Com. v. Jackson, W. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM JACKSON :
:
Appellant : No. 1951 EDA 2018
Appeal from the PCRA Order Entered June 4, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000312-2011
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 16, 2021
Appellant, William Jackson, appeals from the order dismissing, as
untimely, his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. After careful review, we affirm in part, and vacate
in part.
A full recitation of the underlying facts developed at Appellant’s 2012
trial is unnecessary to the disposition of this appeal.1 Briefly, on March 29,
2007, the victim was alone with her infant child when three armed men broke
into her home. The intruders demanded money, and began searching through
the residence when the victim told them she had none. Later, one of the men
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* Retired Senior Judge assigned to the Superior Court.
1 The PCRA court provided a detailed summary of the facts adduced at trial in
its Pa.R.A.P. 1925(a) opinion. See PCRA Court Opinion (“PCO”), 10/11/19, at
1-5.
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took the victim to the basement and sexually assaulted her. Eventually, the
intruders departed with numerous electronic devices and a firearm, and the
victim immediately called the police. While at the police station, she identified
Johnny Sowell from a photo array as being one of the perpetrators. Nearly
three years later, the police searched Sowell’s bedroom and discovered
several items stolen from the victim’s home, as well as a photo of Appellant
amongst the stolen items. When the photo was shown to the victim, she
immediately identified Appellant as the man who had sexually assaulted her
during the home invasion.2
The Commonwealth charged Appellant with numerous offenses and, on
July 23, 2012, a jury convicted him of robbery, rape, conspiracy, and
possession of an instrument of crime (“PIC”).3 On January 18, 2013, the
trial court sentenced Appellant to an aggregate term of 15-30 years’
incarceration.4 He filed a timely post-sentence motion, which was denied by
operation of law on May 29, 2013. Appellant then filed a timely notice of
appeal. This Court affirmed his judgment of sentence on July 15, 2014, and
our Supreme Court denied allowance of appeal on December 26, 2014.
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2 This was the first time the victim told police about the sexual assault.
3 See 18 Pa.C.S. §§ 3701, 3121, 903, 907, respectively.
4 The court sentenced Appellant to consecutive terms of 5-10 years’
incarceration each for his robbery, rape, and conspiracy offenses. The court
also sentenced him to 1-2 years’ incarceration for PIC, which it ordered to run
concurrently to his sentence for robbery.
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Commonwealth v. Jackson, 105 A.3d 791 (Pa. Super. 2014) (unpublished
memorandum), appeal denied, 105 A.3d 735 (Pa. 2014).
Appellant filed a pro se PCRA petition on December 2, 2015, and
Appellant’s former PCRA counsel, David Rudenstein, Esq., was appointed in
November of 2016. Through Attorney Rudenstein, Appellant filed an amended
PCRA petition on July 31, 2017. After the Commonwealth filed a motion to
dismiss the petition on March 20, 2018, the PCRA court issued, on May 8,
2018, a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a
hearing. Appellant did not respond, and the PCRA court ultimately denied the
petition on June 4, 2018. Appellant filed a timely notice of appeal, and a
timely, court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued
its Rule 1925(a) opinion on October 11, 2019. On May 12, 2020, this Court
remanded to the PCRA court for the appointment of new counsel due to the
death of Attorney Rudenstein. The PCRA court appointed Daniel Anthony
Alvarez, Esq., to continue the stewardship of Appellant’s appeal. After
unsuccessfully seeking remand, Attorney Alvarez filed a brief on Appellant’s
behalf on June 28, 2020, and the Commonwealth’s brief followed on November
23, 2020.
Appellant presents the following questions for our review:
[1.] Did the PCRA [c]ourt err in dismissing as untimely and without
merit Appellant’s PCRA [p]etition, as Appellant contends that his
PCRA [p]etition was within one year that the judgment became
final and otherwise satisfied the time bar exceptions as provided
under 42 Pa.C.S. § 9545(b)([1])(ii), and that his claim has merit
as witnesses would testify that Appellant is not one of the doers,
and at least one witness was unavailable at the time of trial due
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to their right against self-incrimination, and because his appellate
counsel failed to raise weight issues on direct appeal?
[2.] Was appellate counsel ineffective for failing to argue that the
verdicts were against the weight of the evidence, where the
weight issue was preserved in an oral motion by trial counsel, and
where the verdict was such to shock one’s conscience?
[3.] Was the sentence of 5 years to 10 years of incarceration
illegal for PIC, as exceeding the statutory maximum of 5 years?1
1 [N.T.], 1/18/13, [at] 21. The sentencing [o]rder is not in
the lower court’s record[, nor] in its efile system, and[,]
therefore, Appellant makes this unwaivable argument based
on the sentencing notes of testimony. Further, due to …
COVID-19, access to the physical record is completely
impractical, and access to the Stout Criminal Justice Center
is restricted.
Appellant’s Brief at 5.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including
a second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).
Here, the PCRA court determined that Appellant’s PCRA petition was
untimely because Appellant “was sentenced on January 18, 2013, and filed
his PCRA [petition] on December 2, 2015, which is well over the one year
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timeliness standard.” PCO at 9. The Commonwealth concedes that the PCRA
court erred, as Appellant’s PCRA petition was timely. See Commonwealth’s
Brief at 5 n.2. Indeed, as the PCRA statute dictates, “a judgment becomes
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).
Thus, the one-year time limitation did not begin to run on Appellant’s PCRA
petition until 90 days after his petition for allowance of appeal to our Supreme
Court was denied. See Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.
Super. 1998) (holding that under the PCRA, a petitioner’s judgment of
sentence is deemed final 90 days after the Pennsylvania Supreme Court
rejected his petition for allowance of appeal since petitioner had ninety days
to seek further review with the United States Supreme Court). As noted
above, Appellant’s petition for allowance of appeal was denied by our Supreme
Court on December 26, 2014. Thus, he had until March 25, 2016, to file a
timely PCRA petition. Appellant timely filed his pro se PCRA petition on
December 2, 2015. Accordingly, we agree with Appellant and the
Commonwealth that the PCRA court erred when it dismissed the petition as
untimely. Nevertheless, as this Court is not bound by the rationale of the
PCRA court, and may affirm its decision to dismiss the PCRA petition on any
legal basis, we will address the merits of Appellant’s claims. See
Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2012) (holding that
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this Court is not bound by the rationale of the PCRA court and may affirm on
any basis).
First, Appellant contends that there is after-discovered evidence that
warrants a new trial. He claims that his co-defendant, Sowell, is now willing
to testify that Appellant was not present during the home invasion and,
therefore, that Appellant was misidentified by the victim with respect to both
the home invasion and the rape. As Appellant explains:
Appellant proffers that Sowell is available to testify. Appellant
proffers that Sowell would submit to a statement. That his
testimony would be that Appellant was not present and certainly
did not participate in the home invasion robbery and sexual
assault. This is very important, because the identification (which
took place three years later), which was very suggestive[] of …
Appellant, was completely unreliable. N.T., 7/16/12, at 101, 107-
[]12. The [victim], who had very little credibility, never reported
to the first officer on the scene[] that a sexual assault took place.
N.T., 7/17/12, at 31-33. Also, the police paperwork, at the time
of the incident, made no mention of any sexual assault, or that
the [victim] knew any of the doers. N.T., 7/16/12, at 145-[]48.
Further, a statement from Sowell is crucial in shedding light on
this wrongful conviction, as [the victim] lacks credibility, as she
hid her active addiction issues from her live-in boyfriend[,] was a
user of crack cocaine, alcohol and [m]arijuana, and did so while
taking care of her newborn child … at the very time of the home
invasion robbery, and had a history of trading sex for drugs. N.T.,
7/13/12, at 103-[]04, 127-[]31.
With this lack of credibility, combined with the rather suggestive
identification process present in this case, it is imperative that a
hearing be held, and Sowell be heard from.
Appellant’s Brief at 17-18 (citations to the record reformatted).
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
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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, 950 A.2d 270, 292 (Pa. 2008). Additionally,
“[w]ith respect to the PCRA court’s decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing, such a decision
is within the discretion of the PCRA court and will not be overturned absent
an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.
2015). Furthermore, it
is well settled that “[t]here is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can determine
from the record that no genuine issues of material fact exist, then
a hearing is not necessary.” Commonwealth v. Jones, 942 A.2d
903, 906 (Pa. Super. 2008). “[T]o obtain reversal of a PCRA
court’s decision to dismiss a petition without a hearing, an
appellant must show that he raised a genuine issue of fact which,
if resolved in his favor, would have entitled him to relief, or that
the court otherwise abused its discretion in denying a hearing.”
Commonwealth v. Hanible, … 30 A.3d 426, 452 ([Pa.] 2011).
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019).
The PCRA court’s analysis of the merits of this claim is difficult to discern,
because the court was primarily, and erroneously, focused on the applicability
of an exception to PCRA statute’s timeliness requirements, not the underlying
after-discovered evidence claim. See PCO at 10-15. However, the court did
provide the following statements with respect to Appellant’s request for an
evidentiary hearing:
[Appellant] did not file a full evidentiary request with the
witnesses’ addresses and dates of birth. Furthermore,
[Appellant’s] counsel did not file an evidentiary hearing request
with the amended PCRA petition. Additionally, there is nothing on
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the record, in lieu of [Appellant’s] not filing an adequate
evidentiary hearing request[,] that … PCRA counsel provided [the]
Commonwealth with the addresses and names of the witnesses.
Therefore, under [42] Pa.C.S. § 9545, “failure to substantially
comply with the requirements of this paragraph shall render the
proposed witness’s testimony inadmissible.” [42] Pa.C.S. §
9545(d)(iii).
***
It is clear on the record that [the victim] has seen [Appellant]
before and during the robbery in [her] home. Furthermore,
[Appellant] lived with his aunt on the same street as [the victim].
Additionally, there was no genuine issue of material fact because
[the victim] identified [Appellant] on multiple occasions.
Therefore, [Appellant] was not entitled to an evidentiary
hearing[,] nor a PCRA remand for an evidentiary hearing.
Id. at 14-15. The Commonwealth additionally argues that Appellant “failed
to meaningfully develop his claim that his co-defendant would have testified
[at an evidentiary hearing]; he did not proffer any testimony from his co-
defendant in his petition, and there is no indication that his co-defendant
would have testified[,] or that the testimony would have benefitted” Appellant.
Commonwealth’s Brief at 12.
When Appellant’s pro se and amended PCRA petitions were filed, the
prior version of the PCRA statute dictated that:
Where a petitioner requests an evidentiary hearing, the petition
shall include a signed certification as to each intended witness
stating the witness’s name, address, date of birth and substance
of testimony and shall include any documents material to that
witness’s testimony. Failure to substantially comply with the
requirements of this paragraph shall render the proposed
witness’s testimony inadmissible.
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42 Pa.C.S. § 9545(d)(1).5
Here, Appellant identified Sowell as a potential witness in his initial pro
se petition, under the following statement: “I request an evidentiary hearing.
I certify, subject to the penalties for unsworn falsification … that the following
persons will testify to the matters stated.” Pro Se PCRA Petition, 12/2/15, at
6. He provided the general nature of the proposed testimony therein,
indicating that Sowell would testify that Appellant was not present or in any
way involved in the home invasion, and that Appellant had been misidentified
by the victim for the actual perpetrator, one Marquis Johnson. Id. Appellant
signed the petition twice, the latter being his signature on an unsworn
declaration attesting to the proposition that his statements in the petition were
true and correct to the best of his knowledge. Id. at 7, 8. However, Appellant
did not provide Sowell’s date of birth or his address. Nevertheless, we cannot
ignore that Sowell is not an unknown party in this case. He was Appellant’s
co-defendant at trial.
Based on the face of this record, we reject the PCRA court’s conclusion
that Appellant did not “substantially comply” with 42 Pa.C.S. § 9545(d)(1).
Here, Sowell was prosecuted by the Commonwealth in the very same trial that
resulted in Appellant’s conviction. It defies reason to believe that the
Commonwealth was in some way prejudiced by Appellant’s failure to include
Sowell’s address and date of birth, requirements plainly meant to assist in the
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5Section 9545(d) was later amended, effective December 24, 2018, to include
even more stringent requirements, as we discuss infra.
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identification of a proposed witness, and the Commonwealth has provided no
such argument that it was prejudiced by the omission. On these facts, we
conclude that Appellant substantially complied with the dictates of the prior
version of 42 Pa.C.S. § 9545(d)(1) in effect when he filed his petition.
In any event, as this Court has stated with respect to these
requirements, “it is improper to affirm a PCRA court’s decision on the sole
basis of inadequate witness certifications where the PCRA court did not provide
notice of the alleged defect.” Commonwealth v. Pander, 100 A.3d 626, 642
(Pa. Super. 2014). Here, the PCRA court did not provide Appellant notice of
any defect in the witness certification in its Rule 907 notice of its intent to
dismiss his petition, nor can we find any such notice elsewhere in the record.
We also note that both the Commonwealth and the PCRA court appear
to have applied or considered the amended version of Section 9545(d)(1),
which now reads,
(d) Evidentiary hearing.--
(1) The following apply:
(i) Where a petitioner requests an evidentiary hearing, the
petition shall include a certification signed by each intended
witness stating the witness’s name, address, date of birth
and substance of testimony and shall include any documents
material to that witness’s testimony.
(ii) If a petitioner is unable to obtain the signature of a
witness under subparagraph (i), the petitioner shall include
a certification, signed by the petitioner or counsel, stating
the witness’s name, address, date of birth and substance of
testimony. In lieu of including the witness’s name and
address in the certification under this subparagraph, counsel
may provide the witness’s name and address directly to the
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Commonwealth. The certification under this subparagraph
shall include any documents material to the witness’s
testimony and specify the basis of the petitioner’s
information regarding the witness and the petitioner’s
efforts to obtain the witness’s signature. Nothing in this
subparagraph shall be construed to contravene any
applicable attorney-client privilege between the petitioner
and postconviction counsel.
(iii) Failure to substantially comply with the requirements of
this paragraph shall render the proposed witness’s
testimony inadmissible.
42 Pa.C.S. § 9545(d).6
Under the new provisions of Section 9545(d)(1), a petitioner must
provide a certification signed by the proposed witness, 42 Pa.C.S. §
9545(d)(1)(i), and the amendment established a separate procedure for when
the proposed witness’s signature cannot be obtained, requiring the petitioner
to include a statement as to why it could not be obtained, 42 Pa.C.S. §
9545(d)(ii). In neither version is a petitioner required to provide an affidavit
from the proposed witness. See Commonwealth v. Brown, 767 A.2d 576,
583 (Pa. Super. 2001) (holding that the PCRA petitioner “was not required to
attach sworn affidavits to his PCRA petition in support of his request for an
evidentiary hearing”).
As to the PCRA court’s analysis regarding the strength of the victim’s
identification testimony, we can only conclude that the court has implicitly
found presumptively incredible Sowell’s proposed testimony without having
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6 It is apparent that the PCRA court applied the amended statute, as it cited
to subsection (iii). There was no subsection (iii) in the prior version of 42
Pa.C.S. § 9545(d)(1).
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heard it. Sowell’s proposed testimony, if found credible, clearly creates a
genuine issue of material fact at odds with the victim’s identification testimony
at trial, which can only be resolved by assessing the relative credibility of the
witnesses. As our Supreme Court has stated:
A PCRA court passes on witness credibility at PCRA hearings, and
its credibility determinations should be provided great deference
by reviewing courts. Indeed, one of the primary reasons PCRA
hearings are held in the first place is so that credibility
determinations can be made; otherwise, issues of material fact
could be decided on pleadings and affidavits alone.
Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009) (citations
omitted).
As a corollary to our Supreme Court’s explanation in Johnson, we owe
no deference to the PCRA court’s credibility assessment based solely on the
pleadings. Moreover, our Supreme Court “has made clear that, in cases where
the PCRA court declined to hold a hearing, and where an assessment of
witness testimony was essential to a petitioner’s ineffectiveness claims, the
PCRA court must make specific credibility determinations.” Id. at 540. Here,
the PCRA court has only implicitly rejected Sowell’s credibility by placing the
victim’s testimony in a light most favorable to the Commonwealth; it has not
made any specific credibility determination on the after-discovered evidence
because it refused to hear Sowell’s testimony.
As to the specific elements of the after-discovered evidence test, we
observe that Sowell’s proposed testimony, if credible, would be neither
cumulative, nor merely corroborative, of other evidence produced at trial, nor
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would it be offered solely for impeachment purposes, as it would constitute
substantive evidence of Appellant’s innocence that was not presented at trial.7
Nevertheless, Appellant must still establish that he acted with reasonable
diligence in obtaining this new information from Sowell, and that a new trial
would result in a different verdict, elements which turn on the PCRA court’s
assessment of the content of Sowell’s testimony and its credibility.
Accordingly, we conclude that the PCRA court erred in dismissing Appellant’s
after-discovered evidence claim without a hearing, and remand for an
evidentiary hearing to be held where the PCRA court can assess the credibility
of Sowell’s testimony.
Next, Appellant claims that his counsel on direct appeal was ineffective
for failing to raise a weight-of-the-evidence claim. We review ineffective
assistance of counsel (IAC) claims under the following standards:
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the “[i]neffective 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.” Generally, counsel’s
performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing
by the petitioner. To obtain relief, a petitioner must demonstrate
that counsel’s performance was deficient and that the deficiency
prejudiced the petitioner. A petitioner establishes prejudice when
he demonstrates “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” … [A] properly pled claim of
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7 We note that the PCRA court’s limited analysis did not address these
elements.
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ineffectiveness posits that: (1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice befell the petitioner
from counsel’s act or omission.
Johnson, 966 A.2d at 532-33 (citations omitted).
We also apply the following standard of review to a challenge that a
verdict is against the weight of the evidence:
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. 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. One of the
least assailable reasons for granting or denying a new trial
is the lower court’s conviction that the verdict was or was
not against the weight of the evidence and that a new trial
should be granted in the interest of justice.
This does not mean that the exercise of discretion by the trial
court in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course pursued
represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill-will.
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Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations
omitted).
Appellant’s argument hinges on his contention that the victim’s
identification of him was not credible.8 Consequently, he asserts that if
properly raised by appellate counsel, a weight-of-the-evidence claim would
have been successful on direct appeal. See Appellant’s Brief at 18-24. The
PCRA court determined that this issue was meritless, relying on the alternative
analysis provided in this Court’s decision affirming Appellant’s judgment of
sentence on direct appeal. See PCO at 10. On that basis, the PCRA court
determined that Appellant was not prejudiced by appellate counsel’s failure to
argue a weight-of-the-evidence claim on direct appeal. Id.Appellant challenged the sufficiency of the evidence on direct appeal,
arguing that the victim’s “testimony, wherein she identified him as one of the
perpetrators, is suspect due to her drug use.” Commonwealth v. Jackson,
No. 1999 EDA 2013, unpublished memorandum at 4 (Pa. Super. filed July 15,
2014). This Court held that, “while Appellant entitled his claim of error as one
involving the sufficiency of the evidence, it is actually a challenge to the weight
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8 Appellant contends that the victim’s testimony was not credible because: 1)
she was using drugs and alcohol on the day of the home invasion, Appellant’s
Brief at 21; 2) three years elapsed between the home invasion and her
identification of Appellant, id. at 22; 3) she did not report the sexual assault
until she identified Appellant, id.; and 4) because the initial identification was,
ostensibly, unduly suggestive, id. at 23-24. Appellant also raises various
minor inconsistencies in the victim’s testimony.
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of the evidence.” Id. We then held that the claim had been waived due to
Appellant’s failure to raise it in the trial court.9 Id. at 5. In a footnote, this
Court stated:
Were we to reach the merits of Appellant’s challenge to the weight
of the evidence, we would affirm Appellant’s judgment of
sentence. As stated above, the jury was free to credit [the
v]ictim’s testimony and identification of Appellant as her attacker,
and nothing in the verdict shocks one’s sense of justice.
Id. at 5 n.1.
Appellant argues that,
the PCRA court points out that this Court explained in a footnote
in its Memorandum Opinion[] that[,] had they decided on weight
of the evidence, it would have [af]firmed [the] judgment of
sentence. Appellant argues this is not the case, as such weight
arguments were never fully developed, as only sufficiency was
argued, even if peppered with [a] weight argument.
Therefore, because there were so many evidentiary issues with
the identification procedure and the credibility of the [victim], and
because there is no conceivable reason why weight was not raised
on direct appeal, appellate counsel was ineffective. Had weight
been fully argued on direct appeal, this Court would have
considered full throated arguments as to why the guilty verdicts
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9 Appellant asserts that this Court erred on direct appeal because he raised a
weight-of-the-evidence claim orally at sentencing and, therefore, did not
waive that issue in the trial court. Appellant’s Brief at 19. The PCRA court
agrees that his weight-of-the-evidence claim was properly preserved at
sentencing. PCO at 5. Nevertheless, appellate counsel did not frame the issue
as a weight-of-the-evidence claim on direct appeal and, in any event, he did
not raise a weight-of-the-evidence claim in Appellant’s Rule 1925(b)
statement on direct appeal. See Rule 1925(b) statement, 8/15/13, at 1-2.
Thus, the claim was waived for direct appellate review, even if it was properly
preserved in the trial court. See Commonwealth v. Lord, 719 A.2d 306,
309 (Pa. 1998) (“Any issues not raised in a 1925(b) statement will be deemed
waived.”).
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were against the weight of the evidence. The result would likely
have been different, but for this omission.
Appellant’s Brief at 24 (citation omitted).
The Commonwealth disagrees, arguing that the
record refutes this claim. The victim observed [Appellant] for
close to forty-five minutes during the robbery—more than enough
time to get a good look at his appearance and features—and
indeed testified that she noticed a distinctive scar on his chin.
N.T., 7/13/12, at 122–23. The victim testified that [Appellant]
forced her to perform oral sex on him for two periods of
approximately fifteen minutes each. Id. at 88. During these
periods, she was certainly close enough to [Appellant] to get a
good look at him. Additionally, the victim positively identified
[Appellant] from a photograph and became emotional when the
mere sight of [Appellant] reminded her of the assault. N.T.,
7/16/12, at 103–05. Furthermore, the victim testified that she
was familiar with [Appellant] from seeing him around the
neighborhood[,] and had seen him twice prior to the home
invasion. N.T., 7/13/12, at 226. The victim also testified that she
was “one hundred percent” sure that [Appellant] was the man who
took her down to her basement and assaulted her. Id. at 123.
Law enforcement also found the victim’s belongings in Sowell’s
house along with a photograph of [Appellant]. N.T., 7/16/12, at
101.
[Appellant]’s claim that the victim’s testimony was not credible
does not support a finding that appellate counsel was ineffective
for failing to argue that the verdict was against the weight of the
evidence. It was within the exclusive province of the fact-finder
to weigh each witness’s credibility, motivations, and all other
supporting evidence. See Commonwealth v. Manchas, 633
A.2d 618, 624–25 (Pa. Super. 1993) ([holding] that the [fact that
the] fact[-]finder “apparently disbelieved [d]efendant’s versions
of events and believed all of one Commonwealth’s witness’s
testimony … is not shocking to the Court’s sense of justice”).
Simply because the jury did not agree with [Appellant]’s credibility
assessments and weighed the evidence against him does not
render the verdicts, which flowed logically from the evidence,
shocking in any way. Commonwealth v. Small, 741 A.2d 666,
673 (Pa. Super. 1999). The jury heard testimony that the victim
was a drug user[, and] the victim was forthcoming with this
information. N.T., 7/13/12, at 127–30. That the jury chose to
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believe the victim’s testimony despite her drug use did not render
the verdict shocking. See Commonwealth v. Hudson, 414 A.2d
1381, 1386 (Pa. 1980) ([stating] that a witness[’s] use[ of] drugs
is a matter of credibility properly left to the jury’s consideration).
Moreover, trial counsel questioned the victim about the
identification of [Appellant], her perception of the incident, and
her communications with law enforcement regarding the incident.
N.T., 7/13/12, at 177–210. [Appellant] would not have prevailed
on a weight challenge based on arguments already considered and
rejected by the factfinder. [] Small, 741 A.2d [at] 673 [] (“All of
the matters complained of by [the] appellant, however, were
issues argued by [the] appellant’s counsel during trial and were
properly weighed and rejected by the jury before it reached its
verdict.”).
[Appellant]’s claim also fails because he failed to prove that he
was prejudiced by appellate counsel’s decision not to raise a
weight claim on appeal. To demonstrate counsel’s ineffectiveness,
[Appellant] had to prove actual prejudice. In the context of an
ineffectiveness claim, prejudice means there was a reasonable
probability that, but for counsel’s alleged errors, the outcome of
the trial would have been different. Commonwealth v. Bond,
819 A.2d 33, 42 (Pa. 2002). Here, [Appellant] was unable to
prove prejudice because although appellate counsel did not argue
that the verdict was against the weight of the evidence, this Court
noted in its opinion rejecting [Appellant]’s challenge to the
sufficiency of the evidence that, “were we to reach the merits of
[Appellant’s] challenge to the weight of the evidence, we would
affirm … [a]s stated above, the jury was free to credit [the
v]ictim’s testimony and identification of [Appellant] as her
attacker, and nothing in the verdict shocks one’s sense of justice.”
[]Jackson, [No. 1999 EDA 2013, unpublished memorandum at 5
n.1.] Clearly, had appellate counsel raised a weight claim, this
Court would have affirmed the trial court’s denial of [Appellant]’s
post-verdict challenge to the weight of the evidence. See
Commonwealth v. Robinson, 676 A.2d 249, 251 (Pa. Super.
1996) (“[I]t is clear that the underlying claim to [the] appellant’s
ineffectiveness issue lacks merit, as the trial court found that the
verdict was not against the weight of the evidence. As a result,
[the] appellant’s ineffectiveness clam must fail.”).
Commonwealth’s Brief at 8-11 (citations to the record reformatted).
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We agree with the Commonwealth’s analysis. It was the sole province
of the jury to assess the credibility of the victim’s testimony, and we assess
no abuse of discretion in the trial court’s denial of Appellant’s weight-of-the-
evidence claim. As Appellant’s underlying weight-of-the-evidence claim lacks
merit, his counsel cannot be deemed ineffective for failing to properly raise it
on direct appeal. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.
2014) (recognizing that a failure to prove any prong of the IAC test defeats
the claim).
Next, Appellant avers that he was illegally sentenced to 5-10 years’
incarceration for PIC, where the statutory maximum for that offense is 5 years’
incarceration. See 18 Pa.C.S. § 907(a) (defining PIC as a misdemeanor of
the first degree); 18 Pa.C.S. § 1104(1) (setting the maximum term of
incarceration for a misdemeanor of the first degree at 5 years). The
Commonwealth agrees, but notes that Appellant’s sentence for PIC was set to
run concurrent to his other offense. Commonwealth’s Brief at 13. As such,
the Commonwealth contends that a remand for resentencing is unnecessary
to remedy the error, and that this Court can simply amend Appellant’s
sentence for PIC to a five-year maximum term of incarceration. Id. We note
that, although Appellant did not raise this issue prior the filing of his brief, “as
long as the reviewing court has jurisdiction, a challenge to the legality of the
sentence is non-waivable and the court can even raise and address it sua
sponte.” Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013).
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In his statement of the questions presented, Appellant notes that his
argument is premised solely on his reading of the sentencing transcript.
Appellant’s Brief at 5 n.1. Our review of the record reveals that the sentencing
order differs from the oral pronouncement of sentence. The sentencing order
indicates that Appellant was sentenced to a term of 1-2 years’ incarceration
for PIC (concurrent to his sentence for rape), not 5-10 years’ incarceration.
Sentencing Order, 1/18/13, at 1.10 “The courts of Pennsylvania have
consistently maintained that oral statements made by the judge in passing
sentence, but not incorporated in the written judgment signed by him, are not
part of the judgment of sentence.” Commonwealth v. Foster, 324 A.2d
538, 539 (Pa. Super. 1974) (cleaned up). Thus, the written sentencing order
controls this claim. Accordingly, as Appellant’s sentence of 1-2 years’
incarceration for PIC was well within the statutory maximum of 5 years’
incarceration for that offense, his sentence was not illegal. No relief is due.
Finally, Appellant asserts that we should remand because the PCRA
court failed to rule on his motion for the appointment of an investigator.
Appellant’s Brief at 17. This issue was not raised in Appellant’s Rule 1925(b)
statement and, therefore, it is waived. Lord, 719 A.2d at 309 (“Any issues
not raised in a 1925(b) statement will be deemed waived.”). Although we
____________________________________________
10We note that in his post-sentence motion, Appellant acknowledged that this
was the sentence imposed by the court for his PIC conviction. See Post-
Sentence Motion, 1/25/13, at 3 ¶ 10.
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deem this issue waived for appellate review at this time, we do so without
prejudice to Appellant’s ability to seek a ruling on that motion upon remand.
In sum, we affirm the portion of the PCRA court’s order denying
Appellant’s IAC claim related to appellate counsel’s failure to preserve a
weight-of-the-evidence claim on direct appeal. However, we vacate the
portion of the order denying an evidentiary hearing on Appellant’s after-
discovered evidence claim. We deem waived Appellant’s claim that the PCRA
court erred by failing to rule on his motion for the appointment of an
investigator. Finally, we conclude that Appellant was not illegally sentenced.
Order affirmed in part, vacated in part. Case remanded for an
evidentiary hearing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2021
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