that the trial court opinion comprehensively discusses its reasoning for denying
Appellant’s motions for the appointment of a psychologist and for a mental
health evaluation and properly disposes of this question, as follows:
[T]he [trial c]ourt did not err/abuse its discretion by denying
Appellant’s Motion for Psychological Evaluation where there was
little or no evidence of the necessity for such, and said Motion was
filed just prior to sentencing which had already been rescheduled
twice at the defense request, and over Commonwealth’s objection.
The mitigation specialist, whom the Court did appoint and whose
full report was admitted, covered all issues as to Appellant’s
possible or actual rehabilitative needs as did the Appellant and
several of his witnesses. Nor has the Appellant set forth any
evidence of how specifically this would have advanced the
Appellant’s cause.
Trial Court Opinion, filed August 29, 2018, at 1-2 (footnote omitted).
Accordingly, we find that the trial court did not abuse its discretion in denying
Appellant’s request for the appointment of a psychologist. See Manivannan,
186 A.3d at 479.
Nevertheless, we make no determination as to Appellant’s wider
assertion that the trial court did not consider his rehabilitative needs in general,
including his mental health rehabilitation, when resentencing him, to the extent
that this issue is separate from the evidentiary question of the denial of a
mental health evaluation. A claim that a sentencing court failed to consider
- 14 -
J-S15003-19
rehabilitative needs challenges the discretionary aspects of sentencing. See
Dodge, 77 A.3d at 1281 (“42 Pa.C.S. § 9721(b) constrains a sentencing court’s
discretion in that it requires that any sentence imposed be consistent with the
protection of the public, the gravity of the offense, and the rehabilitative
needs of the defendant” (emphasis added) (some additional formatting)).
We thus believe that it would be prudent to allow Appellant to raise this
question of the trial court’s consideration of his rehabilitative needs in a post-
sentence motion on remand, if he still desires to do so.10
As for Appellant’s surviving questions, re-ordered Issue No. 4 appears to
be alleging that the trial court denied Appellant his right to allocution at his
resentencing hearing. Appellant’s Brief at 19 (trial “court err[ed or] abuse[d
its] discretion at [the] resentencing hearing by prohibiting Appellant to
address/correct false and misleading documents and averments made against
Appellant by Appellant’s attorney and prosecution”; “[t]he purpose underlying
the right of allocution is to give defendants an opportunity to mitigate their
punishment” (citing Commonwealth v. Anderson, 603 A.2d 1060 (Pa.
Super. 1992))). In support of his argument, Appellant cites to pages 2-4 and
____________________________________________
10 The trial court would then be able to address the extent of its consideration
of Appellant’s rehabilitative needs, including his mental health rehabilitative
needs, in any future opinion. In its current opinion, the trial court’s entire
analysis of Appellant’s rehabilitative needs consists of one sentence: “The
mitigation specialist, whom the [trial c]ourt did appoint and whose full report
was admitted, covered all issues as to Appellant’s possible or actual
rehabilitative needs as did the Appellant and several of his witnesses.” Trial
Court Opinion, filed August 29, 2018, at 2.
- 15 -
J-S15003-19
30 of the notes of testimony from his resentencing, maintaining that that they
establish that the trial court “told [him] that he is not allowed at any time
during the resentencing to mention, address, or correct any false or misleading
information” in either party’s “sentencing memorandums” that he had only
received “four days before” the resentencing hearing. Id. at 19-20 (citing N.T.,
1/29/2018, at 2-4, 30).
This claim can be decided entirely on the existing record, and, if the
allegations in Appellant’s brief related to this issue are not supported by the
record, the resolution of this question will not implicate the discretionary
aspects of his sentence. For that reason, we need not wait until after remand
to decide this question.
Pursuant to our review of the record, we find that Appellant was not
denied his right to speak on his own behalf at his resentencing hearing. The
trial court recognized Appellant’s disagreement with the recommended
sentence provided by his counsel in a pre-hearing sentencing memorandum.
N.T., 1/29/2018, at 2. Appellant then testified, without interruption by his
attorney. Id. at 25, 28-32. The trial court only curtailed his arguments and
his testimony when he began: to repeat himself about his conflict with his
counsel, with the trial court informing Appellant of the proper legal procedure
to assert ineffective assistance of counsel; to protest his innocence, with the
trial court explaining to Appellant that his culpability was not at issue; or to
argue about his decertification hearing. Id. at 3, 30, 32. We thus find no
- 16 -
J-S15003-19
merit to Appellant’s re-ordered fourth issue, and this question shall not again
be raised in Appellant’s post-sentence motion for modification and
reconsideration filed on remand.
Issues No. 6, 7, 8, 9, and 11 allege ineffective assistance of Appellant’s
resentencing counsel. Appellant’s Brief at 2. Ineffective assistance of counsel
claims should be deferred until collateral review, and these challenges should
not have been raised in this direct appeal of the resentencing. See
Commonwealth v. Rivera, 199 A.3d 365, 372 n.3 (Pa. 2018) (“claims of
ineffective assistance of counsel generally should be deferred until collateral
review” (citation omitted)); Commonwealth v. Delgros, 183 A.3d 352, 358
(Pa. 2018) (“a defendant should wait to raise claims of ineffective assistance
of trial counsel until collateral review proceedings” (citation and internal
quotation marks omitted)). These questions thereby merit no relief at this
time, must not be included in Appellant’s post-sentence motion for modification
and reconsideration filed on remand, and should be postponed until any future
PCRA petition. Additionally, for Issue No. 11, as we have now reinstated
Appellant’s right to file a post-sentence motion for modification and
reconsideration of his sentence, Appellant’s eleventh issue is moot in light of
remand.
For Issue No. 10, Appellant challenges the trial court’s denial of his
pretrial petition for transfer of this matter to Juvenile Court and the sufficiency
- 17 -
J-S15003-19
of the evidence for his convictions. Appellant’s Brief at 41-45. This Court
previously considered these challenges on direct appeal and concluded:
From our examination of the record, which included a two-day
certification hearing in which testimony was heard from appellant’s
relatives, friends, teachers and psychologists, we find no abuse of
discretion by the trial court in denying appellant’s petition for
transfer of this matter to Juvenile Court. The testimony at the
certification hearing adequately covered the factors enumerated in
. . . the Juvenile Act, however, the trial court found appellant had
failed to meet his requisite burden of proof. . . . [T]he evidence,
viewed in the light most favorable to the Commonwealth, was
sufficient to support the verdict.
Noble, No. 1770 Pittsburgh 1992, at 4-5. Additionally, pursuant to the relief
requested in his pro se PCRA petition, Appellant was only granted PCRA relief
on his sentence, not his convictions. PCRA Petition, 3/1/2016, at 2, 5 & second
of two unnumbered pages between pages 5 and 6; Order, 7/19/2017.
Accordingly, neither the issue of transfer to juvenile court nor the sufficiency
of the evidence to support Appellant’s convictions is properly before us or the
trial court on remand, and these challenges may not be revived in Appellant’s
post-sentence motion on remand.
In Issue No. 12, Appellant appears to be disagreeing with the evidence
of his own mitigation specialist. Appellant’s Brief at 46-49.11 This challenge
____________________________________________
11 Earlier in his brief, in support of his contention that the trial court erred and
abused its discretion by denying him a mental health evaluation, Appellant
relied upon the assertion of his mitigation specialist that the “mitigation
specialist wasn’t qualified to” diagnose Appellant, thereby requiring the
appointment of a psychologist, even though the “qualified mitigation specialist
[was] needed to, among other things, conduct [a] comprehensive psycho-
social history of [A]ppellant[.]” Appellant’s Brief at 16-17.
- 18 -
J-S15003-19
does not depend on the discretionary aspects of his sentence and can be
addressed at this time. Appellant’s brief is unclear as to whether Appellant
believes that all evidence presented by his mitigation specialist should be
stricken or if a new mitigation specialist should be appointed. See id.Nevertheless, not only is there no constitutional guarantee that a defendant
will like or agree with the testimony of a mitigation specialist, there is no
constitutional right to the appointment of a mitigation specialist at all. See
Commonwealth v. Eichinger, 108 A.3d 821, 848 (Pa. 2014) (“the Sixth
Amendment guarantees the accused’s right to effective assistance of counsel;
it does not guarantee his right to a mitigation specialist.”); see also
Commonwealth v. Baumhammers, 92 A.3d 708, 724 (Pa. 2014) (“There is
no per se requirement that . . . counsel must employ a separate mitigation
specialist regardless of the other mitigating evidence that is brought forth.”).
Consequently, Appellant is not entitled to a mitigation specialist, let alone one
of whose evidence he approves, and is hence not entitled relief on his twelfth
issue, and this issue need not be further considered on remand.
For Issue No. 13, Appellant’s Brief at 49-56, as the trial court
resentenced Appellant at the conclusion of the resentencing hearing, it did not
rely upon the notes of testimony when fashioning the sentence. N.T.,
1/29/2018, at 65. Thus, the notes of testimony had no bearing on the
discretionary aspects of Appellant’s sentence, and there is no benefit to
- 19 -
J-S15003-19
delaying our decision on this challenge until after proceedings on remand are
completed.
According to Pa.R.A.P. 1922(a):
Upon receipt of the order for transcript and any required deposit
to secure the payment of transcript fees the official court reporter
shall proceed to have his notes transcribed . . . [Upon filing the
notes] with the clerk of the trial court[,] . . . the court reporter
shall state that if no objections are made to the text of the
transcript within five days . . . , the transcript will become a part
of the record. If objections are made the difference shall be
submitted to and settled by the trial court.
Pa.R.A.P. 1926(a) similarly requires: “If any difference arises as to whether
the record truly discloses what occurred in the trial court, the difference shall
be submitted to and settled by that court after notice to the parties and
opportunity for objection, and the record made to conform to the truth.”
In the current action, the notes of testimony for Appellant’s resentencing
were filed and entered on the docket on May 7, 2018. Appellant filed his
Correction Motion on August 8, 2018. Assuming Appellant’s Correction Motion
can be construed as an objection to the text of the notes of testimony, the
Correction Motion should have been filed within five days of the entry of the
notes of testimony on the certified docket – i.e., by May 14, 2018.12 Pa.R.A.P.
1922(a) (“objections are made to the text of the transcript within five days”).
____________________________________________
12Five days after May 7, 2018, was Saturday, May 12, 2018. The next business
day thereafter was Monday, May 14, 2018. See 1 Pa.C.S. § 1908 (“Whenever
the last day of any such period shall fall on Saturday or Sunday, . . . such day
shall be omitted from the computation.”).
- 20 -
J-S15003-19
Appellant’s Correction Motion filed on August 8, 2018, thus was more than two
months late and, consequently, patently untimely.
Additionally, assuming arguendo that the Correction Motion was not
untimely, any question as to the accuracy of the notes of testimony would “be
submitted to and settled by the trial court.” Id.; Pa.R.A.P. 1926(a) (“the
difference shall be submitted to and settled by [the trial] court”);
Commonwealth v. Szakal, 50 A.3d 210, 217 (Pa. Super. 2012) (“Objections
to the trial transcript are properly settled in the lower court.”).
In the current appeal, after the official court reporter certified, “I hereby
certify that the proceedings and evidence are contained fully and accurately,
to the best of my ability, in the notes taken by me on the trial of the above
cause, and that this copy is a correct transcript of the same[,]” N.T.,
1/29/2018, at 66, the Honorable Shad Connelly further certified that he
“approved” the notes of testimony. Id. The trial court included similar
language in its order denying Appellant’s Correction Motion: “Both the Court
Stenographer and the Court have certified the record to be accurate and there
is no other record or recording of the proceeding.” Order, 8/28/2018. The
trial court also explained:
[I]t appears the Appellant may have planned to say certain things
that he had written down but actually said what was in fact
recorded. In any event, even taking all that he claims to have said
as accurate, nothing either standing alone or taken together, is of
such substance or import as to have resulted in an error which is
other than harmless.
- 21 -
J-S15003-19
Trial Court Memorandum Opinion, filed November 8, 2018. We accept the
representations of the court reporter and of the resentencing judge as to the
accuracy and completeness of the notes of testimony from the resentencing
hearing, and, as any questions as to the correctness of the notes of testimony
are properly decided by the trial court, Pa.R.A.P. 1922(a), 1926(a); Szakal,
50 A.3d at 217, we defer to the trial court’s determinations about the notes of
testimony from Appellant’s resentencing hearing. Appellant hence merits no
relief on this thirteenth issue, and it also need not be further considered on
remand.
In conclusion, the case is remanded to the trial court in order for the trial
court to entertain a timely post-sentence motion for modification and
reconsideration of sentence nunc pro tunc. Appellant will have ten days, from
the filing of the record and of this memorandum in the trial court, in which to
file a post-sentence motion for modification and reconsideration in the trial
court. Nonetheless, as we have ruled on Appellant’s re-ordered fourth and his
sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth
challenges raised in this appeal, as well as the trial court’s denial of Appellant’s
request for the appointment of a psychologist to perform a mental health
evaluation, those claims may not be raised again in Appellant’s post-sentence
motion and cannot be raised in any future appeal to this Court of the trial
court’s decision on Appellant’s post-sentence motion.
Affirmed in part. Case remanded in part, with instructions. Jurisdiction
relinquished.
- 22 -
J-S15003-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2019
- 23 -