Com. v. Oliver, K.

J-S63026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAREEM OLIVER :
:
Appellant : No. 3646 EDA 2018
Appeal from the PCRA Order Entered November 20, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1003111-2004
BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 30, 2020
This case returns to us following remand for the appointment of counsel.
Kareem Oliver (Appellant) has appealed from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. Additionally, Appellant’s court-appointed counsel, James Lloyd, Esquire
(PCRA Counsel), filed a petition for leave to withdraw as counsel and an
“Anders brief.”1 Because we conclude that PCRA Counsel fulfilled the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 PCRA Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), in the mistaken belief that an Anders brief is required where counsel
seeks to withdraw on appeal from the denial of PCRA relief. A Turner/Finley
no-merit letter, however, is the appropriate filing. See Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988) (en banc). Because an Anders brief provides greater
protection to a defendant, this Court may accept an Anders brief in lieu of a
Turner/Finley letter. Commonwealth v. Fusselman, 866 A.2d 1109, 1111
n.3 (Pa. Super. 2004).
J-S63026-19
mandates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and
this appeal is without merit, we grant PCRA Counsel’s petition to withdraw and
affirm the PCRA court’s order dismissing Appellant’s petition.
A prior panel of this Court detailed the underlying facts and procedural
history:
At approximately 11:00 p.m., on July 25, 2003,
twenty-seven year old Monica Trice returned to her
apartment at 5009 Germantown Avenue after work.
Thereafter, Monica began sweeping in front of her
apartment as she talked with her five year old
daughter and Monica’s sister, Shanta Trice.
Fifteen to twenty feet north from Monica Trice,
Benjamin Clark was sitting with some friends on the
steps of 5011 Germantown Avenue. [Appellant] and
Clark had known each other for several years and
were friends. A few days before, [Appellant] and
Clark engaged in an argument and on July 25, 2003,
[Appellant] and Clark again had an argument. The
much bigger Clark grabbed [Appellant] and put him
up against the wall. The next time Clark saw
[Appellant], [Appellant] was approaching with a gun
in his hand. Clark heard someone say “Don’t do it,
‘Reem’”.
At approximately 11:16 p.m., [Appellant] fired four
shots at Clark, but because [Appellant] had some
difficulty controlling the gun as it fired, he missed
Clark. To avoid being shot, Clark ran from the steps,
past Monica and Shanta Trice. [Appellant] ran after
Clark and fired two more shots at Clark. As the shots
were fired, Shanta Trice covered her niece and yelled
“Gunshots, get down” to her sister.
After seeing that [Appellant] and Clark had run off,
Shanta went inside the apartment with her niece.
-2-
J-S63026-19
Shanta came out and saw her sister lying on the
ground and told her to get up. At this time, Monica
told Shanta that she had been shot. One of
[Appellant’s] shots had struck Monica in the pelvis
area. From the bullet wound Monica Trice bled to
death. Sadly, the deceased was also ten to twelve
weeks pregnant.
Trial Court Opinion (T.C.O.), 9/28/06, at 2-3 (citations omitted).
On May 23, 2004, [Appellant] was arrested and charged with
murder, murder of an unborn child, violation of the Uniform
Firearms Act (VUFA), and possession of an instrument of crime
(PIC).[2] A bench trial began on May 26, 2006, and, after three
days of testimony, [Appellant] was found guilty of all of the above-
stated charges. In regard to the murder charges, the court found
[Appellant] guilty of murder in the third-degree for the killing of
Monica Trice, and murder in the third-degree of an unborn child
for the death of Monica’s baby. The court subsequently sentenced
[Appellant] to serve an aggregate term of imprisonment of thirty
to sixty years.
[Appellant] filed a timely notice of appeal, however, this Court
dismissed that appeal because [Appellant] failed to file a brief.
[Appellant] subsequently filed a timely pro se [PCRA petition], and
his post-sentence motion and direct appeal rights were reinstated
nunc pro tunc. Accordingly, [Appellant] filed a post-sentence
motion nunc pro tunc on March 5, 2009, raising a sufficiency of
the evidence claim and also alleging that he was denied his right
to a speedy trial in violation of Pa.R.Crim.P. 600. The trial court
denied [Appellant’s] motion and he thereafter filed a notice of
appeal nunc pro tunc, as well as a timely concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Commonwealth v. Oliver, 1460 EDA 2009, at *1-3 (Pa. Super. 2010)
(unpublished memorandum).
On November 29, 2010, this Court affirmed Appellant’s judgment of
sentence. Id. On April 11, 2011, Appellant filed a pro se PCRA petition
____________________________________________
2 18 Pa.C.S.A. §§ 2502, 2604, 6108, and 907.
-3-
J-S63026-19
requesting the reinstatement of his right to file a nunc pro tunc petition for
allowance of appeal with the Pennsylvania Supreme Court. The PCRA court
granted Appellant’s request, and on July 17, 2015, our Supreme Court denied
Appellant’s petition. Commonwealth v. Oliver, 93 EAL 2015 (Pa. July 17,
2015). Accordingly, Appellant’s judgment of sentence became final on
October 15, 2015. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup.Ct.R. 13.
On August 31, 2015, Appellant filed a timely pro se PCRA petition.
Counsel was appointed, but subsequently filed a Turner/Finley no-merit
letter. The PCRA court never ruled on the motion to withdraw; however,
George Henry Newman, Esq. entered his appearance as substitute counsel
and filed an amended PCRA petition. On June 13, 2018, after several
continuances, the PCRA court issued notice of its intent to dismiss Appellant’s
petition pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure;
the PCRA court formally dismissed Appellant’s petition on November 20, 2018.
On December 13, 2018, Appellant filed a pro se notice of appeal with this
Court. Thereafter, on January 15, 2019, Attorney Newman filed with the PCRA
court a motion to withdraw as counsel, which the court granted the same day.
In a memorandum decision filed December 10, 2019, and order filed
April 16, 2020, this Court noted the impropriety of the PCRA court permitting
Attorney Newman to withdraw as counsel after a notice of appeal had been
filed in this Court. See Commonwealth v. Oliver, 3646 EDA 2018 (Pa.
Super. Dec. 10, 2019) (unpublished memorandum); Order, 4/16/20.
Accordingly, we remanded this case to the PCRA court to appoint appellate
-4-
J-S63026-19
counsel for Appellant with respect to his timely PCRA petition. On remand,
the court appointed PCRA Counsel. On September 30, 2019, PCRA Counsel
filed a petition to withdraw with this Court, attaching his no-merit letter, with
notice to Appellant that he had the right to proceed pro se or retain private
counsel. Appellant did not file a response to Counsel’s no-merit letter and did
not raise any additional issues for our review.
In reviewing the denial of a PCRA petition, our review is limited to
examining whether the PCRA court’s findings are supported by the record and
free of legal error. See Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa.
2011). We view the findings of the PCRA court and the evidence of record in
the light most favorable to the prevailing party. Id. “The PCRA court’s
credibility determinations, when supported by the record, are binding on this
Court; however, we apply a de novo standard of review to the PCRA court’s
legal conclusions.” See Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.
2015).
As noted, PCRA Counsel has filed in this Court a petition for leave to
withdraw as counsel and an appellate brief. Thus, we must first determine if
PCRA Counsel has satisfied the requirements to be permitted to withdraw from
further representation. Pursuant to Turner/Finley, an “[i]ndependent
review of the record by competent counsel is required before withdrawal [on
collateral appeal] is permitted.” Commonwealth v. Pitts, 981 A.2d 875, 876
n.1 (Pa. 2009). In Pitts, our Supreme Court explained that such independent
review requires proof of:
-5-
J-S63026-19
1. A “no merit” letter by PC[R]A counsel detailing the nature and extent
of his review;
2. The “no merit” letter by PC[R]A counsel listing each issue the
petitioner wished to have reviewed;
3. The PC[R]A counsel’s “explanation”, in the “no merit” letter, of why
the petitioner’s issues were meritless;
4. The PC[R]A court conducting its own independent review of the
record; and
5. The PC[R]A court agreeing with counsel that the petition was
meritless.
Id. (citation and brackets omitted). Further, PCRA counsel seeking to
withdraw in this Court must contemporaneously forward to the petitioner a
copy of the petition to withdraw that includes (i) a copy of both the no-merit
letter, and (ii) a statement advising the PCRA petitioner that, upon the filing
of counsel’s petition to withdraw, the petitioner has the immediate right to
proceed pro se, or with the assistance of privately retained counsel.
Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa. Super. 2016).
[W]here counsel submits a petition and no-merit letter that do
satisfy the technical demands of Turner/Finley, . . . this Court[
] must then conduct its own review of the merits of the case. If
the [C]ourt agrees with counsel that the claims are without merit,
the [C]ourt will permit counsel to withdraw and deny relief. By
contrast, if the claims appear to have merit, the [C]ourt will deny
counsel’s request and grant relief, or at least instruct counsel to
file an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citation
omitted).
-6-
J-S63026-19
Upon review of PCRA Counsel’s petition for leave to withdraw and the
appellate brief submitted on Appellant’s behalf, we conclude that PCRA
Counsel has complied with the requirements of Turner and Finley, as
restated in Pitts. PCRA Counsel identified the claims asserted by Appellant,
reviewed the merits of those claims, and explained why the claims lack merit.
In addition, PCRA Counsel represented to this Court that he provided Appellant
with notice of his intention to seek permission to withdraw from representation
and a copy of the appellate brief, and advised Appellant he may proceed with
privately retained counsel or pro se. See Petition to Withdraw as Counsel,
9/30/20. Accordingly, PCRA Counsel has satisfied the requirements necessary
to withdraw as counsel.
We next review Appellant’s substantive claims to ascertain whether they
merit relief. PCRA Counsel has identified the following issues, as stated in
Appellant’s pro se and counseled PCRA petitions:
I. The Commonwealth failed to provide information regarding
a plea deal with Commonwealth witness Benjamin Clark in
violation of Brady v. Maryland, 373 U.S. 83 (1963).
II. Trial counsel, James Bruno, Esquire, and direct appeal
counsel, John P. Cotter, Esquire, rendered ineffective
assistance of counsel.
a. Counsel failed to move for dismissal of Appellant’s case
based upon a violation of Appellant’s right to a speedy trial
pursuant to Pa.R.Crim.P. 600;
b. Counsel failed to object to the trial court “amending” the
bills of information and finding Appellant guilty of third-
degree murder and third-degree murder of an unborn child;
-7-
J-S63026-19
c. Counsel failed to adequately cross-examine Commonwealth
witness Benjamin Clark;
d. Counsel failed to prepare for Appellant’s sentencing hearing;
Counsel did not present any witnesses on Appellant’s behalf
and failed to prepare Appellant to effectively allocute on his
own behalf;
e. Counsel failed to file a motion to reconsider sentence;
f. Counsel failed to challenge the discretionary aspects of the
sentence imposed. (pro se PCRA petition)
Turner/Finley Brief at 31, 34-36.3
In his first issue, Appellant claims the PCRA court erred in denying relief
on his Brady claim. Our Supreme Court summarized the relevant law:
The law governing alleged Brady violations is well-settled. In
Brady, the United States Supreme Court held that the
suppression by the prosecution of evidence favorable to an
____________________________________________
3 PCRA Counsel also identified four claims raised by Appellant in his pro se
appellate brief previously filed with this Court, including that trial counsel was
ineffective in failing to 1) move to suppress Appellant’s inculpatory statement
made to police; 2) cross-examine eyewitness Shanta Trice, the victim’s sister;
3) hire an expert witness to challenge the ballistics evidence; and 4) challenge
the weight and sufficiency of the evidence, and four new issues referenced by
Appellant in correspondence with PCRA Counsel, but not previously raised in
the PCRA court, including 1) Appellant was unlawfully coerced to waive his
right to a jury trial by trial counsel; 2) trial counsel was ineffective and violated
McCoy v. Louisiana, 138 S. Ct. 1500 (2018) when he conceded Appellant’s
guilt at trial; 3) the PCRA court’s dismissal order listed the incorrect case
number; and 4) Detective David Baker, who took Appellant’s confessional
statement, committed official misconduct, which was not previously known to
Appellant and could have been used to attack the detective’s credibility at
trial. Turner/Finley Brief at 36, 63-64. Because Appellant did not raise
these claims in his PCRA petitions or response to Counsel’s Turner/Finley
brief, the PCRA court never addressed them. See Pa.R.A.P. 302(a) (“[i]ssues
not raised in the lower court are waived and cannot be raised for the first time
on appeal”). As such, these claims have not been preserved for appellate
review.
-8-
J-S63026-19
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution. The Supreme Court
subsequently held that the duty to disclose such evidence is
applicable even if there has been no request by the accused, and
that the duty may encompass impeachment evidence as well as
directly exculpatory evidence. Furthermore, the prosecution’s
Brady obligation extends to exculpatory evidence in the files of
police agencies of the same government bringing the prosecution.
On the question of materiality, the Court has noted that such
evidence is material if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different. The materiality inquiry is
not just a matter of determining whether, after discounting the
inculpatory evidence in light of the undisclosed evidence, the
remaining evidence is sufficient to support the jury’s conclusions.
Rather, the question is whether the favorable evidence could
reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict. Thus, there are three
necessary components that demonstrate a violation of the Brady
strictures: the evidence was favorable to the accused, either
because it is exculpatory or because it impeaches; the evidence
was suppressed by the prosecution, either willfully or
inadvertently; and prejudice ensued.
Commonwealth v. Lambert, 884 A.2d 848, 853-54 (Pa. 2005).
Appellant contends that the Commonwealth violated his Brady rights
by failing to disclose that it offered favorable treatment to Benjamin Clark in
exchange for his testimony. According to Appellant, Mr. Clark, “who both
provoked the initial altercation with [Appellant], and who testified against
[Appellant] at trial,” had an open robbery case when he testified against
Appellant at trial. See Amended PCRA petition, 10/10/17, ¶ 5(c). After
Appellant was convicted of the above charges, Mr. Clark was sentenced to five
years of probation on the charges of first-degree felony robbery, conspiracy,
terroristic threats, simple assault and false reports to law enforcement. Id.-9-
J-S63026-19
Despite Mr. Clark testifying at Appellant’s trial that he received no benefit from
the Commonwealth in exchange for his testimony, see N.T., 6/1/06, at 11,
Appellant maintains that a Brady violation occurred because there was no
explanation for why Mr. Clark’s case was still pending two years after charges
were filed. Appellant contends that any favorable treatment Mr. Clark
received would have impacted the outcome of his trial as it impeached the
credibility of Mr. Clark, who was an essential witness.
The PCRA court denied relief on the Brady claim, finding that Appellant
failed to meet his burden of proof regarding Mr. Clark’s robbery charges and
the Commonwealth’s disclosure. The court explained:
[A] review of the record indicates that Clark was questioned on
direct examination by the Commonwealth and then defense
counsel cross-examined him about the pending robbery charges
against him. Thus, because the fact-finder was well aware of Mr.
Clark’s criminal difficulties, it was clear to this Court that the claim
lacked merit.
In any event, even had defendant somehow established that the
claim possessed merit, this Court would have denied him relief
thereon. That is because he did not establish prejudice. A review
of the evidence presented by the Commonwealth shows that two
eyewitnesses identified [Appellant] as the shooter and he
admitted to police that he fired the shots that killed the two
victims herein. No amount of cross-examination of Clark would
have changed the outcome of the trial . . . .
PCRA Court Opinion, 1/11/19, at 11 (citations omitted).
The PCRA court’s ruling was based upon its credibility determinations,
which are supported by the record. Mason, 130 A.3d at 617. Therefore, we
- 10 -
J-S63026-19
accept the PCRA court’s factual findings, and agree that there was no Brady
violation.
Appellant’s remaining issues assert that the PCRA court erred in denying
Appellant’s PCRA petition because trial counsel and appellate counsel on direct
appeal were ineffective. In deciding ineffective assistance of counsel claims,
we begin with the presumption that counsel rendered effective assistance.
Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome
that presumption, the petitioner must establish: “(1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s action or failure
to act; and (3) the petitioner suffered prejudice as a result of counsel’s error,
with prejudice measured by whether there is a reasonable probability that the
result of the proceeding would have been different.” Id. (citation omitted).
Regarding whether counsel had a reasonable basis for his or her action
or inaction, “we do not question whether there were other more logical courses
of action which counsel could have pursued; rather, we must examine whether
counsel’s decisions had any reasonable basis.” Commonwealth v.
Washington, 927 A.2d 586, 594 (Pa. 2007). We will conclude that counsel’s
chosen strategy lacked a reasonable basis only if Appellant proves that “an
alternative not chosen offered a potential for success substantially greater
than the course actually pursued.” Commonwealth v. Williams, 899 A.2d
1060, 1064 (Pa. 2006) (citation omitted). To demonstrate prejudice in an
ineffective assistance of counsel claim, “the petitioner must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the
- 11 -
J-S63026-19
result of the proceeding would have been different.” Commonwealth v.
King, 57 A.3d 607, 613 (Pa. 2012). If the petitioner fails to prove any of the
three prongs, the claim is subject to dismissal. Bomar, 104 A.3d at 1188.
Appellant first asserts that trial counsel was ineffective for failing to
move for dismissal of his case based on a violation of his right to a speedy
trial pursuant to Rule 600, since he was not brought to trial until 895 days
after the filing of the original criminal complaint.4 See Pa.R.Crim.P. 600.
[While] Rule 600 requires the Commonwealth to try a defendant
within 365 days of the filing of a criminal complaint[,] [a]
defendant . . . is not automatically entitled to discharge under Rule
600 where trial starts more than 365 days after the filing of the
complaint. Rather, Rule 600 “provides for dismissal of charges
only in cases in which the defendant has not been brought to trial
within the term of the adjusted run date, after subtracting all
excludable and excusable time.” The adjusted run date is
calculated by adding to the mechanical run date, i.e., the date 365
days from the complaint, both excludable and excusable delay.
Excludable time includes delay caused by the defendant or his
lawyer. Concomitantly, excusable delay occurs where the delay
is caused by “circumstances beyond the Commonwealth’s control
and despite its due diligence.” “Due diligence is a fact-specific
concept that must be determined on a case-by-case basis. Due
diligence does not require perfect vigilance and punctilious care,
but rather a showing by the Commonwealth that a reasonable
effort has been put forth.”
Additionally, when considering Rule 600, we remain cognizant that
Rule 600 serves two purposes. While it is intended to protect a
defendant’s speedy trial right, it also protects society’s interest in
prosecuting crime. Accordingly, where “there has been no
misconduct on the part of the Commonwealth in an effort to evade
____________________________________________
4On direct appeal, Appellant argued that he was entitled to relief pursuant to
Rule 600. However, this Court found the claim waived because Appellant did
not timely raise it in the trial court. Oliver, 1460 EDA 2009, at *7.
- 12 -
J-S63026-19
the fundamental speedy trial rights of an accused, Rule 600 must
be construed in a manner consistent with society’s right to punish
and deter crime.”
Commonwealth v. Roles, 116 A.3d 122, 124-25 (Pa. Super. 2015) (internal
citations omitted).
Here, in finding no merit to Appellant’s Rule 600 claim, the PCRA court
stated:
Instantly, the record shows that a complaint in this case was
originally filed on December 13, 2003, and that trial commenced
on May[ ] 26, 2006, 895 days later. [Appellant], however, was
not arrested until May 22, 2004, and the 161 days between the
issuance of the complaint and the date of [Appellant’s] arrest must
be excluded from the Rule 600 calculation given that the evidence
shows that the Commonwealth exercised due diligence in
attempting to apprehend [Appellant]. N.T., 5/26/06, [at] 27-
28[;] [s]ee Commonwealth v. Fisher, 681 A.2d 130, 136 (Pa.
Super. 1996) (holding that delay in arresting defendant was
excludable time under Rule 600 because Commonwealth
exercised due diligence in attempting to apprehend suspect). In
addition to this period of time, there is at least 466 days
attributable to delays caused by [Appellant] or his counsel. When
these two periods of time are subtracted from the 895 days it took
to bring [Appellant] to trial, it is clear that [Appellant] was brought
to trial in 268 days, well within the Rule 600 365 period.
PCRA Court Opinion, 1/11/19, at 7-8.
We agree with the PCRA court’s analysis, and add that trial counsel
cannot be deemed ineffective for failing to raise a meritless claim. Bomar,
104 A.3d at 1188.
In his next issue, Appellant contends his trial counsel was ineffective
“for failing to object to the trial court ‘amending’ the bill of information and
finding Appellant guilty of third-degree murder and third-degree murder of an
unborn child.” Turner/Finley Brief at 41. The criminal complaint charged
- 13 -
J-S63026-19
Appellant with murder, generally, not third-degree murder. Appellant asserts
that the criminal complaint needed to specify the degree of murder in order
to provide Appellant with sufficient notice to prepare his defense.
Our Supreme Court has stated:
The purpose of an Information or an Indictment is to provide the
accused with sufficient notice to prepare a defense, and to ensure
that he will not be tried twice for the same act. An Indictment or
an Information is sufficient if it sets forth the elements of the
offense intended to be charged with sufficient detail that the
defendant is apprised of what he must be prepared to meet, and
may plead double jeopardy in a future prosecution based on the
same set of events. This may be accomplished through use of the
words of the statute itself as long as “those words of themselves
fully, directly, and expressly, without any uncertainty or
ambiguity, set forth all the elements necessary to constitute the
offense intended to be punished.”
Commonwealth v. Alston, 651 A.2d 1092, 1095-96 (Pa. 1994) (citations
omitted).
Although Appellant complains that the Commonwealth did not
specifically charge third-degree murder under 18 Pa.C.S.A. § 2502(c), the
certified record confirms that the Commonwealth charged Appellant with
murder, generally, under 18 Pa.C.S.A. § 2502. We have held that “[a]n
information need not specify a degree of murder or the degrees of
manslaughter in order to sustain the verdict of . . . murder.”
Commonwealth v. Chambers, 852 A.2d 1197, 1199 (Pa. Super. 2004)
(emphasis added). Accordingly, this claim lacks merit.
- 14 -
J-S63026-19
Next, Appellant asserts that trial counsel was ineffective for failing to
properly cross-examine Commonwealth witness Benjamin Clark “about why
his open robbery case was still pending after two years and what benefits he
hoped to get as a result of testifying against [Appellant].” Turner/Finley
Brief at 52. Because we already rejected Appellant’s underlying Brady claim
concerning Mr. Clark, Appellant has no basis to assert ineffectiveness of trial
counsel in this regard. Again, we find no error by the PCRA court.
In his next ineffectiveness issue, Appellant asserts trial counsel was
ineffective for failing to challenge the discretionary aspects of his sentence.
“The right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. One
component of this test is whether the defendant’s challenge to the
discretionary aspects of a sentence presents a substantial question.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013).
In both his pro se PCRA petition and counseled amended PCRA petition,
Appellant baldly asserts that the trial court imposed an excessive sentence
because the trial court ordered his sentences to run consecutively. Had
counsel raised this argument on direct appeal, it would not have raised a
substantial question. Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.
- 15 -
J-S63026-19
Super. 2013) (holding that a bald claim of excessiveness due to the
consecutive nature of a sentence will not raise a substantial question); see
also Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010)
(“The imposition of consecutive, rather than concurrent, sentences may raise
a substantial question in only the most extreme circumstances, such as where
the aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.”). Appellant has thus failed to invoke the
jurisdiction of this Court and his claim of ineffective assistance of counsel for
failing to raise a discretionary aspects of sentencing claim lacks merit.
Even if Appellant’s claim of excessiveness raised a substantial question
to invoke our jurisdiction, we would agree with the PCRA court’s determination
that the trial court did not abuse its discretion. The PCRA court explained:
[T]he facts of the case show that [Appellant] sought revenge
following a dispute with Clark by acquiring a gun and shooting it
numerous times on a public street. One of the bullets struck a
woman who was pregnant and killed her and her unborn baby. At
the time the pregnant woman had seven children, one of whom
was present when her mother was killed and could have been
struck by a bullet.
In addition, the sentences imposed on the third-degree murder
conviction and the murder of an unborn child were standard range
sentences. The fact that they were ordered to be served
consecutively did not constitute an abuse of discretion or raise a
substantial question.
* * *
It is further noted that the trial court considered [Appellant’s] lack
of a serious criminal record but believed that the seriousness of
the crimes herein and [Appellant’s] lack of a work history
compelled it to impose the sentence it decided upon. The decision
- 16 -
J-S63026-19
did not amount to an abuse of discretion because the trial court
clearly considered all relevant factors when deciding upon a
sentence and thus, this Court did not commit an abuse of
discretion by finding that the instant claim had no merit.
PCRA Court Opinion, 1/11/19, at 14-15.
In his final two ineffectiveness claims, Appellant contends trial counsel
was ineffective for failing to adequately prepare for Appellant’s sentencing
hearing, and for failing to file a post-trial motion for reconsideration of
sentence. Appellant suggests that trial counsel “failed to present any
witnesses on [Appellant’s] behalf, and failed to prepare [Appellant] to
effectively allocute on his own behalf.” Amended PCRA petition, 10/10/17, at
4 (unnumbered).
As discussed above, to prevail on an ineffective assistance of counsel
claim, a PCRA petitioner must plead and prove by a preponderance of the
evidence that 1) the underlying legal claim has arguable merit; 2) counsel had
no reasonable basis for acting or failing to act; and 3) the petitioner suffered
resulting prejudice. Bomar, 104 A.3d at 1188. A petitioner must prove all
three factors or the claim fails. Id. In addition, on appeal, a petitioner must
adequately discuss all three factors or the appellate court will reject the claim.
Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).
In his pro se PCRA petition, counseled amended PCRA petition, and
appellate brief, Appellant fails to discuss the prejudice prong of this
ineffectiveness claim. Appellant fails to identify witnesses that counsel could
or should have presented at his sentencing hearing, and does not explain how
- 17 -
J-S63026-19
his sentence would have been different if counsel had presented those
witnesses. Appellant also fails to cite supporting authority for his argument.
See Pa.R.A.P. 2119(a) and (b) (requiring appellant to discuss and cite
pertinent authorities).
Additionally, because we have determined that the underlying
sentencing claim lacks merit, no basis exists for an ineffectiveness claim
against trial counsel. Moreover, a prior PCRA court reinstated Appellant’s right
to file post-sentence motions. Appellant filed a post-sentence motion nunc
pro tunc on March 5, 2009, raising a sufficiency of the evidence claim and
alleging he was denied his right to a speedy trial — which the court denied. It
is disingenuous for Appellant to raise another claim of ineffective assistance
of counsel for the reinstatement of post-sentence rights. Appellant had the
opportunity to challenge the discretionary aspects of his sentence twice –
immediately after sentencing and upon having his post-sentence rights
reinstated nunc pro tunc. He did not do so, and we decline to grant him a
third opportunity. Accordingly, we discern no error by the PCRA court in
denying this claim of ineffectiveness.
In sum, and for all of the above reasons, we agree with Attorney Lloyd
that Appellant’s claims are without merit and the PCRA court properly
dismissed Appellant’s PCRA petition. Accordingly, we grant Attorney Lloyd’s
petition to withdraw and affirm the PCRA court’s order.
Petition to withdraw granted. Order affirmed.
- 18 -
J-S63026-19
P.J.E. Gantman joins the memorandum.
Judge Strassburger files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2020
- 19 -