Com. v. James, W. ( 2021 )

J-S56008-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIE JAMES :
:
Appellant : No. 1397 EDA 2019
Appeal from the PCRA Order Entered April 11, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003924-2010
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 16, 2021
Appellant, Willie James, appeals from the post-conviction court’s April
11, 2019 order, dismissing as meritless his timely petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
We need not reiterate the procedural history and relevant facts of this
case, as the PCRA court set forth a summary of both in its November 27, 2019
opinion issued pursuant to Pa.R.A.P. 1925(a). See PCRA Court Opinion (PCO),
11/27/19, at 1-2. On appeal, Appellant raises three issues for our review:
I. Whether the PCRA court erred in denying Appellant’s PCRA
petition without an evidentiary hearing on the issues raised in the
amended PCRA petition regarding trial counsel’s ineffectiveness.
II. Whether the PCRA court erred in finding trial counsel was not
ineffective for failing to file a post-sentence motion challenging
the weight of the evidence.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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III. Whether the PCRA court erred in finding trial counsel was not
ineffective for failing to file a post-sentence motion for
reconsideration of sentence.
Appellant’s Brief at 8.
With respect to Appellant’s first and second issues, we have reviewed
the thorough and well-reasoned opinion issued by the Honorable Genece E.
Brinkley of the Court of Common Pleas of Philadelphia County. We conclude
that Judge Brinkley’s opinion accurately and thoroughly disposes of the first
and second issues raised by Appellant. See PCO at 2-5. Accordingly, we
adopt her opinion as our own with respect to those issues.
In Appellant’s third issue, he argues that the PCRA court erred in finding
that his trial counsel was not ineffective for failing to file a post-sentence
motion for reconsideration of sentence. We deem this claim waived on
multiple grounds. Initially, Appellant does not indicate where he raised this
issue below. See Pa.R.A.P. 2117(c) (requiring, where an issue is not
reviewable on appeal unless raised or preserved below, a statement of place
of raising or preservation of issues); Pa.R.A.P. 2119(e) (“Where under the
applicable law an issue is not reviewable on appeal unless raised or preserved
below, the argument must set forth, in immediate connection therewith or in
a footnote thereto, either a specific cross-reference to the page or pages of
the statement of the case which set forth the information relating thereto as
required by Pa.R.A.P. 2117(c), or substantially the same information”). “Our
appellate courts have long held that an [appellant] who does not follow
Pa.R.A.P. 2117(c) and Pa.R.A.P. 2119(e) waives the related issues due to the
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defects in his brief.” Young v. S.B. Conrad, Inc., 216 A.3d 267, 274 (Pa.
Super. 2019). “[I]t is not the responsibility of this Court to scour the record
to prove that an appellant has raised an issue before the [lower] court, thereby
preserving it for appellate review.” Commonwealth v. Baker, 963 A.2d 495,
502 n.6 (Pa. Super. 2008) (citations omitted). Moreover, though we are not
required to scour the record, our own review of it shows that this issue was
not raised in Appellant’s amended PCRA petition that was filed by his
appointed counsel, and we also could not locate such a claim in Appellant’s
pro se filings. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are
waived and cannot be raised for the first time on appeal.”).
Finally, Appellant’s argument in his brief pertaining to this issue is wholly
deficient. His entire argument on this issue consists of the following:
Similar to a motion alleging the verdict is against the weight of
the evidence, prejudice must be shown when trial counsel fails to
file a motion for reconsideration of sentence. See[]
Commonwealth v. Reaves, 923 A.2d, 1119, 1129 (Pa. 2007).
Chiefly, to prove prejudice, a petitioner must prove that[,] had
[he or she] filed [a] post-sentence motion for reconsideration of
sentence, it would have been granted. See Commonwealth v.
Liston, 977[]A.2d 1089 (Pa. 2009). Counsel’s failure to file a
motion to reconsider the sentence is ineffective assistance of
counsel. A reasonable judge would have granted a
reconsideration motion. There is no “reasonable basis” for counsel
not to file a motion to reconsider … Appellant’s sentence.
Appellant was sentenced to mandatory life [imprisonment]
without parole[,] and sentenced to [a] consecutive [term of] 10
to 20 years[’ imprisonment] for the crime of robbery[,] and
[concurrent terms of 10-20 years’ imprisonment for conspiracy
and 2½-5] years[’ imprisonment] for possession of an instrument
of a crime.
Further, there is no tactical drawback to counsel[’s] filing a motion
for reconsideration of sentence, as long as the claim raised has
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merit. [] Appellant would have had nothing to lose had trial
counsel filed a motion for reconsideration of sentence, which had
merit in this instance.
Finally, Appellant suffered actual prejudice as a result of counsel’s
failure to file a motion to reconsider [his] sentence. He could have
been resentenced[,] and the Superior Court could not consider …
Appellant’s sentence on a direct appeal.
Appellant’s Brief at 16-17.
In his argument, Appellant neglects to explain specifically how his
sentence was improper, and why his sentencing claim would have had merit.
As the Commonwealth discerns, Appellant provides an inadequate factual
argument and insufficient legal support for his claim. See Commonwealth’s
Brief at 8 n.3. We will not review such undeveloped issues. Coulter v.
Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014) (“The Rules of Appellate
Procedure state unequivocally that each question an appellant raises is to be
supported by discussion and analysis of pertinent authority. … This Court will
not act as counsel and will not develop arguments on behalf of an appellant.”).
Therefore, based on the foregoing reasons, Appellant’s third issue is waived.
No relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2021
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