Com. v. Sanders, A. ( 2021 )

J-S50017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTWON SANDERS :
:
Appellant : No. 2948 EDA 2019
Appeal from the PCRA Order Entered September 16, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008197-2009
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED: MARCH 22, 2021
Appellant, Antwon Sanders, appeals from the order entered on
September 16, 2019, denying his petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
On direct appeal, a prior panel of our Court summarized the relevant
facts of this case as follows:
At approximately 3:00 p.m. on February 20, 2009, three high
school students, Fateem Gresham, Deshaoun Williams, and
Rashan Singletary, were walking together in the area of 60th and
Irving Streets in Philadelphia. Appellant approached the boys and,
after walking past them, turned around and pulled a firearm on
the boys, firing five to ten shots. Mr. Gresham was shot in the
back, suffering severe injuries. Police arrived shortly thereafter
and Mr. Gresham was transported to the University of
Pennsylvania Hospital. The other two individuals managed to
escape unharmed.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S50017-20
One week after the shooting, Detective William Farrell
visited Mr. Gresham in the hospital. An unidentified doctor
permitted the detective to speak with Mr. Gresham, although he
was being prepared for surgery. Detective Farrell presented Mr.
Gresham with a photographic array. Mr. Gresham placed his
finger on a photograph of Appellant. However, Mr. Gresham
stated that he was too weak to sign his name on the photographic
array. Accordingly, Detective Farrell asked Mr. Gresham’s
mother, whom he stated was present in the room, to sign the
array. At trial, Mr. Gresham testified that he had no memory of
this interaction and that following the shooting he was semi-
conscious for one month and one-half. Mr. Gresham did spend
part of his time in the hospital in a coma. He also remarked that
he had no memory of the shooting itself. Mr. Gresham’s mother
also testified that she was not allowed to be present when the
photographic array was given to her son.
Approximately two months after the initial identification,
Detective Farrell conducted an interview with Mr. Gresham.
Detective Farrell stated that Mr. Gresham described the attack,
again identified Appellant as the person who shot him, and signed
a written statement to that effect. Mr. Gresham recalled that
during this interview the detective informed him what had
happened.
Another detective, Detective Matthew Farley, interviewed
Deshaoun Williams. Mr. Williams, at the time of the interview, was
a minor and was in custody for unrelated charges. Detective
Farley maintained that Mr. Williams asserted that he saw the
shooting and described the shooter as an individual with a funny-
shaped head wearing a green and black hoodie and black trench
coat. Mr. Williams also reportedly described the attacker as being
5′4″ or 5′5″, skinny, and seventeen years of age. Appellant was
5′6″ and 130 pounds at the time of his arrest. At trial,
Mr. Williams testified that he was in a pizza shop at the time of
the shooting and did not see the incident. He further provided
that when he was interviewed by police, he was intoxicated and
requested to speak with his mother and was informed that she
could not see him.
Ultimately, after the denial of a suppression motion relating
to the photographic identification, a jury found Appellant guilty of
[two counts of aggravated assault, and one count each of
possession of an instrument of crime (“PIC”), and persons not to
-2-
J-S50017-20
possess firearms in violation of the Uniform Firearms Act
(“VUFA”)1]. Subsequently, the court sentenced him to an
aggregate term of incarceration of twelve and one-half to twenty-
five years.[2] Appellant timely filed a post-sentence motion, which
the trial court denied.
Commonwealth v. Sanders, 42 A.3d 325, 328 (Pa. Super. 2012). On
February 29, 2012, this Court affirmed Appellant’s judgment of sentence. Id.
at 335.
On September 17, 2012, [Appellant] filed a PCRA petition,
seeking reinstatement of [Appellant’s] right to file a petition for
allocatur to the Pennsylvania Supreme Court nunc pro tunc.
[Appellant’s] appellate rights were reinstated on February 12,
2013. The Pennsylvania Supreme Court denied allocatur on
October 29, 2013. [Commonwealth v. Sanders, 78 A.3d 1091,
123 EAL 2013 (Pa. 2013).]
On December 4, 2014, [Appellant] filed a timely PCRA
petition, the subject of the instant matter. George Yacoubian,
Esquire was appointed on July 7, 2017. On August 1, 2017 and
October 30, 2017, counsel filed Finley[3] letters and motions to
____________________________________________
1 18 Pa.C.S. §§ 2702(a), 907(a), and 6105(a)(1), respectively.
2 The trial court sentenced Appellant as follows: on the first conviction for
aggravated assault, a term of ten to twenty years of incarceration; on the
second conviction for aggravated assault, a term of five to ten years of
incarceration, to be served concurrently with the first aggravated-assault
term; on the PIC conviction, a term of two and one-half to five years of
incarceration, to be served concurrently with the first aggravated-assault
term; and on the conviction for persons not to possess firearms, a term of two
and one-half to five years of incarceration, to be served consecutively to the
first aggravated-assault term. Sentencing Order, 5/18/10. This resulted in
an aggregate sentence of twelve and one-half to twenty-five years of
incarceration. Id.
3 See Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(setting forth the requirements for counsel to withdraw from representation
on collateral review).
-3-
J-S50017-20
withdraw as counsel, arguing that [Appellant’s] petition was
untimely without exception. The PCRA court1 rejected this Finley
letter as [Appellant’s] petition was filed within one year of his
judgment of sentence becoming final.[4] On March 28, 2018,
counsel filed an Amended Petition. On October 1, 2018, the
Commonwealth filed a Motion to Dismiss. On October 2, 2018,
Mr. Yacoubian informed the PCRA court that he was no longer
practicing criminal law and asked to be removed from the case.
On October 5, 2018, Mr. Yacoubian was permitted to withdraw as
counsel and Peter Levin, Esquire was appointed as new PCRA
counsel. On February 4, 2019, Mr. Levin filed a new Amended
Petition. On June 3, 2019, the Commonwealth filed an updated
Motion to Dismiss. On August 13, 2019, this Court sent
[Appellant] a Notice of Intent to Dismiss [his PCRA petition without
a hearing] [p]ursuant to Rule 907. [Appellant] did not respond to
this 907 Notice. On September 16, 2019, this [c]ourt dismissed
[Appellant’s] petition based upon lack of merit. On October 10,
2019, [Appellant] filed a Notice of Appeal to Superior Court.
1This matter was reassigned to the Honorable Steven
Geroff in 2012.
PCRA Court Opinion, 4/21/20, at 3-4. The PCRA court did not order Appellant
to file a statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).
On appeal, Appellant presents the following issue for our consideration:
“Whether trial counsel was ineffective for failing to file a motion for
reconsideration of sentence?” Appellant’s Brief at 8 (full capitalization
omitted). Our standard of review of an order denying PCRA relief is whether
the record supports the PCRA court’s determination and whether the PCRA
____________________________________________
4 See 42 Pa.C.S. § 9545(b)(1) (setting forth the general rule that a PCRA
petition must be filed within one year from the date that the petitioner’s
judgment of sentence becomes final).
-4-
J-S50017-20
court’s ruling is free of legal error. Commonwealth v. Staton, 184 A.3d 949(Pa. 2018). We consider the record in the light most favorable to the prevailing
party in the PCRA court. Commonwealth v. Mason, 130 A.3d 601 (Pa.
2015). In our review, we grant deference to the PCRA court’s findings that
are supported by the record, and we will not disturb those findings unless they
have no support in the certified record. Commonwealth v. Rigg, 84 A.3d
1080, 1084 (Pa. Super. 2014).
Our Supreme Court has explained the following in addressing claims
alleging the ineffective assistance of counsel:
To prevail in a claim of ineffective assistance of counsel, a
petitioner must overcome the presumption that counsel is
effective by establishing all of the following three elements, as set
forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
975-76 (1987): (1) the underlying legal claim has arguable merit;
(2) counsel had no reasonable basis for his or her action or
inaction; and (3) the petitioner suffered prejudice because of
counsel’s ineffectiveness.
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). “In order to meet
the prejudice prong of the ineffectiveness standard, a defendant must show
that there is a ‘reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’”
Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). A claim of
ineffective assistance of counsel will fail if the petitioner does not satisfy all
three prongs of the test set forth in Pierce. Commonwealth v. Williams,
863 A.2d 505, 513 (Pa. 2004). Additionally, Appellant bears the burden of
-5-
J-S50017-20
proving ineffectiveness. Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa.
2007).
Moreover, “[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.”
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). In order
“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, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.” Commonwealth v.
Hanible, 30 A.3d 426, 452 (Pa. 2011). The PCRA court’s decision to dismiss
a petition without holding a hearing will not be reversed absent an abuse of
discretion. Commonwealth v. Cox, 983 A.2d 666, 693 (Pa. 2009).
Appellant contends that he had a viable challenge to the discretionary
aspects of his sentence because the trial court failed to consider relevant
sentencing factors including Appellant’s mental health. Appellant’s Brief at
18-19. Appellant correctly points out that in order to preserve a challenge to
the discretionary aspects of one’s sentence, the petitioner must, inter alia, file
a post-sentence motion requesting reconsideration and modification of his
-6-
J-S50017-20
sentence. Id. at 19-20.5 Herein, Appellant avers that counsel’s failure to file
a motion for reconsideration of sentence resulted in waiver of his challenge,
and he maintains that if counsel had filed a motion for reconsideration of
sentence, the result of the proceedings would have been different. Id. at 18-
20.
We note that claims implicating the discretionary aspects of sentencing
that are raised in the context of an ineffectiveness claim are cognizable under
the PCRA. Commonwealth v. Sarvey, 199 A.3d 436, 455 (Pa. Super. 2018)
(citations omitted). When asserting that trial counsel is ineffective for failing
to file a motion for reconsideration of sentence, the petitioner must prove
actual prejudice. Commonwealth v. Reaves, 923 A.2d 1119, 1131-1132
(Pa. 2007). To demonstrate prejudice, the petitioner must plead and prove
that a motion to reconsider sentence, if filed, would have led to a “different
and more favorable outcome[,]” namely, “if counsel’s objection secured a
____________________________________________
5 It is well settled that an appeal from the discretionary aspects of one’s
sentence is not a matter of right. Commonwealth v. Ramsey, 214 A.3d
274, 279 (Pa. Super. 2019). Prior to reaching the merits of the issue, we
must determine whether the appellant: (1) filed a timely notice of appeal
pursuant to Pa.R.A.P. 902 and 903; (2) properly preserved his issue either
at sentencing or in a post-sentence motion pursuant to Pa.R.Crim.P.
720; (3) included a Pa.R.A.P. 2119(f) statement of the reasons relied upon
for allowance of appeal of discretionary aspects of his sentence; and (4)
presented a substantial question that the sentence is not appropriate under
42 Pa.C.S. § 9781(b). Commonwealth v. Beatty, 227 A.3d 1277, 1286-
1287 (Pa. Super. 2020).
-7-
J-S50017-20
reduction of his sentence.” Id.6 After review, we find that Appellant failed to
meet this burden.
The PCRA court addressed this issue as follows:
In the case at bar, [Appellant] has failed to establish
prejudice. Specifically, he has failed to show that the sentencing
court would have granted his motion to reconsider sentence had
trial counsel filed one. In his amended [PCRA] petition,
[Appellant] concedes that trial counsel did file a post-sentence
motion addressing various alleged errors at trial, but that counsel
failed to file a motion to reconsider sentence. [Appellant] argues
that “the court did not give sufficient attention to the various
factors presented at sentencing and in the licensed psychologist’s
report of his evaluation of [Appellant], which would have led the
court to give a less harsh sentence.” (Amended [PCRA] Petition,
p. 17-18). This claim is not supported by the psychologist’s
report. In his report, court psychologist Dr. Christopher P. Lorah
stated that “[t]here is no indication in records to suggest
[Appellant] has ever participated in mental health treatment in
the community, including the psychiatric variety.” (Mental health
evaluation, p. 5). During the evaluation, [Appellant] himself
“denied symptoms of depression, anxiety or other major mental
health symptoms in the community.” Id. at 6. In his petition,
[Appellant] does not cite to anywhere in the report that would
support his claim that he has a “myriad” of mental health issues.
Since [Appellant’s] claim is baseless and without merit, no relief
is due.
____________________________________________
6 In Reaves, our Supreme Court explained that in certain limited situations,
proof of prejudice “is not required because there are certain circumstances
that are so likely to prejudice the accused that the cost of litigating their effect
in a particular case is unjustified.” Reaves, 923 A.2d at 1128 (citation and
quotation marks omitted). However, our Supreme Court opined that the
failure to file post-sentence motions does not fall within that narrow category
where prejudice may be presumed and stated that the question concerning
whether “counsel can be deemed ineffective, then, depends upon whether
[the defendant] has proven that a motion to reconsider sentence, if filed ... ,
would have led to a different and more favorable outcome at … sentencing.”
Id. at 1131-1132.
-8-
J-S50017-20
Next, [Appellant] argues that that counsel should have also
raised the issue “in a reconsideration motion that the sentencing
court erred when imposing the aggravated range of sentencing
instead of the standard range, despite the myriad of mental health
issues that were mentioned in the psychologist’s report.” Id.
Setting aside the complete lack of evidence of a “myriad of mental
health issues,” [Appellant’s] claim must fail for lack of
development. He fails to provide any evidence that the sentence
imposed was even in the aggravated range. He does not even list
the standard and aggravated range provided by the sentencing
guidelines. A review of the notes of testimony from sentencing
show that the Commonwealth recommended a sentence of 20 to
40 years state incarceration. (N.T. 5/18/10, p. 18). However,
Judge Dempsey sentenced [Appellant] to 10 to 20 years state
incarceration for aggravated assault, 5 to 10 years state
incarceration on the second aggravated assault, to run
concurrently, and 2 ½ to 5 years on the VUFA § 6105 charge to
run consecutively, for an aggregate term of 12 ½ to 25 years state
incarceration. Id. at 24-25. The sentencing guidelines reviewed
at the commencement of the sentencing hearing were as follows:
Obviously this would be a deadly weapon
enhancement used matrix since it’s a shooting. So
the guidelines in the standard range are 78 to 96
months, plus or minus 12 months. And the aggravated
assault on De[shaoun] Williams is an offense gravity
score of ten with the same prior record. So on the
deadly weapon used matrix, 66 to 78 months plus or
minus 12. There is a five to ten year mandatory
minimum sentence for both of these cases.
Id. at 4-5. However, [Appellant] did not include any of this
information in his petition. He failed to meaningfully discuss the
applicable sentencing guidelines and how the actual sentence
imposed fit into those guidelines. He claims his sentence was
unreasonably in the aggravated range, but has provided no
evidence to that effect. … [U]ndeveloped claims, based on
boilerplate allegations, cannot satisfy [Appellant’s] burden of
establishing ineffectiveness. See also Commonwealth v. Collins,
687 A.2d 1112, 1115 (Pa. 1996) (“a petitioner must present the
facts supporting each issue asserted in his PCRA Petition, and if
they do not appear on the record, a petitioner must identify
affidavits, documents or other evidence proving the alleged
facts.”). Since there is no evidence whatsoever from [Appellant]
-9-
J-S50017-20
that the court unreasonably imposed a sentence in the aggravated
range, and therefore trial counsel was ineffective for failing to file
a motion for reconsideration, this claim fails for lack of
development.
[Appellant] baldly claims that “a reasonable judge would
have granted a reconsideration motion.” [Amended PCRA Petition,
p. 19]. He provides no case law or statutes to support this claim.
He does not cite to any cases with analogous facts where similar
post-sentence motions for reconsideration were granted or where
trial counsel was found ineffective for failing to do so. Once again,
undeveloped, boilerplate claims are insufficient to prove counsel’s
ineffectiveness. Since [Appellant] has failed to prove that his
underlying claims have arguable merit, failed to prove that
counsel’s actions were unreasonable, and has failed to prove
prejudice, no relief is due.
PCRA Opinion, 4/21/20, at 6-8.
We agree with the PCRA court’s analysis. Therefore, we conclude that
the PCRA court committed no error of law or abuse of discretion in denying
Appellant’s PCRA petition without a hearing. Appellant’s petition lacked merit
and there were no genuine issues of material fact that if resolved in Appellant’s
favor, would have entitled him to relief. Jones, 942 A.2d at 906; Hanible,
30 A.3d at 452.
Additionally, even if Appellant’s counsel filed a motion for
reconsideration and preserved the challenge to the discretionary aspects of
Appellant’s sentence, there is not a reasonable probability that he would have
received a reduction in his sentence, and, thus, he is unable to establish
prejudice. Paddy, 15 A.3d at 442. As noted above, Appellant’s underlying
issue was that the trial court failed to consider Appellant’s mental health and
other sentencing factors. Appellant’s Brief at 18-19.
- 10 -
J-S50017-20
It is well settled that where the sentencing judge had the benefit of a
presentence investigation (“PSI”) report, it will be presumed that the court
considered and weighed the relevant sentencing factors. Commonwealth v.
Boyer, 856 A.2d 149, 154 (Pa. Super. 2004). Herein, the record reflects that
at Appellant’s sentencing hearing, the trial court, in addition to considering
the PSI report, also specifically discussed Appellant’s mental health, the
applicable Sentencing Guidelines, Appellant’s prior record, and the court’s
responsibility to protect the public. N.T. (Sentencing), 5/18/10, at 4-5, 22.
Therefore, the record supports the conclusion that the trial court considered
the relevant sentencing factors, including Appellant’s mental health, and
weighed those factors when imposing sentence. Boyer, 856 A.2d at 154.
Thus, even if Appellant’s counsel had filed a motion for reconsideration, there
is not a reasonable probability that the result of the proceedings would have
been different because the record belies Appellant’s claim. Reed, 42 A.3d at
319.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, we affirm the order denying Appellant’s PCRA
petition without a hearing.
Order affirmed.
Judge Strassburger did not participate in the consideration or decision
of this case.
- 11 -
J-S50017-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/21
- 12 -