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2020-11-30 18:13:50.207919+00

http://www.pacourts.us/assets/opinions/Superior/out/J-A25045-20m - 104618297120863735.pdf

J-A25045-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : CARLOS MARTINEZ-DIAZ : : Appellant : No. 395 MDA 2020 Appeal from the PCRA Order Entered January 29, 2020 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0005162-2017 BEFORE: BOWES, J., OLSON, J., and KING, J. MEMORANDUM BY KING, J.: FILED NOVEMBER 30, 2020 Appellant, Carlos Martinez-Diaz, appeals from the order entered in the Berks County Court of Common Pleas, which denied his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We reverse and remand for further proceedings. The relevant facts and procedural history of this case are as follows. On June 8, 2018, a jury convicted Appellant of two counts of corrupt organizations, two counts of criminal conspiracy, one count of criminal use of a communication facility, and six counts of delivery of a controlled substance. That day, the court sentenced Appellant to an aggregate term of 18½ to 60 years’ imprisonment. Throughout trial and sentencing, Appellant was ____________________________________________ 1 42 Pa.C.S.A. §§ 9541-9546. J-A25045-20 represented by privately retained counsel (“trial counsel”). On June 20, 2018, while still represented by trial counsel, Appellant filed a pro se post-sentence motion. Appellant alleged, inter alia, the court improperly permitted a “surprise” witness at trial and failed to grant a defense continuance, the court failed to award credit for time served, and the court imposed an excessive sentence because Appellant was not the main target of the drug investigation but he received a greater sentence than his cohorts. Because Appellant still had counsel of record, the clerk of courts docketed the pro se filing and sent a copy to trial counsel.2 On June 25, 2018, the court entered an amended sentence that expressly awarded Appellant credit for time served. The court issued a second amended sentencing order on August 21, 2018, reducing Appellant’s aggregate sentence to 18½ to 50 years’ imprisonment due to an illegal sentencing issue.3 ____________________________________________ 2 Generally, there is no constitutional right to hybrid representation at trial or on appeal. Commonwealth v. Ellis, 534 Pa. 176 , 626 A.2d 1137 (1993). “[I]ndeed, pro se motions have no legal effect and, therefore, are legal nullities.” Commonwealth v. Williams, 151 A.3d 621 , 623 (Pa.Super. 2016). Thus, when a defendant is represented by counsel, if the defendant submits a document for filing not signed by the defendant’s attorney, the clerk of courts shall accept it for filing, time stamp it with the date of receipt and make a docket entry reflecting the date of receipt, place the document in the case file, and forward it to counsel of record and the attorney for the Commonwealth within 10 days. Pa.R.Crim.P. 576(A)(4). 3 The record does not indicate if the court held a hearing on June 25, 2018 or August 21, 2018 concerning the amended sentencing orders, and contains no transcripts for those dates. Additionally, the record does not show any motion precipitating the August 21, 2018 amended sentencing order. -2- J-A25045-20 On November 9, 2018, while still represented by trial counsel, Appellant filed a pro se notice of appeal.4 Appellant purported to appeal from an October 11, 2018 sentencing order, although the record and docket entries contain no filing on that date.5 On November 16, 2018, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant filed a pro se Rule 1925(b) statement on November 29, 2018. On December 7, 2018, after learning of Appellant’s pro se notice of appeal, trial counsel filed a motion to withdraw. The court granted trial counsel’s motion to withdraw on December 12, 2018, and subsequently appointed new counsel for appeal. On March 22, 2019, this Court issued a rule to show cause why the appeal should not be quashed as untimely and as taken from a purported order that was not entered on the docket. Neither Appellant nor appointed appellate counsel responded. Consequently, on April 26, 2019, this Court quashed the appeal by per curiam order. See 1860 MDA ____________________________________________ 4 The record does not disclose whether the clerk of courts forwarded Appellant’s pro se notice of appeal to trial counsel in accordance with Rule 576(A)(4). 5In later filings, Appellant alleged he believed that his pro se post-sentence motion was denied by operation of law on or around October 11, 2018. See Pa.R.Crim.P. 720(B)(3)(a) (stating that if judge fails to decide post-sentence motion within 120 days, or fails to grant extension, motion shall be deemed denied by operation of law); Pa.R.Crim.P. 720(A)(2)(b) (stating notice of appeal shall be filed within 30 days of entry of order denying post-sentence motion by operation of law in cases in which judge fails to decide motion). -3- J-A25045-20 2018. On June 3, 2019, Appellant timely filed a pro se PCRA petition alleging trial counsel’s ineffectiveness. Specifically, Appellant alleged trial counsel failed to file a post-sentence motion on Appellant’s behalf challenging the excessiveness of Appellant’s sentence, failed to file a notice of appeal on Appellant’s behalf, and failed to have a meaningful consultation with Appellant about filing a notice of appeal. The court appointed PCRA counsel, who filed an amended PCRA petition on June 26, 2019, reiterating Appellant’s pro se claims of trial counsel’s ineffectiveness and seeking nunc pro tunc relief. On December 3, 2019, the court held a PCRA hearing at which Appellant and trial counsel testified. Appellant testified that he asked trial counsel to file an appeal on his behalf right after the jury announced its verdict. Counsel told Appellant there were no meritorious issues to appeal. Appellant said that he also asked counsel to file an appeal on his behalf after the court awarded him credit for time served. (See N.T. PCRA Hearing, 12/3/19, at 3-8). Trial counsel testified that he discussed Appellant’s post-sentence rights with Appellant after initial sentencing. Trial counsel admitted that he did not explain to Appellant the prohibition against hybrid representation, and that the post-sentence rights form does not discuss hybrid representation. Trial counsel denied that Appellant ever asked him to file post-sentence motions or a notice of appeal. Trial counsel further denied having received a copy of Appellant’s pro se post-sentence motion from the clerk of courts. Rather, trial -4- J-A25045-20 counsel stated he only became aware of Appellant’s pro se post-sentence motion when the court amended the sentence to award credit for time served on June 25, 2018. Trial counsel said the pro se post-sentence motion was attached to paperwork regarding the amended sentence. Trial counsel further stated he did not recall attending a hearing on the time-credit issue and believed the court essentially awarded credit for time served “sua sponte.” After learning of Appellant’s pro se post-sentence motion, trial counsel did not reach out to Appellant about pursuing a nunc pro tunc post-sentence motion or an appeal because he assumed the post-sentence issue (regarding time credit) was resolved. Trial counsel conceded that Appellant contacted him around August 2018, but only to request his records; Appellant did not mention anything about wanting to appeal. Trial counsel further explained that on the third day of trial, during a discussion about a plea offer from the Commonwealth, Appellant and trial counsel discussed potential appellate issues. Appellant mentioned some claims he wanted to pursue but trial counsel did not think they were worthy of appeal. (See id. at 9-21). On January 29, 2020, the court denied PCRA relief. Appellant filed a pro se notice of appeal on February 12, 2020. On February 19, 2020, the court ordered Appellant to file a Rule 1925(b) statement. On February 26, 2020, PCRA counsel filed a Rule 1925(b) statement on Appellant’s behalf. PCRA counsel also filed a notice of appeal on February 28, 2020. This Court -5- J-A25045-20 subsequently dismissed as duplicative Appellant’s pro se notice of appeal. Appellant raises one issue for our review: Did the PCRA court err by denying relief where Appellant demonstrated that he had indicated his desire to appeal both during trial and following the trial where he filed timely post-sentence motions pursuant to the post-sentence motion rights form he signed, and the mailbox rule[?] (Appellant’s Brief at 3). Our standard of review of the denial of a PCRA petition is limited to examining whether the record evidence supports the court’s determination and whether the court’s decision is free of legal error. Commonwealth v. Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779 , 959 A.2d 319 (2008). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754 , 932 A.2d 74 (2007). If the record supports a post-conviction court’s credibility determination, it is binding on the appellate court. Commonwealth v. Dennis, 609 Pa. 442 , 17 A.3d 297 (2011). “A PCRA court’s legal conclusions, however, are reviewed de novo.” Commonwealth v. Green, 168 A.3d 173 , 175 (Pa.Super. 2017), appeal denied, 646 Pa. 1 , 183 A.3d 340 (2018). Appellant argues that neither trial counsel nor the post-sentence rights form explained the prohibition against hybrid representation. Appellant asserts he was unaware he could not file a pro se post-sentence motion. Appellant claims he timely filed a pro se post-sentence motion pursuant to the -6- J-A25045-20 prisoner mailbox rule.6 Appellant insists that trial counsel received a copy of his pro se post-sentence motion after the 10-day post-sentence time limitation had passed but before expiration of the 30-day appeal period. Appellant contends trial counsel should have known Appellant wanted to raise post- sentencing issues based on the pro se post-sentence motion and should have filed a post-sentence motion nunc pro tunc on Appellant’s behalf. Alternatively, Appellant maintains trial counsel could have moved to withdraw his representation at that time or encouraged Appellant to seek representation from the Public Defender. Instead, Appellant complains trial counsel did nothing. Appellant also asserts that he asked trial counsel to file a direct appeal. In light of the PCRA court’s finding that trial counsel’s testimony was more credible than Appellant’s testimony on this point, however, Appellant declines to argue counsel was per se ineffective. Nevertheless, Appellant stresses that trial counsel failed to consult with Appellant about whether he wanted to appeal. Appellant avers that his conversation with counsel during trial about a potential appeal, which occurred before verdict and sentencing, did not fulfill counsel’s duty to consult with Appellant because the proceedings were ____________________________________________ 6 Appellant’s pro se post-sentence motion is postmarked June 17, 2020. Therefore, had Appellant not been represented at the time, the filing would have been timely under the prisoner mailbox rule. See Commonwealth v. DiClaudio, 210 A.3d 1070 , 1074 (Pa.Super. 2019) (stating that pursuant to prisoner mailbox rule, “a pro se prisoner’s document is deemed filed on the date he delivers it to prison authorities for mailing”). -7- J-A25045-20 incomplete at that time. Appellant emphasizes that the record demonstrates he wanted to appeal based on the filing of Appellant’s pro se post-sentence motion and pro se notice of appeal. Appellant concludes trial counsel was ineffective, and this Court must reinstate Appellant’s post-sentence and direct appeal rights nunc pro tunc. For the following reasons, we agree relief is due. The law presumes counsel has rendered effective assistance. Commonwealth v. Gonzalez, 858 A.2d 1219 , 1222 (Pa.Super. 2004), appeal denied, 582 Pa. 695 , 871 A.2d 189 (2005). Generally, when asserting a claim of ineffective assistance of counsel, the petitioner is required to plead and prove: (1) the underlying claim has arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability the outcome of the proceedings would have been different. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal denied, 596 Pa. 707 , 940 A.2d 365 (2007). “Actual or constructive denial of the assistance of counsel, however, falls within a narrow category of circumstances in which prejudice is legally presumed.” Commonwealth v. Lane, 81 A.3d 974 , 978 (Pa.Super. 2013), appeal denied, 625 Pa. 658 , 92 A.3d 811 (2014). Our Supreme Court has held: [W]here there is an unjustified failure to file a requested direct appeal, the conduct of counsel falls beneath the range of competence demanded of attorneys in criminal cases, denies the accused the assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, as well -8- J-A25045-20 as the right to direct appeal under Article V, Section 9, and constitutes prejudice for purposes of Section 9543(a)(2)(ii). Therefore, in such circumstances, and where the remaining requirements of the PCRA are satisfied, the petitioner is not required to establish his innocence or demonstrate the merits of the issue or issues which would have been raised on appeal. Commonwealth v. Lantzy, 558 Pa. 214 , 226-27, 736 A.2d 564 , 572 (1999) (internal footnote omitted). In other words, if counsel neglects to file a requested direct appeal, “counsel is per se ineffective as the defendant was left with the functional equivalent of no counsel.” Commonwealth v. Markowitz, 32 A.3d 706 , 715 (Pa.Super. 2011), appeal denied, 615 Pa. 764 , 40 A.3d 1235 (2012). Even if a defendant does not expressly ask counsel to file a direct appeal, counsel still has a duty “to adequately consult with the defendant as to the advantages and disadvantages of an appeal where there is reason to think that a defendant would want to appeal.” Commonwealth v. Bath, 907 A.2d 619 , 623 (Pa.Super. 2006), appeal denied, 591 Pa. 695 , 918 A.2d 741 (2007). In this situation, where the defendant did not request counsel to file a direct appeal but counsel failed to consult with the defendant, counsel is not per se ineffective and the traditional three-prong test “is necessary to decide whether counsel rendered constitutionally ineffective assistance by failing to advise his client about his appellate rights.” Markowitz, supra at 716. Pursuant to [Roe v. Flores-Ortega, 528 U.S. 470 , 120 S.Ct. 1029 , 145 L.Ed.2d 985 (2000) and its Pennsylvania expression, Commonwealth v. Touw, 781 A.2d 1250 (Pa.Super. 2001)], counsel has a constitutional duty to -9- J-A25045-20 consult with a defendant about an appeal where counsel has reason to believe either “(1) that a rational defendant would want to appeal (for example, because there are non- frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” [Id.] at 1254 (quoting Roe[, supra] at 480, 120 S.Ct. [at 1036]). Bath, supra at 623 (emphasis added). “Where a petitioner can prove either factor, he establishes that his claim has arguable merit.” Markowitz, supra at 716 . Additionally, “Flores-Ortega makes plain that the consultation must, at minimum, encompass advice regarding an actual appeal, not simply how to preserve issues for a theoretical appeal. This is why the test requires the attorney to make a reasonable effort to discover the defendant’s wishes.” Green, supra at 177 (internal citation, quotation marks, and footnote omitted). As well, the defendant is not required to show he had meritorious issues for appeal to establish counsel was ineffective for failing to consult with the defendant regarding an appeal. Commonwealth v. Donaghy, 33 A.3d 12 (Pa.Super. 2011), appeal denied, 615 Pa. 753 , 40 A.3d 120 (2012). See also Green, supra at 178 n.5 (stating: “[A] claim that lacks merit is not necessarily wholly frivolous. The duty to consult arises if there is a non- frivolous issue to raise, not an ultimately meritorious issue”). Further, prejudice in this context means a defendant must show a reasonable probability that, but for counsel’s failure to consult, the defendant would have sought additional review. Touw, supra at 1254 . See also Donaghy, supra - 10 - J-A25045-20 (reversing order denying PCRA relief and remanding for reinstatement of appellant’s direct appeal rights nunc pro tunc, where trial counsel failed to consult with appellant about whether he wanted to file direct appeal; appellant sent trial counsel letter during 30-day appeal period asking how long appellant had to file appeal and what types of issues appellant could raise on appeal; appellant’s letter sufficiently demonstrated desire to appeal such that counsel should have made reasonable effort to discover appellant’s wishes; counsel’s testimony at PCRA hearing that counsel believed appellant had no viable reasons for appeal does not absolve counsel of his duty to ascertain appellant’s wishes; counsel’s failure to consult with appellant about filing direct appeal deprived appellant of his constitutional right to effective assistance of counsel). Instantly, the PCRA court addressed Appellant’s ineffectiveness claim as follows: In the case at bar, [Appellant] testified that he asked [trial counsel] to file a direct appeal after being found guilty, after sentencing and when he came back to court to correct his sentence. However, this is inconsistent with the testimony provided by [trial counsel]. [Trial counsel] stated that [Appellant] never asked him to file a direct appeal. This court had the opportunity to observe the demeanor of both [trial counsel] and [Appellant] and assess their credibility in court. … [Trial counsel] has been practicing criminal defense almost exclusively since 2006 and is familiar with appellate procedure. [Trial counsel] had no issues communicating with [Appellant]. [Appellant’s] testimony at the hearing on the Petition was provided in English and without the services of an interpreter. [Trial counsel] offered credible testimony regarding his - 11 - J-A25045-20 interactions with [Appellant] and had no personal interest in the outcome of this Petition. On the other hand, [Appellant] is seeking the reinstatement of his appellate rights through this Petition. [Appellant’s] testimony regarding his request for an appeal directly contradicted the testimony of [trial counsel]. This court finds that [Appellant] did not ask [trial counsel] to file a direct appeal. [Appellant] has failed to establish that [trial counsel] was per se ineffective. Although [trial counsel] was not per se ineffective, he may still be found ineffective if he did not consult with [Appellant] about his appellate rights. … * * * In this case, [trial counsel] did consult with [Appellant] about an appeal. On the third day of trial, [trial counsel] discussed the Commonwealth’s amended [plea] offer with [Appellant]. During that conversation, they discussed an appeal. [Appellant] presented his concerns to [trial counsel] and [trial counsel] informed [Appellant] that there were no clear appellate issues. Therefore, this court finds that [Appellant] reasonably demonstrated to [trial counsel] that he was interested in appealing and, in response, [trial counsel] fulfilled his constitutional duty and consulted with [Appellant] about an appeal. [Appellant] did not demonstrate to [trial counsel] that he had any further interest in appealing following this conversation. … Here, [trial counsel] and [Appellant] discussed potential appellate issues while reviewing the Commonwealth’s amended offer. [Appellant] raised one or two areas of concern but [trial counsel] informed him that there were no clear appellate issues. This court finds that [trial counsel] discharged his obligation and provided advice to [Appellant] about an actual appeal, not simply about issue preservation for a theoretical appeal. (Findings of Fact/Conclusions of Law, filed January 29, 2020, at 8-10). Initially, the PCRA court rejected Appellant’s testimony that he asked counsel to file a direct appeal. (See id. at 9). We are bound by the PCRA - 12 - J-A25045-20 court’s credibility determination in this regard. See Dennis, supra. Therefore, we agree with the PCRA court that trial counsel was not per se ineffective. See Lantzy, supra; Markowitz, supra. We disagree, however, with the PCRA court’s legal conclusion that trial counsel adequately fulfilled his duty to consult with Appellant about whether he wanted to appeal.7 See Green, supra; Ford, supra. Importantly, “the question is not simply whether consultation occurred, it is whether that consultation was adequate within the meaning of that term as expressed in Flores-Ortega, which is a conclusion of law subject to review de novo. Hence, the credibility finding does not control the outcome.” Green, supra at 177. Here, trial counsel testified at the PCRA hearing that on the third day of trial, during a conversation about a plea offer from the Commonwealth, Appellant and counsel discussed potential appellate issues. According to trial counsel, Appellant mentioned some claims he wanted to pursue but counsel did not think they were worthy of appeal. Nevertheless, trial counsel did not specify any of the issues Appellant had wanted to pursue. Additionally, trial ____________________________________________ 7 The Commonwealth suggests that the question of whether counsel failed to consult with Appellant is waived for failure to preserve it in the Rule 1925(b) statement. To the extent the concise statement is vague, we decline to find waiver. See Commonwealth v. Laboy, 594 Pa. 411 , 936 A.2d 1058 (2007) (holding appellate court should conduct merits review of claim raised in criminal appeal notwithstanding vagueness in Rule 1925(b) statement, where case is relatively straightforward, trial court readily understood appellant’s claim, and trial court addressed claim in substantial detail in its opinion). - 13 - J-A25045-20 counsel did not explain whether he explored with Appellant the advantages or disadvantages of an appeal. See Bath, supra. Further, the conversation between Appellant and trial counsel took place during trial, before the jury had rendered its verdict and before sentencing. At that juncture, trial counsel could not have adequately advised Appellant on the advantages or disadvantages of an appeal because counsel could not have known, for example, if there were potential appellate issues concerning any sentencing errors. Thus, we hold that trial counsel’s consultation with Appellant was deficient. Based on our conclusion that trial counsel’s consultation with Appellant was inadequate, “we now address whether counsel actually had a duty to consult” because “any inadequacy in the consultation is irrelevant if there was no duty to consult.” Green, supra at 178. Here, the record shows Appellant filed a pro se post-sentence motion on June 20, 2018, raising a variety of issues including but not limited to the court’s failure to award credit for time served. Regardless of whether trial counsel actually received notice from the clerk of courts, trial counsel admits he learned of Appellant’s pro se post- sentence motion on or around June 25, 2018, when the court amended Appellant’s sentence to award credit for time served. Although trial counsel testified at the PCRA hearing that he assumed the post-sentencing issues were resolved by the amended sentencing order, trial counsel made no effort to contact Appellant to see if he wanted to continue pursuit of the other issues - 14 - J-A25045-20 raised in the pro se post-sentence motion. Even though the 10-day timeframe had elapsed by the time trial counsel reviewed the pro se post-sentence motion, we agree with Appellant that trial counsel could have sought post- sentencing nunc pro tunc relief, or presented any issues that did not require preservation in post-sentence motions in a counseled direct appeal. Additionally, the timing of Appellant’s pro se post-sentence motion, which was postmarked within 10 days of the initial sentencing order, demonstrates that Appellant was attempting to assert his claims in a timely manner. Appellant also filed a pro se notice of appeal on November 9, 2018. While this appeal was untimely, Appellant’s mistaken belief that his pro se post-sentence motion was denied by operation of law on or around October 11, 2018 is not completely unreasonable given the timeline of events in this case. Under these circumstances, Appellant reasonably demonstrated his intent to appeal, and Appellant’s claim that trial counsel was ineffective for failing to consult with him about an appeal has arguable merit. See Roe, supra; Markowitz, supra; Bath, supra; Touw, supra. Further, trial counsel’s belief that Appellant had no meritorious issues for appeal did not absolve counsel of his duty to consult with Appellant about filing an appeal. See Green, supra; Donaghy, supra. The record supports Appellant’s contention that but for counsel’s deficient failure to consult with Appellant, he would have filed a timely appeal, which satisfies the prejudice prong of the ineffectiveness test. See Touw, supra. Based upon the - 15 - J-A25045-20 foregoing, trial counsel was ineffective for failing to meaningfully consult with Appellant about filing a direct appeal; and Appellant is entitled to reinstatement of his post-sentence and direct appeal rights nunc pro tunc.8 Accordingly, we reverse and remand for further proceedings. Order reversed; case remanded for further proceedings. Jurisdiction is relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/30/2020 ____________________________________________ 8 In light of Appellant’s pro se post-sentence motion challenging the discretionary aspects of sentencing, which requires preservation in the trial court, reinstatement of Appellant’s post-sentence rights nunc pro tunc is proper. See Commonwealth v. Liston, 602 Pa. 10 , 977 A.2d 1089 (2009) (explaining where court reinstates direct appeal rights nunc pro tunc, appellant is not automatically entitled to reinstatement of his post-sentence rights nunc pro tunc as well; however, reinstatement of post-sentence rights nunc pro tunc is proper where defendant successfully pleads and proves he was deprived of right to file and litigate post-sentence motions as result of ineffective assistance of counsel). - 16 -

2020-11-30 18:13:50.477408+00

http://www.pacourts.us/assets/opinions/Superior/out/J-S42042-20m - 104618310120865118.pdf

J-S42042-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SPENCER LONG : : Appellant : No. 3075 EDA 2018 Appeal from the Judgment of Sentence Entered June 18, 2018 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001874-2016 BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 30, 2020 Spencer Long (“Long”) appeals from the judgment of sentence imposed following his conviction of attempted murder, aggravated assault, recklessly endangering another person, firearms not to be carried without a license, and carrying a firearm on public streets or public property in Philadelphia. 1 We affirm. On December 18, 2015, at approximately 1:00 p.m., Philadelphia Police received a report of a shooting victim at Roxborough Hospital. The victim, Marquis McClain (“McClain”), told police that he had been shot in the buttocks in the area of North 27th and West Thompson Streets in Philadelphia. ____________________________________________ 1 See 18 Pa.C.S.A. §§ 901(a), 2502, 2701(a)(1), 2705, 6106(a)(1), 6108. J-S42042-20 Detective Michael Repici (“Detective Repici”) was subsequently assigned to investigate the shooting. Detective Repici interviewed a witness, Terrence Jackson (“Jackson”), who was in the car with McClain at the time of the shooting. Jackson told Detective Repici that McClain had been arguing on the phone with someone known as “Little Spence” shortly before the shooting. Another witness, Tim Szerlik (“Szerlik”),2 identified Long from a photo array. Long was arrested on December 31, 2015. The arresting officers recovered two cell phones during the arrest—one iPhone, and one black LTE cell phone. Long confirmed that both phones belonged to him, but indicated that the iPhone was not functioning at that time. Long also confirmed his cell phone number for the LTE phone. Relevantly, on the same date, Detective Repici applied for a search warrant (“Warrant Number 192914”). The search warrant Application identified the “premises and/or location to be searched” as “Metro PCS cell phone number of 267[-]499[-XXXX]. 2250 Lakeside Blvd., Richardson, TX 75082.” Defendant’s Exhibit 3 (Application for Search Warrant and Affidavit 192914), 12/31/15. Specifically, the Application sought “[i]ncoming/outgoing call records, duration time and cell site tower location, text messages and ____________________________________________ 2 Szerlik, a construction worker, was working in the area of 27th and Thompson Streets at the time of the shooting. See N.T. (Jury Trial), 4/21/17, at 50. Approximately 45 minutes to an hour after the shooting, Szerlik called 911 to report the incident. Id. at 77; id. (wherein the audio recording of the 911 call was played in open court). Szerlik later identified Long again during the jury trial. Id. at 55-56. -2- J-S42042-20 photos for the cellular phone number of 267-449-[XXXX] from 12-16-15 to present time.” Id. In the supporting Affidavit of Probable Cause, Detective Repici alleged that the cell phone number belonged to Long, and he was seeking a search warrant “in an effort to establish that [Long] and [McClain] had contact on the day of the shooting either via text or phone call.” Id. Warrant Number 192914 was sent to Metro PCS for call records. See N.T. (Suppression), 1/19/17, at 25, 35. Call records obtained from Metro PCS revealed “numerous” phone calls between McClain and Long on the date of the shooting. Id. at 20. On January 14, 2016, Detective Repici applied for a search warrant (“Warrant Number 192930”). The search warrant Application identified the same “premises and/or persons to be searched[,]” i.e., Long’s cell phone number. Commonwealth’s Exhibit 40 (Application for Search Warrant and Affidavit 192930), 1/14/16. The Application sought “[s]ubscriber information, incoming/outgoing call records, with duration, time and location of cell site towers, text messages, photos and videos for the cell number of 267-499- [XXXX] from 12-12-15 to present.” Id. Detective Repici set forth the same supporting information in the Affidavit of Probable Cause. Id. Detective Repici provided Warrant Number 192930, as well as the phone itself, to a District Attorney’s Office forensic examiner, who performed a cell phone data “dump.” See N.T. (Suppression), 1/19/17, at 25-26. The “dump” provided -3- J-S42042-20 investigators with photographs, calls, text messages, and videos. See id. at 26. On the same date, Detective Repici applied for an additional search warrant (“Warrant Number 192931”) identifying the “premises and/or persons to be searched” as Metro PCS cell phone number of 267-438-[XXXX], 2250 Lakeside Blvd., Ricjardson [sic], TX 75082.” Defendant’s Exhibit 2 (Application for Search Warrant and Affidavit 192931), 1/14/16. The Application sought “[s]ubscriber information, incoming/outgoing cell records with duration, time and location as well as cell site tower locations, text messages, photos and videos for the number of 267-438-[XXXX] from 12-12- 15 to present time.” Id. In the supporting Affidavit, Detective Repici identified the cell phone number as belonging to Long’s girlfriend, Aaliya Porterfield (“Porterfield”),3 and alleged that “[t]he girlfriend was interviewed and relayed that [McClain] was calling her cell phone[,] arguing with [Long].” Id. On February 5, 2016, a grand jury indicted Long on attempted murder and related offenses. Based on the indictment, the Commonwealth charged Long via Criminal Information. ____________________________________________ 3Porterfield had been romantically involved with both Long and McClain. See N.T. (Jury Trial), 4/21/17, at 19 (wherein Porterfield stated, “They are all my boyfriends.”). -4- J-S42042-20 Long filed an Omnibus Motion, including, inter alia, a Motion to suppress on August 8, 2016. Specifically, Long sought suppression of all physical evidence and identification evidence, and argued that his arrest was illegal; the search was conducted without probable cause and without a warrant; and he was subjected to an unnecessarily suggestive identification procedure. Following a suppression hearing on January 19, 2017, the trial court denied Long’s Motion to suppress, citing the doctrine of inevitable discovery.4 Several Motions in limine followed. Relevantly, the trial court permitted the Commonwealth to introduce photographs of a gun found on Long’s cell phone, as well as text messages concerning Long’s purchase of a .45 caliber gun.5 Following a jury trial in April 2017, Long was convicted of the above- ____________________________________________ 4Long also filed a pro se Motion to Suppress on February 21, 2017. From the docket, it does not appear that the trial court took action on the pro se Motion. 5 On November 27, 2015, Long sent the following text message to an individual identified only as “Charlie” in his cell phone: “Yo bro I just grabbed a join last night 45 nice 60 bones bro clean lol.” Commonwealth’s Exhibit 42C (misspellings in original). The following day, Long sent another message, which included a photograph of the gun, with a message that said “Yea 70$” [sic]. Commonwealth’s Exhibit 42D; see also N.T., 4/26/17, at 5 (wherein Commonwealth’s Exhibit C42 was admitted into evidence at trial). -5- J-S42042-20 mentioned offenses.6 On June 18, 2018, the trial court sentenced Long to a term of 10 to 20 years in prison, with credit for time served, for the attempted murder conviction.7 For the remaining convictions, the trial court entered a determination of guilt without further penalty. Additionally, the trial court directed Long to receive mental health treatment. Long filed a timely Post- Sentence Motion, which was denied by operation of law. Long filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal. Long now raises the following issues for our review: A. Did the lower court err in denying [Long’s M]otion to suppress information, phone records, text messages, photographs, and other evidence seized from a black LTE cell phone[,] in violation of the 4th Amendment of the United States Constitution[,] and the broader independent protections of Article 1, Section 8 of the Pennsylvania Constitution because: 1. The police lacked a warrant which authorized the search of a physical phone or its contents[,] because [W]arrant [N]umber 192930 is not sufficiently particularized and does not permit the search of the physical phone, but rather[,] only a search of the phone company’s records; 2. Even if a valid warrant existed authorizing a search of the phone, the police lacked a warrant to search for and seize ____________________________________________ 6 Throughout the year following Long’s conviction, sentencing was deferred on multiple occasions, as Long was deemed incompetent to proceed to a sentencing hearing. The trial court issued several Criminal Involuntary Mental Health Commitment Court Orders to defer sentencing, and Long remained in the Detention Center’s Forensic Unit. On May 14, 2018, Long was deemed competent, and the trial court scheduled a sentencing hearing. 7 Long’s aggravated assault and attempted murder convictions merged for sentencing purposes. -6- J-S42042-20 the entire contents of the phone, outside of the warrant’s specified scope; and 3. The trial court erred in finding that the discovery of the evidence was inevitable? B. Did the trial court improperly permit Edward Dixon [(“Dixon”)] to testify that [] McClain told him that “Spencer shot me” because the out[-]of[-]court statement did not satisfy any hearsay exception? Brief for Appellant at 3-4.8 In his first claim, Long argues that the trial court erred in denying his Motion to suppress, which we will address separately. First, Long claims that Warrant Number 192930 was insufficiently particular to authorize the search of his phone. Id. at 24-25. According to Long, the Warrant “does particularly describe the place or thing to be searched—the records of Metro-PCS relating ____________________________________________ 8 On November 13, 2018, Long filed a Motion for Extension of Time to file a supplemental concise statement, wherein counsel averred that he had ordered, but not yet received, the complete transcripts from the suppression hearing, trial, and sentencing. From the docket, it is unclear whether the trial court granted Long leave to file a supplemental concise statement. Long filed a Supplemental Concise Statement on August 2, 2019, which included the addition of the second issue raised in his appellate brief. We note that the transcript order was not attached to the Motion for Extension of Time, and the docket does not reflect when the transcripts were filed. See Pa.R.A.P. 1925(b)(2)(ii) (providing that “[i]f a party has ordered but not received a transcript necessary to develop the [s]tatement, the party may request an extension of the deadline to file the [s]tatement until 21 days following the date of entry on the docket of the transcript…. The party must attach the transcript purchase order to the motion for the extension.”). Nevertheless, as the trial court addressed Long’s second claim in its Opinion, we decline to deem the issue waived on this basis. -7- J-S42042-20 to cell phone number 267-499-[XXXX]. … However, the police executed that [W]arrant upon an item and place that was not specified in the [W]arrant….” Id. at 25, 28. Long asserts that because the “place” to be searched was described using the phone number, officers could not search the phone itself. Id. at 26. Long argues, [a] plain reading of [Warrant Number 192930] in no way suggests to a reasonable reader that the thing being searched is the contents of a physical phone. It says clearly that the search is of a phone number, which belongs to the carrier and is bought or rented by the user. The phone belongs to the user. Id. at 27.9 We adhere to the following standard of review: An appellate court’s standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court’s factual findings are supported by the record, the appellate court is bound by those findings and may reverse only if the court’s legal conclusions are erroneous. Where the appeal of the determination of the suppression court turns on allegations of legal error, the ____________________________________________ 9 The Commonwealth argues that Long waived this claim because, during the suppression hearing, Long “led the court to believe that he was not moving to suppress any of the cellular evidence that had been transmitted by his phone but only that which had not been transmitted.” Commonwealth’s Brief at 22 (emphasis in original); see also id. at 22-25. However, Long’s argument in that regard was based on his assertion that Warrant Number 192930 should have applied to the carrier (which purportedly would have records of transmitted data), rather than the phone itself. We decline to deem this issue waived. -8- J-S42042-20 suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to plenary review. Commonwealth v. Smith, 164 A.3d 1255 , 1257 (Pa. Super. 2017) (citation, brackets, and ellipses omitted). The Fourth Amendment categorically prohibits the issuance of any warrant except one particularly describing the place to be searched and the persons or things to be seized. This requirement is meant to prevent general searches and ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. Along those lines, the scope of a lawful search is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Commonwealth v. Turpin, 216 A.3d 1055 , 1063-64 (Pa. 2019) (internal citations, quotation marks and brackets omitted). As this Court has explained, [i]t is a fundamental rule of law that a warrant must name or describe with particularity the property to be seized and the person or place to be searched…. The particularity requirement prohibits a warrant that is not particular enough and a warrant that is overbroad. These are two separate, though related, issues. A warrant unconstitutional for its lack of particularity authorizes a search in terms so ambiguous as to allow the executing officers to pick and choose among an individual’s possessions to find which items to seize. This will result in the general “rummaging” banned by the Fourth Amendment. A warrant unconstitutional for its overbreadth authorizes in clear or specific terms the seizure of an entire set of items, or documents, many of which will prove unrelated to the crime under investigation. … An overbroad warrant is unconstitutional because it authorizes a general search and seizure. Commonwealth v. Orie, 88 A.3d 983 , 1002-03 (Pa. Super. 2014) (citation and brackets omitted); see also id. at 1003 (stating that the particularity requirement of Article I, Section 8 of the Pennsylvania Constitution is more -9- J-S42042-20 stringent than that of the Fourth Amendment, and therefore, “if the warrant is satisfactory under the Pennsylvania Constitution it will also be satisfactory under the federal Constitution.”). Further, “the Pennsylvania Supreme Court has instructed that search warrants should be ‘read in a common sense fashion and should not be invalidated by hypertechnical interpretations. This may mean, for instance, that when an exact description of a particular item is not possible, a generic description will suffice.’” Id. at 1003 (quoting Commonwealth v. Rega, 933 A.2d 997 , 1012 (Pa. 2007). “[W]here the items to be seized are as precisely identified as the nature of the activity permits … the searching officer is only required to describe the general class of the item he is seeking.” Commonwealth v. Kane, 210 A.3d 324 , 333 (Pa. Super. 2019) (citation and quotation marks omitted). Specifically, regarding electronic devices, “a warrant may permit the seizure of electronic equipment so long as the search of the equipment is limited to looking for evidence of the specific crimes that the police had probable cause to believe the defendant committed.” Commonwealth v. Green, 204 A.3d 469 , 481 (Pa. Super. 2019). Here, our review discloses that Warrant Number 192930 identified the “premises to be searched” as Long’s cell phone, i.e., “Metro PCS cell phone number of 267-499-[XXXX]. 2250 Lakeside Blvd., Richardson, TX 75082.” Commonwealth’s Exhibit 40 (Application for Search Warrant and Affidavit 192930), 1/14/16. In the search warrant Application, Detective Repici - 10 - J-S42042-20 identified the “owner” of the items to be searched, with the designation “(subscriber)” listed behind Long’s cell phone number. Id. Further, the Application specified the following items to be searched: “Subscriber information, incoming/outgoing call records, with duration, time and location of cell site towers, text messages, photos and videos for the cell number of 267-499-[XXXX] from 12-12-15 to present.” Id.10 Additionally, in the Affidavit of Probable Cause, Detective Repici avers that Jackson (identified in the Affidavit as “T.J.”) told detectives that McClain was arguing with someone by the name of “Little Spence” shortly before the shooting. Id. Detective Repici also averred that the identified phone number belongs to Long, and that Warrant Number 192930 requested the described information to “establish that [Long] and [McClain]” had contact on the date of the shooting either via text or phone call.” Id. The trial court concluded that Warrant Number 192930 was supported by probable cause, and the information requested “was appropriate for extraction from the cell[ ]phone.” Trial Court Opinion, 11/20/19, at 9. The court also concluded that the Warrant specifically described the item to be seized, i.e., Long’s cell phone. Id.; see also id. at 10 (stating that “[Detective ____________________________________________ 10By contrast, Warrant Number 192914, which was served on Metro PCS, the carrier, does not include “subscriber information” in its description of “items to be searched.” See Defendant’s Exhibit 3 (Application for Search Warrant and Affidavit 192914), 12/31/15. - 11 - J-S42042-20 Repici] could not state with any greater specificity where evidence of the shooting could be stored in the phone.”). The trial court’s findings are supported by the record. The Affidavit of Probable Cause specifically sought call records, text messages, photographs and videos from Long’s cell phone. See Commonwealth’s Exhibit 40 (Application for Search Warrant and Affidavit 192930), 1/14/16. During the suppression hearing, Detective Repici explained that a phone “dump” would retrieve “[e]verything physical out of the phone: Texts, call logs, subscriber information.” N.T. (Suppression), 1/19/17, at 26. Detective Repici testified that he took Warrant Number 192930 and the cell phone to the District Attorney’s Office for inspection. Id. at 26, 41. According to Detective Repici, he has never received text messages directly from a cell phone carrier. Id. at 39. Additionally, Devon Campbell (“Campbell”), a mobile device forensic examiner at the Philadelphia District Attorney’s Office, explained that when her lab receives a mobile device for examination, it is typically accompanied by a search warrant or consent form. Id. at 64. Campbell testified that text messages, photos, and videos cannot be obtained through a carrier. Id. at 69. Campbell explained that she uses a forensic tool to obtain data in a “dump,” and that everything on the cell phone is transferred to a computer during the process. Id. at 71-72; see also id. at 74 (wherein Campbell stated that “there is no way to limit what you get from that dump.”). According to - 12 - J-S42042-20 Campbell, at the time data is downloaded in a “dump,” there is no way to determine when the texts, photographs, or videos were created. Id. at 73. However, Campbell testified that after a “dump” has been completed, she can create a report using a specified time period. Id. at 75. The report returned to investigators is based on the date the file was created. See id. at 76-77; see also id. at 77-78 (wherein Campbell testified, “[W]hen we [the mobile forensic lab] are given a search warrant with a date timeline, to the best of our abilities, we look at what the phone dump has given us and then only give back active artifacts that were found through that timeframe.”). We recognize that it may have been more prudent for Detective Repici to identify the cell phone’s serial number or other identifying information, as opposed to simply referencing the provider information in the search warrant Application. Nevertheless, we cannot agree with Long’s assertion that Warrant Number 192930 was insufficiently particular to support a search of the phone’s contents, as opposed to carrier records. The specific items identified in Warrant Number 192930 make clear that Detective Repici intended to search the contents of the phone. See Kane, supra (explaining that a description of the general class of items to be searched may be sufficient). The suppression hearing testimony of both Detective Repici and Campbell bolster this conclusion. Because the trial court’s conclusions are sound, and we discern no error in its application of the law, Long is not entitled to relief on this claim. - 13 - J-S42042-20 Second, Long asserts that even if Warrant Number 192930 is valid, the search extended beyond the scope of the warrant. Brief for Appellant at 29. Specifically, Long points to photographs and text messages, stored in November 2015, which the Commonwealth introduced regarding Long’s purchase of a gun. Id. Long argues that because Warrant Number 192930 limited the search to items “from 12-12-15 to present[,]” the texts and photographs about the gun were outside the scope of the warrant. Id. Long contends that police cannot be permitted to “download a phone’s entire contents and then rummage through every file, app, and photograph with complete disregard to the warrant’s limitations….” Id. at 34.11 Here, Warrant Number 192930 specifically sought “[s]ubscriber information, incoming/outgoing call records, with duration, time and location of cell site towers, text messages, photos and videos for the cell number of 267-499-[XXXX] from 12-12-15 to present.” Commonwealth’s Exhibit 40 (Application for Search Warrant and Affidavit 192930), 1/14/16 (emphasis added). The trial court determined that the Commonwealth’s use of evidence ____________________________________________ 11 From the record, it is unclear what evidence was included in the evidence report provided to investigators, or when the Commonwealth received the challenged text messages and photographs. The Commonwealth filed its Motion in limine seeking to introduce this evidence on April 13, 2017. We further observe that the certified record does not contain a copy of the transcripts from April 18, 2017, hearing, during which the Commonwealth addressed its Motion in limine. - 14 - J-S42042-20 created prior to December 12, 2015 (i.e., pictures of Long’s gun in his bedroom, and text messages concerning his purchase of the gun) did not constitute a search and seizure outside the scope of the warrant. See Trial Court Opinion, 11/20/19, at 10-11. Pointing to Campbell’s testimony, the trial court reasoned that “it was impossible to limit the data extracted from [Long’s] cell[ ]phone….” Id.12 ____________________________________________ 12 We note our disagreement with the trial court’s characterization of Campbell’s testimony. During the suppression hearing, Campbell testified that, during the phone “dump,” all of the phone’s data will be retrieved, and cannot be limited. See N.T. (Suppression), 1/19/17, at 73, 74. However, significantly, Campbell testified that after the forensics lab completes the “dump,” the data retrieved can be identified by the date it is created, and the lab can create an evidence report based on a date specified in a search warrant. See id. 74-75. Campbell specifically explained as follows: [Campbell]: So, in the forensic software that we use, it talks directly to the phone in a forensics manner and there is no way to limit what you get from that dump. We dump the phone, the search says a certain date. We give you all that information that we can find on the phone from that date. So, yes, I can see when pictures were taken, messages were sent, phone calls were made and stuff like that. So, yes, I can see from that. I can also look on the phone, myself, but in the preservation of evidence, we do not like to directly look at the phone. We like to use the forensic copy that is made from the phone and use that as what we show the detectives or [Assistant District Attorneys]. And then that is also given to defense counsel or whoever else needs a copy of it. [Assistant District Attorney]: When you actually dump the entire phone, you then create a report and the report only includes the evidence that is from the date that’s specified on the warrant? [Campbell]: Yes, that is -- when they ask for a certain date, that is what I get back. Id. - 15 - J-S42042-20 Moreover, the trial court concluded that any error in its admission of the challenged evidence was harmless. Id. at 11. The trial court stated as follows: Though the dates of [Commonwealth’s Exhibit] 42-C [a text message from Long’s phone indicating that he purchased a gun] and –D [a text message with included video, which appears to show a gun in Long’s bedroom] were outside the scope of the search warrant, [Long] was not unfairly prejudiced. Neither piece of evidence was directly related to the events, which occurred on the date of the shooting. In the context of the week-long trial, and in consideration of all of the direct and circumstantial evidence, admission of the two (2) pieces of evidence was not unfairly prejudicial to [Long] and was, at best, harmless error. Id. The harmless error doctrine, as adopted in Pennsylvania, reflects the reality that the accused is entitled to a fair trial, not a perfect trial. …. Harmless error exists if the record demonstrates either: (1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict. Commonwealth v. Hairston, 84 A.3d 657 , 671-72 (citations, quotation marks and paragraph breaks omitted). The record supports the trial court’s determination that any error in admitting the evidence pre-dating Warrant Number 192930’s parameters was - 16 - J-S42042-20 harmless, in light of the other evidence supporting the guilty verdict. 13 The Commonwealth presented the testimony of Porterfield, who stated that she was with Long until approximately 11:00 a.m. on the day of the shooting, when she dropped him off at the Johnson Projects, and that she picked Long up again at approximately 12:30 p.m. See N.T. (Jury Trial), 4/21/17, at 6-7. Porterfield testified that, at some time that day, while she was with Long, McClain called her and told her that he had been shot. See id. at 11-12. The Commonwealth also introduced Porterfield’s and McClain’s phone records (including cell tower use), which display numerous phone calls between Porterfield and Long, Porterfield and McClain, and Long and McClain, on December 18, 2015. See Commonwealth’s Exhibits C-68A (McClain’s 12/18/15 Phone Calls (Short Version)), C-69A (Porterfield’s 12/18/15 Phone Calls (Short Version)); see also N.T. (Jury Trial), 4/25/17, at 94-114 (wherein Detective Anthony Vega—an FBI Violent Crimes Task Force member detailed to the Philadelphia Police Department, and an expert in historical cell site analysis—explained the information contained in the phone records); N.T. (Jury Trial), 4/26/17, at 5 (wherein Commonwealth’s Exhibits C-68A and C- 69A were admitted into evidence). ____________________________________________ 13 As Long does not challenge the sufficiency of the evidence supporting the guilty verdicts, we decline to undertake a full sufficiency analysis. Rather, we highlight herein key evidence supporting Long’s convictions. - 17 - J-S42042-20 Further, Szerlik, who witnessed the shooting, testified at trial. Szerlik testified that he called 911, and gave a short statement to dispatch about the shooting. N.T. (Jury Trial), 4/21/17, at 77. Within the following week, Szerlik provided a witness statement to Detective Repici. Id. at 78-79. Szerlik testified that he had identified Long from a photo array. Id. at 80-82, 84. Additionally, Szerlik provided an in-court identification of Long. Id. at 55-56. Thus, in light of the quantum of evidence supporting Long’s guilty verdicts, any prejudicial effect of the challenged evidence was de minimis, and is unlikely to have contributed to the verdict. See Hairston, supra. Because the trial court’s finding of harmless error is supported by the record, Long is not entitled to relief on this claim. Long next argues that the trial court erred in applying the doctrine of inevitable discovery. Brief for Appellant at 35. Long argues that the trial court’s application of the doctrine was premised on the violation of Long’s Miranda14 rights. Id. at 37. Instead, Long argues that because the search of his phone was not supported by a valid warrant, the doctrine of inevitable discovery cannot apply. Id. at 37-38. ____________________________________________ 14 See Miranda v. Arizona, 384 U.S. 436 (1966). In its Opinion, the trial court states that “[t]here is no dispute that Detective Repici unlawfully obtained [Long’s] cell[ ]phone number when the detective questioned him without first reading the Miranda rights.” Trial Court Opinion, 11/20/19, at 6. The trial court then concluded that the police inevitably would have discovered Long’s phone number based on their independent investigation. See id. at 7. - 18 - J-S42042-20 Initially, we observe that both Long’s original and Supplemental Concise Statement include a claim that all data from Long’s phone should have been suppressed “because the search was the fruit of a non-[M]irandized custodial interrogation and an involuntary statement….” Concise Statement, 11/13/18; Supplemental Concise Statement, 8/2/19. Long does not raise an argument pursuant to Miranda in his appellate brief. Thus, the trial court’s analysis concerning the doctrine of inevitable discovery on this basis is not relevant to the instant appeal. Moreover, as we explained supra, the search of Long’s phone was supported by a valid warrant. Long is therefore not entitled to relief on this issue. In his second claim, Long contends that the trial court erred in admitting McClain’s statement, made to Dixon,15 that “Spencer shot me,” under the excited utterance exception to the prohibition against hearsay. Brief for Appellant at 28. According to Long, “the Commonwealth presented no evidence to show that the statement was made as a spontaneous response to the excitement as opposed to a contemplated response made after calm reflection.” Id. Long claims that McClain did not make the contested statement to Dixon until their second phone call, allowing him time for reflection. Id. at 41. Long also points to Dixon’s testimony that, at the time ____________________________________________ 15Dixon was involved in a romantic relationship with McClain’s mother. While Dixon is described as McClain’s stepfather throughout the record, McClain testified that Dixon and his mother never married. See N.T. (Jury Trial), 4/21/17, at 123. - 19 - J-S42042-20 he made the statement, McClain “sounded a little playful[.]” Id. Long also argues that McClain made inconsistent statements throughout the investigation and during his trial testimony, which suggests that he is not trustworthy. Id. at 42. “The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that the trial court abused its discretion.” Commonwealth v. Antidormi, 84 A.3d 736 , 749 (Pa. Super. 2014) (citation omitted). “An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record.” Id. (citation and quotation marks omitted). Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Pa.R.E. 801. Hearsay is generally inadmissible, unless a specific, enumerated exception applies. Pa.R.E. 802; see also Commonwealth v. Savage, 157 A.3d 519 , 524 (Pa. Super. 2017). Pennsylvania Rule of Evidence 803(2) provides an exception to the rule against hearsay for excited utterances: (2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. When the declarant is unidentified, the proponent shall show by independent corroborating evidence that the declarant actually perceived the startling event or condition. Pa.R.E. 803(2). - 20 - J-S42042-20 Additionally, “[t]here is no set time interval following a startling event or condition after which an utterance relating to it will be ineligible for exception to the hearsay rule as an excited utterance.” Id., cmt; see also Commonwealth v. Carmody, 799 A.2d 143 , 147 (Pa. Super. 2002) (stating that “there is no bright line rule regarding the amount of time that may elapse between the declarant’s experience and her statement.”). In considering whether a statement qualifies as an excited utterance, courts may consider 1) whether the declarant, in fact, witnessed the startling event; 2) the time that elapsed between the startling event and the declaration; 3) whether the statement was in narrative form (inadmissible); and, 4) whether the declarant spoke to others before making the statement, or had the opportunity to do so. These considerations provide the guarantees of trustworthiness which permit the admission of a hearsay statement under the excited utterance exception. It is important to note that none of these factors, except the requirement that the declarant have witnessed the startling event, is in itself dispositive. Rather, the factors are to be considered in all the surrounding circumstances to determine whether a statement is an excited utterance. Commonwealth v. Keys, 814 A.2d 1256 , 1258 (Pa. Super. 2003) (emphasis in original; citations omitted). “The crucial question, regardless of the time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance.” Id. Initially, we observe that the portion of the trial transcripts that include Dixon’s testimony are not included in the certified record. See Commonwealth v. Metts, 787 A.2d 996 , 1003 (Pa. Super. 2001) (stating that “[i]t is [the a]ppellant’s duty to provide a complete record to facilitate - 21 - J-S42042-20 meaningful appellate review.”). We also note that the trial court summarized the relevant portion of testimony as follows: Ten (10) to fifteen (15) minutes after [] Dixon heard gunshots, [McClain] called him. (N.T., 04/24/17[,] at 45). [McClain] told [] Dixon, “[C]all my mom.” Id. Approximately five (5) minutes later, [McClain] again called [] Dixon and said, “Spencer shot me.” Id. at 46. Trial Court Opinion, 11/20/19, at 13. The Commonwealth and Long each provide similar summaries in their appellate briefs. Though we cannot fully evaluate Long’s claim absent the relevant trial transcripts, we observe the trial court’s conclusion regarding this issue. Specifically, the trial court noted that McClain made the second call to Dixon “merely fifteen (15) minutes after [Long] shot him[;]” McClain was bleeding and traveling to the hospital at the time he made the statement; and “there was no evidence that [McClain] spoke to anyone else.” Id. at 13. The trial court therefore concluded that “[McClain’s] statement was made so near the occurrence both in time and place as to exclude the likelihood that the statement emanated in whole or in part from [McClain’s] reflective faculties.” Id. Further, the trial court concluded that any error in permitting the challenged testimony was harmless. Id. For the reasons set forth in response to Long’s previous claim, we conclude that, even if Long had supplied us with a complete record and established that the trial court improperly admitted the challenged testimony, any such error would be harmless. The record reveals significant evidence to - 22 - J-S42042-20 support Long’s convictions, including, inter alia, cell phone records and a witness identification. Thus, any prejudice resulting from the admission of Dixon’s statement was de minimis, and unlikely to have contributed to the verdict. See Hairston, supra. Accordingly, we cannot grant Long relief on this claim.16 Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/30/2020 ____________________________________________ 16To the extent that Long challenges McClain’s credibility, we note that it is the exclusive province of the fact finder to make credibility determinations, and we will not reassess those determinations on appeal. See Commonwealth v. Mack, 850 A.2d 690 , 693 (Pa. Super. 2004). - 23 -

2020-11-30 18:13:50.615114+00

http://www.pacourts.us/assets/opinions/Superior/out/J-S43027-20m - 104618187120855510.pdf

J-S43027-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. CLIFFORD TAYLOR GREEN Appellant No. 218 WDA 2020 Appeal from the PCRA Order Entered February 14, 2020 In the Court of Common Pleas of Allegheny County Criminal Division at No: CP-02-CR-0015533-2014 BEFORE: SHOGAN, J., STABILE, J., and KING, J. MEMORANDUM BY STABILE, J.: FILED NOVEMBER 30, 2020 Appellant, Clifford Taylor Green, who is serving a sentence of imprisonment for his conviction under 18 Pa.C.S.A. § 6105 (persons not to possess firearms), appeals from an order dismissing his petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant claims that trial counsel was ineffective for failing to object, under the corpus delicti doctrine, to the admission of his written confession that he possessed a firearm on October 19, 2014. We conclude that this argument is devoid of merit, and we affirm. The following evidence was adduced during trial. The parties stipulated that Appellant was convicted of third-degree murder in 1998. In mid-October 2014, Appellant escaped from a correctional facility in Pittsburgh, and a warrant was issued for his arrest. J-S43027-20 On October 19, 2014, Borough of Wilkinsburg Police Sergeant Cuiffi was assisting City of Pittsburgh police in searching for Appellant, whom they suspected was in the East Hills section of Pittsburgh. Sergeant Cuiffi received Appellant’s description and photograph and learned that he had fled into a wooded area of the East Hills that borders Wilkinsburg. At approximately 8:50 p.m., Sergeant Cuiffi observed Appellant standing in front of a store in the 1700 block of Montier Street. Sergeant Cuiffi radioed other officers for backup and notified them that he located an individual matching Appellant’s description. Sergeant Cuiffi drove past Appellant, turned his vehicle around, and approached Appellant. At that time, Appellant crossed the street and walked toward a Dollar General store. Sergeant Cuiffi parked his vehicle, opened the door, and told Appellant to stop. Appellant ignored Sergeant Cuiffi and entered the Dollar General store. Officers Hamlin and Waz arrived on the scene and assisted Sergeant Cuiffi in setting up a perimeter around the Dollar General store. Sergeant Cuiffi covered the rear entrance, Officer Waz covered the front entrance, and Officer Hamlin covered the side entrance. Videotape surveillance footage depicted Appellant entering the store and bearing to the left. About one minute after entering, Appellant walked to the back of the store, through double doors, into a storage area, and out the side door. Appellant was inside the store no longer than a minute when he then exited through a storage area -2- J-S43027-20 that led into the parking lot. Officer Hamlin took Appellant into custody. The officers recovered a small amount of cocaine from Appellant’s front right pants pocket. Following the search, Officer Waz transported Appellant to the police station. Sergeant Cuiffi entered the Dollar General store after Appellant’s arrest and a store employee, Addie Thorn, told him that a firearm had been located on one of the shelves.1 The sergeant accompanied Thorn to that shelf and recovered a semiautomatic weapon. According to the affidavit of probable cause appended to the criminal complaint, which the Commonwealth submitted into evidence during Appellant's stipulated non-jury trial, Appellant had been seen walking down the first aisle, the same aisle in which the firearm was located. At the police station, Appellant was read his Miranda2 rights and signed a Miranda rights waiver form. Sergeant Cuiffi questioned Appellant about the firearm, and Appellant provided a written statement that he found the firearm in the East Hills woods and discarded it in the Dollar General store because the police were following him. ____________________________________________ 1 In its opinion filed during Appellant’s direct appeal, the trial court stated that Thorn had cleaned the shelf before Appellant entered the store, and there was no firearm present at that time. The Commonwealth, however, did not introduce these facts into evidence during Appellant’s trial; it mentioned these details only during closing argument. Since these facts were not admitted as evidence, we do not take them into account in this decision. 2 Miranda v. Arizona, 384 U.S. 436 (1966). -3- J-S43027-20 Approximately one hour later, Appellant called for Sergeant Cuiffi and requested to add something to his statement. Sergeant Cuiffi provided Appellant a new statement form, wherein Appellant provided a statement that omitted mention of a firearm and ended with a request for an attorney. Prior to that time, Appellant had not requested an attorney. Appellant did not have a license to carry a firearm. Appellant was charged with persons not to possess firearms (18 Pa.C.S.A. § 6105), carrying a firearm without a license (18 Pa.C.S.A. § 6106) and possession of a controlled substance, cocaine (35 P.S. § 780-113(a)(16)). The trial court held a hearing on Appellant’s motion to suppress his custodial statement and denied the motion. The case proceeded to a non-jury trial in which the parties stipulated to admission of the testimony taken during the suppression hearing as well as several exhibits, including his custodial statement and the affidavit of probable cause underlying the criminal complaint. Appellant also gave additional testimony in his defense. Following the conclusion of trial, the court found Appellant guilty of all charges. The court sentenced Appellant to concurrent terms of three to six years’ imprisonment on the Section 6105 and Section 6106 charges and one to two years’ imprisonment on the drug possession charge. On direct appeal, this Court reversed the conviction on the Section 6106 charge due to the Commonwealth’s failure to prove that Appellant concealed the firearm. Commonwealth v. Green, 2015 WL 4150473 , *4 (Pa. Super., Sep. 19, -4- J-S43027-20 2017). Appellant also argued that the corpus delicti doctrine barred the admission of his custodial statement. We held that Appellant waived this argument by failing to raise it in the trial court, and we dismissed this claim without prejudice to Appellant’s right to raise it in a PCRA petition. Id. at *5. On February 15, 2018, our Supreme Court denied Appellant’s petition for allowance of appeal. Appellant did not appeal to the United States Supreme Court. On May 16, 2019, Appellant filed a timely PCRA petition 3 arguing that (1) trial counsel was ineffective for failing to object to admission of his custodial statement during trial under the corpus delicti doctrine, and (2) the trial court imposed an illegal sentence on Appellant’s drug possession charge. Subsequently, Appellant filed an amended PCRA petition through counsel. The PCRA court held that Appellant’s sentence on the drug possession charge exceeded the statutory maximum.4 On January 22, 2020, the PCRA court issued a notice of intent to dismiss the remaining argument in Appellant’s amended PCRA petition, the corpus delicti claim. The court reasoned: [T]he evidence admitted at [Appellant’s] stipulated non-jury trial clearly established, albeit circumstantially, that [he] was the individual who possessed and placed the firearm on the shelves of ____________________________________________ 3 Appellant’s judgment of sentence became final on May 16, 2018, his deadline for appealing to the United States Supreme Court. 42 Pa.C.S.A. § 9545(b)(3). The PCRA’s one-year statute of limitations began running on this date. 42 Pa.C.S.A. § 9545(b)(1). Appellant filed his PCRA petition on the last day for doing so under Section 9545(b)(1). 4 This ruling is not in question in this appeal. -5- J-S43027-20 the Dollar General Store on the date is question. Additionally, there was no dispute during the stipulated non-jury [trial] that [Appellant] had been previously pled guilty to third degree murder and as such, was not a person legally permitted to possess a firearm due to that conviction. Notice of Intent, 1/22/20, at 3. On February 14, 2020, the PCRA court entered an order of dismissal. Appellant filed a timely appeal to this Court. The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement or file a Pa.R.A.P. 1925(a) opinion. The absence of a Rule 1925 opinion does not hamper appellate review, however, because the PCRA court provided the above-referenced reasons for denying the corpus delicti argument in its notice of intent. Appellant raises a single issue in this appeal: Whether the PCRA Court erred in summarily dismissing [Appellant’s] contention that trial counsel was ineffective in waiving and failing to assert or otherwise preserve a meritorious pretrial and trial corpus delicti challenge to the admission of [Appellant’s] pretrial confession which acknowledged possession of a firearm, where that confession was the only evidence presented by the prosecution on the essential elements of possession and identity. Appellant’s Brief at 5. Appellate review of a PCRA court’s dismissal of a PCRA petition is limited to the examination of “whether the PCRA court’s determination is supported by the record and free of legal error.” Commonwealth v. Maxwell, 232 A.3d 739 , 744 (Pa. Super. 2020). “The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.” Id. “This Court grants great deference to the findings of the PCRA court, and -6- J-S43027-20 we will not disturb those findings merely because the record could support a contrary holding.” Id. In contrast, we review the PCRA court’s legal conclusions de novo. Id. Appellant argues that trial counsel was ineffective for failing to raise a corpus delicti objection to the introduction of his confession admitting that he possessed a firearm and discarded it at the Dollar General store. To obtain relief on a claim of ineffective assistance of counsel, Appellant must prove that: (1) the underlying claim has arguable merit; (2) counsel lacked a reasonable basis for his actions or failure to act; and (3) the petitioner was prejudiced by counsel's deficient performance such that there is a reasonable probability that the result of the proceeding would have been different absent counsel's error or omission. Commonwealth v. Pierce, 527 A.2d 973 , 975 (Pa. 1987). “A claim of ineffectiveness will be denied if the petitioner's evidence fails to satisfy any one of these prongs.” Commonwealth v. Busanet, 54 A.3d 35 , 45 (Pa. 2012). Counsel is presumed to have rendered effective assistance. Commonwealth v. Sepulveda, 55 A.3d 1108 , 1117 (Pa. 2012). The corpus delicti rule provides that “a criminal conviction may not stand merely on the out-of-court confession of one accused, and thus a case may not go to the fact-finder where independent evidence does not suggest that a crime has occurred.” Commonwealth v. Cuevas, 61 A.3d 292 , 295 (Pa. Super. 2013). The rule exists because courts are hesitant to convict a person -7- J-S43027-20 of a crime solely on the basis of his statements. Id. The corpus delicti, or “body of the crime,” consists of two elements: (1) the occurrence of a loss or injury, and (2) some person’s criminal conduct as the source of that loss or injury. Id. The corpus delicti may be proven by circumstantial evidence. Id. Establishing the corpus delicti is a two-step process. The first step concerns the trial judge’s admission of the accused’s statements and the second step concerns the fact finder’s consideration of those statements. In order for the statement to be admitted, the Commonwealth must prove the corpus delicti by a preponderance of the evidence. In order for the statement to be considered by the fact finder, the Commonwealth must establish the corpus delicti beyond a reasonable doubt. Commonwealth v. Murray, 174 A.3d 1147 , 1154 (Pa. Super. 2017). To be clear, the second step is satisfied by proof beyond a reasonable doubt that loss or injury occurred and that “some person’s criminal conduct [w]as the source of this loss or injury.” Commonwealth v. Chambliss, 847 A.2d 115 , 119 (Pa. Super. 2004). Appellant contends that the Commonwealth failed the second step because it did not establish the corpus delicti beyond a reasonable doubt. Section 6105, a provision in the Uniform Firearms Act (18 Pa.C.S.A. §§ 6101- 6128), provides in relevant part: (1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess . . . a firearm in this Commonwealth. -8- J-S43027-20 (b) Enumerated offenses.—The following offense shall apply to subsection (a): *** Section 2502 (relating to murder). 18 Pa.C.S.A. § 6105. Third-degree murder is one of three categories of murder within Section 2502. 18 Pa.C.S.A. § 2502(c). Applying the corpus delicti rule to this statute, the Commonwealth had to prove two elements through non-confession evidence beyond a reasonable doubt for the factfinder to consider Appellant’s confession in its verdict: (1) someone possessed a firearm, and (2) whoever did so was convicted of a crime listed in Section 6105(b). The PCRA court concluded, in so many words, that Appellant’s corpus delicti argument was a red herring, because the non-confession evidence not only established the corpus delicti (the body of the crime) but proved Appellant’s guilt under Section 6105 beyond a reasonable doubt. We agree. The evidence, viewed in the light most favorable to the Commonwealth, would have been sufficient to establish Appellant’s guilt under Section 6105 even if the trial court did not take his confession into account. There is no dispute that Appellant was convicted of a crime listed in Section 6105(b), third-degree murder. Furthermore, the non-confession evidence demonstrates that Appellant was in constructive possession of the firearm. -9- J-S43027-20 To prove the element of possession when the defendant does not have actual possession of an item at the time of arrest, the Commonwealth must establish constructive possession of the item. Commonwealth v. Parrish, 191 A.3d 31 , 36 (Pa. Super. 2018). Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. We have defined constructive possession as conscious dominion. . . . We subsequently defined conscious dominion as the power to control the contraband and the intent to exercise that control. . . . To aid application, we have held that constructive possession may be established by the totality of the circumstances. Commonwealth v. Cruz, 21 A.3d 1247 , 1253 (Pa. Super. 2011). The Commonwealth can prove constructive possession with circumstantial evidence. Commonwealth v. Johnson, 26 A.3d 1078 , 1094 (Pa. 2011). A defendant’s mere presence at the scene, however, does not establish constructive possession of contraband. Commonwealth v. Vargas, 108 A.3d 858 , 869 (Pa. Super. 2014) (en banc); see also Parrish, 191 A.3d at 37 (location and proximity of actor to the contraband alone is not conclusive of guilt). Here, a chain of circumstantial, non-confession evidence establishes Appellant’s constructive possession of the firearm. A police sergeant saw Appellant on a public street and recognized him as a fugitive from a correctional facility. The sergeant directed Appellant to stop, but Appellant ignored him and entered a Dollar General store. The store’s surveillance - 10 - J-S43027-20 videotape showed that Appellant turned left upon entering the store and walked down the first aisle. After less than a minute, Appellant attempted to leave the store through a side door, but a second police officer apprehended him. Appellant’s flight from the sergeant and his attempt to evade capture signify his consciousness of guilt. Commonwealth v. Hargrave, 745 A.2d 20 , 23 (Pa. Super. 2005) (“[f]light does indicate consciousness of guilt, and a trial court may consider this as evidence, along with other proof, from which guilt may be inferred”). A store employee informed the sergeant that a firearm had been located on one of the shelves. The sergeant recovered the firearm from a shelf in the first aisle, where Appellant had been seen walking minutes earlier. Viewed together, the evidence of (1) Appellant’s recent escape from a correctional facility, (2) his flight after the sergeant directed him to stop, (3) his attempt to escape through the side door of the store, and (4) the discovery of the firearm on the path that Appellant had taken through the store moments earlier demonstrates Appellant’s constructive possession of the firearm beyond a reasonable doubt. See Commonwealth v. Roberts, 133 A.3d 759 , 767-68 (Pa. Super. 2016) (evidence was sufficient for jury to conclude that two bags of cocaine were dropped by defendant during pursuit by police officers, and therefore was sufficient to prove constructive possession as element of possession with the intent to deliver controlled substance; officers did not discover cocaine on defendant’s person, but officer testified that he backtracked defendant’s path during chase in attempt to find - 11 - J-S43027-20 his dropped radio, and that, in area where he observed defendant run around parked vehicle, he found cell phone with picture of defendant as screen saver and bags of cocaine). Appellant argues that the evidence did not prove possession because the store was open to the public, so some visitor other than Appellant might have brought the firearm into the store. We find this argument speculative. There is no evidence that anybody else was in the aisle that Appellant passed through at or near the time of these events. Indeed, there is no evidence that any other person visited the store that day (or, indeed, on any other day). Absent such evidence, we cannot infer that another visitor brought the firearm into the store. For these reasons, we conclude that Appellant’s claim of ineffective assistance lacks arguable merit. Since it fails this prong, we need not consider the remaining two prongs of the ineffectiveness test. Busanet, 54 A.3d at 45. The PCRA court correctly determined that Appellant is not entitled to relief. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/30/2020 - 12 -

2020-11-30 18:13:50.752878+00

http://www.pacourts.us/assets/opinions/Superior/out/J-A20045-20m - 104618322120866727.pdf

J-A20045-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CARL LEE FIELDS : : Appellant : No. 1630 WDA 2019 Appeal from the PCRA Order Entered October 22, 2019 in the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0013464-1993 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CARL LEE COLLINS : : Appellant : No. 1632 WDA 2019 Appeal from the PCRA Order Entered October 22, 2019 in the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0012112-1993 BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 30, 2020 J-A20045-20 Carl Lee Collins (“Collins”) appeals from the Order denying his Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.2 The PCRA court summarized the procedural history relevant to the instant appeal as follows: In 1993, [Collins] was charged at the above-referenced docket numbers with criminal homicide, aggravated assault, robbery, carrying a firearm without a license, and conspiracy.[3] [Collins] was convicted of second-degree murder and the remaining charges following a jury trial in 1994. At the time [Collins] committed [these] offense[s], [Collins] was 16 years old. On October 11, 2017, pursuant to the United States Supreme Court decision in Miller v. Alabama, 567 U.S. 460 (2012), [Collins] was resentenced before the Honorable Judge Donna Jo McDaniel [(“Judge McDaniel” or “the resentencing judge”)]. At that time, [Collins’s] sentence of life without parole was vacated[,] and Judge McDaniel sentenced [Collins] to serve a period of thirty (30) years to life incarceration.[4] [Collins’s] sentence was affirmed on direct appeal. [See Commonwealth v. Collins, 194 A.3d 714 (Pa. Super. 2018).] On January 16, 2019, [Collins] filed a pro se PCRA Petition. Due to Judge McDaniel’s retirement, this matter was assigned to [the Honorable Thomas E. Flaherty (“the ____________________________________________ 1 See 42 Pa.C.S.A. §§ 9541-9546. 2 Collins properly filed a separate Notice of Appeal at each of the above-stated docket numbers, in accordance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). This Court consolidated the proceedings by an Order entered on November 12, 2019. We note that the use of two docket numbers was the result of Collins’s use of two names at the time of the incident: Carl Lee Collins and Carl Lee Fields. On January 6, 1994, the Commonwealth filed a Motion to Join the proceedings as the assignment of two docket numbers was the result of an “administrative error.” See Motion to Join, 1/6/94, at 6. The record reflects no trial court order disposing of this Motion. 3 See 18 Pa.C.S.A. §§ 2501, 2702(a), 3701(1)(1), 6106(a), 903. 4 Judge McDaniel imposed no further penalty on Collins’s remaining convictions. -2- J-A20045-20 PCRA judge”)]. Counsel was appointed for [Collins], as it was his first PCRA following his resentencing…. PCRA Court Notice of Intention to Dismiss, 9/4/19, at 1 (footnotes and citation added). By appointed counsel, Collins filed an Amended PCRA Petition. After appropriate Notice pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed Collins’s Amended Petition without a hearing. Thereafter, Collins filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal. Collins presents the following claims for our review: 1. Did the PCRA court err in dismissing [Collins’s] claim that resentencing counsel was ineffective in failing to object to the resentencing court’s reliance on [Collins’s] prior assertions of innocence[,] and [the] prosecution of his third action pursuant to the PCRA[,] as aggravating sentencing factors, impermissibly burdening his federal and Pennsylvania constitutional privilege against self-incrimination, and his Pennsylvania constitutional rights to open courts, to appeal, and to seek writ of habeas corpus? 2. Did the PCRA court err in dismissing [Collins’s] claim that resentencing counsel was ineffective in failing to tether her demonstration of [Collins’s] rehabilitability to a particular term- of-years sentence by resort to extant comparator cases? 3. Did the PCRA court err in dismissing [Collins’s] claim that his sentence is unconstitutional and illegal because it is a de facto life sentence[,] where there is an emerging national consensus that a term of 30 years to life imprisonment is a de facto term of life imprisonment within the meaning of the federal constitutional prohibition on cruel and unusual punishment, an issue currently before the Supreme Court of Pennsylvania in Commonwealth v. Felder, [ 187 A.3d 909 (Pa. 2018)] ? Brief for Appellant at 4. -3- J-A20045-20 In reviewing the grant or denial of PCRA relief, an appellate court considers whether the PCRA court’s conclusions are supported by the record and free of legal error. Commonwealth v. Crispell, 193 A.3d 919 , 927 (Pa. 2018). Moreover, the factual findings of a post-conviction court, which hears evidence and passes on the credibility of witnesses, should be given deference. See Commonwealth v. Spotz, 84 A.3d 294 , 312, 319 (Pa. 2014). In order to qualify for relief under the PCRA, a petitioner must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S.[A.] § 9543(a)(2). These errors include, inter alia, a violation of the Pennsylvania or United States Constitutions, or instances of ineffectiveness of counsel that “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Id. § 9543(a)(2)(i) and (ii); Crispell, 193 A.3d at 927…. Additionally, to obtain relief under the PCRA based on a claim of ineffectiveness of counsel, a PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668 … (1984). In Pennsylvania, we have applied the Strickland test by requiring a petitioner to establish that: (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. Commonwealth v. Pierce, … 786 A.2d 203 , 213 (Pa. 2001). Counsel is presumed to have rendered effective assistance, and, if a claim fails under any required element of the Strickland test, the court may dismiss the claim on that basis. Commonwealth v. Ali, … 10 A.3d 282 , 291 (Pa. 2010)…. Commonwealth v. Housman, 226 A.3d 1249 , 1260-61 (Pa. 2020). -4- J-A20045-20 Collins first claims that the PCRA court improperly dismissed his claim of ineffective assistance of resentencing counsel. Brief for Appellant at 16. Specifically, Collins argues that counsel should have objected when the resentencing court relied on Collins’s prior assertions of innocence, and his pursuit of a third PCRA Petition, as aggravating sentencing factors. Id. at 16. According to Collins, his counsel “ably demonstrated that he was already rehabilitated, much less rehabilitatable.” Id. Collins argues that the Commonwealth then improperly countered with evidence of his prior assertions of innocence, and Collins’s prosecution of his third PCRA Petition. Id. Collins asserts that the resentencing court relied on this evidence as an aggravating sentencing factor, which impacted his credibility and ability to be rehabilitated. Id. Collins argues that in doing so, the resentencing court violated and burdened his federal and state constitutional privilege against self-incrimination, and his right to petition for writ of habeas corpus. Id. at 16-17. In particular, Collins directs our attention to the Commonwealth’s inquiry related to the claims raised in his 2008 PCRA Petition. Id. at 17-18. According to Collins, the Commonwealth used the averments in his 2008 PCRA Petition as evidence that he was “still trying to get out and putting forth lies before the [c]ourt in order to get released[.]” Id. (citation omitted). Collins asserts that the Commonwealth also referred to this evidence in its closing argument at the resentencing hearing. See id. at 19. Collins argues that his -5- J-A20045-20 resentencing counsel rendered ineffective assistance by not objecting to the presentation of this evidence, and the Commonwealth’s argument. Id. According to Collins, the trial court further relied on this evidence as an aggravating sentencing factor, in its statement of reasons for the sentence imposed. Id. at 19-21, 21-22. Collins argues that by considering impermissible sentencing factors, the resentencing court impermissibly burdened the exercise of his constitutional rights. Id. at 26. Collins cites North Carolina v. Pearce, 395 U.S. 711 (1969), which recognized that “penalizing those who choose to exercise constitutional rights, would be patently unconstitutional. … And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to chill the exercise of basic constitutional rights….” Id. at 724 . According to Collins, his counsel had no reasonable basis for her failure to object to this evidence. See Brief for Appellant at 30. As a result, Collins argues, he suffered prejudice at resentencing. Id. In its Pa.R.Crim.P. 907 Notice of Intent to Dismiss (“PCRA Notice”), which the PCRA court incorporated into its Pa.R.A.P. 1925 Opinion, the PCRA court addressed this claim as follows: At [Collins’s] resentencing, [the resentencing court] permitted the Commonwealth to inquire about [Collins’s] prior PCRA Petition[,] wherein he proffered evidence that purportedly exonerated him. This line of inquiry was taken in the context of challenging [Collins’s] statement at the resentencing hearing that he was remorseful and taking responsibility for his actions. After careful -6- J-A20045-20 review of the resentencing hearing transcript, it is clear that the [resentencing court] did not place an emphasis on this fact when fashioning [the] sentence. [The resentencing judge] merely stated that it was “interesting.” [The resentencing judge] found that the most significant factor was the fact that [Collins] began to take classes and better himself in 1995, which was before Miller [] found mandatory life sentences for juveniles to be unconstitutional. It proved to [the resentencing judge] that [Collins] was sincere in his rehabilitation efforts. As the record fails to establish that [the resentencing judge] used [Collins’s] prior profession of innocence in any manner in fashioning [Collins’s] sentence, it cannot be ineffective assistance of counsel to fail to object to the same. PCRA Court Notice, 9/4/19, at 2 (citations omitted). Because the record supports the PCRA court’s determination that Collins’s underlying claim lacks arguable merit, we affirm on the basis of the PCRA court’s reasoning, as set forth above, with regard to Collins’s first claim. See id.; see also Ali, 10 A.3d at 291 (stating that if an ineffectiveness claim fails under any required element of the Strickland test, the court may dismiss the claim on that basis). In his second claim, Collins argues that his resentencing counsel rendered ineffective assistance by failing “to tether her demonstration of [Collins’s] rehabilitability to a particular term-of-years sentence by resort to extant comparator cases.” Brief for Appellant at 32. Collins sets forth a summary of the sentences imposed for 16-year-old offenders convicted of second-degree murder throughout Pennsylvania. Id. at 33. Collins challenges the PCRA court’s reliance on Commonwealth v. Lekka, 210 A.3d -7- J-A20045-20 343 (Pa. Super. 2019), in holding that consideration of “comparator’s sentences” is legally impermissible. Brief for Appellant at 34. Collins contends that at the hearing, his counsel demonstrated that Collins was “essentially already rehabilitated,” and that the gravity of his offense, “essentially a robbery gone wrong[,]” was consistent with cases that had resulted in lower minimum sentences. Id. at 35. According to Collins, counsel’s ineffectiveness caused him prejudice, “as there is a reasonable probability that providing a frame of reference for post-Miller resentencing would have persuaded the resentencing court to impose a minimum term of less than 30 years [of] imprisonment.” Id. at 36. When imposing sentence, a trial court must consider the relevant sentencing guideline ranges, as well as “the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of the defendant.” Commonwealth v. Coulverson, 34 A.3d 135 , 144 (Pa. Super. 2011) (citation omitted). In Commonwealth v. Celestin, 825 A.2d 670 (Pa. 2003), this Court addressed whether a sentencing court may consider “factually similar cases in which plea bargains resulted in sentences below the guideline range,” as a factor in sentencing the defendant. Id. at 679. In concluding that such evidence constituted an impermissible sentencing factor, this Court recognized that “a sentencing court in one case cannot possibly know all of -8- J-A20045-20 the various considerations and factors underlying a negotiated plea in another case.” Id. at 680. In Lekka, following the decision in Miller, the trial court resentenced the defendant to 45 years to life in prison. Lekka, 210 A.3d at 348. The defendant filed a motion to reconsider his sentence, at which time he sought to introduce an exhibit analyzing the resentencing of 120 juvenile offenders in Pennsylvania, following Miller. Id. The resentencing court precluded the admission of this exhibit, and denied reconsideration of the defendant’s sentence. Id. On appeal, the defendant challenged, inter alia, the preclusion of the exhibit analyzing the sentences imposed on other juvenile offenders, following Miller. Id. at 353. This Court rejected the defendant’s claim, concluding that (a) the defendant had failed to present the exhibit at his original resentencing hearing; and, significantly, (b) the exhibit was not relevant. Id. Regarding the exhibit’s lack of relevance, this Court explained, in part, that “[t]he consideration of the sentences[,] by themselves[,] is also contrary to Pennsylvania’s individual sentencing scheme, which mandates that courts consider in each case the nature and circumstances of the crime and character of the defendant[,] rather than only looking to the mere fact of the offense committed.” Id. Further, “uniformity in sentencing does not obviate the requirement that the sentence be individualized with respect to the factors of the particular defendant and criminal offense.” Id. at 354-55. -9- J-A20045-20 Here, as in Celestin and Lekka, we conclude that evidence related to “comparable cases” would have been irrelevant to the individualized sentencing of Collins required by Pennsylvania’s Sentencing Code. See Commonwealth v. Walls, 926 A.2d 957 , 966 (Pa. 2007) (stating that “Pennsylvania’s sentencing system, as evidenced by the Sentencing Code and our case law, is based upon individualized sentencing.”). As such, comparable cases evidence would have constituted an impermissible sentencing factor. See Celestin, 825 A.2d 679 . Because there is no arguable merit to Collins’s underlying claim, this claim of ineffective assistance of resentencing counsel fails. See Ali, 10 A.3d at 291 (recognizing that if a claim fails under any required element of the Strickland ineffectiveness test, the court may dismiss the claim on that basis). Finally, Collins argues that the PCRA court erred in rejecting his challenge to the legality of the sentence, as “there is an emergent consensus that a term of 30 years to life imprisonment is a de facto term of life imprisonment,” and therefore violates the constitutional prohibition on cruel and unusual punishment. Brief for Appellant at 41. Collins directs our attention to other jurisdictions, arguing that there is a growing national consensus that, “at least, somewhere between 25 and 30 years [of] imprisonment is the upper limit before the chance at parole must be provided.” Id. at 43. Collins also states that the issue is presently before our Supreme - 10 - J-A20045-20 Court in Commonwealth v. Felder, 181 A.3d 1252 (Pa. Super. 2017) (unpublished memorandum), appeal granted, 187 A.3d 909 (Pa. 2018). “[A] claim challenging a sentencing court’s legal authority to impose a particular sentence presents a question of sentencing legality.” Commonwealth v. Batts, 163 A.3d 410 , 434-35 (Pa. 2017) (“Batts II”) (citations omitted). “The determination as to whether a trial court imposed an illegal sentence is a question of law; an appellate court’s standard of review in cases dealing with questions of law is plenary.” Commonwealth v. Crosley, 180 A.3d 761 , 771 (Pa. Super. 2018) (citation omitted). In Felder, our Supreme Court granted allowance of appeal as to the following issue: Does not a sentence of 50 years to life imposed upon a juvenile constitute a de facto life sentence requiring the sentencing court, as mandated by this Court in [Batts II,] first find permanent incorrigibility, irreparable corruption or irretrievable depravity beyond a reasonable doubt? Felder, 187 A.3d 909 (Pa. 2018) (emphasis added). Here, Collins was sentenced to a minimum prison term of 30 years. Thus, on its face, any holding in Felder would be distinguishable from the instant case. Upon our review, we agree with the PCRA court’s Notice, which stated the following: [W]ith regard to [Collins’s] assertion that a sentence of 30 to life is a de facto life sentence, it is important to remember that [Collins] has been incarcerated since he was 16 years old. At his resentencing, [Collins] was given credit for time served since his - 11 - J-A20045-20 initial sentence. Thus, [Collins] will be eligible for parole at the age of 47. While a court is prohibited from sentencing a juvenile homicide defendant to a term-of-years sentence that results in a de facto life sentence, a sentence is not a de facto life sentence if a defendant has a “meaningful chance of surviv[ing]” until he has served his minimum sentence. … Lekka, 210 A.3d at 357-58. [Collins] … clearly has a “meaningful chance of survival” to meet his minimum sentence, as he will be 47 years of age when he reaches his minimum sentence. As such, the sentence of thirty (30) [years] to life is not a de facto life sentence. PCRA Court Notice, 9/4/19, at 3-4. We agree with the analysis and conclusion of the PCRA court, as set forth above, and affirm on this basis with regard to Collins’s third claim. See id. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/30/2020 - 12 -

2020-11-30 18:13:50.888254+00

http://www.pacourts.us/assets/opinions/Superior/out/J-A20035-20m - 104618232120858452.pdf

J-A20035-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EDWARD STEPHEN DELGROS : : Appellant : No. 1822 WDA 2019 Appeal from the Order Entered November 15, 2019 in the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0001496-2014 BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 30, 2020 Edward Stephen Delgros (“Delgros”) appeals from the judgment of sentence imposed following his conviction of receiving stolen property.1 We affirm. Our Supreme Court previously summarized the factual history of this case as follows: [I]n June of 2001, [Delgros] hired Robert Croyle [(“Croyle”)] to install a double-wide mobile home on his property. Croyle purchased two I-beams, described as being lightweight magnesium and more than twenty feet long, for $1,400.00 each[,] and employed them to move the double-wide into position. Croyle left the I-beams and other materials on [Delgros]’s property, intending to pick them up at a later time. When Croyle returned, his materials were not at the site, and [Delgros] denied knowledge of their whereabouts. Croyle reported the I-beams missing to the Hermitage Police Department. [] Deputy Chief Eric Jewel [(“Deputy Chief Jewel”)] questioned [Delgros] about the I- ____________________________________________ 1 18 Pa.C.S.A. § 3925(a). J-A20035-20 beams[. Delgros] reiterated that he did not know where they had gone. With [Delgros]’s authorization, Deputy Chief Jewel searched the premises to no avail. Several months later, [Delgros] told his father that he had Croyle’s I-beams and asked for his father’s assistance in hiding the[ I-beams] in the woods. Five to seven years thereafter, [Delgros] and his father used the I-beams to build a porch on [Delgros]’s house. In April of 2014, Hermitage police received a report that the I-beams were on [Delgros]’s property. [Delgros]’s father subsequently told Deputy Chief Jewel that [Delgros] had used Croyle’s I-beams in the construction of his porch. Deputy Chief Jewel went to [Delgros]’s residence and saw the I-beams supporting the porch roof in plain view. After obtaining a warrant, photographs and samples of the I-beams were taken, which indicated that the beams were made of aluminum. When Croyle was asked about his prior claim that the missing beams were made of magnesium, he explained that he thought the beams were magnesium, but that they could have been aluminum. Based on holes present in the I-beams[;] however, Croyle identified the I-beams photographed in [Delgros]’s porch as being those that went missing years earlier. Commonwealth v. Delgros, 183 A.3d 352 , 353-54 (Pa. 2018). Following a jury trial, Delgros was convicted of the above-mentioned offense. The trial court deferred sentencing and ordered a pre-sentence investigation report. On June 23, 2015, the trial court sentenced Delgros to pay costs, restitution in the amount of $2,800.00, and a fine of $15,000.00. On July 1, 2015, Delgros filed a Post-Sentence Motion. In his Motion, Delgros argued, inter alia, that his trial counsel rendered ineffective assistance of counsel. After oral argument, the trial court denied Delgros’s request for an evidentiary hearing on his claims of ineffective assistance of counsel, because those claims were not raised in a petition for relief under the Post -2- J-A20035-20 Conviction Relief Act (“PCRA”).2 On December 13, 2016, this Court affirmed Delgros’s judgment of sentence. See Commonwealth v. Delgros, 159 A.3d 1003 (Pa. Super. 2016) (unpublished memorandum). The Supreme Court granted allowance of appeal to address whether “[Delgros], who is ineligible for collateral review under the [PCRA] because he was sentenced only to pay a fine, is entitled to review of ineffective assistance of counsel claims presented in post-sentence motions.” Delgros, 183 A.3d at 356. The Supreme Court held that trial courts are required to examine ineffectiveness claims when the defendant is statutorily precluded from PCRA review. See id. at 353. The Supreme Court reversed this Court and remanded the instant case to the trial court. Id. Subsequently, on February 27, 2019, the trial court granted Delgros leave to file a new post-sentence motion, nunc pro tunc. On April 25, 2019, Delgros filed a Motion requesting a 60-day extension in order to file his post- sentence motion. The trial court granted Delgros’s Motion. On June 25, 2019, Delgros filed his Post-Sentence Motion, alleging that his trial counsel rendered ineffective assistance of counsel for his failures to: (1) investigate and introduce evidence of Croyle’s five prior convictions of crimen falsi; (2) impeach Croyle with his five prior convictions of crimen falsi; (3) object to hearsay testimony provided by Delgros’s family; and (4) request ____________________________________________ 2 42 Pa.C.S.A. §§ 9541-9546. -3- J-A20035-20 jury instructions related the previous claims. Additionally, Delgros asserted that the victim impact statement provided by Croyle constituted after- discovered evidence. On October 2, 2019, following a status conference on Delgros’s Post-Sentence Motion, the parties stipulated that Croyle had five crimen falsi convictions against him. On October 8, 2019, Delgros filed a Motion for an Extension of Time pursuant to Pa.R.Crim.P. 720(B)(3)(b), which the trial court granted on October 9, 2019. On October 30, 2019, the trial court entered an Order memorializing the parties’ stipulation that Delgros’s trial counsel was unaware of Croyle’s crimen falsi convictions and, thus, those convictions were not introduced at trial. Additionally, the trial court ordered both parties to submit briefs concerning Delgros’s Post-Sentence Motion. In his Post-Sentence Motion Memorandum of Law, Delgros raised, for the first time, a claim that the Commonwealth had suppressed Croyle’s five convictions of crimen falsi in violation of Brady.3, 4 On November 15, 2019, the trial court denied Delgros’s Post-Sentence Motion. ____________________________________________ 3 See Brady v. Maryland, 373 U.S. 83 , 87 (1963) (holding that the prosecution must disclose evidence favorable to the accused that is material either to guilt or punishment). 4 We observe that Delgros did not include this claim in his Post-Sentence Motion. However, as discussed infra, the trial court, in its Opinion, was able to aptly address Delgros’s Brady claim. See Trial Court Opinion, 2/5/20, at 8-9. Accordingly, we decline to deem this issue waived. -4- J-A20035-20 On November 25, 2019, Delgros filed a Motion for Reconsideration of his Post- Sentence Motion. On December 13, 2019, before the trial court ruled on the Motion for Reconsideration, Delgros filed a timely Notice of Appeal and court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.5 Delgros now raises the following claims for our review: 1. Did the trial court err in fail[]ing to grant a new trial based on a[] serious Brady violation? ____________________________________________ 5 We observe that Delgros’s Motion for Reconsideration of his Post-Sentence Motion was still pending at the time he filed his Notice of Appeal. The Comment to Rule 720 (relating to timeliness of post-sentence motions) states the following: If the trial judge decides the motion within the time limits of this rule, the judge may grant reconsideration on the post-sentence motion pursuant to 42 Pa.C.S.[A.] § 5505 or Pa.R.A.P. 1701.1, but the judge may not vacate the sentence pending reconsideration. Rule 720(B)(3). The reconsideration period may not be used to extend the timing requirements set forth in paragraph (B)(3) for decision on the post-sentence motion: the time limits imposed by paragraphs (B)(3)(a) and (B)(3)(b) continue to run from the date the post-sentence motion was originally filed. The trial judge’s reconsideration must therefore be resolved within the 120-day decision period of paragraph (B)(3)(a) or the 30-day extension period of paragraph (B)(3)(b), whichever applies. If a decision on the reconsideration is not reached within the appropriate period, the post-sentence motion, including any issues raised for reconsideration, will be denied pursuant to paragraph (B)(3)(c). Pa.R.Crim.P.. 720, cmt. (emphasis added). Here, the trial court denied Delgros’s Post-Sentence Motion on November 15, 2019. Accordingly, Delgros’s Notice of Appeal, filed on December 13, 2019, is timely, and we will address the merits of his claims. See id. -5- J-A20035-20 2. Was trial counsel ineffective for failing to investigate and introduce evidence that the alleged victim [Croyle] had five prior crimen falsi convictions? Brief for Appellant at 8 (some capitalization omitted). In his first claim, Delgros argues that the trial court erred when it denied his Post-Sentence Motion requesting a new trial based upon the alleged Brady violation. Brief for Appellant at 12. Delgros asserts that the Commonwealth withheld and suppressed evidence of Croyle’s five prior crimen falsi convictions. Id. at 12-15. Delgros acknowledges that Croyle’s convictions are of public record, but contends that the Commonwealth had an affirmative duty to provide any material and exculpatory evidence. Id. at 13-15. Delgros claims that convictions of crimen falsi go to the credibility of the witness and, thus, the Commonwealth is required to disclose such evidence. Id. at 16-17. Additionally, Delgros contends that he was prejudiced by the suppression of Croyle’s convictions because Delgros was unable to adequately cross-examine Croyle. Id. at 18-19. Our Supreme Court has explained that in order to establish a Brady violation, a defendant must show that: (1) the evidence was suppressed by the state, either willfully or inadvertently; (2) the evidence was favorable to the defendant either because it was exculpatory or because it could have been used for impeachment; and (3) the evidence was material in that its omission resulted in prejudice to the defendant. However, the mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense. Rather, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A -6- J-A20035-20 reasonable probability is a probability sufficient to undermine confident in the outcome. Commonwealth v. Williams, 168 A.3d 97 , 109 (Pa. 2017) (citations, quotation marks, and brackets omitted). Further, “[t]o obtain a new trial based on the Commonwealth’s failure to disclose evidence affecting a witness’s credibility, the defendant must demonstrate that the reliability of the witness may be determinative of the defendant’s guilt or innocence.” Commonwealth v. Tharp, 101 A.3d 736 , 747 (Pa. 2014). In its Opinion, the trial court concluded that “[Delgros] has failed to meet [his] burden o[f] proving, by reference to the record, that evidence was withheld or suppressed by the prosecution.” Trial Court Opinion, 2/5/20, at 9. Additionally, Delgros concedes that Croyle’s convictions were matters of public record. See Brief for Appellant at 13-15. Our review of the record confirms that Croyle’s convictions are matters of public record and, thus, were equally available to both Delgros and the Commonwealth. See Williams, supra; see also Commonwealth v. Spotz, 896 A.2d 1191 , 1248 (Pa. 2006) (stating that “no Brady violation occurs where parties had equal access to information or if the defendant knew or could have known such evidence existed with reasonable diligence”) (citation omitted); Commonwealth v. Wilson, 147 A.3d 7 , 14 (Pa. Super. 2016) (stating that “information contained in a witness’[s] criminal record is not within the Commonwealth’s exclusive control and, thus, not Brady material.”). Accordingly, we cannot grant Delgros relief on this claim. -7- J-A20035-20 In his second claim, Delgros argues that his trial counsel’s failure to investigate, and introduce evidence of, Croyle’s five prior crimen falsi convictions constituted ineffective assistance of counsel. Brief for Appellant at 21. Delgros asserts that Croyle had five crimen falsi convictions and that his trial counsel stipulated that “he was unaware of the [crimen falsi] offenses.” Id. at 23. Delgros claims that multiple convictions of crimen falsi are “obviously important evidence” and that “there is no apparent strategic reason that might explain or excuse [his trial] counsel’s mistake.” Id. at 22- 23. Delgros contends that, if his trial counsel had impeached Croyle with the five convictions of crimen falsi, the outcome of his trial would have been different because the convictions demonstrate that Croyle is dishonest. Id. at 25. Further, Delgros argues “that if the jury disbelieved the testimony of [Croyle,] the outcome of the trial may have been different.” Id. Counsel is presumed to be effective and “the burden of demonstrating ineffectiveness rests on [the] appellant.” Commonwealth v. Rivera, 10 A.3d 1276 , 1279 (Pa. Super. 2010). To prevail on a claim of ineffective assistance of counsel, an appellant must establish the following three factors: “first [that] the underlying claim has arguable merit; second, that counsel had no reasonable basis for his action or inaction; and third, that [a]ppellant was prejudiced.” Commonwealth v. Charleston, 94 A.3d 1012 , 1020 (Pa. Super. 2014) (citation omitted). “Failure to satisfy any prong of the test will result in rejection of the appellant’s ineffective assistance of counsel claim.” -8- J-A20035-20 Commonwealth v. Holt, 175 A.3d 1014 , 1018 (Pa. Super. 2017) (internal citations and quotation marks omitted). In order to demonstrate prejudice, the petitioner must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Commonwealth v. King, 57 A.3d 607 , 613 (Pa. 2012). “[A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceedings.” Commonwealth v. Ali, 10 A.3d 282 , 291 (Pa. 2010). In its Opinion, the trial court concluded that Delgros had not demonstrated prejudice resulting from trial counsel’s alleged ineffectiveness, and addressed Delgros’s claim as follows: [Croyle] merely testified that he left I-beams, axles, and wheels at [Delgros]’s property[,] which were missing when [] Croyle subsequently returned to retrieve them. [Delgros] told [] Croyle [that] he did not know what happened to [Croyle’s] property. [] Croyle reported the missing items to the Hermitage Police Department. This [incident] occurred in 2001. [] Croyle [ga]ve a description of the missing I-beams. [Croyle] initially described them as being made of magnesium[,] and he told police that one beam was 24 feet long and the other was 22 feet long. Importantly, [] Croyle did not provide evidence establishing that [Delgros] was responsible for the items going missing. [Several] years after [] Croyle’s report, [Delgros]’s brother- in-law[,] Joby Hackett [(“Hackett”)], told police that he had seen I-beams on [Delgros]’s property when [Hackett] had been hunting thereon. [Delgros]’s father, Joseph Delgros [(“Father”)], provided the most important testimony offered during the trial[,] when he testified that [Delgros] showed [Father] the I-beams on [Delgros]’s property and [Delgros] told [Father] that the I-beams came from [Croyle]. [Father] also admitted that he hauled the I- beams to [Delgros]’s mobile home where [Delgros] used them in the construction of a patio. -9- J-A20035-20 Based on tips from [Delgros]’s family, [Deputy Chief Jewel] went to [Delgros]’s home and observed the I-beams. After obtaining a search warrant, [Deputy Chief Jewel] measured the beams; one beam was 24 feet[,] 6 inches and the other was 24 feet[,] 3 inches. [Deputy Chief Jewel] also took samples of the beams and sent them to a lab for testing. The beams were aluminum and not magnesium. The above facts show that the evidence which established [Delgros]’s guilt came from his family members and not [Croyle]. Also, [Croyle]’s initial description of the beams was not consistent with the actual beams in multiple ways, so it is not as though his testimony was entirely favorable to the Commonwealth. For these reasons, the [trial c]ourt denies [Delgros]’s [claim]. Trial Court Opinion, 2/5/20, at 7-8. We agree with and adopt the reasoning of the trial court, which is supported by the evidence of record. See id.; see also Holt, supra. Because Delgros failed to establish prejudice, we cannot grant relief on this claim. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/30/2020 - 10 -

2020-11-30 18:13:51.09892+00

http://www.pacourts.us/assets/opinions/Superior/out/J-S34004-20m - 104618633120884116.pdf

J-S34004-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARENDA LENAY DAVI : : Appellant : No. 2012 MDA 2019 Appeal from the Judgment of Sentence Entered November 14, 2019 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0003705-2017 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARENDA LENAY DAVI : : Appellant : No. 316 MDA 2020 Appeal from the Judgment of Sentence Entered November 14, 2019 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001737-2019 BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E. MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 30, 2020 Marenda Lenay Davi appeals from the judgments of sentence entered in the Dauphin County Court of Common Pleas following the revocation of her probation. Davi contends that the sentencing court abused its discretion by failing to consider her rehabilitative needs and ability to reform and by imposing a manifestly excessive sentence. We affirm. J-S34004-20 In 2017, Davi was arrested for obtaining telecommunication and phone services through fraudulent means and without consent of the service providers. At docket number CP-22-CR-0003705-2017 (“the 2017 case”), Davi pled guilty to theft of services and identity theft. The trial court sentenced her to five years’ probation. While on probation, Davi was twice charged with new criminal activity. The Commonwealth ultimately declined to prosecute the first set of charges, which included charges for bad checks. Davi’s probation continued, but she was required thereafter to wear an ankle monitor. Later, police again arrested Davi and charged her with forgery, identify theft, theft by unlawful taking, receiving stolen property, access device fraud, and bad checks. At docket number CP-22-CR-0001737-2019 (“the 2019 case”), Davi entered a guilty plea to all charges, and the court ordered a presentence report. In the meantime, Dauphin County Probation Services filed a detainer alleging Davi’s guilty plea violated her probationary sentence. Davi appeared before the court for a hearing. Ultimately, the court acceded to requests from the Commonwealth and the probation officer to revoke Davi’s probation and sentenced her to a term of incarceration. The court resentenced Davi in the 2017 case to 2 ½-5 years’ incarceration. In the 2019 case, the court sentenced Davi to 1-2 years’ incarceration, consecutive with the revocation sentence imposed in the 2017 case. As a result, Davi received an aggregate sentence of 3 ½-7 years’ -2- J-S34004-20 incarceration. Davi filed a post-sentence motion to modify her sentence on both dockets. Shortly thereafter, she filed timely notices of appeal at each docket.1 This appeal is now properly before us.2 In her only issue, Davi challenges the discretionary aspects of her sentences in both the 2017 and 2019 cases as well as the trial court’s decision to impose these sentences consecutively. She claims that these sentences were not consistent with the protection of the public, the gravity of the underlying offenses or her rehabilitative needs. See Appellant’s Brief, at 23. Davi also alleges that the aggregate sentence of 3 ½-7 years’ imprisonment was unreasonable and manifestly excessive. See id., at 20. ____________________________________________ 1In Commonwealth v. Walker, 185 A.3d 969 , 971 (Pa. 2018), our Supreme Court held that “where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each of those cases.” Our review of the record reveals that Davi filed separate notices of appeal at each docket and therefore has complied with Walker. 2 The trial court entered the judgment of sentence on November 14, 2019 following the revocation of probation. Davi filed a timely post-sentence motion on November 21, 2019. Davi filed a notice of appeal on December 11, 2019. The trial court ruled on the post-sentence motion on December 18, 2019, after Davi filed her notice of appeal. Under Pa.R.Crim.P. 708(E), “[a] motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition. The filing of a motion to modify sentence will not toll the 30-day appeal period.” Accordingly, the notice of appeal was timely filed. However, the trial court’s December 18, 2019 order is a legal nullity as the trial court was divested of jurisdiction as more than 30 days had elapsed after the judgment of sentence was imposed. The appeals were consolidated on February 27, 2020, upon Davi’s application to consolidate. -3- J-S34004-20 The right to challenge the discretionary aspects of sentencing on appeal is not absolute. See Commonwealth v. Bynum–Hamilton, 135 A.3d 179 , 184 (Pa. Super. 2016). An appellant must petition this Court for permission to appeal the discretionary aspects of her sentence. See Commonwealth v. Ali, 197 A.3d 742 , 760 (Pa. Super. 2018) (citation omitted). Then, we must conduct a four part analysis to determine whether: (1) the appeal is timely; (2) the appellant preserved the issue; (3) the appellant’s brief does not contain a fatal defect; and (4) the appellant raised a substantial question that the sentence is inappropriate under the Sentencing Code. See Commonwealth v. Barnes, 167 A.3d 110 , 122 (Pa. Super. 2017) (en banc). Here, Davi properly preserved her claims by filing a post-sentence motion, referencing both dockets, and timely notices of appeal. Additionally, Davi’s brief contains the required Pa.R.A.P. 2119(f) statement. Next, we must determine whether Davi’s claim constitutes a substantial question. This Court has held that “a substantial question exists only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Commonwealth v. Moury, 992 A.2d 162 , 170 (Pa. Super. 2010) (internal quotations and citation omitted). An appellant’s contention that the trial court failed to consider relevant sentencing criteria, including the protection of the public, the gravity of the underlying offense, and her -4- J-S34004-20 rehabilitative needs, presents a substantial question for our review. See Commonwealth v. Derry, 150 A.3d 987 , 992 (Pa. Super. 2016). Further, a substantial question also exists where an appellant alleges the sentencing court failed to sufficiently state its reasons for the sentence imposed. See Commonwealth v. McNabb, 819 A.2d 54 , 56 (Pa. Super. 2003). In her 2119(f) statement, Davi raises three challenges to the discretionary aspects of her sentence. We therefore proceed to analyze whether any of these challenges present substantial questions. Davi’s first and second challenge focus on the sentences imposed in her 2017 and 2019 cases. Specifically, she claims that the court abused its discretion by imposing sentences that focused solely on the nature of her criminal conduct. In doing so, she argues the trial court failed to consider all three of the sentencing factors required by 42 Pa.C.S.A. § 9721(b): (1) the protection of the public, (2) the gravity of the underlying offenses, and (3) the defendant’s rehabilitative needs. See Appellant’s Brief, at 18; see also 42 Pa.C.S.A. § 9721(b). Furthermore, Davi alleges the trial court failed to state its reasons for imposing either sentence. See Appellant’s Brief, at 23. Taken together, we find these challenges raise substantial questions. See Commonwealth v. Macias, 968 A.2d 773 , 776 (Pa. Super. 2009) (stating that “an averment that the court sentenced based solely on the seriousness of the offense and failed to consider all relevant factors raises a substantial question”); see also Commonwealth v. Coulverson, 34 A.3d -5- J-S34004-20 135, 143 (Pa. Super. 2011) (recognizing that the trial court’s failure to offer specific reasons for the sentence raises a substantial question). Davi’s third challenge focuses on the trial court’s imposition of consecutive sentences. In particular, she claims her aggregate sentence was manifestly excessive given her limited criminal history. See Appellant’s Brief, at 23-24. Although a challenge to consecutive sentences ordinarily does not raise a substantial question, we have held that this issue must be examined on a case-by-case basis. See Commonwealth v. Marts, 889 A.2d 608 , 612-613 (Pa. Super. 2005). “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.” Moury, 992 A.2d at 171-172 . To determine whether the imposition of consecutive sentences presents a substantial question, we decide “whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case.” Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595 , 599 (Pa. Super. 2010). Here, we conclude that Davi has not established that her aggregate sentence of 3 ½-7 years’ incarceration was so extreme and excessive in light of the criminal conduct at issue in this case as to create a substantial question. -6- J-S34004-20 However, even if this claim did present a substantial question, it would not merit relief. Therefore, we turn now to the merits of each challenge. In her first challenge, Davi argues the trial court failed to consider the relevant sentencing factors set forth in 42 Pa.C.S.A. § 9721(b). Davi further contends the trial court failed to provide reasons on the record for its revocation sentence that comport with the considerations required by 42 Pa.C.S.A. § 9721(b). Sentencing is within the sound discretion of the trial court, and a sentence will not be disturbed absent an abuse of that discretion. See Commonwealth v. Jones, 640 A.2d 914 , 916 (Pa. Super. 1994). An abuse of discretion is not merely an error of judgment, but a misapplication of the law or an unreasonable exercise of judgment. See Commonwealth v. Sitler, 144 A.3d 156 , 163 (Pa. Super. 2016) (en banc). When imposing a sentence, the trial court must consider the factors set forth in 42 Pa.C.S.A. § 9721(b), that is, the protection of the public, the gravity of the offense, and the defendant’s rehabilitative needs. See Commonwealth v. Shugars, 895 A.2d 1270 , 1274 (Pa. Super. 2006). The trial court must also disclose on the record the reason or reasons for its sentence. See 42 Pa.C.S.A. § 9721(b). However, where the trial court had the benefit of reviewing a pre- sentence report, we must presume the court was aware of and weighed relevant information regarding a defendant’s character along with mitigating statutory factors. See Commonwealth v. Devers, 546 A.2d 12 , 18 (Pa. -7- J-S34004-20 1988) (stating that “it would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand”). At the sentencing hearing following Davi’s revocation of probation, the trial court heard from Davi’s counsel. Counsel for Davi argued against a sentence of total confinement given Davi’s limited criminal history and her traumatic childhood. See N.T., Revocation and Sentencing Hearing, 11/14/19, at 6-7. Counsel also highlighted that Davi suffers from an unspecified mental health condition, which contributed to her criminal conduct. See id., at 7. Further, Counsel asserted that, if Davi were allowed to continue with her probationary sentence, Davi would be able to seek the necessary mental health treatment for her condition. See id. Despite Counsel’s arguments, the trial court imposed a sentence of incarceration. But the trial court specifically stated on the record that Davi was to be housed at a mental health focused state correctional institution where she could receive care for her mental health condition. See id., at 9. As such, it is apparent from the record that the trial court considered the protection of the public, the gravity of Davi’s offense and her rehabilitative needs when imposing sentence. Furthermore, even though the trial court did not disclose the above mentioned reasons for its sentence, the record shows that the court reviewed -8- J-S34004-20 the pre-sentence report before imposing a sentence of total confinement.3 Thus, the trial court satisfied the requirement that reasons for imposing sentence be placed on the record by indicating it reviewed the pre-sentence report. See Commonwealth v. Burns, 765 A.2d 1144 , 1151 (Pa. Super. 2000). Therefore, based upon the foregoing, we conclude the record confirms the trial court properly considered the factors set forth in § 9721(b) and reviewed the pre-sentence report before imposing its sentence. As such, we discern no abuse of discretion. Next, Davi claims, as she did previously, that the trial court failed to consider the facts and circumstances of the case or her rehabilitative needs as required by 42 Pa.C.S.A. § 9721(b) and imposed a sentence in the 2019 case without providing any reasons for the sentence. Once again, it is clear that the trial court considered the facts and circumstances of the case and Davi’s rehabilitative needs in the 2019 case. At the sentencing hearing, the trial court made its sentencing decision after hearing from the victims in the case who were Davi’s elderly aunt and uncle. The trial court heard from the victims how Davi betrayed their trust and stole ____________________________________________ 3 “We’ll make the pre-sentence [report] part of the record, as well as the sentencing memorandum.” N.T., Revocation and Sentencing Hearing, 11/14/19, at 9. -9- J-S34004-20 their money. See N.T., Revocation and Sentencing Hearing, 11/14/19, 3-6. Furthermore, the trial court also had the benefit of reviewing yet another pre- sentence report before imposing a sentence in the 2019 case.4 See Devers, 546 A.2d at 18 . Therefore, we cannot conclude that the trial court abused its discretion here. In her final challenge, Davi contends that her consecutive sentences resulted in a manifestly excessive aggregate sentence of 3 ½-7 years’ incarceration. As noted above, the trial court imposed consecutive sentences following the revocation of Davi’s probation. Despite describing her criminal history as minor, we note that Davi continued to commit fraudulent crimes while she was on probation for the convictions in the 2017 case. The trial court was entitled to consider this recidivism as more than minor criminal conduct. Further, the trial court was clearly concerned with providing Davi mental health treatment while eliminating the temptation to commit yet more crimes. As Davi has not presented any circumstance that indicates the trial court erred or imposed an unreasonable aggregate sentence, we cannot conclude that the trial court abused its discretion in imposing consecutive sentences. See Commonwealth v. Swope, 123 A.3d 333 , 341 (Pa. Super. 2015). ____________________________________________ 4 “A county pre-sentence [report] was completed, and I had an opportunity to review that, as well as . . . a sentencing memorandum completed by [counsel].” N.T., Revocation and Sentencing Hearing, 11/14/19, at 3. - 10 - J-S34004-20 Additionally, we conclude that Davi’s aggregate post-revocation sentence of 3 ½-7 years’ incarceration is not manifestly excessive in light of Davi’s criminal conduct and the failure of rehabilitation through the previous sentence of probation. Therefore, Davi’s final challenge merits no relief. Judgments of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/30/2020 - 11 -

2020-11-30 18:13:51.351348+00

http://www.pacourts.us/assets/opinions/Superior/out/J-S42040-20m - 104618432120873057.pdf

J-S42040-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ASHLEY CIERRA COLE : : Appellant : No. 160 EDA 2019 Appeal from the Judgment of Sentence Entered December 11, 2018 in the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0006153-2014 BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 30, 2020 Ashley Cierra Cole (“Cole”) appeals from the judgment of sentence imposed following the revocation of her probation. We affirm. On January 23, 2015, Cole entered a negotiated guilty plea to one count of retail theft.1 On the same day, the trial court imposed a sentence of time served to 23 months, plus two years of probation. On April 11, 2016, the Montgomery County Adult Probation and Parole Department (“County Probation”) issued a Notice charging Cole with violating ____________________________________________ 1 18 Pa.C.S.A. § 3929(a)(1). Based on Cole’s previous convictions for retail theft, the offense was graded as a third-degree felony. Id. § 3929(b)(1)(iv). J-S42040-20 the conditions of her parole. Cole stipulated to the violation at a Gagnon II2 hearing. The revocation court revoked Cole’s parole, and sentenced Cole to serve the balance of her original sentence, including the two years of consecutive probation following the expiration of her parole. Cole was re-paroled on July 11, 2016. On August 3, 2018, while Cole was on probation, she was arrested for retail theft, after a store employee observed Cole and another individual attempting to leave the store with stolen merchandise. County Probation issued a Notice, on August 14, 2018, charging Cole with violating the conditions of her probation based on the arrest, and for a failure to pay amounts due on her fines, costs, and restitution. Cole waived her rights to a Gagnon I hearing. Cole proceeded to a Gagnon II hearing on December 11, 2018. Prior to the hearing, the Commonwealth informed the revocation court that Cole had pled guilty to the charges arising from the August 2018 arrest, and provided Cole and the court with a copy of a report generated by the Pennsylvania Justice Network (“JNET”). The JNET report indicated that Cole’s name was listed as an alias for “Quaasia Barnwell.”3 At the hearing, Cole provided a statement, wherein she admitted that she was in violation of her ____________________________________________ 2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973). Cole waived her rights to a hearing pursuant to Gagnon I. 3 According to the Revocation Court Opinion, Cole’s counsel notified the revocation court, shortly after the hearing, that their research indicated that the JNET report was inaccurate. Revocation Court Opinion, 1/16/20, at 7. -2- J-S42040-20 probation and requested that she be provided with mental health treatment. However, Cole denied committing the crimes for which she had pled guilty, and denied using an alias. The Commonwealth, in conjunction with County Probation, requested that the trial court impose a sentence of 8 to 23½ months in jail, plus one year of consecutive probation. The Commonwealth also referenced the contents of the JNET report, at which time the revocation court asked the Commonwealth to provide a copy of the JNET report to the court and to Cole. The revocation court then revoked Cole’s probation, and imposed a sentence of 7 to 23 months in prison, followed by one year of probation. Cole filed a post-sentence Motion, requesting that the revocation court modify her sentence. Before the revocation court ruled on Cole’s post- sentence Motion, Cole filed a timely Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.4, 5 Cole raises the following issue for our review: “Did the revocation court err in considering[,] in a Gagnon II sentencing determination[,] late- produced evidence that was not provided to defense counsel?” Brief for Appellant at 2. ____________________________________________ 4 The docket reflects that Cole was granted parole on January 10, 2019, the same day that Cole filed her timely Notice of Appeal. 5 We note that the Revocation Court Opinion is dated January 16, 2020, while the docket lists the date as January 16, 2019. -3- J-S42040-20 Cole argues that the revocation court erred in considering the contents of the JNET report when determining Cole’s sentence. Id. at 9. Specifically, Cole claims that the Commonwealth brought the JNET report to the attention of Cole and the revocation court in an off-the-record meeting just before the Gagnon II hearing and, thus, deprived Cole of the opportunity to defend herself from the contents of the JNET report. Id. at 9-10. Cole concedes that the JNET report was not introduced into evidence at the JNET hearing, and Cole’s counsel did not object to the revocation court’s instruction for the Commonwealth to provide the court and Cole with a copy of the report at the conclusion of the hearing. Id. at 10-11. Nevertheless, Cole claims that the revocation court improperly allowed the JNET report to color its sentencing. Id. Further, Cole claims that the contents of the report itself were proven to be inaccurate after the Gagnon II hearing, and the Commonwealth’s failure to correct the record constituted error. Id. at 11-12.6 “[I]n an appeal from a sentence imposed after the court has revoked probation, we can review the validity of the revocation proceedings, the ____________________________________________ 6 To the extent that Cole argues that the revocation court considered the JNET report as an improper sentencing factor, such claim is waived because it is wholly undeveloped in Cole’s brief, and her brief does not include a separate Pa.R.A.P. 2119(f) statement. See Commonwealth v. Moury, 992 A.2d 162 , 169-70 (Pa. Super. 2010) (stating that, prior to reviewing the merits of a challenge to the discretionary aspects of sentence, it is mandatory for an appellant to attach a separate concise statement pursuant to Rule 2119(f)); Commonwealth v. Wise, 171 A.3d 784 , 791 (Pa. Super. 2017) (finding an issue waived where the appellant failed to develop any argument or cite to controlling case law). -4- J-S42040-20 legality of the sentence imposed following revocation, and any challenge to the discretionary aspects of the sentence imposed.” Commonwealth v. Wright, 116 A.3d 133 , 136 (Pa. Super. 2015) (quoting Commonwealth v. Cartrette, 83 A.3d 1030 , 1033 (Pa. Super. 2013) (en banc)). “Revocation of a probation sentence is a matter committed to the sound discretion of the trial court, and that court’s decision will not be disturbed on appeal in the absence of an error of law or an abuse of discretion.” Commonwealth v. McNeal, 120 A.3d 313 , 322 (Pa. Super. 2015) (citations and quotation marks omitted). In reviewing the revocation of probation, we are cognizant that [t]he Gagnon II hearing entails, or may entail, two decisions: first, a “consideration of whether the facts determined warrant revocation.” Morrissey v. Brewer, [ 408 U.S. 471 ,] 488 [1972]. “The first step in a Gagnon II revocation decision ... involves a wholly retrospective factual question: whether the parolee [or probationer] has in fact acted in violation of one or more conditions of his parole [or probation].” Gagnon …, 411 U.S. at 784 …. It is this fact that must be demonstrated by evidence containing “probative value.” Commonwealth v. Kates, … 305 A.2d [701,] 710 [(Pa. 1973)]. “Only if it is determined that the parolee [or probationer] did violate the conditions does the second question arise: should the parolee [or probationer] be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?” Gagnon …, 411 U.S. at 784 …. Thus, the Gagnon II hearing is more complete than the Gagnon I hearing in affording the probationer additional due process safeguards, specifically: (a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral -5- J-S42040-20 and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole. Gagnon … , 411 U.S. at 786 …. Commonwealth v. Davis, 336 A.2d 616 , 621 (Pa. Super. 1975) (some citations omitted). Here, at the Gagnon II hearing, Cole stipulated to being in violation of her probation by virtue of her pleading guilty to a subsequent criminal offense. N.T., 12/11/18, at 5-6 (wherein Cole testified that she received the Notice of violation from County Probation, and admitted that she was in violation of her probation because of the new arrest and failure to pay court costs). Significantly, the evidence contested by Cole—the JNET report—was not admitted into evidence at the hearing. See N.T., 12/11/18, at 19 (wherein the revocation court instructed the Commonwealth to provide a copy of the report to the revocation court and Cole’s counsel after the hearing concluded). Additionally, the revocation court specifically stated in its Opinion that it “did not consider the JNET [report] presented just prior to the hearing by the Commonwealth[,] or the possibility of another alias in formulating [Cole]’s sentence.” Revocation Court Opinion, 1/16/20, at 12. Cole also points to the revocation court’s reference to Cole’s “history … of making other identifications of herself” as an indication that the revocation court improperly considered the JNET report when imposing its sentence. -6- J-S42040-20 Brief for Appellant at 10-11. The Gagnon II hearing transcript reveals the following statement by the revocation court: Significantly, in rendering my decision in this case, [Cole]’s criminal history includes a total of 14 arrests in the Commonwealth of Pennsylvania. She has incurred ten arrests for retail theft, two assault-related arrests, one arrest for possession of a controlled substance, and one arrest for false identification to law enforcement. So she has a history somewhat of making other identifications of herself, which we frequently see in retail theft cases to avoid further prosecution after being convicted of retail thefts under a real name.” N.T., 12/11/18, at 22-23 (emphasis added). However, the record does not disclose any evidence that the revocation court was referring to the JNET report in its reference to Cole’s prior instances of providing false identification, rather than to Cole’s history of being arrested for providing false identification to law enforcement. See id. Accordingly, we conclude that the revocation court did not abuse its discretion or deprive Cole of her due process rights under Gagnon, and Cole is not entitled to relief on her sole claim. See Ferguson, supra. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/30/2020 -7-

2020-11-30 18:13:51.71329+00

http://www.pacourts.us/assets/opinions/Superior/out/J-S75028-19m - 104618201120856022.pdf

"J-S75028-19\n\n\n NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37\n\n SHELLY M. B(...TRUNCATED)

2020-11-30 18:14:03.636387+00

http://www.tsc.state.tn.us/sites/default/files/hernandez.christopher.opn_.pdf

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2020-11-30 19:01:51.438475+00

https://www.courts.ca.gov/opinions/nonpub/C086317A.PDF

"Filed 11/30/20 P. v. Ramos CA3\nOpinion following rehearing\n (...TRUNCATED)