J-S69026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    YUSEF WHITEHEAD                            :
                                               :
                       Appellant               :   No. 2820 EDA 2018


        Appeal from the Judgment of Sentence Entered August 28, 2018,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0501681-1997.

BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                            FILED MARCH 03, 2020

        Yusef Whitehead appeals from the judgment of sentence imposed upon

resentencing for his conviction of murder of the first degree, rape, robbery,

carjacking, kidnapping and conspiracy to commit murder.1 We affirm.

        The trial court summarized the relevant facts underlying this appeal as

follows:

        On March 19, 1997, . . . Whitehead, then aged 15 years and 11
        months old, and his co-defendant, 18[-]year[-]old Timothy Rose,
        abducted and robbed the decedent, nurse Calma Calida, as she
        was about to begin her shift at the Philadelphia Geriatric Hospital.
        After spotting the decedent, [Whitehead and Rose] forced her
        back into her car and drove her to Tacony Creek, where they
        stripped her and [Whitehead] repeatedly raped her. After the
        rape, [Whitehead and Rose] attempted to drown the decedent in
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*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S.A. §§ 2502, 3121, 3701, 3702, 2901, 903.
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       the creek. When they failed to do so, [Whitehead] grabbed either
       a brick or a stone and beat the decedent to death with it.

Trial Court Opinion, 11/9/18, at 2-3.

       In 1998, Whitehead was convicted of the above offenses. The trial court

sentenced him to life imprisonment without the possibility of parole (“LWOP”)

on the murder conviction, and imposed concurrent sentences on the remaining

convictions.2 Whitehead did not file a direct appeal. In 2010, Whitehead filed

a petition pursuant to the Post Conviction Relief Act (“PCRA”). In 2016, he

filed an amendment to his PCRA petition challenging his LWOP sentence in

light of Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v.

Louisiana, 136 S. Ct. 718 (2016).3 On appeal of the denial of his amended

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2 The trial court imposed concurrent sentences of five to ten years of
imprisonment each for rape, robbery, carjacking, and kidnapping, and a four
to five year term of imprisonment for conspiracy to commit murder. Each of
Whitehead’s sentences was to be served consecutively to any other sentence
previously imposed upon Whitehead. Notably, Whitehead had received prison
sentences of seven and one-half to fifteen years for aggravated assault in CP-
51-CR-0708691-1997, and ten to twenty years for the gunpoint anal rape of
a ten-year-old child in CP-51-CR-0211571-1998 (hereinafter “the two
unrelated cases”).

3 In Miller, the High Court held that a sentencing scheme that mandates the
imposition of a LWOP sentence for a juvenile violates the Eighth Amendment
to the United States Constitution. While it did not foreclose the possibility that
a child could be sentenced to life imprisonment without parole in a homicide
case, it concluded that sentencing for juveniles must be individualized, and
that this requires consideration of the defendant’s age at the time of the
offense, as well as the hallmark features of youth. Miller, 567 U.S. at 474-
7. In Montgomery, the United States Supreme Court held that Miller
announced a substantive rule that is retroactive in cases on collateral review.
Montgomery, 136 S. Ct. at 732.



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PCRA petition, this Court granted PCRA relief, and vacated Whitehead’s

judgment of sentence.

       On remand, the trial court resentenced Whitehead on August 28, 2018,

as follows: fifty years to life imprisonment for first-degree murder; and

concurrent five to ten year prison sentences for rape, robbery, carjacking,

kidnapping, and conspiracy to commit murder; all to be served concurrently

to Whitehead’s sentences in the two unrelated cases. At sentencing, the trial

court notified Whitehead that he had ten days in which to file a post-sentence

motion. However, Whitehead, who was represented by counsel, did not file a

post-sentence motion challenging his sentence.4 Whitehead did file a timely

pro se notice of appeal.5 Both Whitehead and the trial court complied with

Pa.R.A.P. 1925.


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4 At the time of sentencing, and throughout the period in which to file a post-
sentence motion and a notice of appeal, Whitehead was represented by
Jonathan Krinick, Esquire. Attorney Krinick was granted leave to withdraw as
counsel on October 3, 2018. Replacement counsel was appointed on October
11, 2018.

5 Our courts have made clear that a defendant who is represented by counsel
may not engage in hybrid representation by filing pro se documents. See
Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010). However, while there
is no right to hybrid representation, there is a right to appeal pursuant to
Article 5, § 9 of the Pennsylvania Constitution. See Commonwealth v. Ellis,
626 A.2d 1137, 1138 (Pa. 1993). Because a notice of appeal protects a
constitutional right, it is distinguishable from other filings that require counsel
to provide legal knowledge and strategy in creating a motion, petition, or brief.
See Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super. 2016).
The trial court therefore properly docketed the pro se notice of appeal and
forwarded it to this Court pursuant to Pa.R.A.P. 902 (note).

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       While this appeal was pending, Whitehead filed a petition asserting the

ineffectiveness of sentencing counsel for failing to file a post-sentence motion,

and seeking an order from this Court remanding the matter back to the trial

court for resentencing or, in the alternative, for the filing of a post-trial motion

nunc pro tunc. As the appeal had not yet been assigned, this Court entered

an order denying the petition without prejudice to re-raise the issue before

this panel.

       Whitehead accordingly raises the following issues for our review:

       1. Did the trial/sentencing court err in structuring of the
          resentencing of [Whitehead]?

       2. Did the Superior Court err in not granting a petition for remand,
          even though [Whitehead] pled that he was victimized by
          ineffective assistance of sentencing counsel who failed to file a
          post[-]sentence motion for reconsideration of sentence so that
          [Whitehead] could raise abuse of discretion on appeal?

Whitehead’s Brief at 3 (some capitalization omitted).

       As Whitehead’s issues are related, and his counsel presents them as a

single issue in the argument section of his brief,6 we will address them

together. Whitehead contends that the only potentially meritorious issue that

he could raise on appeal is a challenge to the discretionary aspects of his


____________________________________________


6 Pursuant to our Rules of Appellate Procedure, Whitehead was required to
structure his appellate brief so that the argument section of the brief was
“divided into as many parts as there are questions to be argued; and shall
have at the head of each part--in distinctive type or in type distinctively
displayed--the particular point treated therein, followed by such discussion
and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a).
Whitehead failed to comply with this requirement.

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sentence. However, Whitehead acknowledges that he failed to preserve the

issue for our review, since he did not file a post-sentence motion challenging

his sentence before the trial court.           Whitehead argues that his sentencing

counsel rendered ineffective assistance by failing to file a post-sentence

motion challenging his sentence. He asserts that, in the interests of justice,

this Court should remand the matter to the trial court for resentencing, so that

Whitehead may thereafter file a timely post-sentence motion.7

       As we have explained, “[c]hallenges to the discretionary aspects of

sentencing do not entitle an appellant to review as of right.” Commonwealth

v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits

of a discretionary sentencing issue, this Court conducts 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]; (3) whether appellant’s brief
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7 Whitehead does not contend that his sentence, as reflected in the sentencing
order, is illegal. However, as an additional basis for remand, Whitehead
alludes to inaccuracies in the sentence status summary prepared by the
Department of Corrections (“DOC”). He claims that the summary does not
accurately reflect the sentence imposed by the trial court in its sentencing
order. Whitehead’s Brief at 9. This is not a matter which falls within this
Court’s jurisdiction. Rather, a claim of an erroneous calculation by the DOC
should be filed directly with the DOC or in an original action before the
Pennsylvania Commonwealth Court. See e.g., Commonwealth v. Parella,
834 A.2d 1253, 1254 (Pa. Cmwlth. 2003) (noting that a claim against the DOC
falls within the exclusive original jurisdiction of the Commonwealth Court
under 42 Pa.C.S.A § 761(a)); see also Commonwealth v. Jackson, 858
A.2d 627 (Pa. Super. 2004); Commonwealth v. Danysh, 833 A.2d 151 (Pa.
Super. 2003).

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       has a fatal defect, [see] 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, [see] 42 Pa.C.S.A.
       § 9781(b).

Id. (citation omitted).

       In the instant case, Whitehead filed a timely notice of appeal. However,

he did not preserve his sentencing claim at sentencing or in a timely post-

sentence motion to reconsider and modify sentence. See Commonwealth

v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004) (holding that an objection

to the discretionary aspects of a sentence is waived when not raised in a post-

sentence motion or during the sentencing proceedings). Thus, due to this

deficiency, we are precluded from reviewing the merits of Whitehead’s

discretionary sentencing claim.          As a result, we affirm the judgment of

sentence, without prejudice to Whitehead’s right to raise his ineffectiveness

claims in a timely PCRA petition.8

       Judgment of sentence affirmed.




____________________________________________


8 While Whitehead’s sentencing counsel may have been ineffective for failing
to file a post-sentence motion, we may not address that issue. First, it was
not presented to or addressed by the trial court. See Pa.R.A.P. 302(a)
(providing that issues not raised in the lower court are waived and cannot be
raised for the first time on appeal). Second, and more importantly, litigation
of ineffectiveness claims is not generally a proper component of a defendant’s
direct appeal, and is presumptively deferred for collateral attack under the
PCRA. See Commonwealth v. Holmes, 79 A.3d 562, 578 (Pa. 2013).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/20




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