J-S15003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICARDO NOBLE                              :
                                               :
                       Appellant               :   No. 420 WDA 2018

        Appeal from the Judgment of Sentence Entered January 29, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0000318-1992


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                FILED APRIL 15, 2019

        Appellant, Ricardo Noble, pro se, appeals from the judgment of sentence

of 40 years to life imprisonment, which was imposed at his resentencing

pursuant to his jury trial convictions for murder of the second degree, criminal

conspiracy, and robbery.1          We affirm in part and remand in part, with

instructions.

        On October 18, 1991, in Erie, Pennsylvania, Appellant and two other

individuals robbed and murdered a cab driver, whose vehicle they were seen

entering shortly before the victim’s death and whose last contact was with

Appellant and his co-defendants, according to cab company records and

communications. Commonwealth v. Noble, Nos. 1770 Pittsburgh 1992 &

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1   18 Pa.C.S. §§ 2502(b), 903(a)(1), and 3701(a)(1), respectively.



*    Retired Senior Judge assigned to the Superior Court.
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1792 Pittsburgh 1992, unpublished memorandum at 1, 5 (Pa. Super. filed

February 3, 1994) (citing Trial Court Opinion, filed February 8, 1993, at 25).

“At the time of the murder, appellant was 15 years, 8 months of age.” Id. at

2.

        Prior to trial, Appellant petitioned the trial court “to decertify this case

and transfer the matter to Juvenile Court,” id. at 1-2, pursuant to 42 Pa.C.S.

§ 6322(a) of the Juvenile Act,2 which articulates the procedure for “[t]ransfer

from criminal proceedings . . . to the division or a judge of the court assigned

to conduct juvenile hearings[.]” Following “a two-day certification hearing in

which testimony was heard from appellant’s relatives, friends, teachers and

psychologists,” the trial court denied Appellant’s petition. Noble, No. 1770

Pittsburgh 1992, at 4.

        On June 5, 1992, Appellant was convicted of the aforementioned crimes.

On September 28, 1992, Appellant was sentenced “to a term of life

imprisonment on the murder charge, and a concurrent term of four (4) to ten

(10) years imprisonment on the conspiracy charge.” Id. at 1. On February 3,

1994, this Court affirmed Appellant’s judgment of sentence.             Id. at 14.

Appellant petitioned for allowance of appeal to the Supreme Court of




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2   42 Pa.C.S. §§ 6301-6375.




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Pennsylvania, which was denied on August 17, 1994.          Commonwealth v.

Noble, 647 A.2d 899 (Pa. 1994).

       On March 1, 2016, Appellant filed, pro se, a petition pursuant to the Post

Conviction Relief Act (“PCRA”),3 contending that his sentence was illegal. PCRA

Petition, 3/1/2016, at 2, 5 & second of two unnumbered pages between pages

5 and 6. On July 19, 2017, the trial court granted Appellant relief, vacating

his judgment of sentence but not his convictions and ordering a resentencing

hearing scheduled for October 23, 2017. Order, 7/19/2017.

       On October 16, 2017, Appellant filed a motion to continue his

resentencing hearing, which the trial court granted two days later, scheduling

the hearing for December 4, 2017. On November 6, 2017, Appellant filed an

ex parte and sealed motion for the appointment of a mitigation specialist, which

the trial court granted three days later. On November 27, 2017, Appellant

again motioned for a continuance, which the trial court granted, rescheduling

the hearing for January 29, 2018. On January 3, 2018, Appellant motioned for

the appointment of a psychologist and, on January 16, 2018, motioned for a

continuance to allow for a psychological evaluation. On January 18, 2018, the

trial court denied both motions.

       On January 29, 2018, at the beginning of his resentencing hearing,

Appellant personally (and not through counsel) told the trial court that he


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3   42 Pa.C.S. §§ 9541–9546.


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disagreed with the recommendation of 20 to 60 years given by his counsel in

his pre-hearing sentencing memorandum, and the trial court acknowledged

that Appellant “brought it to [the court’s] attention[,]” then repeatedly had to

instruct Appellant to “have a seat,” that he would “be allowed to speak at the

re-sentencing hearing at the appropriate time,” and that, if he was displeased

with his counsel’s representation, he could file a motion for ineffective

assistance of counsel after the hearing. N.T., 1/29/2018, at 2-4.

      Appellant later testified on his own behalf, without interruption by his

attorney; however, when he began to protest his innocence, stating that he

“did not kill” and “did not rob” the victim and was “a hundred percent innocent

of all charges[,]” the trial court prevented him from doing so, explaining that

his culpability was not at issue, as he had “already been found guilty of those

offenses.” Id. at 25, 28-32. The trial court informed Appellant that he could

only speak “as to what the [c]ourt should now do with you in terms of

sentencing, not as to culpability in the case, because that’s already been

determined.” Id. at 30. Appellant also attempted to make an argument about

his “1992 decertification hearing,” but the trial court stated that it was “not

going to consider that. That’s done.” Id. at 32.

      At the conclusion of the hearing, the trial court resentenced Appellant to

40 years to life imprisonment for murder of the second degree, with no further

penalty on the remaining counts. Id. at 64-65. According to the trial court:

      [T]he record does not indicate the Appellant was informed of his
      right and time to appeal sentence.2

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          2 In Erie County, this has historically been done by the district
          attorney (or assistant) on the record and before the Court
          assumes the bench. The completed rights paperwork is
          then, after being signed by all parties, submitted to the Court
          for verification and signing. Apparently, this was not done
          on this occasion.

Trial Court Opinion, filed August 29, 2018, at 2 (internal quotation marks

omitted). Appellant did not file a post-sentence motion.

       On February 20, 2018, Appellant’s counsel filed a motion to withdraw,

which the trial court did not address. Despite this pending motion, on March 9,

2018, Appellant’s counsel filed a “Motion to Reinstate Appellant’s Rights Nunc

Pro Tunc” (hereinafter “Motion to Reinstate”), “requesting that th[e trial c]ourt

allow Counsel for the Defendant to reinstate Mr. Noble’s right to appeal, so

Counsel may file the appropriate Notice of Appeal.”          Motion to Reinstate,

3/9/2018, at ¶ 11. The Motion to Reinstate did not request that Appellant’s

right to file a post-sentence motion be reinstated. See generally id. The trial

court granted the Motion to Reinstate later that month. 4 On March 22, 2018,

counsel filed a notice of appeal, along with a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 10, 2018,

____________________________________________


4 The order granting the Motion to Reinstate does not appear in the certified
record, and we cannot speculate as to whether the order specified that
Appellant’s right to file a post-sentence motion was also reinstated, particularly
as the Motion to Reinstate itself did not actually request such relief. In his
brief, Appellant does not state that his right to file a post-sentence motion was
reinstated, and, as of the date of this decision, the Commonwealth did not file
a brief. The trial court opinion merely stated that “Appellant perfected a timely
appeal in this case.” Trial Court Opinion, filed August 29, 2018, at 2.




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counsel filed another motion to withdraw, which was denied by the trial court

on April 30, 2018. On May 7, 2018, the official court reporter filed the notes

of testimony from Appellant’s resentencing hearing on January 29, 2018. On

May 16, 2018, Appellant filed a motion to represent himself. On May 23, 2018,

this Court remanded for a Grazier hearing.5           Following the hearing, on

June 15, 2018, the trial court found that Appellant’s request to proceed pro se

was knowing, intelligent, and voluntary, and it granted said request. On July 5,

2018, Appellant requested the trial court’s permission to supplement the

concise statement of errors complained of on appeal, which the trial court

granted on July 16, 2018. On August 8, 2018, Appellant filed a supplemental

concise statement of errors6 and a motion for correction of resentencing

hearing transcript (“Correction Motion”). On August 28, 2018, the trial court

denied Appellant’s Correction Motion, stating: “Both the Court Stenographer

and the Court have certified the record to be accurate and there is no other

record or recording of the proceeding.” Order, 8/28/2018.

       In his pro se brief to this Court,7 Appellant raises the following issues for

our review:


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5   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
6The trial court filed its opinion on August 29, 2018, with a supplemental
memorandum opinion on November 8, 2018.
7 Appellant’s brief is handwritten and, at times, illegible. We have done our
best to discern what he has written throughout his brief, including in his
statement of questions involved.


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     [1.] Did court err/abuse discretion by not notifying Appellant of
     right and time to appeal sentence?

     [2.] Did court err and abuse discretion by sentencing Appellant
     to excessive/bias 40 years to life ignoring ex post facto laws,
     sentencing Appellant based on consideration of first degree
     murder, not second degree murder, and after resentencing an
     alleged co-defendant to 20 to 50 years?

     [3.] Did court err/abuse discretion by denying motion for
     psychologist to do full evaluation of Appellant to make diagnosis
     appointed mitigation specialist wasn’t qualified, thus, ignoring
     Appellant’s possible and/or actual rehabilitative needs?

     [4.] Did court err/abuse discretion at resentencing hearing by
     prohibiting Appellant to address/correct false and misleading
     documents and averments made against Appellant by Appellant’s
     attorney and prosecution in their sentencing memorandums?

     [5.] Did court err/abuse discretion by relying on false,
     misleading, and inaccurate information to decide sentence?

     6.    Was counsel ineffective, err, and prejudice Appellant by
     maliciously/falsely stating in sentence memorandum that
     Appellant is guilty without Appellant’s knowledge or consent?
     Appellant always stated (and evidence proved) his innocence of all
     charges.

     7.   Was counsel ineffective, err, and prejudice Appellant by
     requesting 20 to 60 years sentence in sentence memorandum
     without Appellant’s knowledge or consent, then against Appellant’s
     repeated objections at resentencing hearing?

     8.    Was counsel ineffective/err by withholding documents and
     refusing to communicate with Appellant about case?

     9.    Was counsel ineffective/err by only reviewing and agreeing
     with portion of Appellant’s prison file provided by prosecution and
     prosecution’s false/misleading interpretation of it?

     10. Did evidence support a sentence or conviction on felony
     murder, robbery, conspiracy to robbery, and decertification denial?

     11. Was counsel ineffective/err        by   not   filing   sentence
     reconsideration/modification motion?




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        12. Did mitigation specialist err and prejudice Appellant by
        providing incomplete evaluation and report with false/misleading
        information and giving undermining weak testimony?

        13. Did court reporter and/or the court abuse discretion and
        prejudice Appellant’s present and future proceedings by providing
        inaccurate resentence hearing transcript/transcription? [sic]

Appellant’s Brief at 2-3 (emphasis in original) (unnecessary capitalization

omitted and issues re-ordered to facilitate disposition).

        Appellant first contends that the trial court erred by failing to inform him

of his post-sentence and appellate rights after resentencing him and that this

failure denied him the opportunity to file a motion to modify sentence. Id. at

35-36.

        Pa.R.Crim.P. 704 concerns the procedure to be followed by the trial court

at the time of sentencing, including that: “The judge shall determine on the

record that the defendant has been advised . . . of the right to file a post-

sentence motion and to appeal[ and] of the time within which the defendant

must exercise those rights[.]” Pa.R.Crim.P. 704(C)(3)(a) (emphasis added).

“Paragraph (C)(3) requires the judge to ensure the defendant is advised of his

or her rights concerning post-sentence motions and appeal[.]” Comment to

Pa.R.Crim.P. 704 (emphasis added) (citation omitted).8

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8   The Comment to Pa.R.Crim.P. 704(C)(3) further explains:

        The rule permits the use of a written colloquy that is read,
        completed, signed by the defendant, and made part of the record
        of the sentencing proceeding. This written colloquy must be
        supplemented by an on-the-record oral examination to determine
        that the defendant has been advised of the applicable rights



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       In the current action, the trial court acknowledges that it failed to follow

the procedural requirements of Pa.R.Crim.P. 704(C)(3)(a).         See Trial Court

Opinion, filed August 29, 2018, at 2.

       However, the trial court asserts that this “error was harmless[.]” Id.

We disagree. On appeal, Appellant also challenges the discretionary aspects

of his sentence. Appellant’s Brief at 2, 11-16, 34-35.

       Challenges to the discretionary aspects of sentencing do not entitle
       an appellant to an appeal as of right. Prior to reaching the merits
       of a discretionary sentencing issue[, w]e conduct a four-part
       analysis to determine: (1) whether appellant has filed a timely
       notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the
       issue was properly preserved at sentencing or in a motion to
       reconsider and modify sentence, see Pa.R.Crim.P. 720;[9]
       (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f);
       and (4) whether there is a substantial question that the sentence
       appealed from is not appropriate under the Sentencing Code, 42
       Pa.C.S.A. § 9781(b).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(emphasis added) (quotation marks and some citations omitted), reargument

denied (July 7, 2018).




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       enumerated in paragraph (C)(3) and that the defendant has signed
       the form.

However, nothing in the certified record indicates that a written colloquy was
employed in this case.
9 Pa.R.Crim.P. 720 sets forth post-sentence procedures, including that “a
written post-sentence motion shall be filed no later than 10 days after
imposition of sentence.” Pa.R.Crim.P. 720(A)(1).


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      In the current matter, “Appellant perfected a timely appeal in this case.”

Trial Court Opinion, filed August 29, 2018, at 2. Appellant’s brief to this Court

included a separate section pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at

8-11. For the final requirement, whether the question raised by Appellant is a

substantial question meriting our discretionary review --

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. A substantial question
      exists only when the appellant advances a colorable argument that
      the sentencing judge’s actions were either: (1) inconsistent with
      a specific provision of the Sentencing Code; or (2) contrary to the
      fundamental norms which underlie the sentencing process.

Manivannan, 186 A.3d at 489 (internal citations and quotation marks

omitted).

      Appellant’s Rule 2119(f) statement sets forth the claim that his sentence

was “a manifestly excessive . . . and unreasonable 40 years to life[.]”

Appellant’s Brief at 8. “A claim that a sentence is manifestly excessive such

that it constitutes too severe a punishment raises a substantial question.”

Commonwealth v. Derry, 150 A.3d 987, 995 (Pa. Super. 2016) (citation and

quotation marks omitted).

      In addition, Appellant argues in his Rule 2119(f) statement that the

sentence imposed “ignores any possible and/or actual rehabilitative needs of

[A]ppellant” and the “prospect of rehabilitation and other mitigating factors.”

Appellant’s Brief at 9. An allegation that the sentencing court failed to consider

an appellant’s rehabilitative needs constitutes a substantial question, when

presented   in   conjunction   with   other    relevant   factors.   See,   e.g.,


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Commonwealth v. Luketic, 162 A.3d 1149, 1160-61 (Pa. Super. 2017);

Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (claim that

failure to consider rehabilitative needs and mitigating factors raised a

substantial question); see also, e.g., Commonwealth v. Dodge, 77 A.3d

1263, 1273 (Pa. Super. 2013) (claim that sentencing court disregarded

rehabilitation and the nature and circumstances of the offense raised a

substantial question); Commonwealth v. Hill, 66 A.3d 365 (Pa. Super. 2013)

(claim that sentence was inconsistent with the protection of the public and with

appellant’s rehabilitative needs raised a substantial question).

      The Rule 2119(f) statement finally pleads that “[t]he trial court’s actions

are inconsistent with [the] sentence code, 42 Pa.C.S. 9721(b), and contrary to

the norms underlying the sentencing process.” Appellant’s Brief at 10. Section

9721(b) requires the sentencing court to “follow the general principle that the

sentence imposed should call for confinement that is consistent with 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.” Appellant’s final argument therefore also raises a substantial

question. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa.

Super. 2014) (en banc) (“[a]rguments that the sentencing court failed to

consider the factors proffered in 42 Pa.C.S. § 9721 does present a substantial

question” (citation omitted)).




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      Thus, the Rule 2119(f) statement raised substantial questions, and the

only step that Appellant would have needed to complete to perfect a challenge

to the discretionary aspects of sentencing was to preserve the claim at

sentencing or in a motion to reconsider and to modify sentence. Manivannan,

186 A.3d at 489.

      By failing to instruct Appellant on his right to file a post-sentence motion

or to determine on the record that Appellant had been advised of this right,

the trial court denied Appellant the opportunity to preserve his challenge to the

discretionary aspects of his sentence in a post-sentence motion.          There is

nothing in the record to indicate that Appellant’s right to file a post-sentence

motion was reinstated at the time that the trial court reinstated his right file a

notice of appeal nunc pro tunc.

      In Commonwealth v. DeCaro, 444 A.2d 160, 167-68 (Pa. Super.

1982), when faced with a similar situation where “the trial court[] fail[ed] to

inform appellant of her right to file a motion for modification of sentence, and

of her obligation to do so within ten days,” we “remand[ed] this case to the

lower court[,]” instructing the court to “entertain a timely motion for

modification of sentence nunc pro tunc.”         See also Commonwealth v.

Koziel, 432 A.2d 1031, 1032 (Pa. Super. 1981) (where the trial court failed

“to inform” appellant of “his right to petition for modification of sentence within

ten days[,]” this Court remanded to the trial court with directions “to entertain

Appellant’s motion for modification nunc pro tunc”).


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      For these reasons, we are compelled to reinstate Appellant’s right to file

a post-sentence motion and to remand to the trial court for further proceedings

consistent with this decision. See DeCaro, 444 A.2d at 167; Koziel, 432 A.2d

at 1032. Appellant must file his motion for modification of sentence with the

trial court within ten days after the certified record is returned to and this

memorandum is filed with the trial court.           See Pa.R.Crim.P. 720(A)(1);

DeCaro, 444 A.2d at 168 (giving Appellant ten days to file modification motion,

following the filing of the record and of this Court’s opinion with the trial court);

Koziel, 432 A.2d at 1032 (same). Due to this remand, we need not address

Appellant’s remaining challenges to the discretionary aspects of his sentence,

re-ordered Issues No. 2 and 5.

      Re-ordered Issue No. 3 presents us with a layered claim.           This claim

initially challenges the trial court’s denial of Appellant’s request for the

appointment of a psychologist and for a mental health evaluation. Appellant’s

Brief at 16-17.     However, this challenge is encompassed in a broader

contention that the trial court failed to consider Appellant’s rehabilitative

needs, including Appellant’s mental health rehabilitation, which Appellant

argues the trial court could not have fully considered nor understood without

an appointed psychologist’s mental health evaluation of him. See id.

      For the limited evidentiary issue of whether the trial court should have

granted Appellant’s request for a psychologist to perform a mental health

evaluation, our standard of review is: “The admission of evidence is solely


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within the discretion of the trial court, and a trial court’s evidentiary rulings will

be reversed on appeal only upon an abuse of that discretion.” Manivannan,

186 A.3d at 479.

      After a thorough review of the record and Appellant’s brief, we conclude

that the trial court opinion comprehensively discusses its reasoning for denying

Appellant’s motions for the appointment of a psychologist and for a mental

health evaluation and properly disposes of this question, as follows:

      [T]he [trial c]ourt did not err/abuse its discretion by denying
      Appellant’s Motion for Psychological Evaluation where there was
      little or no evidence of the necessity for such, and said Motion was
      filed just prior to sentencing which had already been rescheduled
      twice at the defense request, and over Commonwealth’s objection.
      The mitigation specialist, whom the Court did appoint and whose
      full report was admitted, covered all issues as to Appellant’s
      possible or actual rehabilitative needs as did the Appellant and
      several of his witnesses. Nor has the Appellant set forth any
      evidence of how specifically this would have advanced the
      Appellant’s cause.

Trial Court Opinion, filed August 29, 2018, at 1-2 (footnote omitted).

Accordingly, we find that the trial court did not abuse its discretion in denying

Appellant’s request for the appointment of a psychologist. See Manivannan,

186 A.3d at 479.

      Nevertheless, we make no determination as to Appellant’s wider

assertion that the trial court did not consider his rehabilitative needs in general,

including his mental health rehabilitation, when resentencing him, to the extent

that this issue is separate from the evidentiary question of the denial of a

mental health evaluation. A claim that a sentencing court failed to consider



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rehabilitative needs challenges the discretionary aspects of sentencing. See

Dodge, 77 A.3d at 1281 (“42 Pa.C.S. § 9721(b) constrains a sentencing court’s

discretion in that it requires that any sentence imposed be consistent with the

protection of the public, the gravity of the offense, and the rehabilitative

needs of the defendant” (emphasis added) (some additional formatting)).

We thus believe that it would be prudent to allow Appellant to raise this

question of the trial court’s consideration of his rehabilitative needs in a post-

sentence motion on remand, if he still desires to do so.10

       As for Appellant’s surviving questions, re-ordered Issue No. 4 appears to

be alleging that the trial court denied Appellant his right to allocution at his

resentencing hearing. Appellant’s Brief at 19 (trial “court err[ed or] abuse[d

its] discretion at [the] resentencing hearing by prohibiting Appellant to

address/correct false and misleading documents and averments made against

Appellant by Appellant’s attorney and prosecution”; “[t]he purpose underlying

the right of allocution is to give defendants an opportunity to mitigate their

punishment” (citing Commonwealth v. Anderson, 603 A.2d 1060 (Pa.

Super. 1992))). In support of his argument, Appellant cites to pages 2-4 and


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10 The trial court would then be able to address the extent of its consideration
of Appellant’s rehabilitative needs, including his mental health rehabilitative
needs, in any future opinion. In its current opinion, the trial court’s entire
analysis of Appellant’s rehabilitative needs consists of one sentence: “The
mitigation specialist, whom the [trial c]ourt did appoint and whose full report
was admitted, covered all issues as to Appellant’s possible or actual
rehabilitative needs as did the Appellant and several of his witnesses.” Trial
Court Opinion, filed August 29, 2018, at 2.

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30 of the notes of testimony from his resentencing, maintaining that that they

establish that the trial court “told [him] that he is not allowed at any time

during the resentencing to mention, address, or correct any false or misleading

information” in either party’s “sentencing memorandums” that he had only

received “four days before” the resentencing hearing. Id. at 19-20 (citing N.T.,

1/29/2018, at 2-4, 30).

      This claim can be decided entirely on the existing record, and, if the

allegations in Appellant’s brief related to this issue are not supported by the

record, the resolution of this question will not implicate the discretionary

aspects of his sentence. For that reason, we need not wait until after remand

to decide this question.

      Pursuant to our review of the record, we find that Appellant was not

denied his right to speak on his own behalf at his resentencing hearing. The

trial court recognized Appellant’s disagreement with the recommended

sentence provided by his counsel in a pre-hearing sentencing memorandum.

N.T., 1/29/2018, at 2.     Appellant then testified, without interruption by his

attorney. Id. at 25, 28-32. The trial court only curtailed his arguments and

his testimony when he began: to repeat himself about his conflict with his

counsel, with the trial court informing Appellant of the proper legal procedure

to assert ineffective assistance of counsel; to protest his innocence, with the

trial court explaining to Appellant that his culpability was not at issue; or to

argue about his decertification hearing. Id. at 3, 30, 32. We thus find no


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merit to Appellant’s re-ordered fourth issue, and this question shall not again

be   raised   in   Appellant’s   post-sentence   motion   for   modification   and

reconsideration filed on remand.

      Issues No. 6, 7, 8, 9, and 11 allege ineffective assistance of Appellant’s

resentencing counsel. Appellant’s Brief at 2. Ineffective assistance of counsel

claims should be deferred until collateral review, and these challenges should

not have been raised in this direct appeal of the resentencing.                See

Commonwealth v. Rivera, 199 A.3d 365, 372 n.3 (Pa. 2018) (“claims of

ineffective assistance of counsel generally should be deferred until collateral

review” (citation omitted)); Commonwealth v. Delgros, 183 A.3d 352, 358

(Pa. 2018) (“a defendant should wait to raise claims of ineffective assistance

of trial counsel until collateral review proceedings” (citation and internal

quotation marks omitted)). These questions thereby merit no relief at this

time, must not be included in Appellant’s post-sentence motion for modification

and reconsideration filed on remand, and should be postponed until any future

PCRA petition.     Additionally, for Issue No. 11, as we have now reinstated

Appellant’s right to file a post-sentence motion for modification and

reconsideration of his sentence, Appellant’s eleventh issue is moot in light of

remand.

      For Issue No. 10, Appellant challenges the trial court’s denial of his

pretrial petition for transfer of this matter to Juvenile Court and the sufficiency




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of the evidence for his convictions.           Appellant’s Brief at 41-45.   This Court

previously considered these challenges on direct appeal and concluded:

       From our examination of the record, which included a two-day
       certification hearing in which testimony was heard from appellant’s
       relatives, friends, teachers and psychologists, we find no abuse of
       discretion by the trial court in denying appellant’s petition for
       transfer of this matter to Juvenile Court. The testimony at the
       certification hearing adequately covered the factors enumerated in
       . . . the Juvenile Act, however, the trial court found appellant had
       failed to meet his requisite burden of proof. . . . [T]he evidence,
       viewed in the light most favorable to the Commonwealth, was
       sufficient to support the verdict.

Noble, No. 1770 Pittsburgh 1992, at 4-5. Additionally, pursuant to the relief

requested in his pro se PCRA petition, Appellant was only granted PCRA relief

on his sentence, not his convictions. PCRA Petition, 3/1/2016, at 2, 5 & second

of two unnumbered pages between pages 5 and 6; Order, 7/19/2017.

Accordingly, neither the issue of transfer to juvenile court nor the sufficiency

of the evidence to support Appellant’s convictions is properly before us or the

trial court on remand, and these challenges may not be revived in Appellant’s

post-sentence motion on remand.

       In Issue No. 12, Appellant appears to be disagreeing with the evidence

of his own mitigation specialist. Appellant’s Brief at 46-49.11 This challenge


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11 Earlier in his brief, in support of his contention that the trial court erred and
abused its discretion by denying him a mental health evaluation, Appellant
relied upon the assertion of his mitigation specialist that the “mitigation
specialist wasn’t qualified to” diagnose Appellant, thereby requiring the
appointment of a psychologist, even though the “qualified mitigation specialist
[was] needed to, among other things, conduct [a] comprehensive psycho-
social history of [A]ppellant[.]” Appellant’s Brief at 16-17.

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does not depend on the discretionary aspects of his sentence and can be

addressed at this time. Appellant’s brief is unclear as to whether Appellant

believes that all evidence presented by his mitigation specialist should be

stricken or if a new mitigation specialist should be appointed.         See id.

Nevertheless, not only is there no constitutional guarantee that a defendant

will like or agree with the testimony of a mitigation specialist, there is no

constitutional right to the appointment of a mitigation specialist at all. See

Commonwealth v. Eichinger, 108 A.3d 821, 848 (Pa. 2014) (“the Sixth

Amendment guarantees the accused’s right to effective assistance of counsel;

it does not guarantee his right to a mitigation specialist.”); see also

Commonwealth v. Baumhammers, 92 A.3d 708, 724 (Pa. 2014) (“There is

no per se requirement that . . . counsel must employ a separate mitigation

specialist regardless of the other mitigating evidence that is brought forth.”).

Consequently, Appellant is not entitled to a mitigation specialist, let alone one

of whose evidence he approves, and is hence not entitled relief on his twelfth

issue, and this issue need not be further considered on remand.

      For Issue No. 13, Appellant’s Brief at 49-56, as the trial court

resentenced Appellant at the conclusion of the resentencing hearing, it did not

rely upon the notes of testimony when fashioning the sentence.             N.T.,

1/29/2018, at 65.     Thus, the notes of testimony had no bearing on the

discretionary aspects of Appellant’s sentence, and there is no benefit to




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delaying our decision on this challenge until after proceedings on remand are

completed.

       According to Pa.R.A.P. 1922(a):

       Upon receipt of the order for transcript and any required deposit
       to secure the payment of transcript fees the official court reporter
       shall proceed to have his notes transcribed . . . [Upon filing the
       notes] with the clerk of the trial court[,] . . . the court reporter
       shall state that if no objections are made to the text of the
       transcript within five days . . . , the transcript will become a part
       of the record. If objections are made the difference shall be
       submitted to and settled by the trial court.

Pa.R.A.P. 1926(a) similarly requires: “If any difference arises as to whether

the record truly discloses what occurred in the trial court, the difference shall

be submitted to and settled by that court after notice to the parties and

opportunity for objection, and the record made to conform to the truth.”

       In the current action, the notes of testimony for Appellant’s resentencing

were filed and entered on the docket on May 7, 2018.          Appellant filed his

Correction Motion on August 8, 2018. Assuming Appellant’s Correction Motion

can be construed as an objection to the text of the notes of testimony, the

Correction Motion should have been filed within five days of the entry of the

notes of testimony on the certified docket – i.e., by May 14, 2018.12 Pa.R.A.P.

1922(a) (“objections are made to the text of the transcript within five days”).



____________________________________________


12Five days after May 7, 2018, was Saturday, May 12, 2018. The next business
day thereafter was Monday, May 14, 2018. See 1 Pa.C.S. § 1908 (“Whenever
the last day of any such period shall fall on Saturday or Sunday, . . . such day
shall be omitted from the computation.”).

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Appellant’s Correction Motion filed on August 8, 2018, thus was more than two

months late and, consequently, patently untimely.

      Additionally, assuming arguendo that the Correction Motion was not

untimely, any question as to the accuracy of the notes of testimony would “be

submitted to and settled by the trial court.”      Id.; Pa.R.A.P. 1926(a) (“the

difference shall be submitted to and settled by [the trial] court”);

Commonwealth v. Szakal, 50 A.3d 210, 217 (Pa. Super. 2012) (“Objections

to the trial transcript are properly settled in the lower court.”).

      In the current appeal, after the official court reporter certified, “I hereby

certify that the proceedings and evidence are contained fully and accurately,

to the best of my ability, in the notes taken by me on the trial of the above

cause, and that this copy is a correct transcript of the same[,]” N.T.,

1/29/2018, at 66, the Honorable Shad Connelly further certified that he

“approved” the notes of testimony.        Id.   The trial court included similar

language in its order denying Appellant’s Correction Motion: “Both the Court

Stenographer and the Court have certified the record to be accurate and there

is no other record or recording of the proceeding.” Order, 8/28/2018. The

trial court also explained:

      [I]t appears the Appellant may have planned to say certain things
      that he had written down but actually said what was in fact
      recorded. In any event, even taking all that he claims to have said
      as accurate, nothing either standing alone or taken together, is of
      such substance or import as to have resulted in an error which is
      other than harmless.




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Trial Court Memorandum Opinion, filed November 8, 2018.             We accept the

representations of the court reporter and of the resentencing judge as to the

accuracy and completeness of the notes of testimony from the resentencing

hearing, and, as any questions as to the correctness of the notes of testimony

are properly decided by the trial court, Pa.R.A.P. 1922(a), 1926(a); Szakal,

50 A.3d at 217, we defer to the trial court’s determinations about the notes of

testimony from Appellant’s resentencing hearing. Appellant hence merits no

relief on this thirteenth issue, and it also need not be further considered on

remand.

      In conclusion, the case is remanded to the trial court in order for the trial

court to entertain a timely post-sentence motion for modification and

reconsideration of sentence nunc pro tunc. Appellant will have ten days, from

the filing of the record and of this memorandum in the trial court, in which to

file a post-sentence motion for modification and reconsideration in the trial

court. Nonetheless, as we have ruled on Appellant’s re-ordered fourth and his

sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth

challenges raised in this appeal, as well as the trial court’s denial of Appellant’s

request for the appointment of a psychologist to perform a mental health

evaluation, those claims may not be raised again in Appellant’s post-sentence

motion and cannot be raised in any future appeal to this Court of the trial

court’s decision on Appellant’s post-sentence motion.

      Affirmed in part. Case remanded in part, with instructions. Jurisdiction

relinquished.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2019




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