Com. v. Witts, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RASHEED WITTS :
:
Appellant : No. 860 EDA 2019
Appeal from the PCRA Order Entered March 4, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0311351-2004,
CP-51-CR-0700421-2005
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RASHEED WITTS :
:
Appellant : No. 861 EDA 2019
Appeal from the PCRA Order Entered March 4, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0311351-2004,
CP-51-CR-0700421-2005
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 07, 2020
Rasheed Witts appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
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* Retired Senior Judge assigned to the Superior Court.
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review, we vacate, remand, and reinstate Witts’ direct appeal rights nunc pro
tunc.
On August 26, 2005, Witts entered a negotiated guilty plea, under two
separate docket numbers, to one count each of possession with intent to
deliver a controlled substance (PWID)1 and criminal conspiracy2 (CP-51-CR-
0311351-2004) and one count of PWID (CP-51-CR-0700421-2005). Witts
was sentenced to 11½ to 23 months of incarceration, with immediate
concurrent parole on each count, plus one year of reporting probation.
On October 19, 2005, and December 28, 2005, Witts was arrested and
charged with PWID. On July 7, 2006, and July 17, 2006, Witts pled guilty to
both charges, respectively, and received an Intermediate Punishment (IP)
Program sentence.3 On November 22, 2006, the court found Witts directly
violated his probation, terminated his parole, revoked his probation and
sentenced him to 11½ to 23 months’ imprisonment, plus three years of
reporting probation with immediate parole to house arrest. The probation
violation sentence was ordered to run concurrent on all counts and also
concurrent with his July 2006 sentence. On May 1, 2007, Witts was arrested
again for PWID. Although he was ultimately found not guilty of the charge,
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1 35 P.S. § 780-113(a)(30).
2 18 Pa.C.S.A. § 903.
3 See 42 Pa.C.S. § 9721(a)(6) (listing county IP as sentencing alternative);
see also id. at § 9763(a) (general rules for imposing county IP sentence);
id. at § 9804(a) (describing county IP program options).
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Witts continued to test positive for various drugs while on probation. On May
8, 2008, the court held a second parole/probation violation hearing and
determined that Witts had technically violated his probation. The court
revoked Witts’ parole and ordered him to serve back time, followed by three
years of reporting probation, with immediate parole to house arrest with
electronic monitoring. The court reminded Witts that he faced a maximum
aggregate term of thirty years’ imprisonment, and warned him that if he
violated probation again, his sentence would be made consecutive to any
sentence he received for a new conviction.
On November 2, 2009, Witts was arrested for and charged again with
PWID. On January 21, 2010, Witts was arrested and charged with possession
of a controlled substance.4 After finding him guilty of the possession charge,
the court sentenced Witts, on September 28, 2010, to 18 months of probation.
On March 9, 2011, Witts was found guilty of PWID and sentenced to 3 to 6
years’ incarceration, with credit for time served.
On February 6, 2012, the court found that Witts had directly violated his
probation—for the third time. The court terminated Witts’ parole, revoked his
probation, and sentenced him to consecutive terms of 5 to 10 years of state
incarceration on each docket number for PWID; the sentence was also ordered
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4 On May 25, 2010, Witts was arrested and subsequently convicted of false
identification to law enforcement; however, Witts was sentenced to no further
penalty.
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to run consecutive to his March 2011 sentence of 3 to 6 years’ imprisonment.
On the conspiracy charge,5 Witts was sentenced to 10 years of reporting
probation, to run consecutively to his parole. Witts asked the court to
reconsider his sentence, informing the court that he had been unable to
contact his attorney. On February 21, 2012, Witts filed a pro se petition to
vacate and reconsider his sentence. On March 7, 2012, Witts asked the public
defender to file an appeal. The public defender was removed from the case
and new counsel was appointed to represent Witts. Witts filed a notice of
appeal and his appellate rights were reinstated nunc pro tunc. On appeal,
Witts raised two issues: (1) whether the sentence imposed was illegal where
it was not based upon the gravity of the offense, the extent of Witts’ prior
record, the prospect of rehabilitation, and an assessment of mitigating and
aggravating factors; and (2) whether the court abused its discretion by
imposing a manifestly excessive sentence that because of its consecutive
nature is evidence of the court’s bias against Witts.
On appeal, our Court found that Witts’ revocation probation sentence of
two consecutive 5-10 year terms of imprisonment was “within the statutory
confines and[,] thus[,] legal.” Commonwealth v. Witts, 1321 EDA 2012 at
*2-*3 (Pa. Super. filed June 28, 2013) (unpublished memorandum decision).
The Court determined that Witts’ remaining claims implicated the
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5 The court’s violation of parole order notes that the conspiracy charge is
“[n]on-offense related.” Violation of Parole Order—Case Assessment
Summary, 2/6/12, at 4.
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discretionary aspects of his sentence. Id. at *2. However, because Witts
failed to include a Pa.R.A.P. 2119(f) statement in his appellate brief and the
Commonwealth objected to its omission, our Court found his sentencing claims
waived on appeal. Id. at *4. In a footnote, our Court alternatively noted that
“[e]ven if Witts had properly preserved his sentencing challenge, we would
determine that it lacks merit for the reasons set forth by the trial court in its
well-reasoned [o]pinion. See Trial Court Opinion, 11/2/12, at 8-9.” Id. at *4
n.1. Witts did not file a petition for allowance of appeal.
On October 10, 2013, Witts filed a timely pro se PCRA petition. On July
15, 2016, Peter A. Levin, Esquire, was appointed to represent Witts. On
January 20, 2017, Attorney Levin filed an amended PCRA petition seeking,
among other things, that Witts be granted the right to file a petition for
allowance of appeal nunc pro tunc, alleging that “[t]rial counsel was ineffective
for failing to advise [Witts] that his Superior Court appeal was denied and that
he could file an Allocatur Petition to the Supreme Court of Pennsylvania.”
Amended PCRA Petition, 1/20/17, at 4-5. On May 18, 2017, the trial court
reinstated Witts’ appellate rights nunc pro tunc. On June 6, 2017, Witts filed
a nunc pro tunc petition for allowance of appeal, which the Supreme Court
denied on September 11, 2017.
Witts filed the instant PCRA petition pro se on January 2, 2018. On
January 11, 2018, PCRA counsel was appointed; counsel filed an amended
petition on November 7, 2018. On January 18, 2019, the court issued Witts
Pa.R.Crim.P. 907 notice of its intent to dismiss his petition without a hearing;
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Witts did not file a response. On March 15, 2019, the court dismissed Witts’
petition without a hearing. Witts filed a timely notice of appeal and court-
ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal.
On appeal, Witts raises the following issues for our consideration:
(1) Whether the PCRA court erred by dismissing the PCRA
petition when evidence was presented that appellate
counsel was ineffective for failing to preserve all
discretionary sentencing claims by filing a Rule 2119(f)
statement.
(2) Whether the PCRA court erred by failing to grant an
evidentiary hearing.
Appellant’s Brief, at 8.
Instantly, the March 4, 2019 order denying Witts’ PCRA petition lists
both underlying trial court docket numbers (Nos. 0311351-2004 & 0700421-
2005). On March 15, 2019, Witts filed identical notices of appeal for each
appeal (860 EDA 2019 & 861 EDA 2019); the notice lists both trial court docket
numbers. On April 29, 2019, our Court issued a rule to show cause why Witts’
“appeal should not be quashed in light of [Commonwealth v. ]Walker[, 185
A.3d 969 (Pa. 2018)].” Per Curiam Order, 4/29/19.6
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6 In May 2019, our Prothonotary was directed to forward copies of pro se
filings by Witts to Samuel A. DiMatteo, Jr., Esquire, as the record did not
indicate that the trial court had granted counsel permission to withdraw. On
August 5, 2019, our Court remanded the matter to the trial court for a
determination as to whether counsel had abandoned Witts and to determine
Witts’ eligibility for court-appointed counsel. After a hearing, the trial court
determined that counsel did not, in fact, abandon Witts and that Attorney
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On September 11, 2019, this Court directed counsel to show cause why
the appeal should not be quashed pursuant to Walker. On September 17,
2019, counsel filed a response to the rule to show cause, stating “Counsel has
made corrections to its Case Management system, to assure to . . . make
adjustments to account for [t]he Rules of Appellate Procedure and
[s]pecifically Com[.] v. Walker[.]” Response to Order to Show Cause,
9/17/19, at ¶ 32.7 However, on December 9, 2019, in consideration of Witts’
response, our Court referred the Walker issue to the panel assigned to decide
the merits of the appeal. Per Curiam Order, 12/9/19.
Thus, before addressing Witts’ claims on appeal, we must first resolve
the procedural issue presented in the case. In Walker, our Supreme Court
found that Pa.R.A.P. 341 and its Official Comment, stating that “[w]here . . .
one or more orders resolves issues arising on more than one docket or relating
to more than one judgment, separate notices of appeal must be filed,”
constituted “a bright-line mandatory instruction to practitioners to file
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DiMatteo would remain counsel of record. When Attorney DiMatteo failed to
respond to our Court’s rule to show cause issued on April 29, 2019, our Court
directed counsel to show cause why the appeal should not be quashed
pursuant to Walker.
7 In November 2019, counsel failed to file a brief for Witts, so the appeal was
remanded for a determination as to whether counsel abandoned Witts on
appeal. On December 16, 2019, the trial court issued an order finding that
counsel did abandon Witts on appeal, withdrew Attorney DiMatteo from the
matter, and appointed appellate counsel, Lawrence J. O’Connor, Jr., Esquire,
to represent Witts in both cases below.
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separate notices of appeal.” Walker, 185 A.3d at 976-77. The failure to do
so requires the appellate court to quash the appeal. Id. at 977.
Recently, our full Court revisited the Walker holding in
Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc)8
and Commonwealth v. Larkin, 235 A.3d 350 (Pa. Super. 2020) (en banc).
In those cases, our Court concluded that “in so far as Creese[9] stated ‘a notice
of appeal may contain only one docket number[,]’ . . . that pronouncement
is overruled.” See Johnson, supra at 1148 (emphasis in original); see also
Larkin, supra at 352 (recognizing that Johnson “expressly overruled Creese
to the extent that Creese interpreted Walker as requiring the Superior Court
to quash appeals when an appellant, who is appealing from multiple docket
numbers, files notices of appeal with all of the docket numbers listed on each
notice of appeal.”).
Similar to the defendant in Larkin, Witts filed identical notices of appeal
for his two cases below that listed both trial court docket numbers. Since it
“is of no consequence” that Witts’ notices of appeal contained more than one
docket number, Johnson, supra at 1158; Larkin, supra at 352, and because
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8On November 18, 2020, the Pennsylvania Supreme Court denied Johnson’s
petitions for allowance of appeal in Nos. 269, 270, 271 & 272 EAL 2020. See
Order, 11/18/20 at 2.
9 See Commonwealth v. Creese, 216 A.3d 1142, 1144 (Pa. Super. 2019)
(construing mandates of Walker to mean that “we may not accept a notice
of appeal listing multiple docket numbers, even if those notices are included
in the records of each case.”).
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Witts complied with Walker by “fil[ing] separate appeals from an order that
resolves issues arising on more than one docket,” id. at 977 (emphasis
added), we decline to quash the appeal for violating Walker and its attendant
requirements. Therefore, we shall proceed to address the issues Witts raises
on appeal.10
Witts claims that the PCRA court improperly dismissed his petition,
without a hearing, where counsel was ineffective for failing to include a Rule
2119(f) statement in his appellate brief, thus waiving his discretionary aspects
of sentencing claims.
This Court’s standard of review regarding an order dismissing a PCRA
petition is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v. Walls, 993
A.2d 289, 294 (Pa. Super. 2010). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. at 294-95. Moreover, “the right to an evidentiary hearing on a [PCRA]
petition is not absolute.” Commonwealth v. Jordon, 772 A.2d 1011, 1014
(Pa. Super. 2001).
It is within the PCRA court’s discretion to decline to hold a hearing
if the petitioner’s claim is patently frivolous and has no support
either in the record or other evidence. It is the responsibility of
the reviewing court on appeal to examine each issue raised in the
PCRA petition in light of the record certified before it in order to
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10The Commonwealth notes in its brief that it “does not seek quashal based
on non-compliance with Walker,” Appellee’s Brief, at 11 n.4, where “the
concerns addressed by the Walker decision are not at issue here.” Id. at 12
n.4.
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determine if the PCRA court erred in its determination that there
were no genuine issues of material fact in controversy and in
denying relief without conducting an evidentiary hearing.
Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004)
(citations omitted).
In order to succeed on an ineffectiveness claim, an appellant must prove
that: (1) the underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his or her inaction; and (3) the appellant suffered
prejudice because of counsel’s ineffectiveness. Commonwealth v. Pierce,
527 A.2d 972, 975-76 (Pa. 1987). To establish prejudice, the appellant must
show that there is a reasonable probability that the outcome of the
proceedings would have been different but for counsel’s action or inaction.
Commonwealth v. Davido, 106 A.3d 611, 621 (Pa. 2014).
In limited circumstances prejudice is presumed where counsel’s actions
amounted to the functional equivalent of having no representation at all.
Commonwealth v. Brown, 18 A.3d 1147, 1156 (Pa. Super. 2011). “[T]he
decision [of] whether to presume prejudice or require an appellant to
demonstrate actual prejudice ‘turns on the magnitude of the deprivation of
the right to effective assistance of counsel.’” Commonwealth v. Halley, 870
A.2d 795, 801 (Pa. 2005). “The difference in degree between failures that
completely foreclose appellate review, and those which may result in
narrowing its ambit, justifies application of the presumption in the more
extreme instance.” Id.- 10 -
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Here, we conclude that counsel’s failure to include a Rule 2119(f)
statement in Witts’ appellate brief resulted in total deprivation of his appellate
rights where the issues he raised on direct appeal solely concerned the
discretionary aspects of his sentence.
On direct appeal, Witts raised the following issues in his Rule 1925(b)
statement:
(1) Whether the sentence imposed by the trial court after a
probation violation hearing was an illegal sentence where
the sentence was not based upon the gravity of the
violation, the extent of [Witts’] record, prospect of
rehabilitation, and an assessment of both [Witts’] mitigating
and aggravating factors as noted in 42 Pa.C.S. § 9721[,] et
seq[.]
(2) Whether the trial court abused its discretion by entering a
manifestly excessive sentence to such a degree that the
consecutive sentences is evidence of the court’s bias against
or animus toward [Witts].
Pa.R.A.P. 1925(b) Statement, 7/3/12, at 1-2. Although Witts, in his first
issue, posits that the sentencing court imposed an illegal sentence, he
supports the claim by stating that the court did not consider factors found in
section 9721 of the Sentencing Code. Such a question raises an issue with
regard to the discretionary aspects of his sentence, not its legality.11 See
Commonwealth v. Lucky, 229 A.3d 657 (Pa. Super. 2020);
Commonwealth v. Derry, 150 A.3d 987 (Pa. Super. 2016). Moreover, in
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11In Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007), our Court
set forth examples of the narrow class of cases that constitute an illegal
sentence: those that fall outside the parameters prescribed by a statute;
double jeopardy claims; Apprendi issues; and lack of authority or jurisdiction
of court to impose sentence of particular length or type. Id. at 21.
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his second issue, Witts claims that his sentence was excessive due to its
consecutive nature, and that such a sentence demonstrates the court’s bias
against him. Again, this raises a challenge to the discretionary aspects of his
sentence, not the legality of it. Commonwealth v. Caldwell, 117 A.3d 763(Pa. Super. 2015); Commonwealth v. Williams, 69 A.3d 735 (Pa. Super.
2013); Robinson, supra. In fact, on direct appeal, our Court acknowledged
that while “Witts purports to raise a challenge to the legality of his sentence[,
. . . his] claims are, in fact, a challenge to the discretionary aspects of the
sentence, and we will address them as such.” Witts, supra at *2. Thus, we
conclude that counsel’s failure to include a Rule 2119(f) statement in Witts’
appellate brief, coupled with the Commonwealth’s objection to its omission,
effectively waived all of Witts’ issues on appeal.
To the extent that the Commonwealth claims that our Court alternatively
reviewed, on the merits, Witts’ discretionary sentencing claims in a footnote,
we recognize that such a discussion was merely dicta and did not constitute
the “independent legal review of his case that he was entitled to.” See
Commonwealth v. Johnson, 889 A.2d 620, 624 (Pa. Super. 2005), citing
Commonwealth v. Franklin, 823 A.2d 906, 910 (Pa. Super. 2003).
Moreover, pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.
1987), if an appellant fails to include a Rule 2119(f) statement in his or her
brief where it is required and the Commonwealth objects, our Court may not
consider the merits of the discretionary sentencing claim. See id. at 19.
Thus, Witts was effectively denied representation on appeal, where all of his
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claims were considered waived as a result of counsel’s failure to file a Rule
2119(f) statement. Johnson, supra at 623 (“[C]ounsel’s failure to include a
Pa.R.A.P. 2119(f) statement in the brief compromised appellant’s direct
appeal rights.”). See Commonwealth v. Anderson, 830 A.2d 1013, 1017
(Pa. Super. 2003) (in order to invoke appellate court’s jurisdiction over
discretionary aspects of sentence, appellant must include Rule 2119(f)
statement in brief); see also Commonwealth v. Montgomery, 861 A.2d
304, 308 (Pa. Super. 2004) (same).
Accordingly, we are constrained to find that appellate counsel was per
se ineffective for failing to include a Rule 2119(f) statement in Witts’ appellate
brief. See Commonwealth v. Rosado, 150 A.3d 425, 433 (Pa. 2016)
(“[E]rrors which completely foreclose appellate review amount to a
constructive denial of counsel and[,] thus[,] ineffective assistance of counsel
per se, whereas those which only partially foreclose such review are subject
to the ordinary [Pierce] framework.”); see also Commonwealth v.
Hernandez, 755 A.2d 1, 11-12 (Pa. Super. 2000), aff’d in part by 817 A.2d
479 (Pa. 2003) (first two prongs of ineffectiveness test clearly met where
counsel fails to follow procedural rules to ensure requested appellate review
of criminal defendant’s claims). Therefore, we vacate, remand and reinstate
Witts’ direct appeal rights nunc pro tunc. Johnson, supra.Order vacated. Case remanded for reinstatement of Witts’ right to file
direct appeal nunc pro tunc. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/20
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