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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

                 v.


    GEORGE MAJOR

                      Appellant            :   No. 2442 EDA 2017

            Appeal from the Judgment of Sentence February 13, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005516-2014


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY OTT, J.:                             FILED JANUARY 07, 2019

        George Major appeals nunc pro tunc from the judgment of sentence

imposed on February 13, 2015, in the Court of Common Pleas of Philadelphia

County. A jury found Major guilty of two counts of aggravated assault, and

one count each of firearms not to be carried without       a   license, carrying

firearms on public streets or public property, possessing an instrument of

crime and terroristic threats.' In addition, the trial court convicted Major of

persons not to possess firearms.2 The trial court sentenced Major to eight to

16 years' incarceration on one count of aggravated assault, with no      further
penalty imposed on the remaining convictions.      Major contends (1) the trial


*   Retired Senior Judge assigned to the Superior Court.

'    18 Pa.C.S. §§ 2702(a)(1) and     (a)(5), 6106(a)(1), 6108, 907(a), and
2706(a)(1).

2   18 Pa.C.S. § 6105(a)(1).
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court's failure to reinstate his right to file post -sentence motions to challenge

the discretionary aspects of his sentence amounts to          a       deprivation of due

process as protected under the 5th and 14th Amendments of the United States

Constitution and Article I   § 9   of the Pennsylvania Constitution, and (2) the

trial court abused its discretion when it sentenced him to                 a   manifestly

excessive term of eight to 16 years' incarceration, in violation of the

considerations pursuant to 42 Pa.C.S.     §     9721(b). Based upon the following,

we affirm.

      The trial court summarized the relevant facts of this case, as follows:

      The facts of this case are not in dispute. On March 15, 2014, at
      approximately 10:30 p.m., complainant Terrence Reese went to
      Travelers Motorcycle Club at 20th Street and Ridge Avenue in
      Philadelphia to have some drinks and shoot pool.                At
      approximately 12:00 a.m., Mr. Reese started to play a round of
      pool with [Major], whom he had known for several months.
      During the match, [Major] became annoyed with Mr. Reese's
      getting the better of him and slammed down his pool stick, yelling
      "Call your shot." A brief argument ensued and [Major] left the
      premises. Mr. Reese went outside to smoke a cigarette. While
      standing by the front door, he observed [Major] retrieve a hand
      gun from the trunk of his car. [Major] then walked back to the
      club pointing the handgun at Mr. Reese's chest. Mr. Reese, who
      was 50 years old at the time, stood there in shock. [Major]
      "cracked" Mr. Reese in the forehead with the butt of his gun.
      Blood started gushing out and into his eyes. Mr. Reese bent over,
      at which point [Major] struck him with the gun two more times in
      the back of the head. As he repeatedly struck the older male,
      [Major] stated, "I told you to stop playing with me" Mr. Reese's
                                                                  .


      head was now split open and gushing blood from the front and the
      back; undeterred, [Major] pointed his firearm at Mr. Reese's
      temple and stated, "I should bust you". [Major] then fled the
      scene in his car.

      Mr. Reese went directly to the police station to report the incident;
      he was covered in blood. Police transported him to the emergency

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        room at Hahnemann Hospital, where he received numerous
        stitches and staples to the front and back of his head. Mr. Reese
        subsequently positively identified [Major] "without hesitation"
        from a photo array, and [Major] was taken into custody. At trial,
        Mr. Reese displayed his large, visible scars to the jury, which
        found [Major] guilty of the above offenses.3

           3   Mr.   Reese testified that, prior to trial, he was
           propositioned with an offer of money not to appear in
           court. He declined the offer and reported it to detectives.
           (See 12/02/14, pp. 75-77). At trial, the Commonwealth
           played audio recordings from prison phone[] call[s] during
           which [Major] asked for Mr. Reese to be contacted and told
           not to come to court, and further blamed Mr. Reese for the
           assault, essentially claiming "he had it coming." The
           transcripts from these calls were published to the jury and
           introduced into evidence. (See 12/03/14, pp. 31-34).
Trial Court Opinion, 3/19/2018, at 2-3.

        Major did not file   a   direct appeal. On July 16, 2015, he filed       a   petition

pursuant to the Post Conviction Relief Act (PCRA),3 alleging ineffective

assistance of counsel for failure to file   a   requested direct appeal. PCRA counsel

was     appointed    and     filed   an   amended     petition,   additionally       alleging

ineffectiveness of counsel for failure to file post sentence motions to challenge

the discretionary aspects of his sentence. Following an evidentiary hearing on

July 21, 2017, the PCRA court reinstated Major's direct appeal rights nunc pro

tunc, but denied his request to file        a   post -sentence motion nunc pro tunc.

This appeal followed.4




3   42 Pa.C.S. §§ 9541-9546.

4Major timely complied with the order of the trial court to file            a    Pa.R.A.P.
1925(b) statement of errors complained of on appeal.
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             Major contends he was deprived meaningful due process because his

post sentence motion rights were not reinstated.                     He claims the   trial court

abused its discretion when it sentenced him to                a   manifestly excessive term of

eight to 16 years' incarceration, in violation of the considerations of 42 Pa.C.S.

§   9721(b).5 He argues reinstatement of his direct appeal rights                 is an   empty

reward since he remains barred from raising the sole claim raised on appeal

-    a   challenge to the discretionary aspects of his sentence based on his claim

the trial court imposed         a   manifestly excessive sentence of eight to 16 years'

incarceration.

             To address Major's     first issue   - whether   he was denied meaningful due

process when his post -sentence motion rights were not reinstated                 - we begin
with     a   review of Major's PCRA proceeding that led to this nunc pro tunc appeal.

             In the PCRA proceeding, not only did Major seek reinstatement of his

direct appeal rights, he also sought reinstatement of his post -sentence motion

rights, based upon his claim of trial counsel's ineffectiveness for failing to

preserve        a   discretionary aspects of sentencing claim. See Pennsylvania Rule

of Criminal Procedure 720 (governing post -sentence motions).                        See also

Commonwealth v. Heaster,                   171 A.3d 268, 272 (Pa. Super. 2017), appeal

denied, 181 A.3d 1078 (Pa. February 14, 2018) (Issues challenging the



5  Section 9721(b) provides, in relevant part: "[T]he court shall 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." 42 Pa.C.S. § 9721(b).
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discretionary aspects of sentencing must be preserved pursuant to Rule 720,

either by raising the claim at sentencing or in            a   motion to reconsider and

modify sentence; if not, they are waived.).

        Generally, in reviewing claims of ineffective assistance of counsel, our

courts must consider whether there          is   arguable merit to the underlying claim,

whether counsel had        a   reasonable basis for his or her action or inaction, and

whether the petitioner was prejudiced by counsel's ineffectiveness. See

Strickland v. Washington, 466            U.S. 668, 687 (1984);        Commonwealth v.
Pierce, 527 A.2d 973, 975 (Pa. 1987).
        In Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007), the

Pennsylvania Supreme Court explained that in limited situations, the prejudice

inquiry "is not required because there are certain circumstances that are so

likely to prejudice the accused that the cost of litigating their effect in                 a

particular case     is   unjustified." Id. at 1128 (citation and quotation marks

omitted). Nevertheless, the Reaves Court held that the failure to file post -

sentence motions is not one of those situations, stating that whether "counsel

can be deemed ineffective, then, depends upon whether [the defendant] has

proven that   a   motion to reconsider sentence, if filed.       .   ., would have led to a

different and more favorable outcome at [] sentencing." Id. at 1131-1132.

        Subsequently, in Commonwealth v. Liston, 977 A.2d 1089 (Pa.

2008), the Pennsylvania Supreme Court reaffirmed the Reaves decision that

a   petitioner must demonstrate the prejudice prong by rejecting             a   panel of this

Court's holding that would have required an automatic reinstatement of the

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right to file   a    post -sentence motion nunc pro tunc whenever            a   court granted

the reinstatement of appellate rights nunc pro tunc. Liston, 977 A.2d at 1093-

1094. Thus,         a PCRA   petitioner alleging ineffectiveness for failing to file   a    post -

sentence motion must establish            Strickland/Pierce actual prejudice.
        Turning to the present matter, the PCRA judge, who also presided at

Major's trial and sentencing, declined to reinstate Major's post -sentence

rights, "having determined that [Major] did not meet his burden under

Strickland      v.   Washington, 466        U.S. 668 (1984), and      Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987). Trial Court Opinion, 3/19/2018, at                    2.    The

PCRA Court found:

        The case law does require that, in regard to the failure to file a
        post -verdict motion, just phrasing that failure alone in a PCR--in
        a petition does not meet the defendant's burden.


        The defendant has to establish actual prejudice. In this case, he
        would have to show a basis for actual meritorious - chance of
        being meritorious on the post -sentence motion to reconsider his
        sentence.

        In this petition, there is no -- as I discussed previously, there was
        no basis offered by the defendant, other than he believes that the
        post -sentence motion should have been filed because he got a
        sentence higher than what he may have anticipated.

        That's not enough to show actual merit to the filing of          a   motion to
        reconsider sentence.

        And, in looking over the notes from the sentencing hearing,
        indeed, there was a full discussion by the court that went on for
        pages in regard to Mr. Major's background, Mr. Major's -- both
        accomplishments in life, as well as Mr. Major's difficulties and prior
        convictions and criminal record, including, then, the nature of the
        incident for which he was being tried and sentenced.


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N.T., 7/21/2017, at 24-25. Hence, the court concluded Major failed to show

a   post -sentence motion would have been successful, and therefore he had not

proved actual prejudice.    See also Trial Court Opinion, 3/19/2017, at 7-9

(discussing merits of Major's discretionary aspects of sentencing claim).

        Instantly, Major argues that by application of Pa.R.Crim.P. 720, he was

denied procedural due process under the 5th and 14th Amendment of the

United States Constitution and Article I, Section 9 of the Pennsylvania

Constitution. This argument warrants no relief.

        The Pennsylvania Supreme Court has explained: "[T]the basic elements

of procedural due process are adequate notice, the opportunity to be heard,

and the chance to defend oneself before       a   fair and impartial tribunal having

jurisdiction over the case." Commonwealth v. Turner, 80 A.3d 754, 764

(Pa. 2013) (citations omitted).    "[C]ourts examine procedural due process
questions in two steps: the first asks whether there           is a   life, liberty, or

property interest that the state has interfered with; and the second examines

whether the procedures attendant to that deprivation were constitutionally

sufficient." Id. Although Major has cited Turner, he has failed to address

the due process analysis set forth therein. In any event, here, Major had the

opportunity to be heard at the jury trial, and at sentencing, and could have

objected to his sentence at the sentencing hearing or in        a   timely -filed post -

sentence motion.

        The Pennsylvania Supreme Court has held that "[i]ssue preservation is

foundational to proper appellate review."     In the Interest of F.C.      III, 2 A.3d
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1201, 1211-1212 (Pa. Super. 2010). Major was not denied due process simply

because he was required to comply with our procedural rules to preserve his

discretionary aspects of sentencing claim. See Pa.R.Crim.P. 720. See also

Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.").           Additionally, any waived issues are

subject to an ineffectiveness of counsel claim under the PCRA.                     See

Commonwealth v. Grant, 813 A.2d 726, 728                 (Pa. 2002) (holding that, in

general, all ineffectiveness claims should be raised at the PCRA stage collateral

review). In this regard, trial counsel's failure to file    a   post -sentence motion is

no   different than any other waived claims. Therefore, Major's first issue fails.

        In his final argument, Major contends the trial court abused its discretion

in   sentencing him to       a   manifestly excessive term of eight to 16 years'

incarceration, in violation of the required considerations of 42 Pa.C.S.              §

9721(b). However, as discussed above, Major did not properly preserve his

discretionary sentencing claim for review as required by Rule 720, and the

PCRA    court concluded Major failed to demonstrate actual prejudice that

warranted     reinstatement of his        right to file post -sentence        motions.6

Therefore, this issue   is   not properly before this Court and we may not review

the merits.

        Judgment of sentence affirmed.




6We note that Major did not appeal the PCRA court's finding that he failed to
establish prejudice by his counsel's failure to file a post -sentence motion.

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Judgment Entered.




  seph D. Seletyn,
Prothonotary



Date: 1/7/19




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