J-S81042-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHNNY MARCELLUS COLLINS : : Appellant : No. 1175 MDA 2018
Appeal from the PCRA Order Entered July 5, 2018 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0006085-2010
BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 19, 2019
Appellant, Johnny Marcellus Collins, appeals pro se from the order
entered by the Court of Common Pleas of Dauphin County dismissing his first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. Based on the holdings in Alleyne v. United States, 133 S.Ct.
2151 (2013) and Commonwealth v. Cardwell, 105 A.3d 748 (Pa.Super.
2014), we reverse the order of the PCRA court only with respect to Appellant’s
legality of sentence claim, vacate the judgment of sentence, and remand for
resentencing.
On October 19, 2010, authorities arrested Appellant for his alleged
unlawful delivery of a controlled substance1 to a confidential informant during
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1 35 P.S. § 780-113(a)(30).
____________________________________ * Former Justice specially assigned to the Superior Court. J-S81042-18
a September 16, 2010, controlled buy. A search of his person incident to the
arrest revealed contraband supporting additional charges, including one count
of possession with the intent to deliver a controlled substance (“PWID”).2
The PCRA court aptly sets forth the subsequent procedural history as
follows:3
Appellant, through the assistance of Brian Perry, Esq., filed an Omnibus Pre-trial Motion on August 2, 2011. On September 20, 2011, a Pre-trial Suppression Hearing was held before [the trial court]. Thereafter, the parties were ordered to submit briefs. On October 3, 2011, Appellant informed [the trial court] through pro se correspondence that he wanted to fire his private counsel of record. On October 14, 2011, Brian Perry, Esq. filed a Brief in Support of the Omnibus Pre-Trial Motion. The Commonwealth submitted [its] Brief in Opposition on October 25, 2011. Shortly thereafter, on November 15, 2011, Appellant filed a pro se Application to Proceed in Forma Pauperis, a Motion to go pro se, and a pro se Motion for Change of Custody. These Motions were distributed to counsel of record, Brian Perry, Esq., pursuant to Rule 576(A)(f). However, on November 21, 2011, Brian Perry, Esq. filed a Motion to Withdraw as Counsel. In consideration of Appellant’s October 3, 2011, correspondence, said withdrawal was granted that same day.
*** Finally, [after the court’s disposition of serial pro se filings], on January 11, 2012, a hearing was held before [the trial court] wherein Appellant’s Omnibus Pre-Trial Suppression Motion and his various other pro se Motions were denied. Moreover, pursuant to Appellant’s pro se Motion for Speedy Trial, a trial date was set.
[After the court’s continued disposition of serial pro se filings], on February 27, 2012, trial was continued and Karl Romminger, Esq., entered his appearance on behalf of Appellant.
235 P.S. § 780-113(a)(30). 3The PCRA court’s Pa.R.A.P. 1925(a) opinion also provides a detailed account of pertinent facts, which we need not reproduce for our present purposes.
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A jury trial commenced on May 7, 2012. On May 8, 2012, the jury returned a guilty verdict on all counts. Sentencing was deferred pending a pre-sentence investigation.
Appellant was sentenced on July 25, 2012, [to a three to six year sentence of incarceration for Unlawful Delivery of a Controlled substance; a five to ten year sentence of incarceration for PWID; a one to two year sentence of incarceration for Tampering/Fabricating Physical Evidence; a twelve month sentence of state supervision; and no further sentence for Unlawful Possession of a Small Amount of Marijuana]. Sentences were ordered to run consecutively, plus a fine of $50 and costs imposed on each count.
On August 24, 2012 Appellant filed a direct appeal with the Superior Court of Pennsylvania. . . . The Superior Court affirmed judgment of sentence on or around October 18, 2013.
On February 2, 2014, Appellant filed a pro se PCRA [petition. A counseled amended petition followed, which resulted in the PCRA court reinstating Appellant’s direct appeal rights nunc pro tunc. Appellant filed a timely counseled direct appeal nunc pro tunc with the Pennsylvania Superior Court, which, by its order and memorandum of February 19, 2016, rejected Appellant’s claim based on the “hot pursuit” exception provided in the Municipal Police Jurisdictional Act (MPJA).
*** On May 4, 2016, Appellant filed a pro se PCRA [petition] and Memorandum of Law. On May 2, 2016, [the PCRA] court ordered the Commonwealth to respond. Subsequently, [the PCRA court] appointed [PCRA] counsel . . . as it would be considered [Appellant’s] first PCRA [petition].
On February 1, 2017, after numerous extensions of time, counsel filed a Motion to Withdraw which was granted on February 2, 2017. New counsel, Christopher Wilson, Esq., was simultaneously appointed. After numerous extensions of time, Attorney Wilson’s Motion to Withdraw was filed on January 1, 2018. [The PCRA court] granted [counsel’s motion on January 22, 2018. Subsequently, the court issued its Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907. Roughly two weeks later, on June 13, 2018, Appellant filed a pro se Answer opposing the court’s notice of dismissal. On June 27, 2018, after considering
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Appellant’s pro se Answer, the PCRA court dismissed Appellant’s petition. This timely appeal followed].
PCRA Court Opinion, 10/30/18, at 1-4.
Appellant presents the following ten questions for our review:4
1. Whether trial counsel was ineffective for failing to seek identity of informant and failing to file Motion to Suppress physical evidence?
2. Whether appellate counsel was insufficient for failing to raise insufficient evidence claim, weight of evidence claim, the claim the court shifted burden, discretionary aspect of sentence claim, consecutive sentence claim, error in imposing mandatory sentence, and manipulated sentence?
3. Whether the trial court abused its discretion when it illegally modified Appellant’s sentence without jurisdiction?
4. Whether the trial court abused its discretion when it granted PCRA counsel’s motion to withdraw without appointing new counsel?
Appellant’s brief, at 3.
“On appeal from denial of PCRA relief, our standard and scope of review
is limited to determining whether the PCRA court’s findings are supported by
the record and without legal error.” Commonwealth v. Edmiston, 65 A.3d
339, 345 (Pa. 2013) (citation omitted). On questions of law, our scope of
review is de novo. See id.
4 Appellant couches seven distinct issues within his second enumerated question.
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In Appellant’s first issue, he contends trial counsel ineffectively
represented him during the suppression hearing by failing to seek disclosure
of the confidential informant’s identity. The record belies this claim.
To establish a claim of ineffective assistance of counsel, a defendant
“must show, by a preponderance of the evidence, ineffective 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.” Commonwealth v. Turetsky, 925 A.2d 876, 880
(Pa. Super. 2007) (citation omitted).
The burden is on the defendant to prove all three of the following
prongs: “(1) the underlying claim is of arguable merit; (2) that counsel had
no reasonable strategic basis for his or her action or inaction; and (3) but for
the errors and omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different.” Id. (citation
omitted); see also Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.
2009) (“A failure to satisfy any prong of the ineffectiveness test requires
rejection of the claim of ineffectiveness.” (citation omitted)). “Counsel cannot
be deemed ineffective for failing to pursue a meritless claim.”
Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).
Moreover, a PCRA petitioner is not automatically entitled to an
evidentiary hearing on his petition. See Commonwealth v. Smith, 121 A.3d
1049, 1052 (Pa. Super. 2015). “[T]he PCRA court can decline to hold a
hearing if there is no genuine issue concerning any material fact and the
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petitioner is not entitled to postconviction collateral relief, and no purpose
would be served by any further proceedings.” Id. On appeal, we “examine
each of the issues raised in the PCRA petition in light of the record in order to
determine whether the PCRA court erred in concluding that there were no
genuine issues of material fact and in denying relief without an evidentiary
hearing.” Id. (citation omitted).
Appellant filed a counseled omnibus pre-trial motion that included a
motion to suppress all incriminating evidence as the product of what he
termed as an unlawful warrantless arrest. On September 20, 2011, the trial
court conducted a suppression hearing at which Detective Jason Paul of the
Harrisburg Police Department testified that probable cause for the arrest
stemmed from a September 16, 2010, controlled buy. N.T. 9/20/11 at 35-
39. According to Detective Paul, the buy occurred under the supervision of
Detective Cory Dickerson of the Dauphin County Drug Task Force, who was
present with a confidential informant (“CI”) and witnessed a hand-to-hand
exchange of narcotics for money between the CI and Appellant. N.T. at 38.
Paul explained that Detective Dickerson supplied him with official
paperwork memorializing Dickerson’s observations, which prompted Paul to
launch an investigation into Appellant’s ongoing activities. The department,
therefore, deferred arresting Appellant for the September controlled buy until
October 19, 2010, when it received word that Appellant would be in possession
of a large quantity of narcotics intended for sale later that day. N.T. at 35-
47; 49-53.
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Toward the end of the suppression hearing, defense counsel asked the
court “to consider directing [the Commonwealth] to disclose that information
[the identity of the confidential informant . . . as it] goes to potential
credibility. I’ve raised the credibility of the confidential informant.” N.T. at
70-71. The court declined, noting defense counsel’s argument that the validity
of the arrest turned on the confidential informant’s credibility ignored pivotal
evidence demonstrating that Officer Dickerson’s report, based as it was on the
detective’s first-hand observation of the controlled buy, formed a sufficient
basis for the arrest. N.T. at 71-75.
Appellant now contends trial counsel ineffectively failed to move for
disclosure of the CI’s identity. As discussed, the record proves false the
premise of Appellant’s claim, as trial counsel clearly sought such disclosure.
Moreover, even if trial counsel had not sought disclosure, no prejudice would
have resulted, for the evidence established that Detective Dickerson’s
personal observation of Appellant’s September 16, 2010, sale of narcotics to
the CI supplied probable cause to arrest Appellant. See Commonwealth v.
Charleston, 16 A.3d 505, 515-16 (Pa.Super. 2011) (although arresting
officer did not have probable cause to arrest, detective who ordered
defendant’s arrest possessed sufficient information giving rise to probable
cause) (citations omitted); Commonwealth v. Eicher, 605 A.2d 337, 346
n.12 (Pa.Super. 1992) (defendant’s warrantless arrest was lawful where police
officers who effectuated arrest were informed by another officer of his criminal
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conduct) (citation omitted). Hence, Appellant’s first claim of ineffectiveness
fails.
Next, Appellant raises numerous claims of appellate counsel’s alleged
ineffectiveness, which assert failures to challenge: the sufficiency of the
evidence; the weight of the evidence; the court’s alleged misallocation of the
burden of proof; the discretionary aspects of Appellant’s sentence; and, the
imposition of a sentence greater than the statutory maximum. We discern no
merit to any of the claims.
We first examine Appellant’s ineffective assistance claim premised on
appellate counsel’s failure to assail the sufficiency of the evidence.
Specifically, with respect to his conviction for the September 16, 2010,
delivery of crack cocaine, Appellant contends no witness positively identified
him as the seller or claimed to have seen the seller possess the baggie of crack
cocaine turned over by the CI to Detective Dickerson.
Our standard of review for a challenge to the sufficiency of the evidence
is to determine whether, when viewed in a light most favorable to the verdict
winner, the evidence at trial and all reasonable inferences therefrom are
sufficient for the trier of fact to find that each element of the crimes charged
is established beyond a reasonable doubt. See Commonwealth v. Dale,
836 A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence.” Commonwealth v. Bruce, 916
A.2d 657, 661 (Pa. Super. 2007) (citation omitted).
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“[T]he facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Id. (citation omitted). Any doubt
raised as to the accused's guilt is to be resolved by the fact-finder. See id.
“As an appellate court, we do not assess credibility nor do we assign weight
to any of the testimony of record.” Commonwealth v. Kinney, 863 A.2d
581, 584 (Pa. Super. 2004). Therefore, we will not disturb the verdict “unless
the evidence is so weak and inconclusive that as a matter of law no probability
of fact may be drawn from the combined circumstances.” Bruce, 916 A.2d at
661 (citation omitted).
At trial, Detective Dickerson testified that he prepared for the controlled
buy by searching the CI prior to entering the Paxton Street Pub, and he found
no money or contraband on him. N.T. at 14. Dickerson also positively
identified Appellant as the seller with whom the CI and he met on September
16, 2010, as he was already familiar with Appellant from previous undercover
work. N.T. at 22.
Detective Dickerson then described the exchange he witnessed.
Specifically, he testified that Appellant, the CI, and he were sitting at the bar
when Appellant went to the bathroom. Dickerson handed the CI $170 pre-
recorded buy money during this time, and when Appellant returned to his seat
Dickerson watched him hand a baggie to the CI in exchange for the $170.
N.T. 5/7/12, at 16-18. The CI never pocketed the baggie but kept it in his
hand until Appellant left the pub just two minutes later, Dickerson testified, at
which time the CI immediately handed the baggie to Dickerson. N.T. 17, 34-
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35. Dickerson later field tested the contents of the baggie, which tested
positive for crack cocaine.
When reviewing this testimony by taking all reasonable inferences in
favor of the verdict winner, as we must, we conclude it was sufficient to
support the jury's conclusion that Dickerson identified Appellant as the seller
who delivered the baggie of crack cocaine to the CI at the time in question.
See Commonwealth v. Baker, 615 A.2d 23, 25–26 (Pa. 1992) (finding facts
sufficient to establish probable cause where informant's information
implicating defendant as seller was corroborated by police officer's first-hand
observations when he gave informant money to purchase cocaine and saw
informant enter residence and return from residence with cocaine”). Thus,
we may not deem appellate counsel ineffective for failing to raise a meritless
sufficiency claim on direct appeal.
Appellant also contends appellate counsel ineffectively failed to
challenge trial counsel’s failure to raise a weight of the evidence claim on the
delivery charge, as his denial of involvement in the September 16, 2010 sale
undermined Detective Dickerson’s testimony to the degree that the conviction
in this matter shocks the conscience. Notably, Appellant references no specific
testimony or evidence that trial counsel should have raised for the trial court’s
post-trial consideration.
An appellate court reviews the denial of a motion for a new trial based
on a claim that the verdict is against the weight of the evidence for an abuse
of discretion. Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013).
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“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.” Id. at
1055 (quoting Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)).
A trial court should not grant a new trial “because of a mere conflict in
the testimony.” Id. Rather, to grant a new trial, the trial court must
“determine that notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight with all the
facts is to deny justice.” Id. (quoting Widmer, 744 A.2d at 752). Stated
differently, a trial court should not award a new trial unless the verdict “is so
contrary to the evidence as to shock one’s sense of justice and the award of
a new trial is imperative so that right may be given another opportunity to
prevail.” Id. (quoting Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa.
1994)).
Our review of the trial transcript reveals that Appellant testified he
seldom went to the Paxton Street Pub and, therefore, could state with
certainty that he was not there on September 16, 2010. He also denied ever
wearing a “peach fuzz” beard as Detective Dickerson said he did on the day
of the controlled buy, and he introduced pictures of himself attending an
August 19, 2010, wedding and a mid-September function, respectively, where
he appears clean-shaven. N.T. at 153-55, 163-64. Finally, Appellant
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altogether denied having ever been in Detective Dickerson’s company. N.T.
at 164-65.
Here, faced with conflicting testimony between regarding the September
2010 controlled buy, the jury clearly credited Detective Dickerson’s testimony
identifying Appellant as the individual who sold a baggie of crack cocaine to
the CI while in Dickerson’s immediate presence in the Paxton Street Pub. “It
is within the province of the fact-finder to determine the weight to be accorded
to each witness's testimony and to believe all, part, or none of the evidence.”
Commonwealth v. Williams, 176 A.3d 298, 306 (Pa.Super. 2017).
Recognizing the jury’s province in this regard, and guided further by the
precept stated in Widmer, supra, that a mere conflict in testimony shall not
serve as the basis for a new trial, we discern no merit to the weight of the
evidence claim underlying Appellant’s ineffectiveness claim. It follows,
therefore, that prior counsel may not be deemed ineffective for failing to
pursue a meritless weight of the evidence claim.
Next, Appellant posits that prior counsel ineffectively failed to pursue a
claim that the trial court impermissibly shifted the burden upon Appellant to
prove his innocence. This alleged occurrence, Appellant summarily maintains,
was the product of both the trial court’s refusal to suppress evidence obtained
from the search incident to his arrest and its allowance of Detective Dickerson
to offer what Appellant terms as “hearsay testimony” regarding what only the
CI could have observed during the September 16, 2010, controlled buy.
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We have already concluded, however, that the trial court properly
denied Appellant’s motion to suppress evidence obtained from a lawful search
incident to his arrest, and that Detective Dickerson limited his testimony to a
description of his own personal observations of the controlled buy. Appellant’s
undeveloped ineffective assistance of counsel claim predicated on an
unsubstantiated allegation that the court misallocated the burden of proof,
therefore, is utterly meritless.
Appellant’s next ineffective assistance of counsel claim centers on prior
counsels’ respective failures to challenge the court’s imposition of consecutive
sentences, which Appellant maintains represented an alleged abuse of its
sentencing discretion. Initially, we note:
[o]ur court has held that claims implicating the discretionary aspects of sentencing raised in the context of an ineffectiveness claim are cognizable under the PCRA. Commonwealth v. Whitmore, 860 A.2d 1032, 1036 (Pa.Super. 2004), reversed in part on other grounds, 912 A.2d 827 (Pa. 2006) (“[A] claim that counsel was ineffective for failing to perfect a challenge to the discretionary aspects of sentencing is cognizable under the PCRA.” (citations omitted)); Commonwealth v. Watson, 835 A.2d 786, 801 (Pa.Super. 2003) (“[A] claim regarding the discretionary aspects of [the defendant's] sentence, raised in the context of an ineffectiveness claim, would be cognizable under the PCRA”) (discussing Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126 (Pa. 2001)) (footnote omitted).
Commonwealth v. Sarvey, --- A.3d ----, 2018 PA Super 307 at *10 (filed
Nov. 16, 2018).
The standard of review in an appeal from the discretionary aspects of a
sentence is well settled.
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[S]entencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.
Commonwealth v. Paul, 925 A.2d 825, 829 (Pa.Super. 2007) (citation
omitted).
Prior to reaching the merits of a discretionary sentencing issue, this
Court must determine:
(1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, [see] 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation
Our initial impression of this issue is that Appellant does not present it
within a Pa.R.A.P. 2119(f) concise statement of his reasons relied upon for the
allowance of an appeal from the discretionary aspects. Such a statement
appears nowhere in his brief, neither on its own page as Rule 2119(f) requires
nor anywhere within the Argument section. Indeed, Appellant asserts to the
contrary in his argument that he has the “absolute right to appeal” his
sentence. See Appellant’s brief, at 24.
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An appeal of this type is not of right, however, as an appellant must,
instead, seek this Court’s allowance of such an appeal through a Rule 2119(f)
statement. See Sarvey, supra at n. 11 (noting that the PCRA appellant
complied with Rule 2119(f) by including a concise statement seeking
allowance of appeal in her brief). Nevertheless, we decline to find waiver on
such a basis, because the Commonwealth has not specifically objected to this
omission. See Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa.Super.
2003) (holding waiver required where Commonwealth specifically objects to
absence of rule 2119(f) statement).
A substantial question exists when an appellant sets forth “a colorable
argument that the sentence imposed is either inconsistent with a specific
provision of the Sentencing Code or is contrary to the fundamental norms
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009) (citation omitted). Here, Appellant’s sole
discretionary aspects contention is that the court unreasonably decided to run
his standard range sentences consecutively to form what he claims is a
manifestly excessive aggregate sentence of nine to 18 years’ incarceration.
Long standing precedent of this Court recognizes that 42 Pa.C.S.A. [§] 9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Commonwealth v. Graham, 541 Pa. 173, 184, 661 A.2d 1367, 1373 (1995); see also Commonwealth v. Perry, 883 A.2d 599, 2005 Pa.Super. Lexis 2892 (Pa. Super. August 10, 2005), and the cases cited therein. Any challenge to the exercise of this discretion ordinarily does not raise a substantial question. Commonwealth v. Johnson, 873 A.2d 704, 709 n. 2 (Pa. Super.
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2005); see also Commonwealth v. Hoag, 445 Pa. Super. 455, 665 A.2d 1212, 1214 (1995) (explaining that a defendant is not entitled to a “volume discount” for his or her crimes).
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005). A limited
exception to this rule was recognized in Commonwealth v. Dodge, 957 A.2d
1198 (Pa. Super. 2008), appeal denied, 980 A.2d 605 (Pa. 2009), where a
panel of this Court concluded the defendant's aggregate sentence of 58½ to
128 years' imprisonment was excessive and clearly unreasonable, when the
trial court imposed 37 consecutive, standard range sentences for receiving
stolen property, much of which consisted of costume jewelry. See id. at
1199-1201.
The facts in the present case are not similar to those in Dodge. The
Appellant was convicted of drug crimes that represent a significant threat to
the community, and his ten to eighteen year aggregate sentence was hardly
tantamount to a virtual life sentence, as was imposed in Dodge. Under the
circumstances, therefore, we find Appellant has failed to establish that his
consecutive sentencing scheme is among the exceptional cases that raise a
substantial question for this Court’s review.
Even assuming, arguendo, that Appellant presents a substantial
question, we find the record does not support his position.
“Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its
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judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa.Super. 2015).
Additionally, our review of the discretionary aspects of a sentence must
align with the statutory mandates of 42 Pa.C.S. §§ 9781(c) and (d).
Subsection 9781(c) provides:
The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.
In all other cases[,] the appellate court shall affirm the sentence imposed by the sentencing court.
42 Pa.C.S.A. § 9781(c). When we review the record, we consider the offense,
the characteristics of the defendant, the trial court's opportunity to observe
the defendant, the pre-sentence report, the sentencing guidelines and the
basis for the sentence imposed. 42 Pa .C.S. § 9781(d).
As noted, Appellant contends that running his sentences consecutively,
particularly the Delivery and PWID sentences, which together represent the
lion’s share of the nine to 18 year aggregate sentence imposed upon
Appellant, resulted in a manifestly excessive sentence. However, the trial
court considered Appellant’s long history of recidivism (spanning 23 years,
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during which his longest time without violating parole was four months), his
current refusal to accept responsibility for his actions, and the pre-sentence
investigation report’s determination that he presents an above-average risk
of re-offending. N.T. 7/25/12, at 3-7. Moreover, we note that both the
Delivery sentence and PWID sentence, respectively, fell within the standard
guideline range for Appellant given his prior record score. N.T. 7/25/12, at 5.
This record dispels any concern that the trial court “ignored or
misapplied the law, exercised its judgment for reasons of partiality, prejudice,
bias or ill will, or arrived at a manifestly unreasonable decision[]” in exercising
its sentencing discretion to run Appellant’s sentences consecutively.
Commonwealth v. DiSalvo, 70 A.3d 900, 903 (Pa.Super. 2013). The
sentences fell within the standard range of the guidelines, and the court
settled on consecutive sentences only after giving due consideration to the
seriousness of Appellant’s crimes, his lack of remorse, and the high likelihood
he would repeat such an offense. Accordingly, we conclude that Appellant’s
aggregate sentence is neither excessive nor unreasonable. See
Commonwealth v. Bowen, 55 A.3d 1254, 1265 (Pa.Super. 2012) (holding
it is within trial court’s sound discretion whether a sentence should run
consecutive to or concurrent with another sentence being imposed).
Appellant raises a second claim implicating the discretionary aspects of
his sentence when he charges counsel with ineffectively failing to raise a
sentencing entrapment, or manipulation, claim. This argument posits that
police engaged in sentencing manipulation when it deferred his arrest for
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weeks until a moment when it learned he would be in possession of a larger
quantity of narcotics.
As we did with the previous issue, we decline to find waiver for the
Pa.R.A.P. 2119(f) inadequacies of Appellant’s brief, as the Commonwealth has
not lodged a corresponding objection. Moreover, our Court has previously
held a claim of sentencing manipulation creates a substantial question for our
review, see Commonwealth v. Kittrell, 19 A.3d 532 (Pa.Super. 2011), thus,
we will address the substantive argument here.
Sentencing manipulation occurs when “a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment.” It often is asserted in narcotics matters, typically reverse sting cases, in which government agents determine the amount of drugs a target will purchase. Sentencing entrapment or manipulation is similar to traditional notions of entrapment in that it requires extraordinary misconduct by the government. However, it differs from classic entrapment in that it is not a complete defense to criminal charges and, therefore, cannot serve as a basis for acquittal. Instead, it provides a convicted defendant the opportunity for a reduced sentence, typically in the form of a downward departure from the sentencing guidelines. It also can be used to exclude one of several criminal transactions included in a sentencing scheme. It may even provide relief from a mandatory sentence.
Commonwealth v. Paul, 925 A.2d 825, 830 (Pa.Super. 2007) (internal
citations omitted).
This Court has held:
With our acceptance of the premise underlying sentencing entrapment and manipulation, we adopt the standard typically applied in such cases, namely, the existence of “outrageous government conduct” or “extraordinary government misconduct” which is designed to and results in an increased sentence for the
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convicted defendant. This standard presents a heavy burden for the defendant seeking a sentence reduction. Simply put, sentencing entrapment/manipulation is difficult to prove; it is not established “simply by showing that the idea originated with the government or that the conduct was encouraged by it, ... or that the crime was prolonged beyond the first criminal act ... or exceeded in degree or kind what the defendant had done before.”
Commonwealth v. Petzold, 701 A.2d 1363, 1366–67 (Pa.Super. 1997)
(citation omitted).
The extent of Appellant’s sentencing entrapment/manipulation claim is
that police observed him commit two drug deliveries after September 16,
2010, without arresting him, before they decided to arrest him on October 19,
2010 only after receiving a call from a CI stating Appellant possessed a large
quantity of narcotics and a gun. In response, the Commonwealth points to
testimony explaining that police intended to arrest Appellant immediately after
witnessing his second drug sale but lost sight of him, and they did nothing to
manipulate the quantity of narcotics in Appellant’s possession on the day of
his arrest.
By failing to establish that police manipulated him into committing a
greater offense than that which he was predisposed to commit, Appellant has
not carried his heavy burden of showing outrageous government behavior
leading up to his arrest. At most, Appellant’s crime on October 19, 2010,
merely exceeded in degree or kind that which he was observed to have
committed on three other occasions in the prior month. Under our
jurisprudence discussed supra, such an occurrence does not amount to
sentencing entrapment or manipulation.
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Next, we address Appellant’s claim that his sentence is illegal under
Alleyne (holding any fact, other than fact of a prior conviction, increasing the
penalty for a crime beyond the prescribed statutory minimum must be
submitted to jury and proven beyond a reasonable doubt). See id., 131 S.Ct.
at 2160–61. Although Appellant did not raise an Alleyne-based illegality of
sentence claim in either his Pa.R.A.P. 1925(b) statement or in his statement
of questions presented, he has preserved it by raising it in the argument
section of his brief. See Commonwealth v. Robinson, 931 A.2d 15, 19-20
(Pa.Super. 2007) (“a challenge to the legality of the sentence may be raised
as a matter of right, is non-waivable, and may be entertained so long as the
reviewing court has jurisdiction.”).5 ____________________________________________
5 In its Pa.R.A.P. 1925(a) opinion, the PCRA court dismisses Appellant’s Alleyne claim as being part of what it considers a meritless ineffective assistance of direct appeal counsel claim. In this regard, the court reasons that it cannot deem direct appeal counsel ineffective for failing to predict the Alleyne decision handed down in the following year. We question the premise of this rationale, however, as it ignores the fact that Appellant was awarded a subsequent direct appeal nunc pro tunc after Alleyne was decided, which gave appointed counsel the opportunity to raise an Alleyne-based attack on Appellant’s sentence at such time.
Binding decisional law of this Commonwealth has held an Alleyne claim constitutes a non-waivable challenge to the legality of a sentence and may be raised for the first time in a timely-filed PCRA petition where the petitioner’s judgment of sentence was not final when Alleyne was decided. See Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016); see also Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015). Appellant meets this condition, as he filed this timely PCRA petition after his judgment of sentence became final in 2016, three years after the Alleyne decision. Accordingly, we address Appellant’s Alleyne claim as a properly raised challenge to the legality of his sentence.
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A careful review of the record requires us to conclude that Appellant’s
sentence is illegal under Alleyne, as the trial court applied weight-based,
mandatory minimum sentences provided in 18 Pa.C.S. § 75086 in fashioning
the sentence. See N.T. 7/25/12, at 5, 10-11 (court specifically acknowledges
Commonwealth’s citation to applicable mandatories and immediately
conforms minimum sentences thereto). This Court has applied Alleyne to
find Section 7508 mandatory minimum sentences unconstitutional. See
Cardwell, 105 A.3d at 752-55. Accordingly, we vacate Appellant’s sentence
and remand to the trial court for resentencing consistent with this aspect of
our decision.7 ____________________________________________
6 Section 7508(a)(3)(i) provided for a three-year mandatory minimum sentence for, inter alia, Delivery of 2.0 grams or more of cocaine if, at the time of sentencing, the defendant has been convicted of another drug trafficking offense. Section 7508(a)(3)(ii) provided for a five-year mandatory minimum sentence for, inter alia, PWID 10.0 or more grams of cocaine if, at the time of sentencing, the defendant has been convicted of another drug trafficking offense. See 18 Pa.C.S. § 7508.
7 We need not review Appellant’s other legality of sentence claim, which asserted the court was without jurisdiction to enter its order of March 27, 2018, clarifying that the instant sentencing order was to run consecutively to other sentences involving different offenses that were in effect at the time. See Commonwealth v. Pfeiffer, 579 A.2d 897 (Pa.Super. 1990) (claim challenging court’s failure to indicate whether state sentence was to run concurrent to or consecutive with a unrelated county sentence currently being served implicated legality of sentence; hence, untimely motion for reconsideration of sentence did not bar claim). Pfeiffer, however, clarifies that, “absent any written indication to the contrary, it is presumed that the sentences are to run consecutively.” Id. at 900. Therefore, to the extent Appellant contends his sentence for the above-captioned matter implicitly runs
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Finally, Appellant submits that the PCRA court abused its discretion
when it granted PCRA counsel’s motion to withdraw without appointing new
counsel. On December 29, 2017, Attorney Wilson filed a no-merit letter under
Turner/Finley in which he set forth a legal analysis explaining why each of
Appellant’s pro se issues lacked merit. On January 22, 2018, the court
determined Attorney Wilson had fulfilled his obligations under Turner/Finley
and, thus, granted his petition to withdraw.
Subsequently, on May 31, 2018, the court issued its Notice of Intent to
Dismiss pursuant to Pa.R.Crim.P. 907. On June 13, 2018, Appellant filed a
pro se Answer opposing the court’s notice of dismissal. Specifically, Appellant
contended PCRA counsel’s failure to amend the pro se petition constituted
ineffective assistance as a matter of law, and he requested an evidentiary
hearing where he would testify to, inter alia, counsel’s failure to participate
meaningfully in his PCRA appeal. On June 27, 2018, after considering
Appellant’s pro se Answer, the PCRA court dismissed Appellant’s petition.
Now, it is Appellant’s contention that PCRA counsel’s failure to amend
his pro se petition leads inexorably to the conclusion that counsel deprived
him of the right to have appointed counsel “advance his position in acceptable
concurrently to other sentences imposed by other courts for different matters, he is mistaken. Moreover, given our decision to vacate the present sentence and remand for resentencing in a manner consistent with Alleyne and its progeny, the trial court will have the opportunity to specify whether the new sentence shall run concurrent to or consecutively with other sentences.
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legal terms.” Appellant’s brief, at 32 (quoting Commonwealth v. Sangricco,
415 A.2d 65, 133 (Pa. 1980)). We disagree.
This court has stated “when appointed counsel fails to amend an
inarticulately drafted pro se [post-conviction] petition, or fails otherwise to
participate meaningfully, this court will conclude that the proceedings were,
for all practical purposes, uncounseled and in violation of the representation
requirement.” Commonwealth v. Hampton, 718 A.2d 1250, 1253
(Pa.Super. 1998) (quoting Commonwealth v. Ollie, 450 A.2d 1026
(Pa.Super. 1982), and Sangricco, 415 A.2d at 133). While it is true that
PCRA counsel never amended Appellant’s pro se petition, we cannot
reasonably conclude that Appellant effectively went uncounseled.
Here, the record shows counsel properly filed a Turner/Finley letter in
which he undertook an extensive review of Appellant’s case and provided a
thorough legal analysis in support of his conclusion that there was no
meritorious claim to make on collateral appeal. While we obviously disagree
with counsel’s conclusion to the extent it failed to address and acknowledge
the effect of Alleyne and its progeny on the legality of Appellant’s mandatory
minimum sentences, we otherwise infer no abandonment of professional
responsibility from counsel’s otherwise cogent no-merit letter on the
remaining claims. Accordingly, the PCRA court committed no error of law or
abuse of discretion in accepting counsel’s no-merit letter as to these other
claims.
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For the foregoing reasons, we discern no error or abuse of discretion
with the PCRA court’s order to the extent it dismisses as meritless all issues
raised by Appellant other than his challenge to the imposition of mandatory
minimum sentences. Under Alleyne and Cardwell, however, we are
constrained to reverse the PCRA order with respect to Appellant’s legality of
sentence claim, vacate judgment of sentence, and remand for resentencing,
where Appellant will be entitled to the appointment of counsel.
Order reversed only with respect to the legality of Appellant’s sentence.
Judgment of sentence vacated. Case remanded for proceedings consistent
with this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 03/19/2019
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