Com. v. Grant, R. ( 2023 )

J-S20025-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RASHEED GRANT :
:
Appellant : No. 1677 EDA 2022
Appeal from the PCRA Order Entered June 24, 2022,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0004010-2017.
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED JULY 17, 2023
Rasheed Grant appeals from the order denying his first petition for relief
filed under the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46.
We affirm.
The trial court opinion from Grant’s direct appeal previously summarized
the pertinent facts and testimony at trial in detail. As to the Commonwealth’s
evidence, the trial court stated:
At trial, Police Officer Daniel Flanagan (“Officer Flanagan”)
testified that on March 28, 2017, around 2:45 p.m., he received
a radio report of a gunshot on the 700 block of North Uber Street
in the city and county of Philadelphia, Pennsylvania. Officer
Flanagan was about four (4) blocks away, and he activated his
vehicle’s lights and sirens and arrived at the location “probably in
less than two minutes.” He was the first officer on the scene and
was met there by Michelle Ayres (“Ms. Ayres”), who advised that
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* Retired Senior Judge assigned to the Superior Court.
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[Grant] had just fired a gun at her granddaughter, Shaquetta
Alexander (“Shaquetta”). Ms. Ayres advised that [Grant] fired one
shot from near the end of her block, where Uber Street intersects
with Brown Street. [Grant] fired the shot while standing on “the
south sidewalk of Brown Street on the southeast corner,” on the
“other side of a fence” that faced Brown Street. [Grant] had
already left the scene, however, and Officer Flanagan did not
observe any bullet holes. To Officer Flanagan’s knowledge, no
bullet was ever recovered. Once additional officers arrived, Officer
Flanagan transported Ms. Ayers to Central Detectives to be
formally interviewed.
Meanwhile, Shaquetta remained inside Ms. Ayres’ house and
“didn’t want anything to do with the police.” When Officer
Flanagan entered the residence to speak with Shaquetta, “she ran
down to a lower bedroom and slammed the door and said
something to the effect from behind the door that she wasn’t
talking to the police.”
Ms. Ayres testified that Shaquetta, whom Ms. Ayres
“raised,” lived at Ms. Ayres’ home at the time of the shooting was
in a relationship with [Grant]. [Ms. Ayres testified that Shaquetta
and Grant had “an on and off again type relationship,” although
Grant eventually “started beating” Shaquetta, she “kept going
back to him.”] Ms. Ayres explained that she was home watching
television with Shaquetta and Shaquetta’s 2 or 3-year-old
daughter when Shaquetta engaged in an argument with Grant
over the telephone. Less than five (5) minutes after the phone
conversation, Shaquetta went outside to meet [Grant] in person,
and they resumed their argument in front of the neighboring home
at 767 North Uber Street.
From her exterior doorway, Ms. Ayres observed [Grant]
“calling Shaquetta all kinds of . . . foul names” and then strike her
“upside the head.” After witnessing the physical violence, Ms.
Ayres told her granddaughter to return inside the house, but
Shaquetta initially refused and said she would “handle” the
situation. Fearing for Shaquetta’s safety, Ms. Ayres called 911 on
her cell phone.
Shaquetta eventually returned to Ms. Ayres’ driveway and
[Grant] walked away toward Brown Street. While Ms. Ayres was
on the phone with the 911 dispatcher, she saw [Grant] stop near
the corner of Uber and Brown Streets, retrieve a dark-colored gun
from beneath his maroon or burgundy hoody, and point the
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weapon toward Shaquetta. Ms. Ayres told Shaquetta to “duck!
Get down,” and [Grant] fired the gun. The gunshot “made a big
loud noise” but fortunately no bullet struck Shaquetta (or anyone
else). Ms. Ayres informed the 911 dispatcher about the gunshot
as [Grant] walked away toward 19th and Brown Streets. The
Commonwealth played the 911 call at trial and Ms. Ayres can be
heard telling the dispatcher that [Grant] had just shot a gun at
her granddaughter. A sound resembling a gunshot is also audible.
Following the incident, Ms. Ayres provided a written
statement at Central Detectives, which was identical to her trial
testimony. Ms. Ayres advised in her statement that she was
standing in front of her screen door watching Shaquetta and
[Grant] argue in front of her neighbor’s residence. After striking
Shaquetta on the head, [Grant] walked away to the intersection
of Uber and Brown Streets and made a right turn down Brown
Street. While standing on the sidewalk of Brown Street, at the
edge of the fence near the corner home, [Grant] retrieved a gun
from beneath his hoody and fired one shot at Shaquetta.
Detective John Gallagher was the detective who interviewed
and obtained Ms. Ayres’ statement. He testified that following the
interview, he went to the crime scene but encountered no
witnesses with any pertinent information. Although Detective
Gallagher knocked on the door of several neighbors, only one man
spoke to him, and that individual advised that he neither heard
nor say anything regarding the incident.
Ms. Ayres informed Detective Gallagher that [Grant] shot at
Shaquetta from the [] 1900 block of Brown Street, as he stood
beside a bush that was located to his left side. A 45-caliber fired
cartridge casing (FFC) was recovered in this area, but the actual
bullet discharged from the casing was never recovered.
Trial Court Opinion, 7/8/19, 2-4 (footnotes omitted).
The trial court then summarized the testimony presented by Grant, as
follows:
[Grant] presented the testimony of Latanya Walker (“Ms.
Walker”) and Shaquetta. Ms. Walker, who claimed to be [Grant’s]
“close personal friend,” testified that on the day of the incident
she had driven [Grant] to the vicinity of 19th and Brown Streets.
[Grant] then exited the vehicle and walked around the corner to
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the 700 block of North Uber Street. After waiting in her vehicle
for around a minute, Ms. Walker likewise exited her vehicle and
followed [Grant] without his knowledge.
Ms. Walker testified that she observed [Grant] and
Shaquetta having a conversation on North Uber Street. When
[Grant] turned away from Shaquetta and began walking back
down Brown Street, Ms. Walker “scurried back to the car.” Ms.
Walker testified that she never saw [Grant] carrying or firing any
gun, and that when [Grant] returned to her vehicle, she simply
took him to his doctor’s appointment.
Shaquetta testified last and described her “on and off again
relationship” with [Grant]. She claimed that on the day of the
incident she was arguing with [Grant] over the phone. [Grant]
thereafter came to Ms. Ayres’ home and they resumed their
argument outside the corner house at 769 Uber Street, while Ms.
Ayres watched them from the doorway of her home.
Shaquetta testified that she started “yelling” and “cussing”
and [Grant] “turned to walk away,” but she “grabbed his arm” and
they continued arguing. Shaquetta claimed that after [Grant]
began walking away, again, she returned inside Ms. Ayres’ home
and then heard Ms. Ayres scream, “Oh, my God, he has a gun!”
However, Shaquetta herself denied that [Grant] possessed or fired
any gun at her. Regarding the 911 recording on which a gunshot
is purportedly audible, Shaquetta claimed that the noise was Ms.
Ayers’ screen door slamming when Shaquetta entered the house.
Shaquetta claimed the door was missing the contraption that
prevented the door from slamming shut, and thus when the door
shut, it made a “loud bang.”
[Shaquetta further testified that she told a police lieutenant
who responded to the scene that Grant did not shoot her or
possess a gun. She as well attended Grant’s preliminary hearing,
and, while she did not testify, she told the District Attorney she
had no desire to “press any charges” against Grant “because
nothing happened.” Shaquetta additionally wrote several letters
to the District Attorney’s Office advising that she did not want
charges pressed against Grant. She also visited the District
Attorney’s Office in person to urge the Commonwealth to drop
charges against Grant.]
Trial Court Opinion, 7/8/19, at 5-6 (footnotes omitted).
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Lastly, the trial court summarized the evidence the Commonwealth
presented in rebuttal, regarding a prior incident involving Shaquetta and
Grant:
On April 12, 2017, around two weeks after the alleged
shooting, Shaquetta and [Grant] had another “heated argument”
during which [Grant] repeatedly struck Shaquetta and gave her a
black eye. After being treated at the hospital, Shaquetta provided
a written statement to police and filed a criminal complaint against
[Grant]. Shaquetta’s statement described how [Grant] punched
and kicked her multiple times in the face, pulled her by the hair,
and “slammed” her into a wall - - all in the presence of Shaquetta’s
daughter. Following this incident, Shaquetta went to Family Court
and obtained a temporary protection from abuse order against
[Grant], but she failed to return to Court a few days later to
finalize the order. She later informed the District Attorney that
she did not want any charges pressed against [Grant].
Trial Court Opinion, 7/8/19, at 6 (citations omitted).
On August 10, 2018, a jury convicted Grant of carrying a firearm without
a license and carrying a firearm without a license on the public streets of
Philadelphia. The jury acquitted Grant of aggravated assault and possession
of an instrument of crime. After the jury trial, the trial court conducted a
stipulated bench trial and found Grant guilty of persons not to possess a
firearm. On December 7, 2018, the trial court sentenced Grant to an
aggregate term of seven to fourteen years in prison. Thereafter, Grant filed
a post-sentence motion in which he sought reconsideration of his sentence.
The trial court denied the motion.
Grant appealed to this Court and challenged the weight and sufficiency
of the evidence supporting his convictions. We affirmed his judgment of
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sentence on August 19, 2020. Commonwealth v. Grant, 240 A.3d 174 (Pa.
Super. 2020) (non-precedential decision). In his sufficiency challenge, Grant
claimed that Ms. Ayers’ eyewitness testimony was “so inherently unreliable
that a verdict based upon it could amount to no more that surmise and
conjecture.” Id. at 2. We found this claim not preserved for our review,
because it was not raised with specificity in his Pa.R.A.P. 1925(b) statement.
Id. at 4. In a footnote, we concluded that, even if not waived, the sufficiency
challenge was meritless because any inconsistencies in her testimony were
minor and her testimony “dovetailed with the audio recording of her account
of the incident as it unfolded while on a 911 call, her statements to the
responding police officers, and her written statement of the event.” Id. at 5
n.1. As to his weight claim, we found that it was waived because he raised it
for the first time in his Rule 1925(b) statement, rather than in a post-sentence
motion. Id. at 7.
Grant sought further review. On December 23, 2020, our Supreme
Court denied Grant’s petition for allowance of appeal. Commonwealth v.
Grant, 242 A.3d 1290 (Pa. 2020).
Grant filed a pro se PCRA petition on September 23, 2021. The PCRA
court appointed counsel, who filed an amended petition on January 19, 2022.
The Commonwealth filed a motion to dismiss. On June 9, 2022, the PCRA
court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Grant’s amended
petition without a hearing. Grant did not file a response. By order entered
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June 24, 2022, the PCRA court denied the petition. This timely appeal
followed. Both Grant and the PCRA court have complied with Pa.R.A.P. 1925.
Grant raises the following three issues, which we reordered for ease of
disposition:
Whether the PCRA court’s finding[s] are supported by the
record and free of legal error by refusing to grant the relief
requested in [Grant’s] PCRA petition based upon the following:
I. Whether trial counsel was ineffective for failing to file
a post-verdict motion that the verdict was against the
weight of the evidence.
II. Whether appellate counsel was ineffective for failing
to appeal the denial of the motion to reconsider
sentence.
III. Whether the PCRA Court erred in denying [Grant’s]
PCRA petition without an evidentiary hearing on the
issues raised in the amended PCRA petition.
Grant’s Brief at 8 (excess capitalization omitted).
Our scope and standard of review is well-settled:
In PCRA appeals, our scope of review is limited to the findings
of the PCRA court and the evidence on the record of the PCRA
court's hearing, viewed in the light most favorable to the
prevailing party. Because most PCRA appeals involve
questions of fact and law, we employ a mixed standard of
review. We defer to the PCRA court's factual findings and
credibility determinations supported by the record. In
contrast, we review the PCRA court's legal conclusions de
novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(internal citations and quotations omitted).
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Grant’s first two claims challenge the effectiveness of counsel. To
obtain relief under the PCRA premised on a claim that counsel was ineffective,
a petitioner must establish by a preponderance of the evidence that counsel's
ineffectiveness so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place. Commonwealth
v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s
performance is presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.” Id.This requires the petitioner to demonstrate that: (1) the underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) petitioner was prejudiced by counsel's act or
omission. Id. at 533. A finding of "prejudice" requires the petitioner to show
"that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different." Id. In
assessing a claim of ineffectiveness, when it is clear that the petitioner has
failed to meet the prejudice prong, the court may dispose of the claim on that
basis alone, without a determination of whether the first two prongs have been
met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel
cannot be deemed ineffective for failing to pursue a meritless claim.
Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).
In his first issue, Grant contends that trial counsel provided ineffective
assistance by failing to file a post-sentence motion challenging the weight of
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the evidence. Before determining ineffectiveness, we first determine the
merits of Grant’s underlying claim.
This Court summarized the law regarding challenges to the weight of
the evidence as follows:
The weight of the evidence is a matter exclusively for the
finder of fact, who is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses. A new
trial is not warranted because of a mere conflict in the testimony
and must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice.
On appeal, our purview is extremely limited and is confined
to whether the trial court abused its discretion in finding that the
jury verdict did not shock it conscience. Thus, appellate review of
a weight claim consists of a review of the trial court’s exercise of
discretion, not a review of the underlying question of whether the
verdict is against the weight of the evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)
(citations omitted). As we have often reiterated, “the trial court’s denial of a
motion for a new trial based on a weight of the evidence claim is the least
assailable of its rulings.” Commonwealth v. Cousar, 928 A.2d 1025, 1036
(Pa. 2007).
Although on direct appeal this Court found Grant’s weight claim waived,
the trial court still addressed this claim in its Rule 1925(a) opinion, and found
it to be meritless:
Here, the Commonwealth relied primarily on the statements
and testimony of Ms. Ayres to establish that [Grant] unlawfully
possessed a firearm on March 28, 2017. [The parties stipulated
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that at the time of the incident, Grant did not possess a valid
license to carry a firearm in the Commonwealth of Pennsylvania.]
Ms. Ayres testified that [Grant] and Shaquetta were
engaged in an argument during which [Grant] called Shaquetta
“all kinds . . . of foul names” and struck her “upside the head.”
Ms. Ayres called 911, and while speaking with the dispatcher, she
saw [Grant] retrieve a dark-colored gun from beneath his hoody,
point the weapon at Shaquetta, and fire the gun. On the tape
recording of the 911 call, Ms. Ayres can be heard saying that
[Grant] had just shot his gun at Shaquetta, and a sound
resembling a gunshot is audible.
When police officers arrived only minutes later, Ms. Ayres
essentially repeated the same facts to them – i.e., that [Grant]
and Shaquetta were arguing, that [Grant] struck Shaquetta, and
that [Grant] then pulled out a gun and fired a shot at Shaquetta.
Ms. Ayres also pinpointed the location where [Grant] stood when
he fired the gun. Furthermore, Ms. Ayres’ written statement to
Detective Gallagher is consistent with her testimony at trial, her
contemporaneous statements to the 911 dispatcher, and her
statements to responding police officers.
Accordingly, the jury’s finding that [Grant] carried a firearm
in violation of 18 Pa.C.S. §§ 6106 and 6018, and this [c]ourt’s
finding that [Grant] possessed a firearm in violation of 18 Pa.C.S.
§ 6105, clearly were not “so contrary to the evidence as to shock
one’s sense of justice.” [Grant’s] challenge to the weight of the
evidence is therefore meritless.
Trial Court Opinion, 7/8/19, at 9 (paragraph breaks added; footnote omitted).
In dismissing Grant’s first ineffectiveness claim, the PCRA court, who
also sat as the trial court, reaffirmed that Grant’s weight claim was meritless
given the consistent testimony from Ms. Ayres. Referencing our discussion in
the footnote from Grant’s direct appeal, see supra, the PCRA court further
agreed that “[a]ny inconsistencies in Ms. [Ayres’] testimony were minor and
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as such a challenge to the weight of the evidence claim would not have entitled
[Grant] to any relief.” PCRA Court Opinion, 10/24/22, at 5.1
In arguing to the contrary, Grant asserts that the PCRA court
“erroneously dismissed [his first ineffectiveness] claim without evaluating the
weight of [the defense witnesses’] testimony which directly contradicted the
testimony of Ms. [Ayres].” Grant’s Brief at 15. According to Grant, “the
evidence at trial showed that Ms. [Ayres] made inconsistencies during her
testimony and was motivated to fabricate her story based on her hatred for
[him].” Id.
Applying our standard of review, we discern no abuse of discretion in
the trial court’s reasoning. Grant’s claim to the contrary merely asks this
Court to reassess the credibility determinations made by the fact-finder. This
we cannot do. Gonzalez, supra. Moreover, although Grant challenges the
court’s characterization of the inconsistencies in Ms. Ayres’ testimony as
minor, he does not adequately explain how any particular inconsistency would
render the verdict against the weight of the evidence.2
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1Contrary to the PCRA’s court’s reference, in the footnote in Grant, supra,
we stated that even if preserved, Grant’s sufficiency challenge would be
meritless.
2 Although Grant challenges the PCRA court’s statement regarding the
consistency of Ms. Ayres’ testimony as “a complete misrepresentation of the
evidence,” the only inconsistency Grant addresses was whether Ms. Ayres was
inside or outside her home when the gun was fired. See Grant’s Brief at 22-
23. Grant does not explain how this inconsistency rendered Ms. Ayres entire
trial testimony unworthy of belief. Moreover, in the footnote addressing
(Footnote Continued Next Page)
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Accordingly, as there is no merit to Grant’s underlying weight of the
evidence claim, he is not entitled to relief on his claim that trial counsel was
ineffective in failing to file a post-sentence motion preserving the claim for
appeal.
In his second issue, Grant asserts that his appellate counsel was
ineffective for failing to appeal the discretionary aspects of his aggregate
sentence. According to Grant, his sentence of seven to fourteen years of
imprisonment was “harsh and unreasonable because [he] has begun to turn
his life around, and such a lengthy sentence prevents him from being able to
financially care for his daughter.” Grant’s Brief at 15-16. We conclude this
claim warrants no relief.
In order to establish prejudice with respect to a claim of ineffective
assistance of appellate counsel, “the [PCRA] 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). Once again,
we first determine whether Grant’s sentencing claim had merit.
Sentencing is matter vested in the sound discretion of the sentencing
court. Commonwealth v. Hill, 66 A.3d 365, 370 (Pa. Super. 2013). The
sentencing court is given broad discretion in determining whether a sentence
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Grant’s sufficiency claim, we agreed with the trial court’s belief that only minor
inconsistencies occurred during Ms. Ayres’ testimony. Grant, non-
precedential decision at 5 n.1.
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is manifestly excessive because the sentencing judge is in the “best position
to measure factors such as the nature of the crime, the defendant’s character
and the defendant’s display of remorse, defiance, or indifference.”
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012) (citation
omitted). Thus, a sentence will only be deemed an abuse of discretion where
it is obviously unreasonable or where the record demonstrates that it was the
result of partiality, prejudice, bias, or ill-will. Commonwealth v. Clarke, 70
A.3d 1281, 1287 (Pa. Super. 2013).
Moreover, when the trial court had the benefit of a pre-sentence report
(“PSI”), we must
presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors. A
[PSI] constitutes the record and speaks for itself. . . . Having
been fully informed by the [PSI], the sentencing court’s discretion
should not be disturbed. This is particularly true . . . in those
circumstances where it can be demonstrated that the judge had
any degree of awareness of the sentencing considerations, and
there we will presume also that the weighing process took place
in a meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them in the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (quoting
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
Finally, we will only reverse a sentence within the statutory guidelines if
the application of the guidelines is unreasonable, that is, if the sentencing
court imposed the sentence without express or implicit consideration of the
general standards of section 9721(b) of the Sentencing Code. To comply with
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these standards, a sentencing court must consider the protection of the public,
the gravity of the offense, and the rehabilitative needs of the defendant.
Commonwealth v. Coulverson, 34 A.3d 135, 147 (Pa. Super. 2011).
At the sentencing hearing held on December 7, 2018, the trial court
referenced Grant’s pre-sentence report, was informed of the applicable
guidelines, and then heard argument from the parties. In addition, Shaquetta
Alexander testified regarding Grant’s character and mitigating circumstances;
Grant’s father was also present. Grant also exercised his right of allocution,
and informed the court of programs that he participated in while incarcerated.
The trial court then provided the lengthy comments before imposing sentence:
THE COURT: All right, thank you.
I have reviewed the presentence report. It notes [Grant]
was primarily raised by his father who was a master electrician
and carpenter. [Grant’s father] is here today, and [Grant] was
provided with all of his needs. And [Grant] did manage to
graduate from high school in 1997. There is no formal training.
It says that he can do carpentry but there is no formal training
and there is no record of employment. . . . Oh, temp agency for
$1,600.
There doesn’t seem to be any medical, mental health, . . .
no other health issues, substance abuse with [m]arijuana.
As far as [Grant’s] prior record, you know, it’s abysmal. As
a juvenile, nine arrests, eight adjudications, four commitments
from age 15 through age 16. And just constant, criminal mischief,
institutional vandalism, receiving stolen property, attempted
theft. And then we get [to] age 16, aggravated assault. So
[Grant] spent much of his time in juvenile commitment.
And then when he turns 18 there is no lapse in criminal
activity; nine arrests as an adult, three convictions, four
commitments, three violations of probation and parole, including
this one. Age 18, aggravated assault[.] Age 22, carjacking for
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which he got a five-to-ten-year sentence. And now at age 37, we
are here.
It’s a record of a life that has been just replete with
conviction after conviction after conviction and for very violent
crimes.
So, I’m pleased that [Grant] is now at this age starting to
understand, starting to show some maturity in regard to his
decisions that he’s making, decisions to take advantage of these
programs and I think sincerely start to benefit from these type of
programs. Certainly, programs such as this were available and
offered to him in the past throughout all your many, many, many,
custody and probation supervisions, but nothing seemed to really
take. To [] really have no discernable record of employment at
this point in life. I understand you were incarcerated for a fair
amount of time, but even when you get out, nothing.
So, turning to the case involved here, it’s very, very sad to
see a family at odds with one another and for one family member
to come in and testify that she saw [Grant] shoot at . . . her
granddaughter, and for then [Shaquetta] to come in and say that
her grandmother was lying and testified to that on the stand, it’s
very heartbreaking. Clearly, the jury believed Ms. [Ayres].
[T]here is [a] record of [Grant] abusing [Shaquetta] . . . after this
happened[.] And for some reason I guess whatever reason as
[Shaquetta] explained to the court, she still has very strong
feelings for [Grant], doesn’t want him incarcerated for reasons
that she has that I won’t comment on, but they are her reasons
and I thank you for coming into court and stating them for me so
that I can take that into consideration.
I think [Grant] you are just starting down the road of
possibly rehabilitating. The horrendous behavior and violent
propensity that you had over the years, certainly on March 17th
you - - quite frankly, you could have killed this woman[.] I
understand your maintaining your innocence, the jury found you
guilty of having that gun. . . . [Y]ou are a felon who is never,
ever permitted to have a gun[.]
The guidelines for you are certainly very high because of all
of this prior criminal activity. The guidelines are for six to twelve
years, and I understand that you expect some mitigation by the
court and I will take that into consideration.
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N.T., 12/7/18, at 20-24 (some formatting adjusted).
The trial court then imposed the aggregate sentence of seven to
fourteen years of incarceration. When Grant began to question the length of
the sentence, the court further stated, “it’s not an aggravated sentence, it’s a
very fair sentence under the circumstances here.” Id. at 26.
In rejecting Grant’s claim that appellate counsel was ineffective for
failing to challenge the denial of his discretionary sentencing claim, the PCRA
court summarized the PCRA court explained the rationale supporting its
sentencing choice as follows:
[Grant] was sentenced within the [sentencing guidelines]
and below the sentence recommended by the Commonwealth.
The [c]ourt specifically considered [Grant’s PSI], his staggering
criminal history in the city of Philadelphia, his failures to
rehabilitate, and his conduct in this case. The [c]ourt noted
[Grant’s] “abysmal” criminal history that included no less than
nine (9) juvenile adjudications for a myriad of crimes and that his
criminal activity has continued unabated through adulthood, with
multiple arrests and convictions. The trial court noted that
“notwithstanding the many opportunities provided to him, [Grant]
thus far has made precious little effort to rehabilitate. He is a
serial offender with a record of [a] life that has been just replete
with conviction after conviction after conviction for very violent
crimes.”
Because the trial court acted within its discretion in crafting
[Grant’s] sentence, [Grant’s ineffectiveness] does not merit relief.
PCRA Court Opinion, 10/24/22, at 6 (citations and footnote omitted).
Our review of the record supports the PCRA court’s conclusions. The
trial court considered Grant’s pre-sentence report and imposed a guideline-
range sentence. Thus, we presume that the trial court was aware of the
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statutory mitigating factors and weighed them accordingly. Hallock, supra.
Indeed, given the court’s lengthy comments enumerated above, the trial court
clearly considered Grant’s recent efforts at rehabilitation and other mitigating
factors.
In essence, Grant claims that the trial court did not give sufficient weight
to these factors. Such a claim does not raise a substantial question, which
would permit this Court to review the discretionary aspects of his sentence.
Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super. 2011). Thus,
appellate counsel cannot be deemed ineffective for failing to raise this
meritless claim on appeal. Loner, supra.In his final issue on appeal, Grant asserts that the trial court erred in
denying his PCRA petition without a hearing. As our Supreme Court has
summarized:
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by further proceedings. [See Pa.R.Crim.P.
909(B)(2).] 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. Blakeney, 108 A.3d at 750 (citations omitted).
Grant asserts that “a hearing should be held on any issue that the PCRA
[c]ourt is not certain lacks merit.” Grant’s Brief at 15. Here, as demonstrated
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J-S20025-23
above, the PCRA could had no uncertainty as to the meritless nature of Grant’s
ineffectiveness claims.
In sum, the PCRA court correctly determined that Grant’s ineffectiveness
claims lacked merit and that an evidentiary hearing was not warranted. We
therefore affirm the order denying Grant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2023
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