J-S67040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ILUMINADO MARTINEZ                         :
                                               :
                       Appellant               :   No. 1260 MDA 2019

        Appeal from the Judgment of Sentence Entered August 24, 2016
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0001409-2016


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

MEMORANDUM BY STEVENS, P.J.E.:                      FILED DECEMBER 24, 2019

        Appellant Iluminado Martinez appeals nunc pro tunc from the judgment

of sentence entered on August 24, 2016, in the Court of Common Pleas of

Berks County following his conviction at a non-jury bench trial on two counts

of robbery, one count of theft by unlawful taking, one count of receiving stolen

property, one count of simple assault, one count of possession of an

instrument of crime, one count of possession of a firearm prohibited, and five

counts of conspiracy.1 After a careful review, we affirm.

        The relevant facts and procedural history are as follows: Appellant was

arrested in connection with the gunpoint robbery of Antonio Pabon, and

represented by counsel, Appellant proceeded to a non-jury bench trial on

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*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S.A. §§ 3701, 3921, 3925, 2701, 907, 6105, and 903, respectively.
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August 24, 2016.     The trial court has aptly summarized the evidence and

testimony offered at trial as follows:

            On December 18, 2015, [Appellant] contacted Antonio
      Pabon (“the Victim”) regarding an estimate for carpet installation
      at an apartment located in the 1000 block of Tenth Street in the
      City of Reading. (Notes of Testimony of August 24, 2016 Trial
      “N.T.” at 6-8). The Victim [testified he] arrived at the apartment
      at approximately 7:00 P.M. and waited in his car until [Appellant]
      arrived. (N.T. 10-11). When [Appellant] arrived, he unlocked the
      rear entrance to the apartment. (N.T. 11). As the Victim followed
      [Appellant] into the apartment through the kitchen, another
      assailant ran from the living room area and stuck a gun into the
      Victim’s stomach. (N.T. 11). [Appellant] then also pulled a gun
      and pushed the gun into the Victim’s stomach as he rummaged
      through the Victim’s pockets, removing the Victim’s cellphone and
      his car keys. (N.T. 11-12). While [Appellant] was going through
      the Victim’s pockets, both [Appellant] and the other assailant were
      questioning the Victim as to other money in his possession. (N.T.
      12-13). The Victim told [Appellant] that he had money in the
      glove compartment of his car, whereupon [Appellant] told the
      Victim to stand against the wall as [Appellant] went out to the car
      and the other assailant stood watch over the Victim. (N.T. 13).
      After a short time, the other assailant then exited through the rear
      door of the building, warning the Victim not to move. (N.T. 13).
             After hearing the rear door close, the Victim exited through
      the front door of the building and proceeded to a bodega store
      down the street where he notified the store owner that he had
      been robbed. (N.T. 13-14). The bodega store owner called the
      police. (N.T. 14). Police arrived with[in] a few minutes and
      proceeded with the Victim to the alleyway where he had earlier
      parked and found that his car was still in the driveway. (N.T. 14).
      Upon arriving at the car, the Victim found that the money, which
      he confirmed was in the glove compartment just prior to the
      incident, was now missing. (N.T. 14-15). The Victim testified that
      he had $500 in his pocket and $7,700 in the glove compartment
      of his car for a total of $8,200 that was stolen during the incident.
      (N.T. 27-28).
            Officer Wendell Hannaford…responded to the scene at 1035
      North Tenth Street in the City of Reading where he spoke with the
      Victim, whom he described as being upset. (N.T. 35-36). Soon
      thereafter, Sergeant Jason Linderman of the Reading City Police

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       Department arrived. Officer Hannaford explained the details of the
       situation and then Sergeant Linderman left to obtain a photograph
       of [Appellant] from City Hall.[2] (N.T. 36).
              When Sergeant Linderman returned to the scene, the Victim
       identified [Appellant] from the photograph. (N.T. 36). Meanwhile,
       Officer Hannaford checked the alleyway behind the building and
       located the Victim’s car keys approximately twenty to thirty feet
       north of the building yard. (N.T. 36). Upon finding the Victim’s
       keys and allowing the Victim to look through the car, Officer
       Hannaford also inspected the car. (N.T. 95).
              [Appellant] [took the stand and testified in his own defense.
       Specifically, he] testified…that the incident was related to a drug
       transaction between himself and the Victim[,] and that he never
       threatened the Victim with a gun or assaulted the Victim.
       [Appellant] stated that he and the Victim had been doing business
       dealings in marijuana for several months [and] he asserted that
       he received a batch that was “not right” in that it was of “regular”
       quality whereas he was paying for “Grade A” marijuana. (N.T. 55-
       57, 79). [Appellant] testified that on December 18, 2015, he
       contacted the Victim to meet at [Appellant’s] apartment in order
       to purchase three and a half pounds of marijuana. (N.T. 57-58).
       [Appellant] stated that when they arrived at the apartment, the
       Victim had a laptop bag full of marijuana.             (N.T. 59-60).
       [Appellant] claimed that he then told the Victim that he would
       open the laptop bag to inspect the marijuana and that the Victim
       should go into the bedroom to count the money that was being
       exchanged for the drugs. (N.T. 60-62). [Appellant] recounted
       that he then grabbed the laptop full of marijuana and ran out of
       the apartment and into his car. (N.T. 62-63).             [Appellant]
       presented a cell phone during his testimony with text messages
       that he alleged were between himself and the Victim regarding
       their marijuana business dealings, but [Appellant] claimed that
       after the incident, he broke the SIM card to the phone. (N.T. 64-
       74, 84-85).

Trial Court Opinion, filed 7/1/19, at 1-3 (footnote omitted) (footnote added).

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2 The Victim testified that he knew Appellant and had first met him in 2009 at
the Berks County Prison; he indicated Appellant was aware that he owned a
home improvement company and performed renovations in Reading. N.T. at
5-8.

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       At the conclusion of trial, the trial court convicted Appellant of the

offenses indicated supra. On that same date, the trial court sentenced

Appellant as follows: Count 1, robbery, 6½ years to 15 years in prison; Count

2, conspiracy, 5 years to 10 years in prison, to run concurrently to Count 1;

Count 3, possession of a firearm prohibited, 4 years to 10 years in prison, to

run consecutively to Count 1; and Count 14, possession of an instrument of

crime, 1 year to 5 years in prison, to run consecutively to Count 1 but

concurrently to Count 3. No further penalty was imposed for the remaining

convictions.    Thus, the trial court imposed an aggregate sentence of 10½

years to 25 years in prison; Appellant was provided with his post-sentence

and appeal rights.

       On or about September 2, 2016, Appellant filed a timely, pro se post-

sentence motion seeking a new trial.3 On October 11, 2016, Appellant filed a

pro se letter asking for the status of his outstanding September 2, 2016, post-

sentence motion.       On October 14, 2016, the trial court entered an order

indicating it was treating the October 11, 2016, pro se correspondence as a

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-46, and on November 1, 2016, the PCRA court appointed new counsel,

Lara Glenn Hoffert, Esquire, to assist Appellant.



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3 Additionally, on September 6, 2016, Appellant filed a pro se motion seeking
the modification of his sentence; however, on September 8, 2016, the trial
court filed an order indicating it was dismissing this motion.

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      On November 4, 2016, Attorney Hoffert filed a petition seeking an

extension of time to file an amended PCRA petition, and on January 24, 2017,

she filed a petition seeking to withdraw her representation due to a conflict of

interest. By order entered on January 24, 2017, the PCRA court granted

Attorney Hoffert’s petition to withdraw, appointed new counsel, Osmer S.

Deming, Esquire, to represent Appellant, and gave new counsel thirty days to

file an amended PCRA petition.

      On February 27, 2017, May 17, 2017, July 24, 2017, and September

28, 2017, Attorney Deming filed petitions seeking an extension of time to file

an amended PCRA petition, and each time, the PCRA court granted the

request.

      On November 27, 2017, Appellant filed a pro se letter regarding his

outstanding September 2, 2016, post-sentence motion and requesting

transcripts in preparation of an appeal.

      On December 1, 2017, Attorney Deming filed a motion for re-

appointment of counsel, and by order entered on December 1, 2017, the PCRA

court granted the request and appointed new counsel, David Long, Esquire,

to represent Appellant.   On April 23, 2018, Attorney Long filed a petition

seeking an extension of time to file an amended PCRA petition, and by order

entered on April 24, 2018, the PCRA court granted the request.

      On April 25, 2018, and August 6, 2018, Attorney Long filed petitions

seeking to withdraw his representation, and each time, the PCRA court denied


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the petition. On August 7, 2018, Attorney Long filed a petition seeking an

extension of time to file an amended PCRA petition, and the PCRA court

granted the request.

      On October 9, 2018, Attorney Long filed an amended PCRA petition on

behalf of Appellant, and the PCRA court scheduled a PCRA evidentiary hearing

for January 17, 2019.    On December 8, 2019, privately-retained counsel,

Douglas J. Waltman, entered his appearance on behalf of Appellant, and on

January 11, 2019, Attorney Waltman filed a motion for a continuance of the

PCRA hearing. By order entered on January 10, 2019, the PCRA court granted

Attorney Waltman’s motion for a continuance.

      On February 27, 2019, Attorney Waltman filed an amended PCRA

petition, and the PCRA court scheduled a hearing. On May 30, 2019, following

an evidentiary hearing, the PCRA court filed an order purporting to grant

Appellant relief under the PCRA and indicating that Appellant’s direct appeal

rights, as well as his post-sentence rights, were reinstated nunc pro tunc.

      On June 7, 2019, Attorney Waltman filed a post-sentence motion on

behalf of Appellant raising a weight of the evidence claim and challenging the

discretionary aspects of Appellant’s sentence. By order and opinion filed on

July 1, 2019, the trial court denied Appellant’s counseled post-sentence

motion, and this counseled appeal followed on July 25, 2019. The trial court

directed Appellant to file a Pa.R.A.P. 1925(b) statement, counsel timely

complied, and the trial court filed a brief Pa.R.A.P. 1925(a) opinion.


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       Initially, before addressing the issues presented on appeal, we first note

the trial court erred in treating Appellant’s October 11, 2016, pro se

correspondence as a first petition under the PCRA. “The PCRA provides

petitioners with a means of collateral review, but has no applicability until the

judgment of sentence becomes final.” Commonwealth v. Kubis, 808 A.2d

196, 198 n.4 (Pa.Super. 2002). Thus, a “premature petition” filed before the

judgment of sentence becomes final “does not constitute a first PCRA

petition.” Id. A judgment of sentence is deemed final “at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

       Here, Appellant was sentenced on August 24, 2016, and he filed his

timely, pro se post-sentence motion nine days later, on September 2, 2016,

prior to his judgment of sentence becoming final.4 See Pa.R.Crim.P. 720(a)(1)


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4 We recognize that Appellant filed his timely pro se motion at a time when
counsel was still attached to his case. Pro se filings submitted by counseled
defendants are generally treated as legal nullities. Commonwealth v. Ali,
608 Pa. 71, 10 A.3d 282 (2010). However, this Court has recognized that a
counseled defendant may act on his own to protect important rights where
counsel remains technically attached to the case but is no longer serving the
client’s interest. See Commonwealth v. Williams, 151 A.3d 621 (Pa.Super.
2016). Thus, where a defendant has been effectively abandoned, this Court
has concluded that a pro se filing does not offend considerations of hybrid
representation. See Commonwealth v. Leatherby, 116 A.3d 73 (Pa.Super.
2015). Here, there is, at the very least, confusion as to whether Appellant was
effectively unrepresented when he filed the pro se post-sentence motion, and,
thus, based on the record before us, we conclude Appellant’s pro se post-
sentence motion does not offend considerations of hybrid representation.

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(indicating a written post-sentence motion must be filed within ten days after

the imposition of sentence).         The trial court never disposed of Appellant’s

September 2, 2016, pro se post-sentence motion for a new trial, and thus,

the motion remained pending when Appellant filed his October 11, 2016, pro

se correspondence (and the subsequent amended counseled PCRA petitions).

        Accordingly, we conclude the lower court erred in treating Appellant’s

October 11, 2016, pro se correspondence as a first PCRA petition. Rather, the

trial court should have ruled on Appellant’s timely, pro se September 2, 2016,

post-sentence motion. However, inasmuch as the PCRA court purported to

grant Appellant collateral relief, we find it unnecessary to vacate the PCRA

court’s May 30, 2019, order and/or remand for consideration of the September

2, 2016, pro se post-sentence motion.

        That is, since the PCRA court “reinstated” Appellant’s post-sentence and

direct appeal rights, and counsel subsequently filed both on behalf of

Appellant, we shall overlook the court’s procedural breakdowns and address

the issues raised by Appellant on appeal.

        In his first issue, Appellant contends the trial court erred in imposing

consecutive sentences, which resulted in an excessive aggregate sentence

without adequate reasons stated to support the sentence.5 This presents a




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5   Appellant contends he is not challenging his individual sentences.


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challenge   to   the   discretionary   aspects of Appellant’s sentence.     See

Commonwealth v. Dunphy, 20 A.3d 1215 (Pa.Super. 2011).

      “[C]hallenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,

991 (Pa.Super. 2016) (citation omitted). Rather, before reaching the merits

of such claims, we must determine:

      (1) whether the appeal is timely; (2) whether Appellant preserved
      his issues; (3) whether Appellant’s brief includes a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of sentence; and (4) whether
      the concise statement raises a substantial question that the
      sentence is inappropriate under the sentencing code.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa.Super. 2011) (citation

omitted). Here, assuming, arguendo, all of these requirements have been

met, we conclude Appellant’s sentencing issue is meritless.

      Our standard of review concerning the discretionary aspects of

sentencing is as follows:

      Sentencing 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. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005).

      Pursuant to Section 9721(b), “the court shall follow the general principle

that the sentence imposed should call for confinement that is consistent with


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the protection of the public, the gravity of the offense as it relates to the

impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he court shall make as

part of the record, and disclose in open court at the time of sentencing, a

statement of the reason or reasons for the sentence imposed.” Id.

Nevertheless, “[a] sentencing court need not undertake a lengthy discourse

for its reasons for imposing a sentence or specifically reference the statute in

question....” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super.

2010). Rather, the record as a whole must reflect the sentencing court’s

consideration of the facts of the case and the defendant’s character. Id. “In

particular, the court should refer to the defendant’s prior criminal record, his

age,    personal     characteristics     and   his   potential   for   rehabilitation.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002).

       Instantly, the court had the benefit of a PSI report at sentencing.6 N.T.,

8/24/16, at 2. Therefore, we can presume the court considered the relevant

factors when sentencing Appellant. See Commonwealth v. Tirado, 870 A.2d

362 (Pa.Super. 2005) (stating where sentencing court had benefit of PSI, law

presumes court was aware of and weighed relevant information regarding

defendant’s character and mitigating factors).



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6 The trial court noted the PSI report had been prepared a few months prior
to the instant sentencing hearing. N.T., 8/24/16, at 2. Defense counsel did
not object to the trial court relying upon the PSI report. Id.

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       Moreover, in imposing sentence, the sentencing court judge, who also

sat for Appellant’s bench trial, specifically indicated the following: “All right. I

have reviewed the PSI. I have taken into account the testimony that I have

heard. I’ve taken into account the provisions of the Sentencing Guidelines,

the information provided by both counsel, [and] the recommendations of both

counsel.”7 N.T., 8/24/16, at 5. Further, the trial court noted in its opinion

that, given the fact Appellant was convicted of numerous crimes, the

imposition of consecutive sentences in this case did not render the sentence

unduly excessive. Trial Court Opinion, filed 7/1/19, at 5-6. In light of the

aforementioned, we find no merit to Appellant’s challenge to the discretionary

aspects of his sentence.

       In his second issue, Appellant contends the trial court’s verdicts are

against the weight of the evidence.8           Specifically, Appellant contends “his

testimony clearly outweighs the testimony of [the Victim],” who offered

“blatant lies[.]” Appellant’s Brief at 17-18. Appellant contends his version of

events was “at least plausible” while [the Victim’s] story is absurd and plainly

fabricated[.]” Id. at 21. In this vein, Appellant contends there is “[n]o doubt

[the Victim] was at least the victim of a theft of his drugs, as [A]ppellant



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7 Defense counsel asked for concurrent sentences in his recommendation to
the court.

8Appellant adequately preserved his challenge to the weight of the evidence.
See Pa.R.Crim.P. 607(a); Pa.R.A.P. 1925.

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himself admits to, but his lame story about [A]ppellant demanding to know

where ‘the money’ was and robbing him at gunpoint is obviously an attempt

to conceal his drug dealing activities.” Id. at 17.

      When considering challenges to the weight of the evidence, we apply

the following precepts: “The weight of the evidence is exclusively for the finder

of fact, who is free to believe all, none[,] or some of the evidence and to

determine the credibility of the witnesses.” Commonwealth v. Talbert, 129

A.3d 536, 545 (Pa.Super. 2015) (quotation marks and quotation omitted).

Resolving contradictory testimony and questions of credibility are matters for

the finder of fact.    Commonwealth v. Hopkins, 747 A.2d 910, 917

(Pa.Super. 2000). It is well-settled that we cannot substitute our judgment

for that of the trier of fact. Talbert, 129 A.3d at 545.

      Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this Court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id.

      Because the trial judge has had the opportunity to hear and see
      the evidence presented, an appellate court will give the gravest
      consideration to the findings and reasons advanced by the trial
      judge when reviewing a trial court’s determination that the verdict
      is against the weight of the evidence. One of the least assailable
      reasons for granting or denying a new trial is the lower court’s
      conviction that the verdict was or was not against the weight of
      the evidence and that a new trial should be granted in the interest
      of justice.




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Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant to

prevail on a challenge to the weight of the evidence, the evidence must be so

tenuous, vague and uncertain that the verdict shocks the conscience of the

court.” Id. (quotation marks and quotation omitted).

      Here, in rejecting Appellant’s weight of the evidence claim, the trial court

relevantly indicated the following:

            At the bench trial, the court heard testimony from the Victim
      and from [Appellant] regarding the incident. Testimony from the
      parties was obviously conflicting and the court was free to make
      its credibility determinations based upon its observation and
      experience. Furthermore, [Appellant’s] presentation of certain
      text messages from his cell phone were unconvincing in support
      of his testimony. We find [Appellant’s] claim that the verdicts
      were against the weight of the evidence to lack merit.

Trial Court Opinion, filed 7/1/19, at 7 (citation omitted).

      Appellant requests that we re-weigh the evidence and assess the

credibility of his testimony and the Victim’s testimony, a task that is beyond

our scope of review.   As the trial court indicated, it, as the finder of fact, had

the duty to determine the credibility of the testimony and evidence presented

at trial. Id.; Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super.

2013) (stating that “[a]n appellate court cannot substitute its judgment for

that of the finder of fact”). As the trial court suggested, in the case sub judice,

the trial court observed Appellant and the Victim in court, as well as reviewed

all of the evidence presented. The trial court, as finder of fact, was free to

weigh the evidence and determine whether Appellant committed the crimes

as described by the Victim. See Collins, supra. Therefore, we conclude the

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trial court did not abuse its discretion in rejecting Appellant’s weight of the

evidence claim, and, thus, Appellant is not entitled to relief on this claim. See

Talbert, supra.

      For all of the aforementioned reasons, we affirm.

      Affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2019




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