J-S61005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DANE L. EPPS                               :
                                               :
                       Appellant               :   No. 2508 EDA 2018

             Appeal from the PCRA Order Entered August 10, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0004330-2011,
              CP-51-CR-0004333-2011, CP-51-CR-0004334-2011,
                           CP-51-CR-0004834-2011

BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                            FILED FEBRUARY 13, 2020

       Dane L. Epps appeals from the order that dismissed his Post Conviction

Relief Act (“PCRA”) petition filed in four underlying cases.1 We affirm.

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1 Appellant filed a notice of appeal including all four docket numbers, in
violation of this Court’s decision in Commonwealth v. Creese, 216 A.3d
1142, 1143 (Pa.Super. 2019) (holding that our Supreme Court’s decision in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), mandating separate
notices of appeal at each docket implicated by the appealed-from order,
requires us to quash an appeal listing more than one docket number).
However, in its single order denying Appellant’s petition at all four docket
numbers, the PCRA court advised Appellant that he had thirty days “to file an
appeal with the Superior Court.” Order and Opinion, 8/10/18, at 14 (emphasis
added). We have held that “such misstatements as to the manner that [the
a]ppellant could effectuate an appeal . . . amount to a breakdown in court
operations such that we may overlook the defective nature of [the] timely
notice of appeal rather than quash pursuant to Walker.” Commonwealth
v. Stansbury, 219 A.3d 157, 160 (Pa.Super. 2019). Therefore, we address
Appellant’s claims rather than quash this appeal.


* Former Justice specially assigned to the Superior Court.
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       On April 11, 2013, Appellant entered open guilty pleas in all four cases

to numerous charges related to serial gunpoint rapes and robberies. In short,2

Appellant, either alone or with two of his friends, on several occasions

accosted people parked at Cobbs Creek Park in Philadelphia, locking men in

the trunks of the vehicles after taking their valuables, and dragging women to

the woods to be forcibly raped orally, vaginally, and anally.3               Following a

presentence investigation, he was sentenced in all four cases.                     At the

sentencing hearing, the court noted Appellant’s smugness, failure to express

remorse or accept the nature of his wrongdoing, and jocularity in the face of

the human rights violations suffered by Appellant’s victims. The trial court

imposed     an   aggregate      sentence       of   thirty-five   to   seventy   years   of

imprisonment, followed by fifty-three years of probation, resulting from the

various sentences running concurrently within each case, but consecutive to

those in the other cases. Appellant did not file a post-sentence motion or a

direct appeal.

       In May 2014, Appellant filed a timely pro se PCRA petition. For reasons

not apparent from the record, activity on the filing was sporadic for years.



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2The appalling details of the crimes at issue can be found in the PCRA court
opinion. See PCRA Court Opinion, 8/10/18, at 1-4.

3  According to our tally, Appellants convictions included four counts of
robbery; one count of kidnapping; and three counts each of rape, involuntary
deviate sexual intercourse, conspiracy, and possessing an instrument of
crime.

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Counsel was appointed in March 2015, and filed amended petitions in June

2015 and December 2016.         Appellant moved for the sentencing judge to

recuse, and his motion was granted in April 2017. The case was reassigned

to the PCRA court, and hearings were scheduled and continued. On April 30,

2018, the PCRA court held a hearing at which Appellant, his mother and

grandmother, and trial counsel testified. After considering all of the evidence,

the PCRA court concluded that Appellant had failed to prove any of his claims,

and it denied the petition in August 2018.

      Appellant timely appealed, and both Appellant and the PCRA court

complied with Pa.R.A.P. 1925. Appellant presents the following questions for

this Court’s determination:

             1.      Did the [PCRA] court err in denying the Appellant’s
      claim arising from plea counsel’s ineffectiveness, given that
      counsel gave the sentencing court erroneous guidance as to the
      applicability of mandatory minimum sentences and the sentencing
      guidelines, failed to object during Appellant’s deeply flawed
      sentencing hearing (which violated Commonwealth v. Spencer,
      496 A.2d 1156, 1165 (Pa.Super. 1985) and the Appellant’s due
      process rights, given that he was removed during the hearing and
      before he could be advised of his rights, although he posed no
      danger to anyone), failed to advise Appellant of his post-sentence
      and appellate rights, and unlike both other lawyers in this case,
      failed to file for post-sentence and appellate relief; specifically, did
      the trial court err in denying the [A]ppellant the right to file post-
      sentence motions (including a motion for withdrawal of his plea or
      for a new sentencing hearing before a different jurist) and an
      appeal?

            2.    Did the [PCRA] court err in denying the Appellant a
      new sentencing hearing, given the inflammatory comments and
      quickly escalating hostility, culminating in a seemingly sua sponte
      contempt charge, that the Appellant endured at his sentencing
      hearing; see Spencer, supra?

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Appellant’s brief at 3 (unnecessary capitalization omitted).

      We begin with a review of the applicable law. “This Court’s standard of

review regarding an order denying a petition under the PCRA is whether the

determination of the PCRA court is supported by the evidence of record and is

free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super.

2017). Further, “[i]t is an appellant’s burden to persuade us that the PCRA

court erred and that relief is due.” Commonwealth v. Miner, 44 A.3d 684,

688 (Pa.Super. 2012).

      To be eligible for PCRA relief, a petitioner must plead and prove that his

conviction or sentence resulted from an enumerated error, such as ineffective

assistance of counsel or an unlawfully-induced guilty plea. See 42 Pa.C.S.

§ 9543(a)(2). Additionally, the petitioner must establish “[t]hat the allegation

of error has not been previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3).

“An issue is waived if a petitioner could have raised it but failed to do so before

trial, at trial, on appeal or in a prior state post-conviction proceeding.”

Commonwealth v. Oliver, 128 A.3d 1275, 1281-82 (Pa.Super. 2015)

(cleaned up).

      We first address Appellant’s claim that he is entitled to be resentenced

because the court’s comments at the sentencing hearing created “the

appearance of impropriety and a lack of impartiality.” Appellant’s brief at 15.

This is an issue Appellant could have raised in a post-sentence motion or on

direct appeal. Therefore, pursuant to 42 Pa.C.S. § 9543(a)(3), it cannot serve

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as the basis of PCRA relief. See, e.g., Commonwealth v. Michaud, 70 A.3d

862, 869 (Pa.Super. 2013) (noting challenge to adequacy of colloquy

concerning waiver of right to testify was waived for PCRA purposes because it

could have been litigated in a direct appeal).

       However, Appellant could, and did, seek the requested relief through

the   PCRA based upon plea counsel’s failure “to object during Appellant’s

deeply flawed sentencing hearing[.]”           Appellant’s brief at 3 (unnecessary

capitalization omitted).       Thus, we address it in that context, along with

Appellant’s additional claims of ineffective assistance of plea counsel, mindful

of the following legal principles.

       Counsel is presumed to be effective, and a PCRA petitioner bears the

burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106, 112

(Pa.Super. 2018). To do so, the petitioner must plead and prove (1) the legal

claim underlying his ineffectiveness claim has arguable merit; (2) counsel’s

decision to act (or not) lacked a reasonable basis designed to effectuate the

petitioner’s interests; and (3) prejudice resulted. Id. The failure to establish

any prong is fatal to the claim. Id. at 113.

       Appellant argues that the PCRA court erred in not finding that plea

counsel was ineffective in two areas.4 First, he contends that he established

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4 Appellant in his statement of questions presented suggests that the PCRA
court should have awarded relief on two additional allegations of
ineffectiveness, namely, the failure to advise him of his appellate rights and



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that counsel gave the sentencing court incorrect information about the

sentencing guidelines and the applicability of mandatory minimum sentencing

statutes. Appellant’s brief at 8-9. Specifically, Appellant avers that counsel

failed to clarify that no mandatory minimum sentence was applicable, and no

deadly weapon enhancement could be applied to Appellant under Alleyne v.

United States, 570 U.S. 99 (2013).

       The PCRA court addressed these contentions as follows:

       [Appellant] claims that counsel was ineffective for failing to correct
       “misperceptions” at his sentencing hearing regarding applications
       of the sentencing guidelines. For the first alleged “misperception,”
       [Appellant] claims counsel should have advised the sentencing
       court that any mandatory minimums did not apply as they would
       have violated Alleyne . . . . This claim is meritless as mandatory
       minimum sentences had no impact on [Appellant]’s sentence. The
       sentencing court also never referenced mandatory minimums for
       [Appellant] at sentencing. Because mandatory minimums were
       not applied to [Appellant]’s sentence, no relief is warranted.

             For the second alleged “misperception,” [Appellant] claims
       counsel was ineffective for asserting on the record that the
       sentencing guidelines called for a deadly weapon enhancement,
       which [Appellant] claims violated Alleyne. [Appellant] argues
       this assertion “informed the crafting of his sentence.” This claim
       lacks merit.     As the Commonwealth points out, both the
       Pennsylvania Supreme Court and the United Stated Supreme
       Court have drawn an important contrast between “facts triggering
____________________________________________


failure to file a direct appeal. See Appellant’s brief at 3. The PCRA court
denied these claims upon determining that Appellant presented no credible
evidence that he requested an appeal, and that counsel credibly testified that
he did advise Appellant of his rights, that he had no recollection of Appellant
or any family member expressing a desire for an appeal, and that, had he
been so informed, he would have filed one. See PCRA Court Opinion, 8/10/18,
at 7, 13-14. Finding no contentions in the argument section of Appellant’s
brief addressing these issues, we consider them abandoned and do not
address them.

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      a sentencing minimum and those used in applying sentencing
      guidelines. Fact-finding that increases a statutory minimum ‘is
      distinct from fact-finding used to guide judicial discretion in
      selecting a punishment ‘within limits fixed by law.”
      Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) . . . .
      Regardless, if counsel misrepresented the sentencing guidelines
      to the court, [Appellant] would still have to show he was
      prejudiced by the misrepresentation. In other words, [Appellant]
      must demonstrate counsel’s misrepresentation led to an illegal
      sentence or that there is a reasonable probability the result of the
      proceeding would have been different. . . . Because [Appellant]
      fails to demonstrate-or even assert-actual prejudice for this claim,
      it merits no relief.

PCRA Court Opinion, 8/10/18, at 9-10 (cleaned up).

      Appellant presents no persuasive argument that the PCRA court’s

analysis of these claims is incorrect. No mandatory minimum statutes were

discussed or applied in fashioning Appellant’s sentence, and, as the Alleyne

decision has no impact upon the sentencing guidelines, there was no

impropriety in the trial court’s consideration of the guideline matrix applicable

when a deadly weapon has been used. See Commonwealth v. Shull, 148

A.3d 820, 830 (Pa.Super. 2016) (noting “imposition of the deadly weapon

sentencing enhancement does not implicate” Alleyne). Accordingly, no relief

is due on these issues.

      With his final argument, Appellant claims that the PCRA court erred in

not concluding that plea counsel rendered constitutionally-deficient assistance

by failing “to challenge the trial court’s extreme rhetoric” at the sentencing

hearing or in a motion for reconsideration of sentence. Appellant’s brief at




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13.    Appellant summarized the “extreme rhetoric” and conduct of the

sentencing court5 as follows:

             During the sentencing hearing, the judge called the
       Appellant a “monster” and told him that there was “a special place
       in hell” for him, that “words cannot describe” him, said that he
       had a “smug face” and that he “can’t even begin to describe how
       much I would have loved to have given you 110 years.” After
       provoking the Appellant with this inflammatory language, the trial
       court reacted to the Appellant’s protests by instantly imposing a
       contempt sentence of five and a half months “to every other
       sentence” and asking him “[d]o you want to try for another?” The
       Appellant was then removed from the courtroom.

Id. at 4-5 (citation and footnote omitted).

       Relying upon Commonwealth v. Williams, 69 A.3d 735, 738

(Pa.Super. 2013), Appellant contends that the sentencing court’s statements

manifested bias that would have entitled him to resentencing had counsel filed

a post-sentence motion, and that counsel had no reasonable basis for failing

to ask the court “to reconsider his sentence once cooler heads prevailed[.]”

Appellant’s brief at 14.

       In Williams, the defendant violated several probation sentences by

breaking into Catholic churches and stealing money. After revoking probation,

the trial court sentenced the defendant to approximately twenty-four to forty-

eight years of imprisonment, consecutive to a seven-to-twenty-year sentence

in another county. This Court held that the sentence was the result of an



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5As indicated supra, the sentencing judge recused himself from consideration
of Appellant’s PCRA petition, and a different judge served as the PCRA court.

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abuse of discretion for two reasons. First, the defendant’s punishment was

not proportional to her non-violent conduct of “stealing a few thousand dollars

in cash and property over the course of a spree of seven burglaries.” Id. at

743. Second, the trial court’s comments suggested the appearance of bias

against the defendant. The record showed that the trial judge noted that he

was a Catholic, and extensively questioned why the defendant was targeting

Catholic rectories and convents while passing by Protestant churches. The

judge further referred to the defendant as a “pathological liar,” a “classic

sociopath,” although the record reflected that the defendant instead had

treatable substance abuse and mental health issues. Id. at 748. Moreover,

the trial court made other comments that suggested “the appearance of bias

against [the defendant] based on her gender,” such as describing her as “the

most violent, thuggish female who has appeared before me in my nine-and-

one-half years.” Id. at 748-49. Therefore, this Court vacated the sentence

and remanded for resentencing.

      The PCRA court addressed Appellant’s arguments as follows:

             Here, the sentencing court’s comments and the context in
      which they were said are decidedly different than Williams.
      Unlike Williams, the sentencing court did not reference
      [Appellant]’s gender or use “pseudo-medical terminology” to
      describe [Appellant]’s mental health.           Also distinct from
      Williams, there was no potential religious bias. Rather, the
      sentencing court’s comments-taken in context-were no more than
      candid, colorful characterizations based on [Appellant] not taking
      the sentencing hearing seriously. The notes of testimony reflect
      that [Appellant] sat smugly and laughed through most of the
      sentencing hearing. [Appellant] also failed to take responsibility
      for his horrific conduct. Despite pleading guilty to three counts of

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        rape, [Appellant] told the presentence investigator that he never
        engaged in sex by aggression, force, or threats. Although this
        [c]ourt does not condone calling defendants “monsters,” nothing
        in the record demonstrates this comment reflected any partiality
        that led to an exceedingly harsh or bias[ed] sentence.
        [Appellant]’s sentence was proportional to his conduct. Further,
        his aggregate sentence was within the sentencing guidelines and
        far below the statutory maximum. For these reasons, no relief is
        due.

              ....

        . . . [Appellant] fails to show prejudice as there is no evidence that
        had counsel filed a motion to reconsider, [Appellant] would have
        received a favorable outcome. The sentencing court was candid
        at [Appellant]’s sentencing, making it patently clear the court
        preferred to give [Appellant] a harsher sentence. “I would have
        loved to have given you 110 years. The only thing saving you is
        you did plead guilty . . . had this gone to trial, you would have
        never gotten out in your natural lifetime.” Given the sentencing
        court’s comments and [Appellant]’s horrific crimes—four armed
        robberies and three violent rapes at gun point—it is exceedingly
        unlikely that had [Appellant] filed a motion to reconsider, he would
        have received a reduced sentence or a favorable outcome.

PCRA Court Opinion, 8/10/18, at 10-12 (footnote and citations omitted).

        Again, we discern no abuse of discretion by the PCRA court in denying

Appellant’s claim. The record suggests that the sentencing court’s agitation

was not based upon religious or gender bias, or mischaracterization of mental

illness, but was a reaction to the appalling crimes Appellant committed for

which Appellant appeared to feel no remorse.6             Therefore, we are not

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6   For example, in his allocution, Appellant stated as follows:

        I want to apologize to the court and the victims. That's really
        about it. I apologize for wasting everybody's time. I'm not



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convinced that the PCRA court erred in concluding that Appellant’s claim

lacked arguable merit.

       Further, Appellant offers no evidence that a motion for reconsideration

would have resulted in a lesser sentence, and he thus cannot demonstrate

that he was prejudiced by counsel’s failure to file one. See Commonwealth

v. Reaves, 923 A.2d 1119, 1132 (Pa. 2007) (holding actual prejudice must

be proven to prevail on claim that counsel was ineffective in not filing a post-

sentence motion).

       Accordingly, having determined that Appellant has failed to meet his

burden of convincing this Court that the PCRA court erred and that relief is

due, we affirm the order denying his petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/20




____________________________________________


       making light of the case or taking it as a joke or minimizing it in
       any type of way. But what was done, it was wrong. I'm not saying
       I'm ashamed or anything like that.

N.T. Sentencing, 7/12/13, at 38.

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