Com. v. Warren, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAMIRE WARREN :
:
Appellant : No. 1555 EDA 2021
Appeal from the PCRA Order Entered June 23, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004926-2017
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 8, 2022
Appellant Damire Warren appeals from the order dismissing his timely
first Post Conviction Relief Act1 (PCRA) petition. Appellant raises claims of
ineffective assistance of trial counsel and appellate counsel, challenges the
weight of the evidence, and argues that the PCRA court erred by denying his
petition without a hearing. We affirm.
A previous panel of this Court summarized the factual and procedural
history of this matter as follows:
On May 16, 2017, at approximately 8:00 p.m., Michael Hawkins
(the victim) walked across the street from his home at 1916 South
Beachwood Street to visit his neighbor, Frank Nino. The pair had
only recently begun drinking cans of beer on the front steps of
Nino’s residence when Damire Warren (Appellant) approached
them “mumbling stuff.” The Appellant and [the victim] briefly
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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exchanged words before the Appellant then walked towards a
nearby pile of debris and picked up a wooden board
(approximately four feet in length, two feet in width, and two
inches thick). [The victim] and Nino had resumed talking with
each another when the Appellant reapproached [the victim] from
his left side and hit him in the face with the board. The blow was
so forceful that it caused the board to break into two pieces.
[The victim] immediately stood up from the steps and chased after
the Appellant, who had retreated behind a nearby van. As [the
victim] walked around the back of the van, the Appellant threw
the remaining piece of the board at him, again striking him in the
head. The impact of the blow caused [the victim] to slip and fall
to the ground, whereby the Appellant immediately stomped on the
victim’s head once with his foot. Nino testified that he witnessed
the Appellant hit the victim in the head with the board the first
time, and then witnessed the victim chase after the Appellant
behind the van, but he was unable to view what occurred once the
two were out of his line of sight. He further testified that [the
victim] did not physically engage the Appellant prior to being hit.
After the incident, he saw the Appellant retreat down the street.
Shortly thereafter, Nino’s son drove [the victim] to the Veterans
Administration [(VA)] Hospital for treatment. Detective Duffy
took a statement from [the victim] and several photographs of his
injuries. [The victim] initially received forty-seven facial stitches
the night of the incident. He later had several surgeries
(beginning a week later) inserting five facial plates, and some of
his teeth were reattached. Moreover, his jaw was wired shut for
approximately eight weeks, requiring him to consume food
through a straw. Furthermore, the victim testified that he still had
lingering numbness on the left side of his face at the time of trial,
nine months after the incident.
At the conclusion of Appellant’s February 16, 2018 bench trial, the
[trial] court found Appellant guilty of aggravated assault [(graded
as a felony of the first degree)], [possessing instruments of crime
(PIC),] and [recklessly endangering another person (REAP)]. The
court determined Appellant was not guilty of additional charges of
terroristic threats and simple assault. The court ordered a
presentence investigation and scheduled sentencing for April 17,
2018, aware that Appellant had a prior record score of five.
On April 17, 2018, the trial court sentenced Appellant to a term of
five and a half to eleven years in prison for aggravated assault,
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followed by two years’ probation for PIC. The court did not impose
any additional sentence for REAP, . . .
Commonwealth v. Warren, 1446 EDA 2018, 2020 WL 974921, at *1-2 (Pa.
Super. filed Feb. 28, 2020) (unpublished mem.) (citations omitted and
formatting altered).
Jay Samuel Gottlieb, Esq. (trial counsel) represented Appellant at trial.
Appellant did not file any post-sentence motions, but he filed a timely notice
of appeal. Although Bobby Hoof, Esq. initially represented Appellant on direct
appeal, the trial court subsequently granted Attorney Hoof’s motion to
withdraw and appointed Lawrence Bozzelli, Esq. on Appellant’s behalf.2
On direct appeal, Appellant challenged, among other things, the weight
and sufficiency of the evidence and the grading of his aggravated assault
conviction. Id. at *2. This Court determined that Appellant had waived his
weight-of-the-evidence claim because he did not raise it prior to sentencing
or in a post-sentence motion. Id. at *3. This Court also concluded that the
evidence was sufficient to sustain Appellant’s conviction for aggravated
assault and that aggravated assault was properly graded as a felony of the
first degree because the evidence established that “Appellant caused serious
bodily injury to his victim[.]” Id. at *3, *5.
Further, this Court noted:
Appellant contends the victim claimed injuries but failed to
produce medical records to prove the injuries. As counsel for both
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2 We refer to Attorney Hoof and Attorney Bozzelli collectively as “appellate
counsel.”
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parties indicated at trial, their attempts to procure records from
the Veterans Administration Hospital by subpoena and court order
were unsuccessful. Regardless, the Commonwealth admitted a
photograph of the victim taken by the investigating detective on
the night of the assault. That photograph shows significant
bruising and swelling on the left side of the victim’s face. In
addition, although medical records were not available, the victim
credibly testified as to his injuries and the treatments he endured
as a result of the assault.
Id. at *5 n.3 (citation omitted).
This Court affirmed Appellant’s judgment of sentence on February 28,
2020. Appellant did not file a petition for allowance of appeal with our
Supreme Court.
On October 30, 2020, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed PCRA counsel, who filed an amended petition and
supporting memorandum of law on Appellant’s behalf. Therein, Appellant
argued that trial counsel was ineffective for failing to conduct an adequate
pre-trial investigation, failing to object to an incorrect sentencing guidelines
calculation, and failing to file a post-sentence motion. Am. PCRA Pet.,
3/23/21, at 2 (unpaginated). Appellant also claimed that appellate counsel
was ineffective for failing to seek reinstatement of Appellant’s post-sentence
rights nunc pro tunc and for failing to raise appropriate claims on appeal. Id.
Lastly, Appellant asserted that his constitutional rights were violated by the
introduction of hearsay evidence at trial, a conviction that was against the
weight of the evidence, and the use of incorrect sentencing guidelines
calculation at sentencing. Id.
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On May 21, 2021, the PCRA court issued a Pa.R.Crim.P. 907 notice of
intent to dismiss Appellant’s PCRA petition without a hearing. Appellant did
not file a response. The PCRA court dismissed Appellant’s PCRA petition on
June 23, 2021.
Appellant filed a timely notice of appeal. Although the PCRA court did
not order Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant filed a
Rule 1925(b) statement on July 26, 2022. The PCRA court issued an opinion
addressing Appellant’s claims.
Appellant raises the following issues for our review:
1. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
that trial counsel was ineffective for failing to properly
investigate and present available defense evidence and
witnesses; failing to object to the application of the incorrect
offense gravity and prior record scores at sentencing; and
failing to file post-sentence motions to preserve appropriate
issues for appeal.
2. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
that appellate counsels were ineffective for failing to seek to
reinstate post-sentence motions nunc pro tunc, and failing to
raise appropriate claims on appeal.
3. Whether the PCRA court erred by dismissing the PCRA petition
when clear and convincing evidence was presented to establish
violations of appellant’s constitutional rights under the United
States and Pennsylvania Constitutions, including introduction
of hearsay evidence, the application of the incorrect offense
gravity and prior record scores at sentencing, and a guilty
verdict that was against the weight of the evidence.
4. Whether the PCRA court erred by failing to grant an evidentiary
hearing.
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Appellant’s Brief at 8.
Trial Counsel’s Ineffectiveness
In his first issue, Appellant raises three claims concerning trial counsel’s
ineffectiveness. Specifically, Appellant argues that trial counsel failed to (1)
conduct an adequate pre-trial investigation; (2) object to an incorrect
sentencing guidelines calculation; and (3) file a post-sentence motion.
Appellant’s Brief at 14-18. We will address each of these claims separately.
Pre-Trial Investigation
Appellant claims that trial counsel was ineffective for failing to conduct
an adequate pre-trial investigation. Id. at 14, 16-17. Specifically, Appellant
argues that trial counsel failed to “obtain and present the comprehensive
medical records from [the victim’s] treatment at the VA hospital[,]” and failed
to “present testimony from any of the medical professionals involved in [the
victim’s] medical treatment.” Id. at 14. Appellant contends that if trial
counsel presented the victim’s medical records and called the treating medical
professionals as witnesses, it would have established that the victim did not
sustain a serious bodily injury. Id. at 14, 16. Appellant argues that he was
prejudiced because the trial court inferred that the victim suffered serious
bodily injury and convicted Appellant of aggravated assault, graded as a felony
of the first degree.3 Id. at 16-17.
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3 Appellant also argues that his trial counsel failed to object to hearsay
testimony during trial. See Appellant’s Brief at 14. However, Appellant did
(Footnote Continued Next Page)
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In reviewing the denial of a PCRA petition, our standard of review
is limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal
error. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions.
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. The burden is on the defendant
to prove all three of the following prongs: (1) the underlying claim
is of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.[4]
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, the alternative, not chosen,
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not include this claim of trial counsel ineffectiveness in either his Rule 1925(b)
statement or in the statement of questions involved in his appellate brief.
Therefore, it is waived. See Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues
not included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived”), 2116(a) (stating that “[n]o
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby”).
4 Pennsylvania’s three-part standard for assessing claims of ineffective
assistance of counsel, adopted in Commonwealth v. Pierce, 527 A.2d 973(Pa. 1987), is “materially identical” to the two-part test set forth in Strickland
v. Washington, 466 U.S. 668 (1984). See Commonwealth v.
Washington, 927 A.2d 586, 594 n.8 (Pa. 2007) (citation omitted).
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offered a significantly greater potential chance of success.
Counsel’s decisions will be considered reasonable if they
effectuated his client’s interests. We do not employ a hindsight
analysis in comparing trial counsel’s actions with other efforts he
may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered). It is well settled that “[c]ounsel
will not be deemed ineffective for failing to raise a meritless claim.”
Washington, 927 A.2d at 608 (citation omitted). Additionally, counsel
cannot be deemed ineffective for failing to take an act that counsel actually
performed. See, e.g., Commonwealth v. Gwynn, 943 A.2d 940, 946 (Pa.
2008) (concluding that the defendant’s “claim that appellate counsel was
ineffective for failing to raise trial counsel’s ineffectiveness on direct appeal is
meritless since it was, in fact, raised”).
It is well settled that “[c]ounsel has a duty to undertake reasonable
investigations . . . .” Commonwealth v. Tedford, 960 A.2d 1, 39 (Pa. 2008)
(citation omitted and emphasis in original). “In order to demonstrate
counsel’s ineffectiveness for failure to call a witness, a petitioner must prove
that the witness existed, the witness was ready and willing to testify, and the
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absence of the witness’ testimony prejudiced petitioner and denied him a fair
trial.” Commonwealth v. Stahley, 201 A.3d 200, 211 (Pa. Super. 2018)
(citations and quotation marks omitted).
Following our review of the record, the parties’ briefs, and the well-
reasoned conclusions of the PCRA court, we affirm on the basis of the PCRA
court’s opinion. See PCRA Ct. Op. at 5-6. Specifically, we agree with the
PCRA court that Appellant’s claim is meritless because the record establishes
that trial counsel attempted to obtain the victim’s medical records from the
VA multiple times and obtained a court order, but the VA refused to comply.
See id. at 5 (citing N.T. Trial, 2/16/18, at 75); see also Gwynn, 943 A.2d at
946 (holding that a petitioner cannot establish counsel was ineffective for
failing to perform an act that counsel actually performed). Further, we agree
with the PCRA court that because the evidence was sufficient to demonstrate
that the victim suffered a serious bodily injury, Appellant cannot establish he
was prejudiced by trial counsel’s failure to present testimony from the medical
professionals who treated the victim. See PCRA Ct. Op. at 5-6 (concluding
that the victim’s testimony that he received forty-seven stitches and his jaw
was wired shut for eight weeks established that victim suffered a serious
bodily injury (citing, inter alia, Commonwealth v. Nichols, 692 A.2d 181,
184 (Pa. Super. 1997)); see also Washington, 927 A.2d at 608 (stating that
“[c]ounsel will not be deemed ineffective for failing to raise a meritless claim”
(citation omitted)). Accordingly, Appellant is not entitled to relief on this issue.
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Sentencing Guidelines
Appellant next argues that trial counsel was ineffective for failing to
object to the trial court’s calculation of the sentencing guideline range.
Appellant’s Brief at 14-17. Specifically, Appellant asserts that the trial court
erred in calculating the offense gravity score (OGS) as twelve, rather than
eleven, because there was no proof that the victim sustained serious bodily
injury. Id. at 14-15. Appellant also claims that the trial court erred by
considering some of Appellant’s prior convictions that were more than ten
years old and a first offense DUI conviction when making its PRS calculation.
Id. at 15. Therefore, Appellant contends that the trial court incorrectly
calculated his PRS as five instead of as two. Id. Appellant argues he was
prejudiced by trial counsel’s failure to object to these miscalculations because
it “resulted in the imposition of a sentence of incarceration significantly
greater” than the correctly calculated guideline range. Id. at 17.
This Court has explained that when presenting issues in an appellate
brief,
it is an appellant’s duty to present arguments that are sufficiently
developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with
citations to legal authorities. Pa.R.A.P. 2119(a), (b), (c). . . .
This Court will not act as counsel and will not develop arguments
on behalf of an appellant. Moreover, when defects in a brief
impede our ability to conduct meaningful appellate review, we
may dismiss the appeal entirely or find certain issues to be
waived. Pa.R.A.P. 2101.
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Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (some
citations omitted); see also Commonwealth v. Cannavo, 199 A.3d 1282,
1289 (Pa. Super. 2018) (stating that this Court “shall not develop an argument
for an appellant, nor shall we scour the record to find evidence to support an
argument; instead, we will deem the issue to be waived” (citations omitted
and formatting altered)).
Here, we conclude that Appellant has failed to adequately develop this
claim for appellate review. In support of his argument, Appellant presents
only bald assertions that certain prior convictions should not have been
included in the PRS calculation. Appellant has failed to support his claims with
citations to relevant legal authorities. Therefore, we conclude that Appellant
has waived his argument that trial counsel was ineffective for failing to object
to the trial court’s sentencing guidelines calculation and no relief is due. See
Cannavo, 199 A.3d at 1289; Kane, 10 A.3d at 331.
Post-Sentence Motion
Appellant next argues that trial counsel was ineffective for failing to file
a post-sentence motion challenging the weight of the evidence. Appellant’s
Brief at 15-17. Appellant contends this claim has arguable merit because trial
counsel failed to protect Appellant’s constitutional right to appeal from his
conviction. Id. at 15-16. Appellant claims that trial counsel did not have a
reasonable basis for not filing a post-sentence motion. Id. at 16. Appellant
argues that he was prejudiced because trial counsel failed to preserve claims
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for appeal by filing a post-sentence motion, and this “resulted in a complete
foreclosure of appellate review[.]” Id. at 17.
A claim that the verdict was against the weight of the evidence must be
raised in the trial court orally or in writing before sentencing or in a post-
sentence motion. Pa.R.Crim.P. 607(A). The “failure to file post-sentence
motions does not fall within the limited ambit of situations where a defendant
alleging ineffective assistance of counsel need not prove prejudice to obtain
relief.” See Commonwealth v. Liston, 977 A.2d 1089, 1092 (Pa. 2009)
(citation and footnote omitted). In order to obtain relief on a claim that
counsel was ineffective for failing to file a post-sentence motion challenging
the weight of the evidence, the petitioner “must demonstrate that the verdict
was against the weight of the evidence . . . .” Commonwealth v. Smith,
181 A.3d 1168, 1186 (Pa. Super. 2018) (citation omitted). When there is no
merit to the underlying weight-of-the-evidence claim, a PCRA petitioner is not
entitled to relief on a claim that trial counsel was ineffective for failing to file
a post-sentence motion to preserve the claim for appeal. Id. at 1187.
Following our review of the record, the parties’ briefs, and the well-
reasoned conclusions of the PCRA court, we affirm on the basis of the PCRA
court’s opinion. See PCRA Ct. Op. at 8-9. Specifically, we agree with the
PCRA court, which also presided over Appellant’s non-jury trial, that the
underlying weight-of-the-evidence claim is meritless because of “the evidence
supporting the Commonwealth’s case was overwhelming when compared with
the Appellant’s unsubstantiated version of events.” Id. at 9; see also Smith,
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181 A.3d at 1186. Because counsel cannot be deemed ineffective for failing
to raise a meritless issue, Appellant is not entitled to relief on this claim. See
Washington, 927 A.2d at 608. Therefore, no relief is due.
Appellate Counsel’s Ineffectiveness
Appellant argues that appellate counsel5 was ineffective per se because
the “failure to properly perfect a direct appeal is the functional equivalent of
having no representation at all.” Appellant’s Brief at 18. Specifically,
Appellant contends that appellate counsel’s brief was deficient because it
included a waived challenge to the weight of the evidence. Id. at 18-19.
Appellant claims that appellate counsel should have requested a remand to
seek reinstatement of Appellant’s post-sentence rights nunc pro tunc to
preserve a challenge to the weight of the evidence. Id. Appellant concludes
that appellate counsel was ineffective per se because appellate counsel
“created a situation that failed to preserve all of [A]ppellant’s issues on
appeal[,]” and “resulted in a complete foreclosure of appellate review.” Id.
at 19.
Appellant alternatively argues that he has established all three elements
of the Strickland/Pierce ineffectiveness standard with respect to appellate
counsel. Id. at 19-20. Specifically, Appellant contends that this claim has
arguable merit because “appellate counsel’s failure to file an adequate brief
on direct appeal,” resulted in “a complete deprivation of the constitutional
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5 As previously noted, “appellate counsel” refers to both Attorney Hoof and
Attorney Bozzelli, who represented Appellant on direct appeal.
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right to appeal.” Id. at 19 (citation omitted). Appellant asserts that it was
“de facto unreasonable” for appellate counsel to fail to follow the Rules of
Appellate Procedure. Id. at 19-20. Appellant argues that he was prejudiced
by appellate counsel’s ineffectiveness because “it resulted in a complete
foreclosure of appellate review.” Id. at 20.
“To establish Strickland/Pierce prejudice in the appellate
representation context, the petitioner must show that there is a reasonable
probability that the outcome of the direct appeal proceeding would have been
different but for counsel’s deficient performance.” Commonwealth v.
Blakeney, 108 A.3d 739, 750 (Pa. 2014).
However, our Supreme Court has explained that “in certain limited
circumstances, including the actual or constructive denial of counsel, prejudice
may be so plain that the cost of litigating the issue of prejudice is unjustified,
and a finding of ineffective assistance of counsel per se is warranted.”
Commonwealth v. Rosado, 150 A.3d 425, 429-30 (Pa. 2016) (citing, inter
alia, United States v. Cronic, 466 U.S. 648, 658-59 (1984)) (footnote
omitted). The Rosado Court further clarified that “errors which completely
foreclose appellate review amount to a constructive denial of counsel and thus
ineffective assistance of counsel per se, whereas those which only partially
foreclose such review are subject to the ordinary Strickland/Pierce
framework.” Id. at 433 (emphasis in original); see also Commonwealth v.
Reed, 971 A.2d 1216, 1226 (Pa. 2009) (stating that “Cronic is limited to
situations where counsel’s failure is complete, i.e., where counsel has entirely
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failed to function as the client’s advocate” (citation and quotation marks
omitted)).
In Reed, our Supreme Court held that
the filing of an appellate brief, deficient in some aspect or another,
does not constitute a complete failure to function as a client’s
advocate so as to warrant a presumption of prejudice under
Cronic. . . . [The defendant’s] direct appeal counsel’s conduct in
the instant case did not deprive [the defendant] of his
constitutional right to appeal. . . . Although the Superior Court .
. . opined that counsel’s failure to provide appropriate citation to
authority and a copy of the notes of testimony resulted in waiver
of [the defendant’s] argument, the court did not quash [the
defendant’s] appeal. Indeed, the issues apparently were
sufficiently presented to allow the court to address the merits of
[the defendant’s] arguments, as the court indicated that it
reviewed the evidence and the record. At most, the Superior
Court’s review of [the defendant’s] arguments on the record
before it may be viewed as a “narrowing of the ambit” of [the
defendant’s] appeal. Moreover, to extend the Cronic exception
to cases involving a defect in an appellate brief essentially would
transform the exception into a rule, as many appellate briefs
contain at least one arguable defect.
Reed, 971 A.2d at 1226-27 (citations omitted).
Subsequently, the Rosado Court concluded that
the filing of a brief that raises only waived issues, while technically
distinct, is nonetheless akin to failing to file documents perfecting
an appeal. There is no meaningful difference between an attorney
who fails to file a notice of appeal, Rule 1925(b) statement, brief,
or petition for allowance of appeal—thereby forfeiting his client’s
right to appeal—and one who makes all necessary filings, but does
so relative solely to claims he has not preserved for appeal,
producing the same end. In both situations, counsel has forfeited
all meaningful appellate review.
. . . Accordingly, we hold that the filing of an appellate brief
which abandons all preserved issues in favor of
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unpreserved ones constitutes ineffective assistance of
counsel per se.
Rosado, 150 A.3d at 434 (emphasis added). The Rosado Court distinguished
Reed, stating that “the brief in Reed was not so underdeveloped as to
completely foreclose appellate review, but, rather, presented a less robust
version of [the defendant’s] underlying evidentiary claim, which the Superior
Court reviewed on its merits, precluding a finding that his attorney’s errors
caused a complete deprivation of merits review.” Id. at 433-34 (footnote
omitted).
Following our review of the record, the parties’ briefs, and the well-
reasoned conclusions of the PCRA court, we affirm on the basis of the PCRA
court’s opinion. See PCRA Ct. Op. at 11-12. Our review of the record confirms
that a prior panel of this Court addressed the merits of five of the six issues
that Appellant raised on direct appeal. See Warren, 2020 WL 974921, at *2-
5. Therefore, we agree with the PCRA court that because appellate counsel’s
alleged error did not completely foreclose appellate review, appellate counsel
was not ineffective per se. See PCRA Ct. Op. at 11-12; Reed, 971 A.2d at
1226-27; cf. Rosado, 150 A.3d at 433-34. We also agree with the PCRA
court that Appellant cannot satisfy the Strickland/Pierce standard with
respect to appellate counsel because the underlying weight-of-the-evidence
claim is meritless. See PCRA Ct. Op. at 12; see also Washington, 927 A.2d
at 608. Therefore, Appellant is not entitled to relief on this claim.
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Weight of the Evidence
In his third issue, Appellant challenges the weight of the evidence.6
Appellant’s Brief at 20-21. Appellant contends that trial counsel’s ineffective
assistance excuses his failure to preserve this claim. Id. at 20 (citing
Commonwealth v. Christy, 656 A.2d 877 (Pa. 1995)). Appellant asserts
that the verdict shocks the conscience because the evidence presented at trial
did not establish that the victim suffered serious bodily injury. Id. at 20-21.
“To be entitled to PCRA relief, [the petitioner] must establish, by a
preponderance of the evidence, that his conviction or sentence resulted from
one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2),
and that the allegation of error has not been previously litigated or waived.”
Commonwealth v. Mitchell, 105 A.3d 1257, 1265-66 (Pa. 2014) (citation
omitted); see also 42 Pa.C.S. § 9543(a)(3) (stating that in order to be eligible
for relief, the petitioner must plead and prove “the allegation of error has not
been previously litigated or waived”). A claim is waived for the purposes of
the PCRA when “the petitioner could have raised it but failed to do so before
trial, at trial . . . [or] on appeal or in a prior state postconviction proceeding.”
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6 In his statement of issues, Appellant also claims that the admission of
hearsay evidence and the calculation of his sentencing guidelines violated his
constitutional rights. Appellant’s Brief at 8. In the argument portion of his
brief, Appellant challenges only the weight of the evidence. Accordingly,
Appellant has waived any challenge to the admission of hearsay evidence and
the calculation of his sentencing guidelines. See Commonwealth v. Felder,
247 A.3d 14, 20 (Pa. Super. 2021) (stating that “an issue identified on appeal
but not developed in the appellant's brief is abandoned and, therefore,
waived” (citation omitted and formatting altered)).
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42 Pa.C.S. § 9544(b). “Generally, an appellant may not raise allegations of
error in an appeal from the denial of PCRA relief as if he were presenting the
claims on direct appeal.” Commonwealth v. Price, 876 A.2d 988, 995 (Pa.
Super. 2005) (citation omitted); see also Commonwealth v. Reyes-
Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (stating generally that “[a]t
the PCRA stage, claims of trial court error are either previously litigated (if
raised on direct appeal) or waived (if not)” (citation omitted)).
A defendant cannot relitigate a claim on PCRA that was previously
deemed waived on direct appeal except by couching it in terms of ineffective
assistance of counsel. See, e.g., Commonwealth v. Jones, 912 A.2d 268,
277 n.10 (Pa. 2006); see also Commonwealth v. Collins, 888 A.2d 564,
573 (Pa. 2005) (observing that “ineffectiveness claims are distinct from those
claims that are raised on direct appeal”).
Our review of the record confirms that a prior panel of this Court found
that Appellant waived his weight-of-the-evidence claim on direct appeal. See
Warren, 2020 WL 974921, at *3. Contrary to Appellant’s assertion, he
cannot raise a previously waived claim for PCRA review simply by asserting
that trial counsel’s ineffectiveness caused the prior waiver. Instead, a PCRA
petitioner must plead a waived claim of trial court error in the context of a
claim of ineffective assistance of counsel.7 See Jones, 912 A.2d at 277 n.10.
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7As stated above, we agree with the PCRA court’s conclusion that Appellant
has failed to prove that trial counsel was ineffective for failing to file a post-
(Footnote Continued Next Page)
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Therefore, because Appellant previously waived his challenge to the weight of
the evidence, he is ineligible for relief on this claim.8 See 42 Pa.C.S. §
9544(b); Reyes-Rodriguez, 111 A.3d at 780; Price, 876 A.2d at 995.
Evidentiary Hearing
In his final claim, Appellant argues that the PCRA court abused its
discretion by dismissing his PCRA petition without an evidentiary hearing.
Appellant’s Brief at 21-22. Appellant claims that he “raised significant claims
of trial counsel’s ineffectiveness and violations of his constitutional rights[,]”
with supporting facts. Id. at 22. Appellant contends that the PCRA court
should have afforded Appellant “every conceivable legitimate benefit in the
disposition” of his claims. Id. (citing Commonwealth v. Pulling, 470 A.2d
170 (Pa. Super. 1983)).
It is well settled that
[t]here is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that
no genuine issues of material fact exist, then a hearing is not
necessary. To obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
____________________________________________
sentence motion challenging the weight of the evidence. See PCRA Ct. Op.
at 8-9.
8 Appellant also asserts that his constitutional right to due process was
violated because the verdict was against the weight of the evidence.
Appellant’s Brief at 20-21 (citing 42 Pa.C.S. § 9543(a)(2)(i)). Appellant failed
to cite any legal authorities in support of this proposition. Therefore, that
constitutional claim is waived. See Cannavo, 199 A.3d at 1289; Kane, 10
A.3d at 331.
- 19 -
J-S31027-22
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations
and quotation marks omitted).
Based on our review of the record, the parties’ briefs, and the well-
reasoned conclusions of the PCRA court, we affirm on the basis of the PCRA
court’s opinion. See PCRA Ct. Op. at 16-17. Specifically, the PCRA court
concluded that “[e]very single one of the Appellant’s claims on PCRA review
were dependent on facts already in the record. None of the Appellant’s claims
were dependent on any outside facts that could have been presented at an
evidentiary hearing or had any effect on the disposition of his claims.” Id. at
17. We agree with the PCRA court that Appellant failed to raise a genuine
issue of fact, and we discern no abuse of discretion in the PCRA court’s
dismissal of his petition without a hearing.9 See Maddrey, 205 A.3d at 328.
Therefore, Appellant is not entitled to relief on this claim.
For these reasons, we conclude that the PCRA court’s determinations
are supported by the record and that there was no error of law by the PCRA
court in dismissing Appellant’s PCRA petition. See Sandusky, 203 A.3d at
1043. Accordingly, we affirm the PCRA court’s order.
____________________________________________
9 Appellant’s reliance on Pulling is misplaced. The Pulling Court observed
that “in borderline cases petitioners are to be given every conceivable
legitimate benefit in the disposition of their claims for an evidentiary hearing.”
Pulling, 470 A.2d at 173 (citation and quotation marks omitted, emphasis
added). As stated above, there is no right to an evidentiary hearing on a PCRA
petition and Appellant did not raise a genuine issue of fact that required a
hearing to resolve.
- 20 -
J-S31027-22
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2022
- 21 -
Circulated 10/12/2022 02:01 PM
filllm
IN THE COURT OF COMMON PLEAS
FOR THE COUNTY OF PHILADELPHIA ~Trial
Office of Judicial Recordl
COMMONWEALTH OF PENNSYLVANIA TRIAL DIVISION
v. CP-51-CR-0004926-2017
DAMIRE WARREN, APPELLANT 1555 EDA 2021
OPINION
This Opinion addresses Appellant Damire Warren's Appeal of this Court's Order denying
his Petition for Post-Conviction Relief. This Court finds that the issues raised in his Appeal lack
merit for the reasons set forth in this Opinion.
CASE HISTORY
On May 26, 2017, the Appellant was arrested and charged with Aggravated Assault (F 1) 1,
Simple Assault (M2) 2 , Possession of an Instrument of Crime ("PIC") (M1) 3 , Terroristic Threats
(M1) 4, and Recklessly Endangering Another Person ("REAP") (M2). 5
On February 16, 2018, a waiver trial was conducted, and the Court found the Appellant
guilty of Aggravated Assault, PIC, and REAP. The Appellant did not file any pre-sentence
motions. On April 17, 2018, the Court sentenced the Appellant to 5 Yi - 11 years incarceration on
the Aggravated Assault offense followed by 2 years of probation on the PIC offense. No further
penalty was assessed for the REAP offense ..
On May 3, 2018, the Appellant filed a Notice of Appeal to the Superior Court. On February
28, 2020, the Pennsylvania Superior Court affirmed this Court's Judgment of Sentence. On
October 30, 2020, the Appellant filed a Petition for Post-Conviction Relief pursuant to 42
Pa.C.S.A. § 9541 et seq. On March 23, 2021, the Appellant filed an Amended Petition. On April
26, 2021, the Commonwealth filed a Motion to Dismiss the Amended Petition. On June 23, 2021,
1 18 § 2702 §§(A).
2 18 § 2701 §§(A).
3 18 § 907 §§(A).
4
18 § 2706 §§ (A)(l).
5
18 § 2705.
1
0047_Opinion
this Comt dismissed the Appellant's Amended Petition. On July 20, 2021, the Appellant filed a
Notice of Appeal from this Court's Order dismissing the Amended Petition. On July 26, 2021, the
Appellant filed a Statement of Matters Complained of on Appeal raising the following issues: 6
1. The PCRA court erred by dismissing appellant's petition for post-conviction relief. Appellant
established by clear and convincing evidence that he was denied effective assistance of trial
counsel as guaranteed by the Sixth Amendment of the United States Constitution and the
analogous provisions of the Pennsylvania Constitution. Appellant was entitled to relief pursuant
to Section 9543(a)(2)(ii) of the PCRA based on trial counsel's ineffectiveness. Trial counsel failed
to provide effective assistance of counsel by failing to properly investigate and present available
defense evidence and witnesses; failing to object to the application of the incorrect offense gravity
and prior record scores at sentencing; and failing to file post-sentence motions to preserve
appropriate issues for appeal.
2. Appellant was also entitled to relief pursuant to Section 9543(a)(2)(ii) of the PCRA based on
appellate counsel's ineffectiveness. Appellant established by clear and convincing evidence that
he was denied effective assistance of counsel on appeal as guaranteed by the Sixth Amendment of
the United States Constitution and the analogous provisions of the Pennsylvania Constitution.
Appellant counsel failed to provide effective assistance by failing to seek to reinstate post-sentence
motions nunc pro tune, and failing to raise appropriate claims on appeal.
3. Appellant was also entitled to relief pursuant to Section 9543(a)(2)(i) of the PCRA based on the
violation of his constitutional rights. Appellant established by clear and convincing evidence that
his rights were violated by the introduction of hearsay evidence, the application of the incorrect
offense gravity and prior record scores at sentencing, and a guilty verdict that was against the
weight of the evidence.
4. The PCRA court erred by dismissing appellant's petition for post-conviction relief without an
evidentiary hearing. Appellant was entitled to an evidentiary hearing to prove the validity of his
factual and legal claims. An evidentiary hearing was required before the court could decide the
merits of appellant's claims. Appellant should have been given every conceivable legitimate
benefit in the disposition of his claim for an evidentiary hearing.
FACTS
On May 16, 2017, at approximately 8:00 p.m., Michael Hawkins (the Complainant) walked
across the street from his home at 1916 South Beachwood Street to visit his neighbor, Frank Nino. 7
The pair had only recently begun drinking cans of beer on the front steps ofNino's residence when
6
Copied verbatim from the Appellant's Statement of Matters Complained on Appeal pursuant to Pa.R.A.P. 1925(b).
7
Notes a/Testimony, February 16, 2018, p. 13.
2
Damire Warren (the Appellant) approached them "mumbling stuff." 8 The Appellant and Hawkins
briefly exchanged words before the Appellant then walked towards a nearby pile of debris and
picked up a wooden board (approximately four feet in length, two feet in width, and two inches
thick). 9 Hawkins and Nino had resumed talking with each another when the Appellant
reapproached Hawkins from his left side and hit him in the face with the board. 10 The blow was
so forceful that it caused the board to break into two pieces. 11
Hawkins immediately stood up from the steps and chased after the Appellant, who had
retreated behind a nearby van. 12 As Hawkins walked around the back of the van, the Appellant
threw the remaining piece of the board at him, again striking him in the head. 13 The impact of the
blow caused Hawkins to slip and fall to the ground, whereby the Appellant immediately stomped
on Hawkins' head once with his foot. 14 Nino testified that he witnessed the Appellant hit Hawkins
in the head with the board the first time, and then witnessed Hawkins chase after the Appellant
behind the van, but he was unable to view what occurred once the two were out of his line of
sight. 15 He further testified that Hawkins did not physically engage the Appellant prior to being
hit. 16 After the incident, he saw the Appellant retreat down the street. 17
Shortly thereafter, Nina's son drove Hawkins to the Veterans Administration Hospital for
treatment. 18 Detective Duffy took a statement from Hawkins and several photographs of his
8
Id. at p. 15; Michael Hawkins and Frank Nino testified that they had only had one beer each and were not
intoxicated at the time of the incident. See Notes of Testimony, February 16, 2018, p. 15, In. 9-12; see also Id. at p.
55, In. 6-9; see also Id. at p. 56, In. 10-16.
9
Id. at p. 16; Id. at p. 36, ln. 12-20.
10
Id. at p. 15, In. 21-25; Id. at p. 51-52.
11
Id. at p. 36, In. 4-8.
12
Id. at p. 18.
13 Id.
14
Id. at 18-19.
15
Id. at p. 51-53.
16
Id. at p. 52.
17
Id. at 54.
18
Id. at p. 21, In. 7-13.
3
injuries. 19 Hawkins initially received forty-seven facial stitches the night of the incident. 20 He later
had several surgeries (beginning a week later) inserting five facial plates, and some of his teeth
were reattached. 21 Moreover, his jaw was wired shut for approximately eight weeks, requiring him
to consume food through a straw. Furthermore, Hawkins testified that he still had lingering
numbness on the left side of his face at the time of the trial, nine months after the incident. 22
DISCUSSION
I. TRIAL COUNSEL WAS NOT INEFFECTIVE.
The Appellant's first issue on appeal is that the Court erred when it dismissed his Petition
for Post-Conviction Relief because trial counsel was ineffective for failing to properly investigate
and present available defense evidence and witnesses, failing to object to the application of
incorrect offense gravity and prior record scores at sentencing, and failing to file post-sentence
motions to preserve appropriate issues for appeal. However, trial counsel was not ineffective, and
these claims lack merit.
It is well-settled law in Pennsylvania that the Appellant has the "burden to prove allegations
of ineffectiveness. Counsel is presumed effective." Commonwealth v. Baker, 617 A.2d 663, 673
(Pa. 1992). To prevail on an ineffectiveness claim, the Appellant must overcome the presumption
of competence by showing that: (1) the underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some reasonable basis designed to effectuate
his interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the
outcome of the challenged proceeding would have been different. Commonwealth v. Wharton,
19
See Exhibit C-1: photographs of the Complainant's injuries taken at the hospital the night of the incident; see also
Exhibit D-1: the Complainant's statement submitted to Detective Duffy the night of the incident.
20
Id. at p. 21-25.
21 Id.
22 Id.
4
811 A.2d 978, 986 (Pa. 2002) (quoting Strickland v. Washington, 466 U.S. 688; 122 S. Ct. 1843(1984)). The Appellant's failure to satisfy any one prong requires the court to reject his claim. Id.a. Trial counsel was not ineffective for failing to properly investigate and present
available defense evidence and witnesses.
The Appellant claims in his Petition that trial counsel failed to subpoena or request a court
order to produce the entire medical record from the Complainant's treatment at the Veterans
Administration Hospital and failed to present testimony from any of the medical professionals
involved in the Complainant's treatment. The Appellant claimed that these records and testimony
would have "established the true extent" of the Complainant's injuries. The Appellant further
argues that the "true extent" of the injuries was only sufficient to establish simple assault, rather
than aggravated assault. This claim lacks merit.
First, the Appellant's claim that counsel was ineffective for failure to subpoena the
Veterans Administration Hospital is baseless, as the record reflects that both trial counsel and the
Commonwealth subpoenaed the hospital multiple times, including obtaining an order directly from
the Court. N.T. 2/16/18, p. 75. However, the hospital refused to provide the Complainant's
records. 23 Therefore, the Appellant's claim that counsel was ineffective for failing to subpoena
records must fail. Trial counsel cannot be held to be ineffective for failing to do something that
he did, in fact, do. Commonwealth v. Spotz, 896 A.2d 1191, 1224 (Pa. 2006) ("We will not deem
counsel ineffective for failing to object to a statement when he in fact did object to that
statement.").
Second, the Appellant's claim that counsel was ineffective for failing to present testimony
from the medical professionals involved in the Complainant's treatment is meritless, since the
Appellant has not and cannot demonstrate that he was prejudiced by the lack of testimony. At
23 Id.5
trial, the Complainant testified that he had two surgeries, 47 stitches, and that his jaw was wired
shut for eight weeks. N.T. 2/16/18, p. 22-27. These injuries are more than sufficient to demonstrate
that the Complainant had suffered a "serious bodily injury" justifying a conviction of Aggravated
Assault. Commonwealth v. Nichols, 692 A.2d 181, 184 (Pa. Super. 1997) (finding of serious
bodily injury where complainant suffered a broken jaw which was wired shut for six weeks).
While the Appellant claims that testimony from the medical professionals would have contradicted
the Complainant's testimony, he offers no basis or evidentiary support for his argument.
Appellant's claim is, at best, speculative. Since the Appellant cannot establish that testimony from
the treating physicians would have contradicted the Complainant's testimony, he cannot
demonstrate that he was prejudiced by trial counsel's failure to present it, and his claim fails.
b. Trial counsel was not ineffective for incorrectly determining the Appellant's
Offense Gravity and Prior Record Scores.
The Appellant next claims that counsel was ineffective for failing to properly calculate his
Offense Gravity and Prior Record Scores. This claim also lacks merit.
First, the Appellant's claim that counsel was ineffective for failing to object to the Offense
Gravity Score (OGS) is meritless because the underlying claim that the Offense Gravity Score was
incorrectly calculated is itself meritless. The Appellant's underlying claim that the OGS was
inc01Tect is predicated on the Appellant's assertion that the Complainant did not suffer a "serious
bodily injury." The Appellant contends that had trial counsel introduced medical records from the
Complainant's treatment at the Veterans Administration Hospital and testimony from the treating
physicians, the Court would not have found that the Complainant had suffered a "serious bodily
injury," and therefore the proper OGS would have been a 10 or less. However, as discussed supra,
the Appellant's underlying claim that medical records and/or testimony from the Complainant's
treating physicians would have contradicted the Complainant's testimony and prevented a finding
6
of serious bodily injury is entirely speculative and unsupported by any proffer of evidence or
affidavit. Therefore, the Appellant fails to demonstrate that his underlying claim that the OGS was
incorrectly calculated has any merit and consequently fails to show that trial counsel was
ineffective.
Second, the Appellant's claim that counsel was ineffective for failing to object to the
incorrectly calculated Prior Record Score (PRS) fails for similar reasons. When calculating the
PRS, the Adult Probation and Parole Department considered the Appellant's past convictions for
DUI, Possession with Intent to Distribute, and Criminal Trespass. 24 Appellant claims that trial
counsel failed to argue against the inclusion of the PWID in the PRS calculation on the basis that
the conviction was more than ten (10) years prior to the sentencing date. However, the Appellant
provided no legal authority nor any other basis in his Petition for why a felony conviction should
not be considered in sentencing if it is older than 10 years. Moreover, the Court is unaware of any
such rule requiring such convictions to be excluded. On the contrary, the Superior Court has ruled
that "the [Sentencing] Code has no specified look back period and counts DUI' s regardless of
conviction date." Commonwealth v. Cook, 9414 A.2d 7, 12 (Pa. Super. 2007).
The Appellant also claims that the PRS was incorrectly calculated to consider a DUI that
should not have been counted, as it was a first offense. However, the Appellant fails to recognize
that he in fact has two separate convictions for DUI - the first was classified as a "1st Offense
(Other Misdemeanor)" and was not counted towards his PRS. 25 The second DUI was classified
as a "DUI Unclassified Misdemeanor" and properly counted as one (1) point towards the
Appellant's PRS. Therefore, the Appellant fails to demonstrate that his underlying claim that the
24
See Presentence Investigation Report for Docket No. CP-51-CR-0004926-2017.
2s Id.7
PRS were incorrectly calculated has any merit, and consequently fails to show that counsel was
ineffective.
Moreover, even if the PRS was incorrectly calculated, the Appellant cannot demonstrate
that he was prejudiced by its incorrect calculation. The Court sentenced the Appellant to 5Y2-l 1
years incarceration on the Aggravated Assault conviction. N.T. 4/17/2018, p. 17. Hypothetically,
if the Appellant's correct Prior Record Score was indeed a two (2) as the Appellant claims, the
minimum sentencing guideline range (with "deadly weapon used" enhancement) would have been
66-84 months± 12 months. 26 Since the Court sentenced the Appellant to a minimum sentence of
66 months, it would still have been on the low end of the minimum sentencing guidelines even
with a PRS of 2. Therefore, the Appellant cannot demonstrate that he was prejudiced by any
incorrect calculation of his PRS, and his ineffectiveness claim fails.
c. Trial Counsel was not ineffective for failing to file a post-sentence motion
challenging the weight of the evidence.
Appellant next claims that trial counsel was ineffective for failing to file post-sentence
motions to preserve his weight of the evidence claim for appeal. This claim also lacks merit, as
the Appellant cannot demonstrate that a weight of the evidence claim would have had any merit,
nor that counsel's failure to file post-sentence motions preserving the claim resulted in prejudice.
In the instant case, the evidence was that the Complainant and Frank Nino were sitting on
the front steps of Nino' s home when the Appellant approached and began interacting with the
Complainant. N.T. 2/16/18, p. 15, 51. After exchanging words with the Complainant, the
Appellant walked over to a pile of debris and picked up a wooden board. Id. He then struck the
Complainant in the head with the board, who was still sitting on the steps adjacent Nino. Id.26
See the Pennsylvania Commission on Sentencing's 7111 Edition Sentencing Guidelines, Amendment 3 (9/25/2015).
See also 204 Pa. Code§ 303.17(b).
8
The Appellant testified that the Complainant was the first aggressor as a result of the
Complainant's unwillingness to loan him money. Id. He further professed that the Complainant
grabbed a stick and began swinging it at him threateningly, which necessitated that he punch the
Complainant "once or twice" in self-defense. Id. However, the Appellant produced no witness
or other evidence to corroborate his claim. Instead, the Appellant elicited character evidence
when cross-examining the Complainant about his previous guilty pleas for terroristic threats in
2003 and 2004. Id. at 43. 27
In contrast, Nino testified that he never witnessed the Complainant move from the
steps prior to the Appellant attacking him. In fact, Nino stated that he never saw Hawkins
do anything physically to the Appellant at all. Moreover, the Commonwealth's evidence
included photographs of the Complainant's injuries taken the night of the incident. 28 The
Complainant's injuries were so severe (five insertion plates to his face, forty-seven stitches, and
his jaw wired shut for approximately eight weeks) that the possibility of such damage being
inflicted with one or two punches is remote. Furthermore, the Appellant testified that he was
not a professional boxer and had never received any training in boxing, only making his
assertion that "one or two" punches inflicted that amount of damage less likely. 29 The weight
of the evidence supporting the Commonwealth's case was overwhelming when compared with the
Appellant's unsubstantiated version of events. Therefore, the Appellant cannot demonstrate that a
weight of the evidence claim would have had any merit, nor that he was prejudiced by counsel's
failure to file a post-sentence motion preserving the claim. Consequently, trial counsel was not
ineffective, and the Appellant's claims should be dismissed.
27
The Complainant, Michael Hawkins, testified that he plead guilty to making terroristic related to one case on May
27, 2003 and two cases on May 22, 2004 (all three cases occurring in Delaware County, PA).
28
See Exhibit C-1.
29
Id. at p. 68.
9
II. APPELLATE COUNSEL WAS NOT INEFFECTIVE.
The Appellant's second issue on appeal is that the Court erred when it dismissed his
Petition for Post-Conviction Relief because appellate counsel was ineffective for failing to seek to
reinstate Appellant's rights to file post-sentence motions nunc pro tune and by failing to raise
"appropriate claims" on appeal. 30 However, appellate counsel was not ineffective, and this claim
lacks merit.
In the instant case, the Appellant claimed that appellate counsel's failure to seek
reinstatement of post-sentence motion to preserve a weight of the evidence claim constituted a
"complete foreclosure of appellate review" and entitled him to a finding that counsel was
ineffective per se pursuant to Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999), Commonwealth
v. Baker, 880 A.2d 654 (Pa. Super. 2005), Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005),
and Commonwealth v. Flores 909 A.2d 387 (Pa. Super. 2006). However, the Appellant's case is
entirely inapposite to cases involving ineffectiveness per se as a result of counsel failing to perfect
an appeal.
Appellate counsel for the Appellant filed a direct appeal raising 5 issues: (1) sufficiency
of the evidence, (2) admissibility of his juvenile adjudication from 2003, (3) the trial court's refusal
to find that his actions were justified, (4) the trial court's failure to find that the Appellant had
committed second, rather than first, degree aggravated assault, and ( 5) that the verdict was against
the weight of the evidence. The Superior Court reviewed all of his claims and dismissed four of
them on the merits, noting that his weight of the evidence claim was waived for failure to preserve
it via post-sentence motion. Neglecting to take steps to retroactively preserve a single issue, while
30
While the Appellant claimed in his Petition that appellate counsel also failed to raise "appropriate issues" on
appeal, he did not disclose what other issues appellate counsel should have brought, only arguing that counsel
should have sought to have his right to file post-sentence motions reinstated so that he could raise a weight of the
evidence claim. Therefore, the Court will only address this claim.
10
properly bringing several other issues that were reviewed on the merits does not constitute
"complete foreclosure of appellate review."
In the cases cited by the Appellant establishing ineffectiveness per se by virtue of such
foreclosure, defendants' counsel: (1) withdrew a requested direct appeal pursuant to a new
sentencing agreement without obtaining a knowing, intelligent, voluntary waiver from his client
(Lantzy) 31 , (2) refused to file a direct appeal (Baker), (3) failed to file a 1925(b) Statement of
Errors Complained of on Appeal, resulting in the waiver of all claims on appeal (Halley), and (4)
failed to file a sufficiently specific l 925(b) Statement, resulting in the waiver of all claims on
appeal (Flores). In these cases, the defendants were entirely precluded from having any of their
claims reviewed on appeal. However, in the Appellant's case, four out of his five claims on appeal
were directly reviewed on the merits.
Where an appellant's claims have in fact been reviewed on appeal, he has not been
"completely foreclosed" from appellate review. See Commonwealth v. Hernandez, 755 A.2d 1, 9
n. 4 (Pa. Super. 2000) (contrasting cases where a defendant was "entirely denied his right to a
direct appeal" with cases where "prior counsel's ineffectiveness may have waived one or more,
but not all, issues on direct appeal"); Commonwealth v. Halley, 870 A.2d 795, 801 (Pa. 2005)
(approving the distinction drawn in Hernandez between "failures that completely foreclose
appellate review, and those which may result in narrowing its ambit"); Commonwealth v. Grosella,
902 A.2d 1290, 1293-94 (Pa. Super. 2006) (reinstatement of appellate rights nune pro tune
inappropriate where only some issues were waived on direct appeal); Commonwealth v. Reed, 971
A.2d 1216, 1226-27 (Pa. 2009) (reinstatement of appellate rights nune pro tune inappropriate
where deficiencies in appellate brief only resulted in waiver of some appellate issues). Therefore,
31
The Superior Comt in Lantzy found that the defendant did not knowingly, intelligently, or voluntarily withdraw
the appeal by virtue of not knowing that the sentencing court had no authority to impose the agreed upon sentence.
11
the Appellant was not entitled to a finding that counsel was ineffective per se for his failure to seek
reinstatement of post-sentence motions for the sake of a single weight of the evidence claim.
Since he was not entitled to a finding of ineffectiveness per se, the Appellant was required
to meet all of the Strickland factors in order to establish that appellate counsel was ineffective.
However, for the reasons stated in Section I(c) of this Opinion, supra, a weight of the evidence
claim would have been entirely meritless. Therefore, the Appellant cannot demonstrate that
appellate counsel was ineffective, and this claim fails.
III. APPELLANT IS NOT ENTITLED TO RELIEF PURSUANT TO SECTION
9543(a)(2)(i) OF THE POST-CONVICTION RELIEF ACT.
The Appellant's third issue on appeal is that the Court erred when it dismissed his Petition
for Post-Conviction Relief because he had established that his constitutional rights were violated
by the introduction of hearsay evidence, the application of the incorrect offense gravity and prior
record scores at sentencing, and a guilty verdict that was against the weight of the evidence. These
claims lack merit for multiple reasons.
a. The Appellant is not entitled to relief based on the admission of hearsay evidence.
As an initial matter, the Appellant's claim that his constitutional rights were violated by
the introduction of hearsay evidence, i.e. that the trial court erred in allowing the admission of
hearsay evidence, was non-cognizable on PCRA review because he could have raised it on direct
appeal but did not. 42 Pa.C.S. §§ 9543(a)(3), 9544(b) ("an issue is waived if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior
state postconviction proceeding"). Therefore, the Court did not err when it dismissed his Petition.
Regardless, even if the issue of the improper introduction of hearsay evidence had not been
waived prior to PCRA review, the Court did not err in dismissing the Appellant's Petition because
despite his claim, he had not established a right to relief under 42 Pa.C.S. § 9543(a)(2)(i). Section
12
9543(a)(2)(i) provides a right to relief where the conviction is the result of "a violation of the
Constitution of this Commonwealth or the Constitution or the laws of the United States which, in
the circumstances of the particular case, so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken place." In the instant case, the
Appellant alleges that hearsay was introduced "by both the complainant and the arresting
officers ... [who] referenced the medical diagnosis made by the treating physician during their
testimony." See Amended Petition 3/23/21, p. 4. While the Appellant never specifically identifies
what statements exactly constituted hearsay in his Petition (in fact, at no point during the trial nor
sentencing did any atTesting officer or law enforcement personnel testify), the Appellant is likely
referring to pages 21-28 of the transcript, wherein the Complainant is testifying as to his injuries
and treatment resulting from the attack. During this testimony, the Complainant describes the
treatment as involving 47 stitches on his left eye, right cheek, and mouth, multiple teeth being
reattached, his jaw being wired shut for eight weeks, and five plates being put in his face. N.T.
2/16/18 p. 21-28. At no point does the Complainant actually relay a particular statement told to
him by his treating physician during his testimony. Id.
While the Appellant does not identify a particular hearsay statement in his Petition, the
Court surmises that he is referring to the Complainant's testimony that he received five plates in
his face, as they were supposedly inserted during a surgery wherein the Complainant was under
anesthesia. Thus, the only way the Complainant could know of the insertion of these plates is if
someone else had told him. However, the Complainant had personal knowledge of his physical
conditions: he could feel his mouth wired shut, see his stitches, knew he underwent surgery, lacked
feeling in part of his face and observed his own lost teeth and reattachment. Id. Even ifhe did not
personally observe or physically feel the plates in his face after the surgery, the statement that he
13
had plates put in his face was harmless and did not prejudice the Appellant. See Commonwealth
v. Small, 890 A.2d 549 562 (Pa. 2009) (holding inadmissible hearsay was harmless error because
it was cumulative of non-hearsay evidence admitted at trial). The fact that the Complainant's jaw
was wired shut for eight weeks was alone sufficient to find that he had suffered a serious bodily
injury as a result of the attack and sustain a conviction for Aggravated Assault. See Nichols, 692
A.2d at 184, supra (finding of serious bodily injury where complainant suffered a broken jaw
which was wired shut for six weeks).
Therefore, when one considers the circumstances of this particular case, the Appellant
cannot demonstrate that any such violation of the hearsay rule "so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could have taken place."
Consequently, the Court did not err when it dismissed the Appellant's Petition, and his claim
should be dismissed.
b. The Appellant is not entitled to relief based on his claim that he was sentenced
under the incorrect Offense Gravity and Prior Record Scores.
The Appellant next claims that he is entitled to relief pursuant to 42 Pa.C.S. § 9543(a)(2)(i)
because he was sentenced under the incorrect Offense Gravity and Prior Record Scores. This
claim lacks merit because it is premised on the false assertion that the Offense Gravity and Prior
Record Scores were incorrect, when in fact they were correct. 32
First, the Appellant claims that the Offense Gravity Score for his Aggravated Assault
conviction should have been a 10 or less, rather than 11, because the Complainant did not suffer a
"serious bodily injury." However, the evidence presented at trial established that the
Complainant's jaw was wired shut for eight weeks as a result of the injuries he sustained during
32 See Section I(b) of this Opinion, supra.
14
the attack. Under Nichols, supra, the Superior Court has held that serious bodily injury occurred
where a complainant's jaw was wired shut for six weeks.
Second, the Appellant claims that his Prior Record Score (PRS) was calculated incorrectly
because his previous DUI conviction was a first offense and should not have been included in the
PRS calculation. However, review of the presentence investigation report shows that the Appellant
has two prior DUI convictions, one of which was a first offense and correctly not included in the
PRS calculation, and another which was a subsequent offense and thus correctly included in the
PRS calculation.
The Appellant further argues that his prior felony drug charge should not have been
considered in the PRS calculation because the conviction was older than ten (10) years at the date
of his sentencing. However, the Appellant provides no rule nor statute no precedent that requires
that convictions older than ten years be disregarded in calculating prior record scores. On the
contrary, the Superior Court has ruled that "the [Sentencing] Code has no specified look back
period and counts DUI's regardless of conviction date." Commonwealth v. Cook, 9414 A.2d 7, 12
(Pa. Super. 2007). Therefore, the Offense Gravity and Prior Record Scores used at the Appellant's
sentencing hearing were correct, and his claim should be dismissed.
c. The Appellant is not entitled to relief based on the verdict being against the weight
of the evidence.
The Appellant next claims that he is entitled to relief pursuant to 42 Pa.C.S. § 9543(a)(2)(i)
because the verdict was against the weight of the evidence. However, for the reasons discussed in
Section I(c) of this Opinion, supra, the verdict was not against the weight of the evidence.
Therefore, the Court did not err when dismissing the Appellant's Petition, and this claim should
be dismissed.
15
IV. THE COURT DID NOT ERR WHEN IT DISMISSED THE APPELLANT'S
PETITION WITHOUT A HEARING.
The Appellant's final issue on appeal is that that Court erred when it denied the Appellant's
Petition for Post-Conviction Relief without an evidentiary hearing. This claim also lacks merit.
A petitioner's right to an evidentiary hearing is not absolute. Commonwealth v. Jordan,
772 A.2d 1011, 1014 (Pa. Super. 2001); Commonwealth v. Walker, 36 A.3d 1, 17 (Pa. Super.
2011) (PCRA petitioners are not automatically entitled to evidentiary hearings). An evidentiary
hearing is only required when a petitioner presents a genuine issue of material fact. Walker, 36
A.3d at 17. Moreover, the Court may use its discretion to determine if any of the petitioner's
claims warrant a hearing. If a PCRA court determines that claims raised are without merit and
would not entitle the petitioner to post-conviction collateral relief, the court may deny a petition
without an evidentiary hearing. Commonwealth v. Payne, 794 A.2d 902, 906 (Pa. Super. 2002);
Pa.R.Crim.P. 907.
Under Pa.R.Crim.P. 907(4), when a PCRA petition is dismissed without a hearing, a judge
shall promptly issue an order advising the defendant by certified mail (return receipt requested) of
his right to appeal the final order and the time limits to appeal. 33 This procedure must be followed
if the PCRA Court dismisses a petition without a hearing. 34 Under the law, if the Court follows
this procedure, it has not abused discretion.
In this case, the Appellant was not entitled to an evidentiary hearing because he never
presented any genuine issues of material fact. "A fact is considered material if its resolution could
affect the outcome of the case under the governing law." Hospital & Healthsystem Association of
Pennsylvania v. Commonwealth, 77 A.3d 587, 602 (Pa. 2013). The sum of the Appellant's claims
33
Pa.R.Crim.P. Rule 907(4).
34 Id.16
on PCRA review were: (1) ineffective assistance of trial counsel for failure to present medical
records and testimony of medical professionals, failing to object to the application of the incorrect
offense gravity and prior record scores at sentencing, and failing to file post-sentence motions
preserving a weight of the evidence claim; (2) ineffective assistance of appellate counsel for failing
to seek to reinstate post-sentence motions nunc pro tune and to raise "appropriate claims" on
appeal; and (3) that Appellant's constitutional rights were violated by the introduction of hearsay
evidence, the application of the incorrect offense gravity and prior record scores at sentencing, and
a guilty verdict that was against the weight of the evidence. Every single one of the Appellant's
claims on PCRA review were dependent on facts already in the record. None of the Appellant's
claims were dependent on any outside facts that could have been presented at an evidentiary
hearing or had any effect on the disposition of his claims. Consequently, the Court properly
dismissed the Petition without a hearing for the reasons discussed in this Opinion, supra.
Therefore, the Court did not err, and the Appellant's claim should be dismissed.
17
CONCLUSION
The Appellant claims that this Court erred when dismissing his Petition for Post-
Conviction Relief without a hearing. He supports this claim by alleging that: (1) trial counsel was
ineffective for failing to subpoena or present medical records or testimony from the Complainant's
treating physicians, (2) trial counsel was ineffective for failing to object to the application of the
incorrect offense gravity and prior record scores at sentencing, (3) trial counsel was ineffective for
failing to file post-sentence motions to preserve a weight of the evidence claim, (4) appellate
counsel was ineffective for failing to seek to reinstate post-sentence motions for the purpose of
preserving a weight of the evidence claim, (5) that his constitutional rights were violated by the
introduction of hearsay evidence, (6) that his constitutional rights were violated by the application
of incorrect offense gravity and prior record scores at sentencing, and (7) that his constitutional
rights were violated because the verdict was against the weight of the evidence. However, none
of these contentions have merit.
First, both the Commonwealth and trial counsel in fact did subpoena the Complainant's
medical records, and even obtained a court order for their production. The Veterans
Administration Hospital refused to provide them. Therefore, counsel was not ineffective.
Moreover, counsel was not ineffective for failing to present testimony from the treating physicians
because the Appellant's claim that it would have contradicted the Complainant's testimony
regarding the extent of his injuries is entirely speculative, especially considering that the
Complainant's testimony was supported by photographic evidence.
Second, both the offense gravity and prior record scores used at sentencing were in fact
correct. Therefore, trial counsel was not ineffective for failing to object to them.
18
Third, for the reasons stated in Section I(c) of this Opinion, supra, a weight of the evidence
claim would have been entirely meritless. Therefore, trial counsel was not ineffective for failing
to raise it in a post-sentence motion.
Fourth, for the reasons stated in Section I( c) of this Opinion, supra, a weight of the evidence
claim would have been entirely meritless. Therefore, appellate counsel was not ineffective for
failing to seek to reinstate post-sentence motions in order to raise a weight of the evidence claim.
Moreover, since the Superior Court reviewed all of the Appellant's remaining claims on their
merits, appellate counsel was not per se ineffective.
Fifth, any possible hearsay evidence that may have been introduced by the Complainant
detailing the treatment of his injuries as a result of the attack was merely cumulative. Therefore,
the Appellant was not prejudiced, and his rights were not violated.
Sixth, as stated previously, the offense gravity and prior record scores used at sentencing
were in fact correct, and the Appellant's rights were not violated.
Seventh, for the reasons stated in Section I(c) of this Opinion, supra, the verdict was not
against the weight of the evidence, and the Appellant's rights were not violated.
Finally, the Court's dismissal of the Appellant's Petition without an evidentiary hearing
was proper, as all of the Appellant's claims were dependent on facts already in the record and
could not have been materially supported by any outside evidence. Therefore, the Appellant was
not entitled to an evidentiary hearing, and was not prejudiced.
Consequently, the Appellant's claims should be denied.
By the Court,
19
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA TRIAL DIVISION
CRIMINAL SECTION
vs. CP-51-CR-0004926-2017
1555 EDA 2021
DAMIRE WARREN
PROOF OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served upon the
following persons on the 12111 day of April, 2022.
Lawrence J. O'Connor, Esquire
2301 Cherry Street
Suite 6A
Philadelphia, PA 19103
Lawrence Goode, Esquire
Philadelphia District Attorney's Office
3 South Penn Square
Philadelphia, PA 19107
Damire Warren
Inmate #NJ2668
SCI Chester
500 E. 4th Street
Chester, PA 19013
DATE
20