Com. v. Graham, J.

J-S21028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES GRAHAM
Appellant No. 2344 EDA 2014
Appeal from the PCRA Order July 14, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010428-2007
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED APRIL 08, 2015
James Graham appeals from an order dismissing his first petition
under the Post Conviction Relief Act (“PCRA”). We affirm.
Following a dispute in a pick-up basketball game, Graham shot and
killed Albert Hughes. Three eye-witnesses identified Graham to police as the
shooter. A jury convicted him of third-degree murder1 and possession of an
instrument of crime (“PIC”).2 The court sentenced him to consecutive terms
of 15-40 years’ imprisonment for third degree murder and 2½-5 years’
imprisonment for PIC. Graham did not file post-sentence motions
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2502(c).
2
18 Pa.C.S. § 907.
J-S21028-15
challenging the length of his sentence. He did, however, file a timely direct
appeal. On October 8, 2010, this Court affirmed his judgment of sentence,
and on March 8, 2011, the Supreme Court denied his petition for allowance
of appeal.
On April 4, 2011, Graham filed a pro se PCRA petition. The PCRA court
appointed counsel to represent him, and counsel filed an amended PCRA
petition and two supplemental PCRA petitions. In his final supplemental
petition, PCRA counsel alleged that trial counsel was ineffective for: (1)
failing to file post-sentence motions challenging the weight of the evidence;
(2) failing to file post-sentence motions challenging the length of Graham’s
sentence; and (3) advising Graham to reject three plea offers based on his
assurance that he could win the case. On July 14, 2014, the PCRA court
held an evidentiary hearing and dismissed the petition. Graham filed a
timely notice of appeal, and both Graham and the PCRA court complied with
Pa.R.A.P. 1925.
In this appeal, Graham raises three issues:
1. Whether the PCRA Court erred in failing to grant
[Graham]’s motion for implementation of a pre-trial
offer of 7½ to 15 years’ incarceration when
[Graham] proceeded to verdict based on the
unreasonable recommendation of trial counsel that
he could beat the case and for failing to find that trial
counsel provided ineffective assistance of counsel for
making such a representation where counsel’s
representations violated [Graham]’s constitutional
rights to legal counsel under the 6th and 14th
Amendments of the U.S. Constitution, and article I,
[section] 9 of the Pennsylvania Constitution?
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2. Whether [Graham] was denied his right to counsel
in violation of the 6th and 14th Amendments of the
U.S. Constitution, and in violation of [article I,
section 9 of] the Pennsylvania Constitution where
[Graham] was abandoned when trial counsel’s
inaction resulted in the waiver of [Graham]’s post
sentence rights, i.e., his right to an effective appeal
which resulted in prejudice to [Graham]?
3. Whether the trial court imposed an illegal
sentence where [Graham] was sentenced for third
degree homicide where the statute is vague and
unconstitutional?
Brief For Appellant, p. 5.
Our standard of review from the grant or denial of post-conviction
relief is limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal error.
Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997). “The PCRA
court’s factual determinations are entitled to deference, but its legal
determinations are subject to our plenary review.” Commonwealth v.
Hawkins, 894 A.2d 716, 722 (Pa.2006); see also Commonwealth v.
Jones, 912 A.2d 268, 293 (Pa.2006) (“the findings of a post-conviction
court, which hears evidence and passes on the credibility of witnesses,
should be given great deference”); Commonwealth v. White, 734 A.2d
374, 381 (Pa.1999) (appellate court is bound by credibility determinations of
PCRA court where determinations are supported by record).
Our standard of review for claims of ineffective assistance of counsel is
well settled. Counsel is presumed to be effective, and the burden of
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demonstrating ineffectiveness rests on the appellant. Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010). A petitioner must show (1)
that the underlying claim has merit; (2) counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for counsel’s errors or
omissions, there is a reasonable probability that the outcome of the
proceedings would have been different. Id. The failure to prove any one of
the three prongs results in the failure of the petitioner’s claim. Id.In his first argument, Graham alleges that trial counsel advised him
against accepting an offer of 7½-15 years’ imprisonment and assured him
that he would win the case. The PCRA court held, and we agree, that this
claim lacks arguable merit.
During an evidentiary hearing on Graham’s PCRA petition, Beth
McCaffery, the assistant district attorney who prosecuted Graham, testified
that she conveyed only one offer to Graham: 22½-45 years’ imprisonment.
N.T., 7/14/14, p. 25. In support of her testimony, the Commonwealth
submitted into evidence an email to McCaffery from her supervisor
approving this offer. Id. at 28. Graham testified that the Commonwealth
made three offers: the first for 25-50 years’ imprisonment offered before the
first trial, the second for 12½-25 years’ imprisonment offered at the
beginning of the second trial, and the third for 7½-15 years’ imprisonment
offered while the jury was deliberating. Id. at 12-14, 19. Graham claimed
that trial counsel advised him to reject these offers because he had the case
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won. Id. Trial counsel testified that it is not his practice to tell clients that
he had a case won. Id. at 37-38. Trial counsel did not recall any offer of
7½-15 years’ imprisonment. Id. at 40.
The PCRA court credited the testimony of McCaffery and trial counsel
that there was never any offer of 7½-15 years’ imprisonment. Pa.R.A.P.
1925(a) Opinion, pp. 9-10. The court further observed that Graham’s
credibility
is undermined by his own pro se filings. In both
[Graham]’s pro se petition and his affidavit dated
May 25, 2014, [Graham] asserted that the second
offer of [12½-25] years was conveyed pre-trial, not
during trial as he testified. In his June 1, 2012
supplemental pro se petition, [Graham] avers that
trial counsel conveyed the offer of [7½-15] years the
day before the second trial began, not while the jury
deliberated as he testified. [Graham] has changed
his version of events every time he has
communicated with this Court.
Id. at 10.
As stated above, we will not disturb the PCRA court’s findings of fact
and credibility determinations that have support in the record. The record
supports the PCRA court’s determination that the assistant district attorney
and trial counsel were credible and that Graham was not. The record further
supports the PCRA court’s determination that there was no offer of 7½-15
years’ imprisonment, and that the only offer was 22½-45 years. For these
reasons, we conclude that Graham’s claim that trial counsel was ineffective
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for advising him to reject an offer of 7½-15 years’ imprisonment lacks
arguable merit.
In his second argument, Graham alleges that trial counsel was
ineffective for failing to file a post-sentence motion challenging the length of
his sentence. According to Graham, counsel should have filed a post-
sentence motion asserting that his sentence was in excess of the sentencing
guidelines. We agree with the PCRA court that this claim does not entitle
Graham to relief.
Graham was sentenced to consecutive terms of 15-40 years’
imprisonment for third degree murder and 2½-5 years’ imprisonment for
PIC. Graham has waived any claim that his PIC sentence is excessive by
failing to develop any argument relating to PIC in his appellate brief.
Lackner v. Glosser, 892 A.2d 21, 29–30 (Pa.Super.2006) (“arguments
which are not appropriately developed are waived”).
Graham contends that his proper minimum sentence for third degree
murder under the guidelines is 7½ years’ imprisonment. This, too, is waived
due to the absence of the sentencing hearing transcript from the certified
record. Commonwealth v. Houck, 102 A.3d 443, 456 (Pa.Super.2014)
(where appellant has not made transcript of the proceedings at issue a part
of the certified record, any claims that cannot be resolved in the absence of
the necessary transcript are waived for purpose of appellate review). Even if
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Graham had preserved this issue, it is devoid of merit. In our memorandum
affirming Graham’s judgment of sentence on direct appeal, we wrote:
[Graham’s] claim [that his sentence is excessive] is
belied by the record. With a prior record score of
zero (0), an offense gravity score of fourteen (14),
and the applicable deadly weapon ‘used’
enhancement, the standard range for [Graham’s]
third degree murder conviction was seven and one-
half (7½) to twenty (20) years. Thus, [Graham’s]
minimum sentence of fifteen (15) years
imprisonment actually fell within the standard range
of the sentencing guidelines.
Commonwealth v. Graham, 2397 EDA 2009, p. 7 (Pa.Super., Oct. 8,
2010).3
In his final argument, Graham asserts that the provision defining third
degree murder, 18 Pa.C.S. § 2502(c), is void for vagueness. Graham has
waived this claim for failure to raise it in his pro se or amended PCRA
petitions. Commonwealth v. Elliott, 80 A.3d 415, (Pa.2013) (petitioner
waived claim that trial counsel rendered ineffective assistance by failing to
meet with him personally prior to trial or otherwise prepare for trial, because
petitioner failed to include this claim in PCRA petition or obtain permission to
____________________________________________
3
Graham also claimed in his PCRA petition that trial counsel was ineffective
for failing to file a post-sentence motion challenging the weight of the
evidence. The PCRA court explained in its Pa.R.A.P. 1925(a) opinion that
the weight of the evidence overwhelmingly supported Graham’s convictions.
Pa.R.A.P. 1925(a) Opinion, pp. 3-6. In this appeal, Graham failed to
develop any argument relating to the weight of the evidence. Accordingly,
he has waived this claim. Lackner, 892 A.2d at 29-30. Even if he had
preserved this argument, we agree with the PCRA court’s cogent analysis of
this question.
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amend his petition to include the issue); see generally Pa.R.A.P. 302(a)
(“issues not raised in the lower court are waived and cannot be raised for
the first time on appeal”). While PCRA counsel made the vague comment
during the PCRA evidentiary hearing that section 2502(c) is “unconstitutional
because it doesn’t give anyone notice of the type of sentence that you would
receive,” N.T., 7/14/14, pp. 56-57, he failed to develop this argument any
further. His passing remark did not preserve this issue for appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2015
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IN THE COURT OF COMMON PLEAS
____ J FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0010428-2007
v.
FILED
JAMES GRAHAM
OPINION
AUG r-3 2014
Post Trial Unit
Mclrermott, J. August 13, 2014
Procedural History
On March 16, 2007, the petitioner, James Graham, was arrested and charged with Murder
and Possession of an Instrument of Crime (PIC). On June 23, 2008, the Honorable Carolyn Engel
Temin declared a mistrial after the jury could not return a verdict. On May 11, 2009, after a
second trial, the jury found petitioner guilty of Third Degree Murder and PIC.
On July 24, 2009, the trial court sentenced petitioner to fifteen to forty years of
• imprisonment for Third Degree Murder and a consecutive term of two and one-half to five years
of imprisonment for PIC, for a total sentence of seventeen and a half to forty five years of
imprisonment.
On August 13, 2009, petitioner filed a Notice of Appeal. On October 8, 2010, the
Superior Court of Pennsylvania affirmed petitioner's judgment of sentence, rejecting petitioner's
challenges to the weight of the evidence and his sentence. On March 8, 2011, the Supreme Court
of Pennsylvania denied petitioner's Petition for Allowance of Appeal.
On April 4, 2011, petitioner filed a prose Post Conviction Relief Act (PCRA) petition.
On October 26, 2011 PCRA counsel was appointed to represent petitioner. On January 27, 2012,
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PCRA counsel filed an amended PCRA petition. On June 1, 2012, petitioner filed a second pro
se PCRA petition alleging ineffective assistance of trial counsel. On April 1, 2014, PCRA
counsel filed a supplemental PCRA petition incorporating petitioner's allegation that trial
counsel advised him against taking three plea offers. On June 18, 2014, PCRA counsel filed
another supplemental PCRA petition that included an affidavit by the petitioner. On July 14,
2014, this Court held an evidentiary hearing, after which this Court dismissed the petition. On
August 12, 2014, petitioner filed a Notice of Appeal.
The Honorable Carolyn Engel Temin summarized the facts of this case in her November
30, 2009 Opinion:
On March 12, 2007, at approximately two o'clock p.m., a
group of basketball players arrived at Dickinson Square Park, a
neighborhood park with a basketball court, a recreation center, and
a playground, surrounded by 3rd Street, 4th Street, Morris Street,
and Tasker Street. George Ocasio ("Ocasio") and Justin Davis
("Davis") arrived in Ocasio's white Mercury Sable and parked on
Morris Street. Mark Wilson ("Wilson'\ David Stokes ("Stokes"),
Terrell Drummond ("Drummond'\ and Hughes arrived together in
Wilson's silver Oldsmobile Intrigue. They parked directly behind
• Ocasio' s car on Morris Street. William Duncan ("Duncan") parked
his blue Grand Marquis directly behind Wilson's car.
Duncan, Ocasio, and Davis were from 5th Street and played for
one team. Stokes, Drummond, and Wilson were from 7th Street and
played for the other team. Most of the players had known each
other for years. Each team bet $300 on the game. Markel White
("White"), Graham, and Graham's brother, Kareem Graham
("Kareem"), all from 5th Street, sat next to the basketball court and
watched the game, along with Hughes from 7th Street. There were
many other people in the park at that time as well-some watching
the game, others playing on the playground. (Footnote omitted).
The game went on for approximately twenty minutes until a
foul call started an argument between the two teams. Stokes and
Graham were verbally arguing when Stokes asked Hughes to pass
him his gun. When Hughes passed Stokes a gun, people began to
leave the basketball court. Stokes, Hughes, and Drummond walked
back to Wilson's Oldsmobile. Stokes entered the passenger seat,
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while the other two men sat in the backseat, Hughes behind the
driver seat, and Drummond behind the passenger seat.
From approximately 50-55 yards away from the car, on a
pathway in Dickinson Square Park, Graham pulled out a gun,
aimed it with two hands at the Oldsmobile and fired twice at the
car. Two fired cartridge casings were found on the pathway where
witnesses placed Graham.
One of the shots went through the glass window of the
Oldsmobile and hit Hughes in his head. He was taken to the
hospital and on March 13, 2007, he was pronounced dead as a
result of this gunshot wound. The Medical Examiner did find
stipling on Hughes' face which he testified could be a result of a
close range shot or due to the shattered car window glass.
On March 13, 2007, March 15, 2007, and March 19, 2007,
respectively, Duncan, White, and Davis gave statements to
detectives identifying Graham as the shooter. On March 16, 2007,
an arrest warrant was issued for Graham and the Fugitive Squad
went to his house that morning at 6 a.m. When the police saw a
man fitting Graham's description, he showed them identification
with the name "Malik Lamore Graham" and claimed that he was
Graham's brother. However, when police investigated further, this
man was in fact Graham himself. He was arrested at this time. On
May 17, 2007, Kareem, Graham's brother, told a social worker at
his juvenile detention facility that he had witnessed his brother
murder someone. The social worker called Homicide Headquarters
and Kareem gave a statement identifying Graham as the shooter on
March 12.
Commonweath v, Graham, Opinion Sur PA. R.A.P. 1925(a) (filed November 30, 2009).
..
In her amended petitioner PCRA counsel alleges trial counsel was ineffective for: (1)
failing to challenge that the weight of the evidence; (2) failing to challenge the length of
petitioner's sentence; and (3) advising petitioner to reject three plea offers based on counsel's
assurance that he could win the case.
To warrant relief based on a claim of ineffective assistance of counsel, a petitioner must
show that such ineffectiveness "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. Jones, 912 A.2d 268, 278 (Pa 2006); 42 Pa.C.S. § 9543(a)(2)(ii).
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Counsel is presumed to have rendered effective assistance. Commonwealth v, Weiss, 81 A.3d
767, 783 (Pa. 2013)(citing Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012)).
To overcome the presumption, the petitioner has to satisfy the performance and prejudice
test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court of
Pennsylvania has applied the Strickland test by looking to three elements, whether: (1) the
underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or
failure to act; and (3) the petitioner has shown that he suffered prejudice as a result of counsel's
lapse, i.e., that there is a reasonable probability that the result of the proceeding would have been
different. Commonwealth v. Bennett, 57 A.3d 1185, 1195-96 (Pa. 2012)(citing Commonwealth v.
Pierce, 527 A.2d 973, 975 (Pa. 1987)). If a claim fails under any necessary element of the
Strickland test, the court may proceed to that element first. Bennett, 57 A.3d at 1195-96. Counsel
will not be deemed ineffective for failing to raise a meritless claim. Jones, 912 A.2d at 278
(citing Commonwealth v. Darrick Hall, 701 A.2d 190, 203 (Pa. 1997)).
An allegation that the verdict is against the weight of the evidence is addressed to the
sound discretion of the trial court. Commonwealth v, Widmer, 744 A.2d 745, 751-752 (Pa. 2000);
Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super. 2005). The fact finder is free to
believe all, part, or none of the evidence and to determine the credibility of the witnesses.
Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008). A new trial should not be granted
because of a mere conflict in the testimony or because the judge on the same facts would have
arrived at a different conclusion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)(citing
Widmer, 744 A.2d at 752).
Our Superior Court has explained that the test is whether the evidence is "so tenuous,
vague and uncertain that the verdict shocks the conscience of the court." Commonwealth v.
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Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003). For one to prevail on a challenge of the weight of
the evidence, the jury's verdict must be so contrary to the evidence as to shock one's sense of
justice. Id (citing Commonwealth v. Goodwine, 692 A.2d 233, 236 (Pa. Super. 1997)).
In Commonwealth v. Luster, 71 A.3d 1029, 1049 (Pa. Super. 2013) appeal denied, 83
A.3d 414 (Pa. 2013), the Superior Court affirmed the PCRA court's dismissal of appellant's
allegation that trial counsel was ineffective for failing to raise a challenge to the weight of the
evidence where the petitioner was convicted of Murder after beating a woman and leaving her on
a highway, where she was subsequently nm over. The PCRA court determined that even if the
claim had been raised, it would have found that "the jury's verdict was not so contrary to the
evidence as to shock one's sense of justice" and that it "would not have granted a new trial on a
weight of the evidence argument." Id. (citing PCRA Court Opinion, 2/28/11, at 4-5 (emphasis
supplied)).
In the instant case, trial counsel did not file a motion challenging the weight of the
evidence. Even if counsel had raised such a challenge, the issue is meritless and the trial court
would have denied such a motion. First, petitioner argues the verdict was against the weight of
the evidence because the witnesses did not name him as the shooter at trial. Petitioner is correct
that none of the eyewitnesses identified him as the shooter at trial) claiming that they did not see
the shooting or did not remember the incident. However, three eyewitnesses, including the
petitioner's brother, identified the petitioner as the shooter to Homicide detectives in their formal
statements. N.T. 5.5.2009 at 216, 218-220; N.T. 5.6.2009 at 192, 195; N.T. 5.7.2009 at 97-103,
200, 207-211, 269-271, 307-310. Duncan and White identified petitioner as the shooter within
three days after the shooting and petitioner's brother identified the petitioner about two months
after the shooting. Rashida Ingram, a social worker, testified at trial that in May of 2007
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petitioner's brother told her he had seen his brother murder a man named A.J. at a playground.
N.T. 5.6.2009 at 83. Although the witnesses changed their testimony at trial, their statements
were competent evidence for the jury to consider. See Commonwealth v. Brady, 507 A.2d 66(Pa. 1986)(permitting the admission, as substantive evidence, of prior inconsistent statements by
a non-party witness); Commonwealth v. Lively, 630 A.2d 7, 8 (Pa. 1992). The fact-finder is free
to believe all, part, or none of the evidence, and credibility determinations rest solely within the
purview of the fact-finder. Commonwealth v. Treiber, 874 A.2d 26, 30 (Pa. 2005). It is well
within the jury's fact finding purview to credit the eyewitnesses' original signed statements
identifying petitioner as the shooter, which were given, in the case of Duncan and White, within
days of the murder. The weight of the identification evidence overwhelmingly supported
conviction of the petitioner.
The petitioner also alleges that the location of the recovered fired cartridge casings, fifty
feet away from the decedent, is inconsistent with the assistant medical examiner's testimony that
there was gunpowder stippling present on victim. Petitioner asserts that this fact requires the
conclusion that the decedent was shot from close range. Petitioner is mistaken. The firearms
expert testified that the projectile had been fired through a car window before entering the head
of the decedent. N.T. 5.7.2009 at 174. The assistant medical examiner offered two possible
explanations for the stippling present on the victim's face: the stipple could have come from
either the shattered car window glass or from a close range shot. N.T. 5.7.2009 at 245-251. The
witness statements buttress the former explanation as they all saw a non-close range shooting.
The totality of the evidence proved that petitioner shot the victim with a bullet that passed
through a car window spraying the victim's face with stippling.
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Petitioner's allegations in no way undermine the strength of the evidence against him.
The jury's verdict was not against the weight of the evidence and, if counsel had raised a weight
of the evidence claim, it would have been rejected as meritless. As stated in Jones, counsel is not
ineffective for failing to raise a meritless claim. Thus, the petitioner's request for relief on the
issue of weight of the evidence must be denied.
Petitioner claims that counsel was ineffective for failing to challenge the petitioner's
sentence. The petitioner alleges that his sentence falls in excess of the sentencing guidelines.
While the Superior Court found that this claim was waived, it addressed the merits of the issue:
Moreover, Appellant's claim is belied by the record. With a prior
record score of zero (0), an offense gravity score of fourteen (14),
and the applicable deadly weapon "used" enhancement, the
standard range for ApBellant's third degree murder conviction was
seven and one-half (7 12) to twenty (20) years. Thus, Appellant's
minimum sentence of fifteen (15) years imprisonment actually fell
within the standard range of the sentencing guidelines.
Commonwealth v. Graham, 2397 EDA 2009 (filed October 8, 2010).
Petitioner has failed to prove, under 42 Pa.C.S. § 9543(a)(3), that the issue has not been
previously litigated or waived. Even if this issue had not been previously litigated, it is meritless.
. .
As noted by the Superior Court, petitioner's sentence for Third Degree Murder was well within
standard range of the sentencing guidelines. Petitioner was also sentenced to a consecutive two
and a half to five years of imprisonment for his PIC conviction. This Court recognizes that the
petitioner's sentence for the PIC charge was outside the sentencing guidelines; however, the
sentence was within the statutory limit and the trial court stated its reasons for the departure.
Commonwealth v. Warren, 84 A.3d 1092, 1097 (Pa. Super. 2014)(when sentencing a defendant
beyond the ranges recommended by the sentencing guidelines, the trial court must state its
reasons for departing from the guidelines on the record).
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At sentencing, the trial court had the benefit of a presentence report, mental health report,
and the testimony of multiple Commonwealth and defense witnesses. The trial court
demonstrated an understanding of the sentencing guidelines. N.T. 7.29.2009 at 8. Taking all of
this information into consideration, the court found it was necessary to keep the petitioner under
supervision for a significant period of time because of his extensive history of aggressive
behavior. Id. at 58p59. Petitioner's total sentence of seventeen and a half to forty five years of
imprisonment was reasonable and well under the Commonwealth's recommendation of twenty
two and a half to forty five years. Id at 56. Trial counsel was not ineffective for failing to
challenge petitioner's sentence where the trial court crafted an individualized and reasonable
sentence. This claim is meritless,
Petitioner alleges that trial counsel advised him against accepting a series of three plea
offers. The petitioner contends that trial counsel advised petitioner that he would win the case.
An attorney has a duty to communicate a plea offer to his client and to explain the advantages
and disadvantages of the offer. Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa. Super.
2001). "As a general rule, defense counsel has the duty to communicate formal offers from the
.. ..
prosecution to accept a plea on terms and conditions that may be favorable to the accused."
Missouri v. Frye, 132 S. Ct. 1399, 1408, 182 L. Ed. 2d 379 (2012)(counsel rendered ineffective
assistance for failing to convey a plea offer to appellant before it expired). Failure to do so may
be considered ineffectiveness of counsel if the petitioner is sentenced to a longer prison term
than the term he would have accepted under the plea bargain. Id (citing Commonwealth v.
Korb, 617 A.2d 715, 716 (Pa. Super. 1992)); see Commonwealth v. Copeland. 554 A.2d 54, 60-
61 (Pa. Super. 1988). In the context of plea agreements, petitioner can show prejudice under the
Strickland test if he establishes that the outcome of the plea decision would have been different
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with competent advice from counsel. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012)(citing
Missouri v. Frye, 132 S. Ct. 1399, 1388~1389).
In Lafler v. Cooper. both parties conceded that counsel's representation fell below the
objective standard of reasonableness when respondent's counsel advised the respondent to reject
a plea offer on the grounds that the respondent could not be convicted at trial. The Supreme
Court found that the respondent demonstrated prejudice as he was convicted at trial and received
a sentence three and a halftimes greater than the sentence offered in the plea deal. Id at 1391.
The Court explained that a "petitioner who goes to trial instead of taking a more favorable plea
may be prejudiced from either a conviction on more serious counts or the imposition of a more
severe sentence." Id. at 1386.
Here, petitioner cannot show that trial counsel's representation fell below an objective
standard of reasonableness; nor can he demonstrate prejudice. As a matter of fact, this Court
finds that the only offer ever conveyed to petitioner was an offer of twenty two and a half to
forty five years. This offer was conveyed by trial counsel to the petitioner prior to the first trial.
No other offers were made to the petitioner at any point during either trial. This Court accepts the
testimony of the Assistant District Attorney that she conveyed only one offer to the petitioner:
twenty two and a half to forty five years of incarceration. N.T. 7.14.2014 at 25. Her testimony
was supported by an email from her supervisor approving this offer. Id at 28.
Petitioner's assertions to the contrary are not credible. At the evidentiary hearing
petitioner testified that trial counsel advised him against accepting three plea offers: the first for
twenty five to fifty years offered before the first trial) the second for twelve and a half to twenty-
five years offered at the beginning of the second trial, and the third for seven and a half to fifteen
years, offered while the jury was deliberating. N.T. 7.14.2014 at 12-14, 19. Specifically)
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petitioner claims trial counsel advised him that he had the case won. Trial counsel credibly
testified that it is not his practice to tell clients that he had a case won. N.T. 7.14.2014 at 37-38.
Petitioner's credibility is undermined by his own prose filings. In both petitioner's prose
petition and his affidavit dated May 25, 2014, petitioner asserted that the second offer of twelve
and a half to twenty five years was conveyed pre-trial, not during trial as he testified. In his June
l, 2012 supplemental pro se petition, petitioner avers that trial counsel conveyed the offer of
seven and a half to fifteen years the day before the second trial began, not while the jury
deliberated as he testified. Petitioner has changed his version of events every time he has
communicated with this Court.
This Court finds that trial counsel properly conveyed the sole plea offer of twenty two
and a half to forty five years to the petitioner and did not advise petitioner against accepting the
offer on the grounds that he would not be convicted at trial. Petitioner, of his own voluntary free
will, declined said offer. Petitioner has not demonstrated that trial counsel's representation fell
below an objective standard ofreasonableness by way of giving unsound advice to persuade the
petitioner to reject his sole plea offer.,
Petitioner has also failed to establish prejudice. Petitioner was offered a sentence of
twenty two and a half to forty years in exchange for pleading guilty to Third Degree Murder and
PIC. By rejecting this offer and going to trial, petitioner was convicted to Third Degree Murder
and PIC. Petitioner was subsequently sentenced to seventeen and a half to forty years of
imprisonment. Clearly, petitioner's rejection of the plea offer resulted in a more lenient sentence
on the same charges. The petitioner's third issue is without merit.
10
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The petition does not meet the requirements of an ineffective assistance of counsel claim
and does not merit substantive relief under the Post-Conviction Relief Act. For the foregoing
reasons, the decision of this Court should be affirmed.
BY THE COURT,
Barbara A. McDermott, J.
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Commonwealth v, James Graham
CP-5 l-CR-0010428-2007
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing filing upon the person/s), and in the
manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Attn: Robin Godfrey, Esquire
Type of Service: Hand Delivery
Sandjai Weaver, Esquire
1315 Walnut Street, Suite 1624
Philadelphia, PA 19107
Type of Service: First-Class Mail
James Graham
JE2934
SCI Coal Township
1 Kelley Drive
Coal Township, PA 17866-1020
Type of Service: First-Class Mail
Dated: August 13, 2014
~
Law Clerk to the
Honorable Barbara A. McDermott