Com. v. Lawson, J. ( 2023 )

J-A10042-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES A. LAWSON :
:
Appellant : No. 1727 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-CR-0000834-2015
BEFORE: PANELLA, P.J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 6, 2023
James A. Lawson (“Appellant”) appeals from the order entered by the
Court of Common Pleas of Philadelphia County dismissing without an
evidentiary hearing his first petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Herein, Appellant alleges that prior
counsel provided ineffective assistance by failing to file a post-sentence
motion asserting that the verdict was against the weight of the evidence and
by failing to raise an issue on direct appeal challenging the discretionary
aspects of his sentence. After careful review, we affirm.
This Court’s memorandum decision in Commonwealth v. Lawson, No.
2832 EDA 2019, (unpublished memorandum) (Pa. Super. filed February 9,
2021), in which we affirmed judgment of sentence, summarized the facts and
____________________________________________
* Former Justice specially assigned to the Superior Court.
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the procedural history associated with Appellant’s trial and direct appeal, as
follows:
In January of 2015, [the] complainant . . . 19 years-
old was dating Appellant's son . . . . On January 5,
2015, [the complainant] and [Appellant's son] started
the evening at [the complainant's] mother's house,
before leaving for Appellant's house. At Appellant's,
[the complainant] and [Appellant's son] watched
television and ate dinner, while Appellant was in his
room.
After dinner, [the complainant] was in the kitchen
with [Appellant's] son, who was doing dishes,
listening to music with his headphones in. Appellant
called [the complainant] to his room and she went to
see what he wanted.
When [the complainant] entered the bedroom,
Appellant said he wanted to talk and told her to sit on
the couch in the bedroom. He then closed the door,
locked it, and put something under the door. [The
complainant] got up and tried to leave the room, but
Appellant stood between [her] and the door and
pushed her back. Appellant then pushed [the
complainant] on to the bed, pinned her down with his
legs and attempted to put his penis in her mouth,
whereupon she bit his penis.
At that point, Appellant pulled off [the complainant]'s
pants and underwear and inserted his penis in her
vagina. [The complainant] tried to scream, but
Appellant was covering her mouth with his hand. The
radio was on in the room, and [the complainant] could
hear [Appellant's son] in the kitchen doing the dishes.
At some point[,] there was a knock at the door, which
Appellant ignored. Upon a second knock, Appellant
got up and opened the door to [Appellant's son]. [The
complainant] told [Appellant's son] what happened,
[Appellant and his son argued], then [the
complainant] and [Appellant's son] returned to [the
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complainant]'s mother's home. Once at her mother's
house, [the complainant] told her mother what had
happened and her mother called the police.
While on patrol on January 6, 2015, at approximately
2:01 AM, police officers [Thomas] Dempsey and
[Shawn] Bossert received a radio call for a rape in
progress . . . . Upon arrival, the officers were met by
[the complainant's] mother. The officers observed
[the complainant] sitting on the couch crying. [The
complainant] told the officers that Appellant . . . had
raped her, and [she] described the events. Also
present in the room was [Appellant's son]. Officer
Dempsey memorialized the information provided by
[the complainant].
The officers then transported [the complainant] to
Appellant's home, where she waited while he was
brought out by police. [The complainant] was then
taken to the Special Victim's Unit, where she was
examined, and she gave a statement to Detective
[Thomas] Martinka. DNA from Appellant was found in
[the complainant]'s vagina and on her vulva.
Trial Ct. Op., 1/29/20, at 2-3 (record citations omitted).
....
Appellant's first trial ended in a mistrial on August 3, 2018, after
a jury was unable to reach a unanimous verdict. Following a
second trial, the jury found Appellant guilty of rape by forcible
compulsion and sexual assault but acquitted him of involuntary
deviate sexual intercourse (IDSI) on October 18, 2018.[] The trial
court sentenced Appellant to [an aggravated guideline range
sentence of seven to fourteen years’ confinement plus 4 years’
probation on the rape by forcible compulsion charge and to an
aggravated guideline range sentence of five to 10 years’
confinement on the sexual assault charge, with both sentences
ordered to run concurrently].[]
Appellant timely filed a post-sentence motion on September 5,
2019, seeking modification of his sentence. The trial court denied
the motion on September 23, 2019.
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Appellant timely filed a notice of appeal and a court-ordered
Pa.R.A.P. 1925(b) statement challenging the weight of the
evidence and the Commonwealth's failure to prove the
complainant's lack of consent beyond a reasonable doubt. In a
timely supplemental Rule 1925(b) statement, Appellant added a
claim that the trial court erred in denying his pro se Rule 600
motion to dismiss.
The trial court filed a responsive opinion concluding that: (1) the
verdicts were not against the weight of the evidence; (2) the trial
court was under no obligation to consider Appellant's pro se
motions, nor would the court have granted the motion even if
properly raised; and (3) the evidence was sufficient to establish
the complainant's lack of consent. The trial court concluded that
the judgment of sentence should be affirmed.
Lawson, supra.
In Appellant’s direct appeal to this Court, we agreed with the trial court’s
analysis and opinion on all issues and affirmed judgment of sentence. Id. at
*7. Relevant for present purposes was our disposition of Appellant’s weight
of the evidence issue, where we determined that he had failed to preserve it
before the trial court with either a written or oral motion seeking a new trial
on this basis. Id. at *3 (citing Commonwealth v. Roche, 153 A.3d 1063,
1071 (Pa. Super. 2017) (recognizing Rule 607(A) of the Pennsylvania Rules of
Criminal Procedure requires an appellant to preserve a weight of the evidence
challenge in a timely motion either prior to or post-sentence). Appellant filed
no petition for allowance of appeal with the Pennsylvania Supreme Court.
On September 23, 2021, Appellant timely filed a first PCRA petition. The
PCRA court appointed counsel who filed an amended PCRA petition on
February 9, 2022, raising issues alleging that trial counsel had ineffectively
failed to preserve on direct appeal claims challenging the weight of the
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evidence and the discretionary aspects of his sentence. On June 24, 2022,
the PCRA denied relief without a hearing. Appellant filed a timely notice of
appeal on June 29, 2022.
Appellant raises the following issues for this Court’s consideration:
1. Whether the PCRA court erred in denying Appellant’s PCRA
petition without an evidentiary hearing on the issues raised in
the amended PCRA petition?
2. Whether the PCRA court was in error in not granting relief on
the issue that counsel was ineffective for the following
reasons[:] Counsel was ineffective for failure to file a motion
for reconsideration of sentence[;] . . . and Counsel was
ineffective for failing to file a post-verdict motion that the
verdict was against the weight of the evidence.
Brief for Appellant, at 8.1
We review the PCRA court's denial of relief by “examining whether the
PCRA court's findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). We will not disturb the court's decision “unless
____________________________________________
1 Appellant’s Statement of Questions Involved contains a misstatement of his
ineffective assistance of counsel claim as it relates to the discretionary aspects
of his sentence. Specifically, at all relevant stages of Appellant’s PCRA action,
from the filing of his petition to presenting argument in his Brief for Appellant
in the present appeal, he has challenged direct appeal counsel’s failure to file
a direct appeal challenging the trial court’s denial of his counseled motion to
reconsider sentence. In his statement of questions involved, however, the
issue presented asks whether trial counsel ineffectively failed to file a motion
for reconsideration of sentence. We disregard this framing of his issue as a
misstatement, and we proceed to consider his preserved ineffectiveness issue
directed at direct appeal counsel’s election to forego challenging the trial
court’s denial of Appellant’s motion to reconsider the discretionary aspects of
his sentence.
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there is no support for the findings in the certified record.” Id. (quoting
Commonwealth v. Larkin, 235 A.3d 350, 355 (Pa. Super. 2020) (en banc)).
“Our scope of review is limited to the findings of the PCRA court and
the evidence of record, viewed in the light most favorable to the party who
prevailed in the PCRA court proceeding.” Id.[T]he PCRA court has the 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 any further proceedings.”
Pa.R.Crim.P. 909(B)(2). “[T]o 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. D'Amato, 856 A.2d 806, 820 (Pa. 2004).
Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).
Appellant raises claims of ineffective assistance of counsel. The
Pennsylvania Supreme Court has explained:
[A] PCRA petitioner will be granted relief [for ineffective assistance
of counsel] only when he proves, by a preponderance of the
evidence, that his conviction or sentence resulted from the
“[i]neffective 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.” 42 Pa.C.S.[A.] § 9543(a)(2)(ii). “Counsel is presumed
effective, and to rebut that presumption, the PCRA petitioner must
demonstrate that counsel's performance was deficient and that
such deficiency prejudiced him.” Commonwealth v. Colavita,
993 A.2d 874, 886 (Pa. 2010) (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)). In Pennsylvania, we have refined the
Strickland performance and prejudice test into a three-part
inquiry. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.
2001). Thus, to prove counsel ineffective, the petitioner must
show that: (1) his underlying claim is of arguable merit; (2)
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counsel had no reasonable basis for his action or inaction; and (3)
the petitioner suffered actual prejudice as a result.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
Commonwealth v. Spotz, 84 A.3d at 311-12 (citations modified).
“[C]ounsel is presumed to be effective, and a PCRA petitioner bears the
burden of proving otherwise.” Commonwealth v. Thomas, 270 A.3d 1221,
1226 (Pa. Super. 2022).
“Counsel cannot be found ineffective for failing to pursue a baseless or
meritless claim.” Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.
Super. 2007) (citation omitted). With respect to ineffective assistance of
appellate counsel, “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).
In Appellant’s first ineffectiveness claim, he argues that direct appeal
counsel was ineffective for failing to challenge the discretionary aspects of his
sentence. Such a claim is cognizable under the PCRA. Commonwealth v.
Sarvey, 199 A.3d 436, 455 (Pa. Super. 2018).
To succeed on such a claim, a PCRA petitioner must demonstrate that
the underlying sentencing issue has merit. See Commonwealth v. Jones,
942 A.2d 903, 906 (Pa. Super. 2008) (“[I]f the PCRA court can determine
from the record that the sentence was not excessive ... then there is no
underlying merit to the ineffectiveness claim and the claim must fail.”). The
actual prejudice a petitioner must prove with this type of sentencing claim is
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a showing of reasonable probability that a reviewing court on direct appeal
would have awarded a reduction in his sentence if prior counsel challenged
the discretionary aspects of his sentence. Commonwealth v. Paddy, 15
A.3d 431, 442 (Pa. 2011).
In this regard, we bear in mind that “[s]entencing is a matter vested in
the sound discretion of the sentencing judge, and a sentence will not be
disturbed on appeal absent a manifest abuse of discretion.” Commonwealth
v. Barnes, 167 A.3d 110, 122 n.9 (Pa. Super. 2017) (en banc). We will only
vacate a sentence falling within the guidelines when the application of the
guidelines would be clearly unreasonable. 42 Pa.C.S.A. § 9781(c)(2). An
“unreasonable” decision is “one that is irrational or not guided by sound
judgment.” Sarvey, 199 A.3d at 456 (internal quotation marks and citation
omitted).
Moreover, a court need not undertake a lengthy discourse to satisfy the
requirement that it state its reasons for imposing sentence. Commonwealth
v. Rush, 162 A.3d 530, 544 (Pa. Super. 2017). Rather, “the record as a
whole must reflect the sentencing court's consideration of the facts of the
crime and character of the offender.” Id. (citation omitted). We presume a
court that has the benefit of a PSI thus is apprised of all relevant sentencing
criteria. Commonwealth v. Jones, 942 A.2d 903, 908 (Pa. Super. 2008).
Appellant contends that his concurrently run, aggravated range
guideline sentences reflected an abuse of the trial court’s sentencing
discretion. Specifically, Appellant contends that the court failed to consider
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various mitigating factors at issue in his case, including his troubled and
unstable home environment as a youth, where his parents suffered from
mental health issues and physically abused him, and his own lengthy mental
health history exacerbated by his chronic use of marijuana, cocaine, pills, and
abusing alcohol. Although Appellant dropped out of school in eleventh grade,
he did complete his GED in 1994. Brief for Appellant, at 17.
The record shows, however, that Appellant’s sentencing hearing began
with the court’s acknowledgement of the mental health evaluation report, a
presentence investigation (“PSI”) report, and sentencing guideline forms.
From there, the court entertained lengthy arguments made by both counsel,
respectively,2 and gave audience to Appellant’s allocution offering continued
denials of guilt as well as a history of his mental health issues and the claim
that he led a law-abiding life when his medications were adjusted correctly.
N.T., 8/27/19, at 1-35. Immediately prior to sentencing, moreover, the court
acknowledged its contemplation of both the arguments and allocution as well
as of the particular facts and circumstances of the case and sentencing
memoranda submitted by both sides. N.T. at 35.
The trial court then made the following findings regarding mitigating and
aggravating sentencing factors:
____________________________________________
2 Defense counsel frequently referred to Appellant’s mitigating circumstances,
including his prior homelessness, mental health issues including his
schizophrenia, polysubstance abuse, his attainment of a GED despite his
challenges, and his “relatively” good behavior except for his commission of
two separate simple assaults in 2002 and 2006, respectively. N.T. at 9-20.
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The Court: This Court finds as mitigating factors the defendant’s
history of homelessness, mental health challenges, his history
from substance abuse and a number of familial crutches that are
consistent with that. The defendant’s limited number of previous
convictions is already reflected in the guidelines through the Prior
Record Score.
As aggravating factors, this Court finds disturbing that the
defendant was in the position of relative authority when he
committed this offense, howe he availed himself of this
opportunity.
This Court also finds as an aggravating factor the defendant’s lack
of remorse. And I don’t say that because he is not admitting his
guilt, no one is expecting him to do that, within a number of other
statements that he makes. This Court also considers as an
aggravating factor the impact on the victim.
This Court also credits the Presentence Report in particular in its
finding that the defendant is at significant risk for committing
future offenses.
Particularly, when compounded with the sexual history as given
by the defendant himself, wherein he admits to having engaged
in unwanted touching of other girls by grinding on them without
their consent at the age [of] 11. While that may not be necessarily
the most dangerous thing, although inappropriate in many other
ways . . ., the defendant’s history has borne out in a way that
confirms all the factors that show him to be a danger to society.
....
We’ll order a statement on health evaluation, dual diagnosis for
treatment recommendations, which the defendant is to be
compliant with throughout his incarceration.
And all of the following programming must be completed before
the defendant is eligible for parole: Individual counsel, anger
management, vocational training, parenting classes.
N.T. at 35-37.
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This record reflects the trial court’s full and informed consideration of
mitigating and aggravating circumstances, including Appellant's mental health
history and needs as well as the court's responsibility to protect the public.
Supported, therefore, is the conclusion that the trial court considered all
relevant sentencing factors and weighed those factors when imposing
Appellant’s sentence. Boyer, 856 A.2d at 154. Thus, even if direct appeal
counsel had raised a challenge to the discretionary aspects of Appellant’s
sentence, we conclude there is not a reasonable probability that the result of
his direct appeal would have been different. Reed, 42 A.3d at 319.
Accordingly, Appellant’s first ineffective assistance of counsel claim is without
merit.
In Appellant’s remaining claim, he maintains that trial counsel provided
ineffective assistance by failing to file a post-sentence motion challenging the
weight of the evidence. Regarding challenges to a verdict based on the weight
of the evidence, we have observed:
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 its conscience. Thus, appellate review of a
weight claim consists of a review of the trial court's exercise of
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discretion, not a review of the underlying question of whether the
verdict is against the weight of the evidence. An appellate court
may not reverse a verdict unless it is so contrary to the evidence
as to shock one's sense of justice.
Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)
(citations and quotation marks omitted); see also Commonwealth v.
Cousar, 928 A.2d 1025, 1036 (Pa. 2007) (holding that an appellate court
reviews a trial court's denial of a weight of the evidence claim for an abuse of
discretion and stating that “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”
(citation omitted)).
When a weight claim “is predicated on the credibility of trial testimony,
our review of the trial court's decision is extremely limited. Generally, unless
the evidence is so unreliable and/or contradictory as to make any verdict
based thereon pure conjecture, these types of claims are not cognizable on
appellate review.” Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super.
2009) (citation omitted).
Specifically, Appellant’s weight claim centers on the allegedly
inconsistent and incredible statements of Complainant made during the
investigation and as a witness at trial. His “sampling” of such statements
includes:
Her testimony that she injured her right side during the rape,
which conflicted with the treating physician’s testimony that his
notes stated she reported a left side injury;
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Her response of “no" when the detective asked whether she
was injured, but then following that with a claim of pain in her
vagina;
Her report to police that her only words during the rape were,
“no”, which conflicted with her testimony that she also yelled
her boyfriend’s name three to four times;
Complainant never testified to a struggle, but the investigating
detective testified it looked like a struggle had taken place;
Complainant testified that she and Appellant had met before,
but Appellant’s son testified the two had never before met;
Complainant testified Appellant pushed her onto the bed and
grabbed her wrists, which was inconsistent with a police report
she completed in which she checked “no” boxes to questions
asking if she was pushed and if she was grabbed;
Complainant testified that she bit Appellant’s penis but there is
no photographic or documentary proof of this;
Complainant told the investigating police officer that Appellant
ejaculated, told the detective hours later that she was not sure,
then told the treating physician that Appellant ejaculated;
Complainant gave varied responses as to whether Appellant
kissed her; and
Complainant had prior convictions involving dishonesty and
had a motive to lie about the encounter because it involved her
boyfriend’s father.
Brief of Appellant at 18-19 (paraphrased).
A verdict is against the weight of the evidence where “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.” Commonwealth v. Lyons, 833 A.2d
245, 258 (Pa. Super. 2003) (citation omitted). Moreover, an en banc panel
of this Court has stated:
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The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment for
that of the finder of fact. Therefore, we will reverse a jury’s
verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one's sense of justice. A
verdict is said to be contrary to the evidence such that it shocks
one's sense of justice when “the figure of Justice totters on her
pedestal,” or when “the jury's verdict, at the time of its
rendition, causes the trial judge to lose his breath, temporarily,
and causes him to almost fall from the bench, then it is truly
shocking to the judicial conscience.”
Commonwealth v. Boyd, 73 A.3d 1269, 1274–1275 (Pa. Super. 2013) (en
banc).
Here, Appellant contends that “[h]ad the Superior Court considered this
issue [on direct appeal], the Court would have found that the evidence was
so inherently reliable [sic] that a verdict based upon it could amount to no
more than surmise or conjecture.” Brief for Appellant at 20. The
Commonwealth counters that the identified inconsistencies are minor at best
and, when viewed against not only the complainant’s account of how Appellant
isolated her, pinned her down, sexually assaulted and raped her, but also how
she chose to subject herself to multiple law enforcement interviews, medical
treatment, and a pelvic exam, such inconsistencies fail to rise to a level
causing the verdict to shock one’s sense of justice.
For its part, the trial court opines:
The Superior Court “has long recognized that the uncorroborated
testimony of a sexual assault victim, if believed by the trier of fact,
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is sufficient to convict a defendant, despite contrary evidence from
defense witnesses.” Commonwealth v. Diaz, 152 A.3d 1040,
1047 (Pa. Super. 2016). . . . Assuming that there were
contradictions or conflicts in the testimony, it is the role of the jury
“to weigh the evidence and resolve conflicts therein.”
Commonwealth v. Story, 383 A.2d 155, 167 (Pa. 1978). See
also Commonwealth v. Ward, No. 109 EDA 2019, 2018 Pa.
Super. Unpub. LEXIS 4478, at *15 (Nov. 28, 2018). Resolving
conflicts in the testimony is an “appropriate jury function and [an]
appellant will not be heard to complain.” Commonwealth v.
Gardner, 416 A.2d 1007, 1009 (Pa. 1980). Here the jury was
properly instructed on how to evaluate conflicting evidence. “Our
law presumes that juries follow the court’s instructions as to the
applicable law.” Commonwealth v. Hawkins, 701 A.2d492, 503
(Pa. 1997).
[The trial court] observed the testimony of the complainant and
heard from the corroborating/prompt complaint witnesses. The
[trial court] found the complainant credible, and the behavior of
the complainant and others following the incident supported her
credibility. Under all the facts and circumstances of the evidence
presented, [the trial court] is in no way shocked by the verdict,
which was based upon the credible and not meaningfully
impeached testimony of complainant.
Trial Court Opinion, 1/29/20, pp. 5-6.
Applying our standard of review, we discern no abuse of discretion in
the trial court’s reasoning. Finding no error below, therefore, we conclude
there is no arguable merit to Appellant’s claims that trial counsel provided
ineffective assistance by failing to file a post-sentence motion raising a weight
of the evidence claim challenging his convictions.
For the reasons stated herein, we find no abuse of discretion in the PCRA
court’s order denying Appellant’s petition without an evidentiary hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2023
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