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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSEPH BENTON

                            Appellant                No. 1875 EDA 2015


                    Appeal from the PCRA Order June 4, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0307971-2005


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED JUNE 01, 2016

        Appellant, Joseph Benton, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On February 8, 2006, the court convicted Appellant of third-degree murder,

possessing instruments of crime (“PIC”), firearms not to be carried without a

license, carrying firearms on public streets or public property in Philadelphia,

and persons not to possess firearms. Appellant’s convictions stemmed from

an incident on January 29, 2005, during which Appellant shot a hotel clerk

after the clerk purportedly made a homosexual advance to Appellant. The
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1
    42 Pa.C.S.A. §§ 9541-9546.
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court    sentenced      Appellant    on   March    14,       2006,    to   17½-35     years’

imprisonment      for   the    murder     conviction,    a       concurrent    2½-5   years’

imprisonment      for   the    PIC   conviction,   and       a    concurrent    3-6   years’

imprisonment for the firearms not to be carried without a license conviction.

The court imposed no further penalty for the other convictions.                  Appellant

did not file post-sentence motions, but he timely filed a direct appeal.

        On June 25, 2007, this Court affirmed the judgment of sentence,

concluding Appellant waived the sole issue presented on appeal concerning

the sufficiency of the evidence to sustain his third-degree murder conviction,

where Appellant failed to raise that issue in a timely filed concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 2                      Our

Supreme Court denied allowance of appeal on December 4, 2007.                          See

Commonwealth v. Benton, 931 A.2d 40 (Pa.Super. 2007), appeal denied,

594 Pa. 709, 937 A.2d 442 (2007).

        On July 16, 2008, Appellant timely filed a pro se PCRA petition. The

court appointed counsel on January 12, 2009, who filed an amended petition

on January 23, 2009, requesting reinstatement of Appellant’s direct appeal

rights nunc pro tunc.         Appellant did not request reinstatement of his post-

sentence motion rights nunc pro tunc. Appellant claimed reinstatement of

his direct appeal rights nunc pro tunc was warranted, where appellate
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2
 Appellate counsel filed an untimely supplemental Rule 1925(b) statement,
without leave of court, raising the sufficiency challenge.



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counsel’s failure to preserve the sufficiency challenge resulted in waiver of

the sole claim presented on appeal, effectively denying Appellant appellate

review. On June 19, 2009, with the agreement of all parties, the PCRA court

reinstated Appellant’s direct appeal rights nunc pro tunc. Following a timely

nunc pro tunc direct appeal, this Court affirmed the judgment of sentence on

May 18, 2010. This Court addressed the merits of both issues presented on

appeal, challenging the denial of Appellant’s pre-trial suppression motion and

the sufficiency of the evidence to sustain his third-degree murder conviction.

Our Supreme Court denied allowance of appeal on November 16, 2010. See

Commonwealth v. Benton, 4 A.3d 196 (Pa.Super. 2010), appeal denied,

608 Pa. 652, 12 A.3d 750 (2010).

      On October 31, 2011, Appellant timely filed the current pro se PCRA

petition. The court appointed counsel, who filed an amended PCRA petition

on July 27, 2014, seeking reinstatement of Appellant’s post-sentence and

direct appeal rights nunc pro tunc based on trial counsel’s failure to file post-

sentence motions preserving a challenge to the discretionary aspects of

sentencing. The court held a PCRA hearing on June 4, 2015, after which the

court denied PCRA relief. Appellant timely filed a notice of appeal on June

22, 2015.    On July 6, 2015, the court ordered Appellant to file a Rule

1925(b) statement; Appellant timely complied on July 14, 2015.

      Appellant raises one issue for our review:

         WHETHER THE COURT ERRED IN DENYING APPELLANT’S
         PCRA PETITION WHERE APPELLANT WANTED HIS

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          ATTORNEY TO FILE POST SENTENCE MOTIONS AND AN
          APPEAL FROM HIS CONVICTION WHERE COUNSEL
          MISINFORMED [APPELLANT] ABOUT HIS RIGHT TO FILE A
          POST SENTENCE MOTION AND HIS APPELLATE RIGHTS
          AND    THE  ISSUES   THAT   HE   COULD   APPEAL?
          FURTHERMORE,    WHETHER    APPELLANT    SUFFERED
          PREJUDICE FROM THIS WAIVER BECAUSE HE WAS
          UNABLE TO CHALLENGE HIS SENTENCE OR THE WEIGHT
          OF THE EVIDENCE WHICH WERE TWO ISSUES THAT HAD
          MERIT.

(Appellant’s Brief at 5).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if     the   record contains any support for      those   findings.

Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001).           If the record

supports a post-conviction court’s credibility determination, it is binding on

the appellate court. Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297

(2011).

      Appellant argues the trial court imposed an excessive sentence without

considering Appellant’s background, social history, relative lack of criminal

history, and other mitigating evidence such as Appellant’s substance abuse

issues. Appellant asserts the trial court failed to outline the reasons on the

record for imposing such a lengthy sentence. Appellant contends he wanted

to challenge the discretionary aspects of sentencing and trial counsel had no

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rational basis for failing to raise that claim in a timely filed post-sentence

motion. Appellant insists trial counsel’s failure to file post-sentence motions

deprived Appellant of the opportunity to secure a reduced sentence and to

present a sentencing challenge on direct appeal.       Appellant concludes trial

counsel rendered ineffective assistance, and this Court must vacate the

PCRA court’s decision and remand for reinstatement of Appellant’s post-

sentence motion rights nunc pro tunc or a new sentencing hearing.3            We

disagree.

       “[A]n accused who is deprived entirely of his right of direct appeal by

counsel’s failure to perfect an appeal is per se without the effective

assistance of counsel, and is entitled to reinstatement of his direct appellate

rights.”    Commonwealth v. Grosella, 902 A.2d 1290, 1293 (Pa.Super.

2006) (quoting Commonwealth v. Johnson, 889 A.2d 620, 622 (Pa.Super.

2005)).     Importantly, there are very few circumstances where counsel’s
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3
  Appellant maintains trial counsel was also ineffective for failing to file post-
sentence motions preserving a challenge to the weight of the evidence.
Appellant’s entire two-sentence argument concerning this claim is as follows:
“Furthermore, Appellant wanted to challenge the weight of the evidence on
appeal. He disagreed with the trial court’s acceptance of evidence and was
clear that he wanted an appellate court to review the court’s finding.”
(Appellant’s Brief at 11) (internal citation omitted). Notwithstanding this
statement, Appellant presents no argument on how the verdict was against
the weight of the evidence in this case. Consequently, Appellant’s averment
regarding the weight of the evidence is waived for lack of development on
appeal. See Commonwealth v. Perez, 625 Pa. 601, 93 A.3d 829 (2014),
cert. denied, ___ U.S. ___, 135 S.Ct. 480, 190 L.Ed.2d 364 (2014) (holding
claims which fail to contain developed argument or citation to supporting
authorities and certified record are waived on appeal).



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conduct warrants a presumption of prejudice and the reinstatement of a

petitioner’s direct appeal rights nunc pro tunc. Commonwealth v. Reed,

601 Pa. 257, 272, 971 A.2d 1216, 1225 (2009).           These circumstances

include: (1) where counsel failed to file a requested direct appeal; (2) where

counsel failed to file a concise statement of errors claimed of on appeal; or

(3) where counsel failed to file a requested petition for allowance of appeal.

Id. at 272-73, 971 A.2d at 1225. “In those extreme circumstances, where

counsel has effectively abandoned his…client and cannot possibly be acting

in the client’s best interests, our Supreme Court has held that the risk

should fall on counsel, and not the client.” Commonwealth v. West, 883

A.2d 654, 658 (Pa.Super. 2005).

      On the other hand, “the reinstatement of direct appeal rights is not the

proper remedy when appellate counsel perfected a direct appeal but simply

failed to raise certain claims.” Grosella, supra at 1293. Significantly:

         Where a petitioner was not entirely denied his right to a
         direct appeal and only some of the issues the petitioner
         wished to pursue were waived, the reinstatement of the
         petitioner’s direct appeal rights is not a proper remedy. In
         such circumstances, the [petitioner] must proceed under
         the auspices of the PCRA, and the PCRA court should apply
         the traditional three-prong test for determining whether
         appellate counsel was ineffective.

Id. at 1293-94 (emphasis in original) (internal citations and footnotes

omitted).   See also Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d

1119 (2007) (holding counsel’s failure to preserve challenge to court’s

sentencing discretion by objecting at sentencing or filing post-sentence

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motion did not entirely foreclose appellate review of defendant’s potential

issues for direct appeal; rather, counsel’s inaction waived only those claims

subject to issue preservation requirements; appellate counsel perfected

direct appeal for defendant, and Superior Court addressed merits of one of

defendant’s claims but waived excessive sentence claim for failure to

preserve it at sentencing or in post-sentence motion; thus, counsel’s lapse

did not deprive defendant of his right to appellate review; at most, counsel

narrowed ambit of issues for direct appeal; consequently, defendant must

satisfy traditional three-prong ineffectiveness test).

      Under the traditional analysis, to prevail on a claim of ineffective

assistance of counsel, a petitioner 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.

Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal

denied, 596 Pa. 707, 940 A.2d 365 (2007).                       The petitioner must

demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had

no reasonable strategic basis for his 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. Id. “A reasonable

probability is a probability that is sufficient to undermine confidence in the

outcome of the proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 34, 84


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A.3d 294, 312 (2014) (quoting Commonwealth v. Ali, 608 Pa. 71, 86-87,

10 A.3d 282, 291 (2010)). “The petitioner bears the burden of proving all

three    prongs    of   the   test.”    Turetsky,     supra    at   880   (quoting

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.Super. 2005),

appeal denied, 583 Pa. 680, 877 A.2d 460 (2005)). “Where it is clear that a

petitioner has failed to meet any of the three, distinct prongs of the…test,

the claim may be disposed of on that basis alone, without a determination of

whether the other two prongs have been met.” Commonwealth v. Steele,

599 Pa. 341, 360, 961 A.2d 786, 797 (2008).

        Instantly, appellate counsel initially filed a direct appeal on Appellant’s

behalf challenging the sufficiency of the evidence to sustain Appellant’s

third-degree murder conviction. On June 25, 2007, this Court affirmed the

judgment of sentence, based on waiver, where Appellant failed to raise that

issue in a timely filed Rule 1925(b) statement.          On July 16, 2008 and

January 23, 2009, respectively, Appellant timely filed a pro se PCRA petition

and a counseled amended PCRA petition, requesting reinstatement of his

direct appeal rights nunc pro tunc.       Notably, Appellant failed to raise trial

counsel’s ineffectiveness for failing to file post-sentence motions in either of

those petitions. Appellant’s failure to raise the current claim in his original

PCRA and amended PCRA petitions arguably constitutes waiver of his issue

on appeal. See 42 Pa.C.S.A. § 9543(a)(3) (stating to be eligible for PCRA

relief, petitioner must plead and prove by preponderance of evidence that


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allegation of error has not been waived); 42 Pa.C.S.A. § 9544(b) (explaining

issue is waived for purposes of PCRA if petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal, or in

prior state post-conviction proceeding).

      In any event, following restoration of his direct appeal rights, Appellant

filed and litigated a direct appeal nunc pro tunc challenging the sufficiency of

the evidence to sustain his third-degree murder conviction and the denial of

his pre-trial suppression motion.   This Court addressed both issues on the

merits and affirmed the judgment of sentence on May 18, 2010. Thus, trial

counsel’s failure to file post-sentence motions did not completely foreclose

appellate review but simply “narrowed its ambit,” precluding Appellant from

challenging in his direct appeal nunc pro tunc only the discretionary aspects

of sentencing and weight of the evidence, which are subject to issue

preservation requirements.    See Commonwealth v. Griffin, 65 A.3d 932

(Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013)

(explaining challenges to discretionary aspects of sentencing and weight of

evidence are waived if they are not raised in post-sentence motion or by

other appropriate manner before trial court).      See also Reaves, supra;

Grosella, supra (distinguishing between cases where counsel’s failure

extinguished defendant’s right to direct appeal and cases where counsel

might have waived or abandoned some but not all issues on direct appeal).

Given the pursuit and resolution of a direct appeal nunc pro tunc in


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Appellant’s case, he would not be entitled to reinstatement of his post-

sentence motion and/or direct appeal rights nunc pro tunc at this juncture.

See id.

     The PCRA court properly considered Appellant’s ineffective assistance

of counsel claim by applying the traditional three-prong ineffectiveness test.

See Reaves, supra; Grosella, supra. The PCRA court reasoned:

          In the instant case, the court found that [Appellant] met
          his burden of establishing that he had advised counsel of
          his desire to file post-sentence motions challenging his
          sentence. Nevertheless, [Appellant] was not prejudiced by
          counsel’s failure to file post-sentence motions.

          With regard to the lack of prejudice, the court made it
          abundantly clear that it believed [Appellant’s] sentence
          appropriate when it was imposed. The court would have
          denied any request for reconsideration of sentence if trial
          counsel had, in fact, formally filed such a motion. … This
          court stated on the record the reasons for its sentence.4
          [Appellant] has not met his burden of proof.
            4
               In addition to [Appellant’s] extensive criminal
            record and his inability to be rehabilitated despite
            incarceration and supervision, the court considered
            the facts of his case.        The facts showed that
            [Appellant] did not act in self-defense or with a belief
            that he was in danger of serious bodily injury when
            he killed the victim. He made the conscious decision
            to use deadly and totally unnecessary force. He
            used a deadly weapon on a vital portion of the
            decedent’s body without any lawful justification. In
            doing so, [Appellant] acted with the requisite malice
            to support his conviction for third-degree murder.

          Accordingly, [Appellant] is not entitled to post-conviction
          relief. His PCRA petition was properly denied.

(PCRA Court Opinion, filed August 7, 2015, at 4-5) (some internal citations


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and footnotes omitted).         The record supports the court’s analysis. 4   See

Ford, supra.

       The PCRA court credited Appellant’s testimony that he asked trial

counsel to file post-sentence motions on his behalf.        See Dennis, supra.

Nevertheless, the PCRA court (which also sat as the fact-finder at trial and

sentencing court) found Appellant had failed to demonstrate prejudice. See

Reaves, supra at 153-54, 923 A.2d at 1131 (explaining that for defendant

to prevail on ineffectiveness claim, he must prove he asked counsel to file

post-sentence motion on his behalf, counsel refused his request, counsel

lacked rational basis for such refusal, and there is reasonable probability

that, but for counsel’s error, result of sentencing proceeding would have

been different).     See also Spotz, supra; Turetsky, supra.          The record

supports the court’s decision that Appellant’s ineffectiveness claim merits no

relief.5 See Ford, supra; Turetsky, supra. Accordingly, we affirm.

       Order affirmed.
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4
  The record shows the court considered, inter alia, Appellant’s pre-sentence
investigation report, the impact statement from Victim’s sister, impact
testimony from Victim’s brother, Appellant’s apology to Victim’s family,
Appellant’s prior failed attempts at rehabilitation, and Appellant’s social
history and substance abuse issues.
5
  The Supreme Court decision in Commonwealth v. Liston, 602 Pa. 10,
977 A.2d 1089 (2009) offers Appellant no relief. The Court’s footnote
commentary on prejudice did not address scenarios in which a defendant
already had the benefit of a direct appeal and “merits” review of one or more
claims. See id. at 19 n.9, 977 A.2d at 1094 n.9. Thus, the prejudice
analysis in Reaves controls the present case. See Reaves, supra.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2016




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