J-S06009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
TERRELL JOHNSON                          :
                                         :
                   Appellant             :   No. 1950 EDA 2017

               Appeal from the PCRA Order November 9, 2015
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0007677-2008


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                              FILED JUNE 26, 2018

      Appellant Terrell Johnson appeals nunc pro tunc from the order

dismissing his first petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). We affirm.

      On October 15, 2010, a jury found Appellant guilty of possession with

intent to deliver (“PWID”).       The conviction stemmed from Appellant’s

attempted sale of crack cocaine in Philadelphia, as observed by police

officers William Hunter and Rafael Cordero. On February 16, 2011, the trial

court sentenced Appellant to six to twelve years incarceration, followed by

eight years probation. Appellant’s trial counsel, Richard Moore, Esquire, filed

a direct appeal on his behalf. We affirmed Appellant’s judgment of sentence,

and our Supreme Court denied allowance of appeal. See Commonwealth
J-S06009-18


v. Johnson, 40 A.3d 206 (Pa.Super. 2011) (unpublished memorandum),

appeal denied, 47 A.3d 845 (Pa. 2012).

      Appellant filed a timely pro se PCRA petition.          The PCRA court

appointed Michael L. Doyle, Esquire, as Appellant’s PCRA counsel, who filed

an amended petition alleging that (1) Attorney Moore was ineffective for

filing a deficient appellate brief and failing to properly preserve discretionary

sentencing and weight of the evidence claims; and (2) Officer Cordero’s

subsequent federal indictment and conviction of corruption constitutes

newly-discovered    exculpatory   evidence.      The   PCRA    court   issued   a

Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a

hearing, and on November 9, 2015, entered an order dismissing the petition.

Appellant filed a timely notice of appeal, and a court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, and the PCRA

court issued its Pa.R.A.P. 1925(a) opinion. However, on February 16, 2016,

we dismissed the appeal based on Attorney Doyle’s failure to file a docketing

statement.

      Appellant filed a second pro se PCRA petition on August 29, 2016. The

PCRA court appointed James R. Lloyd, III, Esquire, as Appellant’s PCRA

counsel, who filed an amended petition seeking reinstatement of Appellant’s

right to appeal nunc pro tunc from the November 9, 2015 dismissal of his




                                      -2-
J-S06009-18


first PCRA petition. The PCRA court entered an order granting the petition.1

Appellant filed a timely notice of appeal,2 and a court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.          The trial

court entered a Pa.R.A.P. 1925(a) opinion incorporating its January 29, 2016

opinion. Thus, the matter is ready for our review.

       On appeal, Appellant raises the following issues for our review:

       1. Did the PCRA [c]ourt err when it dismissed [Appellant’s] PCRA
          petition without a hearing where [Attorney Moore] was
          ineffective for failing to preserve a challenge to the
          discretionary aspects of sentence imposed?

       2. Did the PCRA [c]ourt err when it dismissed [Appellant’s] PCRA
          petition without a hearing where [Attorney Moore] was
          ineffective for failing to properly preserve a challenge to the
          verdict as being against the weight of the evidence?


____________________________________________


1  Although there is no explicit finding in the record, the PCRA court
apparently determined that Appellant invoked the newly-discovered fact
exception to the PCRA’s time bar, and filed his second PCRA petition within
sixty days of his discovery that his appeal of the denial of his first PCRA
petition was dismissed due to Attorney Doyle’s failure to file a docketing
statement. See 42 Pa.C.S. 9545(b)(ii) and (2) (providing that any PCRA
petition must be filed within one year of the date the judgment becomes
final unless the petition alleges and the petitioner proves that the petition
was filed within sixty days of the date the facts upon which the claim is
predicated were ascertained by the petitioner exercising due dilligence.).

2 Appellant inadvertently stated in his notice of appeal that he is appealing
from the trial court’s February 16, 2011 judgment of sentence rather than
from the November 9, 2015 order dismissing his first PCRA petition. We
issued a rule to show cause why the appeal should not be quashed as
untimely, and Appellant filed a response. Upon review, the record is clear
that Appellant was granted leave to appeal from, and is indeed appealing,
the November 9, 2015 dismissal order.



                                           -3-
J-S06009-18


      3. Did the PCRA [c]ourt err when it dismissed [Appellant’s] PCRA
         petition without a hearing where [after-]discovered evidence
         was presented that one of the arresting officers, who testified
         at trial, was indicted and subsequently found guilty of federal
         crimes[,] including interfering with a drug investigation?

Appellant’s brief at 4 (numbering added, issues reordered for ease of

disposition).

      Our standard of review is well-settled:

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court’s decision on any
      ground if the record supports it.        Further, we grant great
      deference to the factual findings of the PCRA court and will not
      disturb those findings unless they have no support in the record.
      However, we afford no such deference to its legal conclusions.
      Where the petitioner raises questions of law, our standard of
      review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012) (citations

omitted).

      Additionally, when a petitioner alleges trial counsel’s ineffectiveness in

a PCRA petition, he must prove by a preponderance of the evidence that his

conviction or sentence resulted from ineffective 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). Further,

            To prevail on a claim of ineffective assistance of counsel, a
      PCRA petitioner must . . . demonstrate: (1) that the underlying
      claim has arguable merit; (2) that no reasonable basis existed

                                     -4-
J-S06009-18


     for counsel’s actions or failure to act; and (3) that the petitioner
     suffered prejudice as a result of counsel’s error. To prove that
     counsel’s chosen strategy lacked a reasonable basis, a petitioner
     must prove that an alternative not chosen offered a potential for
     success substantially greater than the course actually pursued.
     Regarding the prejudice prong, a petitioner must demonstrate
     that there is a reasonable probability that the outcome of the
     proceedings would have been different but for counsel’s action or
     inaction. Counsel is presumed to be effective; accordingly, to
     succeed on a claim of ineffectiveness[,] the petitioner must
     advance sufficient evidence to overcome this presumption.

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal

citations and quotation marks omitted). A failure to satisfy any prong of the

test for ineffectiveness will require rejection of the claim. Commonwealth

v. Martin, 5 A.3d 177, 183 (Pa. 2010).           Additionally, counsel cannot be

deemed    ineffective   for   failing   to   raise   a   meritless   claim.   See

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).

     In his first issue, Appellant contends that Attorney Moore was

ineffective for failing to preserve a claim that the trial court imposed an

excessive sentence when it (1) sentenced him in the aggravated range of

the sentencing guidelines without considering his bi-polar and personality

disorders, addiction to controlled substances, and that he was the victim of

nine stabbings while incarcerated; and (2) imposed sentence based on

Appellant’s prior PWID convictions and the nature of his crime, which were

already accounted for in his prior record score and the offense gravity score.

We conclude that Appellant’s ineffectiveness claim lacks merit.




                                        -5-
J-S06009-18


      Appellant’s underlying claim of error constitutes a challenge to the

discretionary aspects of his sentence.     Prior to reaching the merits of a

discretionary sentencing issue, this Court must 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
      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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation

omitted).

      Here, Appellant’s underlying discretionary sentencing claim presents a

substantial question. See Commonwealth v. Bowen, 55 A.3d 1254, 1263

(Pa.Super. 2012) (holding that a substantial question is raised where an

appellant alleges that the sentencing court erred by imposing an aggravated

range sentence without consideration of mitigating circumstances); see also

Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.Super. 2003) (holding

that a claim that the sentence is excessive because the trial court relied on

impermissible factors raises a substantial question).

      Attorney Moore failed to preserve Appellant’s sentencing claim at

sentencing or in a post-sentence motion.       Attorney Moore also failed to

include a Rule 2119(f) statement in his appellate brief.     Thus, he failed to

preserve Appellant’s discretionary sentencing claim for direct review.     See

Commonwealth v. Johnson, 40 A.3d 206 (unpublished memorandum at


                                     -6-
J-S06009-18


8). To obtain PCRA relief, however, Appellant must also demonstrate that

Attorney Moore’s failure to preserve Appellant’s discretionary sentencing

claim constitutes ineffective assistance under the three-prong test set forth

above. We conclude that Appellant’s ineffectiveness claim fails because his

discretionary sentencing claim lacks arguable merit.

      Initially, we observe that sentencing is a matter vested within the

discretion of the trial court and will not be disturbed absent a manifest abuse

of discretion. See Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.

2009). Further,

            an abuse of discretion is more than a mere error of
      judgment; thus, a sentencing court will not have abused its
      discretion unless the record discloses that the judgment
      exercised was manifestly unreasonable, or the result of
      partiality, prejudice, bias, or ill-will. An abuse of discretion may
      not be found merely because an appellate court might have
      reached a different conclusion, but requires a result of manifest
      unreasonableness, or partiality, prejudice, bias, or ill-will, or
      such lack of support so as to be clearly erroneous.

Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa.Super. 2017)

(internal quotation marks and citations omitted).

      The Sentencing Code sets forth the considerations a court must take

into account when formulating a sentence, stating that “the 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.


                                     -7-
J-S06009-18


§ 9721(b); see also Moury, supra at 171 (Pa.Super. 2010) (holding that,

when imposing a sentence, the court is required to consider the particular

circumstances of the offense and the character of the defendant, making

reference      to    defendant’s   prior   criminal   records,   his   age,   personal

characteristics and his potential for rehabilitation).

      When evaluating a challenge to the discretionary aspects of sentence,

it is important to remember that the sentencing guidelines are “purely

advisory in nature.” Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa.

2007); see also Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007)

(stating that “rather than cabin the exercise of a sentencing court’s

discretion,    the    [sentencing] guidelines merely inform the           sentencing

decision.”).

      Based on our review, the record demonstrates that the trial court,

consistent with its sentencing obligation, took into account the nature of the

offense, the sentencing guidelines, the impact of the offense on the

community, Appellant’s background, criminal history and rehabilitative

needs.   See N.T. Sentencing, 2/16/11, at 6-8.           The court also considered

potential mitigating factors offered by Appellant or on his behalf. See id. at

4. The trial court also had the benefit of a presentence investigation report.

See Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (holding that

where a sentencing court is informed by a presentence investigation report,

“it is presumed that the court is aware of all appropriate sentencing factors


                                           -8-
J-S06009-18


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

discretion should not be disturbed.”).

      The trial court explained the factual bases and specific reasons which

compelled it to deviate upwards from the standard guideline range:

            In the case at bar, [Appellant’s] sentence was well within
      the statutory limit and was a reasonable exercise of this [c]ourt’s
      discretion in light of all relevant factors. Under Pennsylvania
      law, the maximum sentence for a second or subsequent
      conviction for possession with intent to deliver, an ungraded
      felony, is 20 years, $25,000 fine, or both.          This [c]ourt
      sentenced [Appellant] to a total term of 6-12 years state
      incarceration, followed by eight years of probation.          This
      sentence was well within the statutory limits and was a
      reasonable exercise of the [c]ourt’s discretion in light of
      [Appellant’s] serious criminal history, which includes multiple
      convictions for possession with intent to deliver.

            Furthermore, this [c]ourt properly considered the relevant
      factors set forth in 42 Pa.C.S. § 9721: the protection of the
      public, the gravity of [Appellant’s] offense in relation to the
      victim and community, and his              rehabilitative   needs.
      [Appellant’s] conduct demonstrates he was not taking measures
      to become a productive member of society. He was arrested on
      3 separate occasions in 2004 for possession with intent to
      deliver. All those cases were consolidated and he pled guilty . . .
      [and] was sentenced to 1-2 years county incarceration. He was
      then arrested again in 2007 for possession with intent to deliver.
      In 2009, [this court] found him not guilty on the possession with
      intent to deliver charge, but found him guilty of knowing and
      intentional possession of a controlled substance.          He was
      sentenced to 11½ to 23 months county incarceration, followed
      by one year probation. The arrest in this case occurred in 2008,
      therefore, [Appellant’s] conduct clearly indicates he has not
      made any effort to become a productive member of society.
      Indeed, [Appellant’s] behavior demonstrated he was likely to
      continue to sell drugs, if released.       After considering the
      protection of the public, the impact [Appellant’s] felonies had on
      the community, and [Appellant’s] refusal to take the necessary
      measures to become a productive member of society, this
      [c]ourt deemed it reasonable and proper to sentence [Appellant]

                                     -9-
J-S06009-18


      to 6 to 12 year state incarceration, followed by 8 years
      probation.

Trial Court Opinion, 6/29/11, at 13.

      In rejecting Appellant’s ineffectiveness claim, the court also noted

that, “in the instant case, [Appellant] had been selling drugs less than 180

feet away from an elementary school and his behavior in the courtroom

showed his defiance and indifference to the serious nature of his offense.”

PCRA Court Opinion, 1/29/16, at 15; see also N.T. Sentencing, 2/16/16, at

5.

      Appellant offers no support from the record for his claim that the trial

court did not consider relevant mitigating factors.          Importantly, the

sentencing court, was only obligated to consider mitigating circumstances,

not to accept or appreciate them. See Commonwealth v. Fullin, 892 A.2d

843, 850 (Pa.Super. 2006). Moreover, trial courts are permitted to use prior

conviction history and other factors already included in the guidelines if they

are used to supplement other extraneous sentencing information.           See

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006).

      Therefore, upon this record, we cannot conclude that the sentence

imposed was the “result of manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous.” Bullock, supra. As counsel cannot be deemed ineffective for

failing to raise a meritless claim, Appellant’s first ineffectiveness claim

entitles him to no relief. See Fears, supra.

                                       - 10 -
J-S06009-18


      In his second claim, Appellant contends that Attorney Moore was

ineffective for failing to preserve a challenge the weight of the evidence

supporting his conviction.     Although counsel raised the issue on direct

appeal, this Court determined the issue was waived for failure to (1) raise it

before the trial court; and (2) develop relevant argument on the issue in his

appellate brief. See Johnson, 40 A.3d 206 (unpublished memorandum at

8). We conclude that Appellant’s second ineffectiveness claim fails because

his weight of the evidence claim lacks arguable merit.

      Our standard of review of a challenge to the weight of the evidence is

as follows.

             Appellate review of a weight claim is a review of the
      exercise of discretion, not of the underlying question of whether
      the verdict is against the weight of the evidence. 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and

citations omitted).

      Further,

            The finder of fact is the exclusive judge of the weight of
      the evidence as the fact finder is free to believe all, part, or none
      of the evidence presented and determines the credibility of the
      witnesses. As an appellate court, we cannot substitute our
      judgment for that of the finder of fact. Therefore, we will

                                     - 11 -
J-S06009-18


      reverse a jury’s verdict and grant a new trial only where the
      verdict is so contrary to the evidence as to shock one’s sense of
      justice.

Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa.Super. 2007)

(citations omitted).

      Appellant claims that his conviction was against the weight of the

evidence because he had only twenty-eight dollars, consisting of one twenty-

dollar bill, and eight one-dollar bills, in his pocket when he was arrested by

police on suspicion of selling drugs. Appellant posits that if he was, in fact,

selling drugs, he would have had more cash on his person, as well as smaller

bills. Appellant further claims that police found no drugs on his person, nor

any forensic evidence linking him to the drugs found in the abandoned lot.

      The trial court addressed Appellant’s challenge to the weight of the

evidence and concluded that it lacked merit for the following reasons:

             In the case at bar, the jury properly assessed the evidence
      presented and based its guilty verdicts upon that evidence. The
      jury, as fact finder, was free to believe all, part or none of the
      evidence presented, and . . . its conclusion should not be
      disturbed unless it “shocks one’s sense of justice.” That is not
      the case here. During the trial, the jury was able to observe the
      demeanor of each witness and found each witness’[s] testimony
      to be credible . . . . [Officer] Hunter testified that he and
      [Officer] Cordero were on location investigating a homicide. He
      further testified that while on location, he saw [Appellant]
      approach a U-Haul. He saw an exchange of $20 United States
      currency for unknown small objects. He further testified that
      [Appellant] was observed going into a brown bag, which he
      tossed behind him, for the unknown objects. [Officer] Hunter
      testified that he then spoke to [Appellant], while [Officer]
      Cordero recovered the brown bag. [Officer] Cordero testified
      that he recovered the only brown bag that was in the area, and
      inside the bag were 65 packets of alleged crack cocaine. This

                                    - 12 -
J-S06009-18


       substance was tested and it was determined to be cocaine base.
       [Officer Walter] Bartle testified as an expert in narcotic sales.
       He testified that in his expert opinion the observed transaction
       was a drug sale. Further, he testified to the quantity of the
       drugs found being consistent with possession with intent to
       deliver.    This evidence overwhelmingly demonstrated that
       [Appellant] was guilty of possession with intent to deliver.
       Based on this evidence, the jury’s finding of guilt cannot be said
       to “shock one’s sense of justice.”

Trial Court Opinion, 6/29/11, at 10-11.

       Upon our review, we discern no abuse of discretion by the trial court in

determining that Appellant’s conviction was not against the weight of the

evidence.   As counsel cannot be deemed ineffective for failing to preserve

and present a meritless claim, Appellant’s second ineffectiveness claim

entitles him to no relief. See Fears, supra.

       In his final claim, Appellant contends that the PCRA court erred in

dismissing his claim that Officer Cordero’s 2013 conviction of interfering in a

federal drug investigation constitutes after-discovered evidence that would

have    affected   the   outcome   of    his     2010   trial.   See   42   Pa.C.S.

§ 9543(a)(2)(vi).

       Pursuant to the PCRA, a petitioner may be eligible for relief based

upon after-discovered evidence only if he pleads and proves that his

conviction or sentence was the result of “[t]he unavailability at the time of

trial of exculpatory evidence that has subsequently become available and

would have changed the outcome of the trial if it had been introduced.” Id.

Therefore, to prevail on an after-discovered evidence claim for relief under §


                                        - 13 -
J-S06009-18


9543(a)(2)(vi), a petitioner must prove that (1) the exculpatory evidence

has been discovered after trial and could not have been obtained at or prior

to trial through reasonable diligence; (2) the evidence is not cumulative; (3)

it is not being used solely to impeach credibility; and (4) it would likely

compel a different verdict. See Commonwealth v. Burton, 158 A.3d 618,

629 (Pa. 2017).   “The test is conjunctive; the defendant must show by a

preponderance of the evidence that each of these factors has been met in

order for a new trial to be warranted.” Commonwealth v. Padillas, 997

A.2d 356, 363 (Pa.Super. 2010).

     The PCRA court addressed Appellant’s after-discovered evidence claim

and determined that it lacked merit because (1) the sole purpose of

admitting any evidence of Officer Cordero’s subsequent legal troubles would

be to impeach his credibility as a witness; and (2) his testimony was

cumulative of the testimony already provided by Officer Hunter.            As

explained by the PCRA court:

           In the case at bar, [Appellant] claims that the subsequent
     indictment and conviction of [Officer] Cordero on federal
     corruption charges constituted exculpatory after-discovered
     evidence.    However, [Appellant’s] claim is without merit as
     [Officer] Cordero’s subsequent conviction involved an entirely
     unrelated matter and would be used only to impeach his
     credibility. Specifically, the charges against [Officer] Cordero
     derived from an incident in which he tipped off his brother-in-
     law, a major distributor of heroin in the Kensington
     neighborhood of Philadelphia, about a federal drug investigation
     against him. In no way did the charges involve the planting of
     drugs or any other impropriety on [Officer] Cordero’s part during
     any arrest or investigation that he took part in, including in
     [Appellant’s] case.     Thus, the evidence was of an entirely

                                    - 14 -
J-S06009-18


      unrelated matter and only could be used to impeach the
      credibility of [Officer] Cordero. Notably, [Appellant] himself
      admits that the evidence would be used to render [Officer]
      Cordero’s testimony as unreliable.        Moreover, the evidence
      would not likely result in a different verdict if a new trial were
      granted.    [Officer] Cordero’s testimony at trial was largely
      cumulative of the testimony already presented by [Officer]
      Hunter. Therefore, even if [Officer] Cordero had never testified
      or the jury deemed his testimony to lack credibility, then it
      would not likely result in a different verdict on retrial as the jury
      would still have found him guilty on the basis of [Officer]
      Hunter’s testimony.

PCRA Court Opinion, 1/29/16, at 7-8.

      Based on our review, the PCRA court’s determination is supported by

the record and free of legal error.       Accordingly, Appellant’s final claim

entitles him to no relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




                                     - 15 -
