J-S23036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 THOMAS WOOD                             :
                                         :
                    Appellant            :   No. 1116 EDA 2017

                Appeal from the PCRA Order March 24, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0012382-2012


BEFORE:    SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JUNE 12, 2018

      Appellant, Thomas Wood, appeals from the order entered in the Court

of Common Pleas of Philadelphia County dismissing his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

      This Court has previously summarized the pertinent facts of the case

sub judice, as follows:

      On August 14, 2012, Sergeant Paul Perez was on duty as a
      Narcotics Strike Force surveillance officer [i]n the 2300 block of
      North Colorado Street in Philadelphia. On the day in question
      Sergeant Perez was driving around looking for open-air drug sales.
      Sergeant Perez was an experienced narcotics officer who had
      made in excess of 50 arrests in that area and who had observed
      over a thousand [] open-air drug transaction[s].

      Sergeant Perez set up a plain clothes surveillance, along with
      Police Officer Floyd. He immediately observed Appellant, engage
      in a brief conversation, and hand Appellant an undetermined
      amount of United States Currency (USC). Appellant removed a

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S23036-18


     small item from his left top pocket and handed it to the unknown
     male, who left the area. Sgt. Perez put out the unknown black
     male’s description over the police surveillance band, but he was
     not stopped.

     Appellant continued to stay in the area of 2300 North Colorado,
     and at about 12:50 pm he was approached by another black male
     who handed Appellant currency after a very brief conversation.
     Appellant again removed a small item from his left breast pocket
     and handed it to the unknown male, who left the area. Sgt. Perez
     again put out the unknown black male’s description over the police
     surveillance band, but he was not located.

     At approximately 1:00 pm, Appellant was approached by a black
     female who greeted and hugged him, then sat down on the steps
     next to Appellant. Sgt. Perez then broadcast Appellant’s location
     and description to uniformed officers who converged on the area
     and Officer Lutz stopped Appellant. Officer Lutz recovered 10 blue
     Ziploc packets which tested positive for cocaine and $58 in USC.

     ...

     Following the denial of Appellant’s motion to suppress, Appellant
     proceeded to a non-jury trial. At the conclusion of the non-jury
     trial on April 8, 2014, Appellant was found guilty of the
     aforementioned crimes.      On July 18, 2014, Appellant was
     sentenced to 30 to 60 months’ imprisonment on the PWID
     conviction followed by a consecutive period of three years’
     probation.    For sentencing purposes, the possession of a
     controlled substance merged with PWID.

     [Filing no post-sentence motion,] Appellant filed a timely appeal
     on July 21, 2014.


Commonwealth v. Wood, No. 2108 EDA 2014, unpublished memorandum

at *1 (Pa.Super. filed May 20, 2015).      This Court affirmed Appellant’s

judgment of sentence on May 20, 2015, and Appellant did not filed a petition

for allowance of appeal with the Pennsylvania Supreme Court.




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      On August 25, 2015, Appellant filed a pro se PCRA petition, his first.

The PCRA court appointed counsel, who filed an amended petition on October

20, 2015.    On September 19, 2016, the Commonwealth filed a motion to

dismiss the petition, to which Appellant filed a counseled response on

November 18, 2016.        On March 24, 2017, the PCRA court granted the

Commonwealth’s motion to dismiss, and it dismissed Appellant’s petition. This

timely appeal followed.

      Appellant presents the following question for our review:

      DID THE PCRA COURT ERR WHEN IT DISMISSED
      [APPELLANT’S] PCRA PETITION SEEKING REINSTATEMENT
      OF HIS RIGHT TO PURSUE A POST-SENTENCE MOTION
      NUNC PRO TUNC (AND, IF NECESSARY, A DIRECT APPEAL
      NUNC PRO TUNC) WHERE THE EVIDENCE SET FORTH IN
      THE AMENDED PCRA PETITION FILED BY COUNSEL,
      PROPERLY     VIEWED,      DEMONSTRATED     BY    A
      PREPONDERANCE OF THE EVIDENCE THAT DEFENDANT
      INSTRUCTED PRIOR COUNSEL TO FILE A POST-SENTENCE
      MOTION (AND PURSUE A DIRECT APPEAL), BUT TRIAL
      COUNSEL FAILED TO FILE A POST-SENTENCE MOTION, AND
      WHERE THE EVIDENCE SET FORTH IN THE AMENDED PCRA
      PETITION FILED BY COUNSEL ESTABLISHED BY A
      PREPONDERANCE OF THE EVIDENCE THAT: TRIAL
      COUNSEL HAD NO STRATEGIC REASON FOR FAILING TO
      FILE THE REQUESTED MOTION; AND, THERE IS A
      REASONABLE PROBABILITY THAT THE MOTION WOULD
      HAVE RESULTED IN A REDUCTION OF THE SENTENCE
      IMPOSED?

Appellant’s brief at 4.

       Appellant’s claim implicates our well-settled rules governing claims of

ineffective assistance of counsel, which are as follows:

      [A] PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence

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      resulted from the “[i]neffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
      “Counsel is presumed effective, and to rebut that presumption,
      the PCRA petitioner must demonstrate that counsel's performance
      was deficient and that such deficiency prejudiced him.”
      Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010)
      (citing Strickland v. Washington, 466 U.S. 668, 690 (1984)).
      In Pennsylvania, we have refined the Strickland performance and
      prejudice test into a three-part inquiry. See Commonwealth v.
      Pierce, 527 A.2d 973, 975–77 (Pa. 1987). Thus, to prove counsel
      ineffective, the petitioner must show that: (1) his underlying claim
      is of arguable merit; (2) counsel had no reasonable basis for his
      action or inaction; and (3) the petitioner suffered actual prejudice
      as a result. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
      “If a petitioner fails to prove any of these prongs, his claim fails.”
      Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal citations

modified). We need not analyze “the elements of an ineffectiveness claim in

any particular order of priority; instead, if a claim fails under any necessary

element of the [Pierce] test, the court may proceed to that element first.”

Commonwealth v. Lambert, 797 A.2d 232, 243 n. 9 (Pa. 2001). To satisfy

the prejudice prong of Strickland, a petitioner must plead and prove there is

a reasonable probability that, but for counsel's performance, he would have

prevailed on the appeal.

      Here, after careful review of the record, we conclude Appellant has

satisfied neither the arguable merit nor the prejudice prong of his

ineffectiveness claim, for he has not demonstrated the court imposed an

unreasonable sentence for which there existed the reasonable probability of




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modification    or   vacation   on   post-sentence   motion   or   direct   appeal,

respectively.

             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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).

      Where a trial court imposes a sentence outside of the sentencing

guidelines, 42 Pa.C.S. § 9721(b) requires the trial court to provide, in open

court, a “contemporaneous statement of reasons in support of its sentence.”

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012). To

satisfy the requirements of Section 9721(b), the trial court must:

      demonstrate on the record, as a proper starting point, its
      awareness of the sentencing guidelines. Having done so, the
      sentencing court may deviate from the guidelines, if necessary, to
      fashion a sentence which takes into account the protection of the
      public, the rehabilitative needs of the defendant, and the gravity
      of the particular offense as it relates to the impact on the life of
      the victim and the community, so long as it also states of record
      the factual basis and specific reasons which compelled it to deviate
      from the guideline range.

Id. (brackets and citation omitted). See also Commonwealth v. Hunzer,

868 A.2d 498, 514 (Pa. Super. 2005) (observing that the trial court's

statement of reasons need not be “a detailed, highly technical statement.”).




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       In addition, where the trial court has the benefit of a PSI, “it is presumed

that   the   court   is   aware   of   all    appropriate   sentencing   factors   and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135

(Pa. Super. 2009) (discussing Commonwealth v. Devers, 546 A.2d 12, 18–

19 (Pa. 1988)). Thus, if the sentencing court states that it considered the

PSI, the court has properly explained the basis for the sentence that it

imposed. Ventura, supra at 1135 (citation omitted).

       Where the trial court deviates above the guidelines, this Court may only

vacate and remand a case for resentencing if we first conclude that “the

sentence is unreasonable.”        42 Pa.C.S. § 9781(c)(3).        A sentence is not

unreasonable simply because the trial court deviates above the guidelines to

impose the statutory maximum. See, e.g., Commonwealth v. Rossetti,

863 A.2d 1185, 1194–95 (Pa. Super. 2004) (affirming a statutory maximum

sentence imposed after the trial court considered and balanced all of the

relevant mitigating and aggravating facts).

       Here, the court acknowledged that it reviewed Appellant’s PSI report,

and it listened to both parties’ sentence recommendations based on

Appellant’s history as described in the PSI. Specifically, Appellant asked for a

“guideline range” sentence given the lack of violence involved in his

commission of the present PWID offense, while the Commonwealth sought a

“substantial [aggravated] sentence” of two and one-half to five years

consistent with the Office of Probation’s advisement that Appellant was at high

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risk for future offenses and violating probation. This latter recommendation

stemmed from Appellant’s extensive history of parole/probation violations and

acting violently toward staff and the general population during his stays in

both juvenile detention and prison, despite repeated attempts to rehabilitate

him. N.T. 7/18/14, at 8. This aspect of Appellant’s record, moreover, did not

factor into his prior record score.

      The court sentenced Appellant in accordance with the Commonwealth’s

request of 30 to 60 months’ incarceration, to be followed by three years’

probation where Appellant is to “enroll in the educational program, receive

vocational training, job training, seek and maintain employment, and anger

management.” N.T. at 13. When asked by Appellant how much time was left

on his sentence, the court responded “Well, that depends on how much credit

you have towards this offense.        If you’ve been in 23 months and that is

towards this offense, you have about seven more months.” N.T. at 14. In

response to Appellant’s inquiry whether this was a state sentence, the court

continued: “It is a state sentence. I don’t know where you will go with only

seven months left. But I figure that they will send you up state for whatever

time you have left before you are eligible for parole.” Id.

      There is nothing in this record from which to conclude the court imposed

an unreasonable sentence. The record shows the court considered all relevant

aggravating and mitigating facts, including Appellant’s extensive history of

violent and noncompliant behavior while under detention, incarceration, and

probation, and imposed a sentence consistent with the protection of the public

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as advocated by both the Commonwealth and the Office of Probation in the

PSI report.      We, therefore, discern neither arguable merit to Appellant’s

ineffectiveness claim nor prejudice flowing from his not having filed a post-

sentence motion or direct appeal raising a discretionary aspect claim.

      We also reject Appellant’s additional argument that the trial court relied

on an impermissible factor to impose a 30-month minimum sentence, namely,

to ensure he remained in prison for seven more months, as he had already

served 23 months in pretrial detention and would have been eligible for

immediate parole had he received a guideline sentence. Appellant infers the

court’s intent in this regard from the court’s Pa.R.A.P. 1925(a) opinion, where

the court indicates the sentence also contemplated Appellant’s time served

and the fact that he would be parole eligible in seven months. PCRA Court

Opinion, at 5.

      First, it is worth noting that a sentencing court's after-the-fact 1925(a)

opinion offered in justification of the sentence imposed does not qualify as a

Section   9721(b)     contemporaneous    written   statement   of   the   reasons

supporting a departure sentence. Commonwealth v. McIntosh, 911 A.2d

513, 521 (Pa.Super. 2006), appeal granted, decision aff'd in part, rev'd

in part on other grounds, 922 A.2d 873 (Pa. 2007). However, to the extent

this Court has referred to Rule 1925(a) opinions as useful summaries of the

reasons clearly relied upon at sentencing, we note in that vein the PCRA

Court’s Rule 1925(a) opinion, when read in its entirety, reflects the discussion




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undertaken during the sentencing hearing regarding Appellant’s history as a

detainee, inmate, and probationer.

     Specifically, the court’s opinion explains:

     At the time of sentencing the [trial court] heard arguments of
     counsel and Appellant’s allocution. In imposing sentence, the
     court considered the pre-sentence report and the modified pre-
     sentence report. N.T., 7/18/14, at 5. The reports indicated that
     Appellant had three arrests and two adjudications as a juvenile,
     and ten arrests, six convictions, six commitments, five violations,
     and four revocations of probation or parole as an adult. While
     committed as a juvenile and incarcerated as an adult he engaged
     in assaultive and intimidating behavior against staff and other
     detainees.

     Under all the circumstances presented at the time of sentencing,
     the sentence imposed was not manifestly unreasonable. To the
     contrary, the sentence imposed reflected the length and regularity
     of Appellant’s criminal conduct, and his failure to rehabilitate or
     properly comport himself while in custody or under supervision.
     The sentence also contemplated the fact that Appellant had served
     approximately 23 months prior to sentencing. Thus, the net result
     of the sentence imposed was another seven months’
     incarceration, assuming Appellant changed his pattern of behavior
     and comported himself appropriately while in state custody.

PCRA Opinion, at 4-5.

     Read within the context of the entire passage, therefore, the court’s

comments regarding the remainder of Appellant’s minimum sentence merely

indicated that he would become parole eligible in seven months provided he

refrain from the kind of noncompliant behavior that marked his previous times

in confinement. We find nothing improper with this observation.

     Moreover, the case upon which Appellant relies to advance the

proposition that the trial court committed an abuse of discretion by



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considering Appellant’s parole eligibility, Commonwealth v. Coulverson, 34

A.3d 135 (Pa.Super. 2011), is inapposite. In Coulverson, the defendant pled

guilty to rape, IDSI, sexual assault, aggravated indecent assault, robbery,

unlawful restraint, terroristic threats, and two counts of indecent assault that

he committed when he was 19 years old.         Id. at 138–39. The sentencing

court imposed an 18 to 90–year aggregate term of imprisonment, which

included the imposition of multiple consecutive statutory maximum sentences

to accomplish the upper end of the sentence. Id. at 139. On appeal, we

found that the imposition of a 90–year maximum sentence on a 19–year old

defendant was “clearly unreasonable” as the trial court imposed a virtual life

sentence without giving any consideration to defendant's characteristics and

improperly basing its determination that defendant should “spend as much of

his life in prison as the court could order[.]” Id. at 148.

      Here, the trial court, unlike its counterpart in Coulverson, did not focus

on retribution at the expense of requisite considerations such as Appellant’s

individual characteristics, rehabilitative needs, and society’s companion

interests reflected in 42 Pa.C.S. §§ 9721(b) and 9781(d). Indeed, the court’s

statement   assailed   by   Appellant   specifically   contemplated   Appellant’s

repeated failures at rehabilitation and the public’s need for protection under

the circumstances.

      Nor is there any indication here, as there was with the 18 to 90-year

sentence in Coulverson, that the court sought to impose a sentence

“perpetually subject to the discretion of the Board of Probation and Parole,”

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as Appellant’s maximum sentence was 60 months and was only two times the

length of the minimum sentence.       Therefore, absent the kind of “outsize

maximum sentence” imposed as a means to indefinite parole, see id.

(emphasis added), the court’s observation that Appellant would serve seven

more months before he first became eligible for parole did not violate

sentencing precepts as did the sentence in Coulverson.

      For the foregoing reasons, Appellant may gain no relief from his

ineffectiveness claim.

      Order affirmed.

      Judge Nichols did not participate in the consideration or decision of this

case.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/18




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