Com. v. Greshan, B. ( 2020 )

J-S69037-19 & J-S69038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BAIHEEM GRESHAN :
:
Appellant : No. 328 EDA 2019
Appeal from the PCRA Order Entered January 14, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002458-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BAIHEEM GRESHAN :
:
Appellant : No. 331 EDA 2019
Appeal from the PCRA Order Entered January 14, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008824-2014
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
DISSENTING MEMORANDUM BY SHOGAN, J.: FILED JULY 31, 2020
I respectfully dissent. After careful review of the record, I agree with
the Commonwealth’s conclusion that Appellant failed to present a challenge
to the discretionary aspects of his sentence in his PCRA petition.
Commonwealth’s Brief at 7. Accordingly, Appellant waived this issue, and he
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S69037-19 & J-S69038-19
may not raise it for the first time on appeal. Pa.R.A.P. 302(a); see also
Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2019) (issues not raised
in the PCRA petition are waived; a claim for post-conviction relief cannot be
raised for the first time on appeal).
The Majority relies on Commonwealth v. Reaves, 923 A.2d 1119 (Pa.
2007), and Commonwealth v. Presley, 193 A.3d 436 (Pa. Super. 2018), in
support of its decision to reverse the order of the PCRA court. However, in
both Reaves and Presley, the petitioners raised issues concerning the
discretionary aspects of their sentences in the PCRA court and preserved them
for appeal. See Reaves, 923 A.2d at 1122 (petitioner alleged that the
violation of probation court abused its discretion in imposing a sentence in
excess of the Sentencing Guidelines without stating the reasons for doing so
on the record); see also Presley, 193 A.3d at 440 (petitioner challenged the
discretionary aspects of his sentence and alleged the sentence was harsh and
excessive).
In the case at bar, Appellant alleged in his PCRA petition only that prior
counsel was ineffective for “fail[ing] to attach an[] order VACATING the
sentence … Counsel also failed to contact the Honorable Rayford A. Means and
either request a date for the Reconsideration Hearing or ask His Honor to Deny
the Motion Without a Hearing.” PCRA Petition, 4/2/18, at ¶10. Appellant does
not mention the discretionary aspects of his sentence or aver that the
revocation court failed to provide reasons for the sentence imposed.
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J-S69037-19 & J-S69038-19
Therefore, I conclude that any issue Appellant has relative to the discretionary
aspects of sentence was waived. Jones, 912 A.2d at 278. Accordingly, I
respectfully dissent.
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