J-S35040-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF                         :    IN THE SUPERIOR COURT OF
PENNSYLVANIA,                           :          PENNSYLVANIA
                                        :
                 Appellee               :
                                        :
          v.                            :
                                        :
JERMAINE VILLINES,                      :
                                        :
                 Appellant              :      No. 2862 EDA 2018

         Appeal from the PCRA Order Entered September 28, 2018
           in the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0005660-2010

BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                    FILED AUGUST 19, 2019

      Jermaine Villines (Appellant) appeals from the order entered September

28, 2018, dismissing his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546, without an evidentiary hearing. Upon

review, we affirm in part, vacate in part, and remand this matter for

proceedings consistent with this memorandum.

      On September 17, 2009, Appellant’s cousin, William Villines (“Villines”),

shot Anwar Conyers outside the home of a mutual friend. Pertinent to this

appeal, testimony at trial revealed that just seconds before Villines opened

fire on Conyers, Appellant, who was standing next to Villines at the time, told

Villines “green light, hit him.” Commonwealth v. Villines, 81 A.3d 1005

(Pa. Super. 2013) (unpublished memorandum).            Based on statements




* Retired Senior Judge assigned to the Superior Court.
J-S35040-19

provided to police by witnesses, a warrant was issued for Villines’s arrest and

Villines was later apprehended.

      Appellant was not arrested until January 7, 2010, after Villines
      gave a statement to the police implicating him in the crime.
      Appellant was charged with murder, conspiracy, and several
      violations of the Uniform Firearms Act.3 Appellant and Villines
      were jointly tried by a jury sitting before the Honorable M. Teresa
      Sarmina.
             ______
             3 Judgments of acquittal were entered on the charges of

             firearms not to be carried without a license, carrying a
             firearm on a public street, and possession of an instrument
             of crime.

Id.

      At trial, an issue arose regarding Appellant’s decision not to testify. After

being informed by trial counsel that Appellant did not wish to testify on his

own behalf, the trial court engaged Appellant in an on-the-record colloquy

regarding Appellant’s waiver of his right to testify. The record reveals, inter

alia, the following exchange between trial counsel, the trial court, Appellant,

and the Commonwealth.

      [Trial court]: Did anybody make any representations to you as
      to why you should not take the stand?

      [Appellant]: Representations?

      [Trial court]: Meaning, if you testify here’s what will happen,
      things of that nature.

      [Appellant]: No, not in those words.

      [Trial court]: Well, something similar?

      [Appellant]: I think it’s a matter of opinion.


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     [Trial court]: Okay.

     [Trial counsel]: I think he’s saying I expressed my opinion.

     [Trial court]: Is that what you’re saying?

     [Appellant]: Yeah.

     [Trial court]: Well, did you give legal advice that if you do this,
     here’s what’s going to happen or things of that nature, [trial
     counsel]?

     [Trial counsel]: We discussed the potential that if he were [to]
     testify that certain doors might be opened, that perhaps his
     criminal record could come in for reasons other than
     impeachment. He doesn’t have any crimen falsi but he’s got
     convictions for drugs and some other things. Depending upon
     what he says.

     [Trial court]: Why would those convictions come in?

     [Trial counsel]: In particular, the conviction for drugs might
     open -- he might open the door if certain questions were to be
     asked of him that he would deny, and then [the Commonwealth]
     might find a reason to want to ask the [trial c]ourt to allow his
     prior record to come in.

     [Trial court]: It’s not likely that your prior record would come in.

     [Trial counsel]: I agree.

     [Trial court]: Although there is a possibility. Do you understand
     that, if that was affecting your decision?

     [Appellant]: Yes.

     [Trial court]: The only thing ordinarily that can be brought in, as
     a matter of right, would be if you had convictions involving
     dishonesty, which I understand you do not. So what I understand,
     is that correct or not correct?

     [Trial counsel]: He does have an escape.

     [Commonwealth]: Yeah.

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     [Trial counsel]: That might come in on the issue of flight.

     [Trial court]: That has to do with dishonesty.

     [Trial counsel]: Also there’s a possession of firearms on another
     occasion. That could possibly come in.

     [Trial court]: Why would that come in?

     [Commonwealth]: Well, it would just be my position that … if a
     door was opened, for instance, when he said, I’ve been in a
     situation like this before. I’m actually not seeking to enter his
     [possession with the intent to deliver (PWID)] conviction. I don’t
     think it’s necessary and I’m not asking for it. But if there was
     something along those lines, like, I’ve never done anything -- you
     know, whatever, I don’t know. The suggestion that the door could
     be opened is always a possibility.

     [Trial court]: It is. It’s not likely that your prior convictions would
     come in just as a matter of course, if that was informing your
     decision or affecting your decision as to not testifying in this case.

     [Appellant]: I don’t understand. He just said the escape would
     fall under dishonesty. Am I wrong?

     [Commonwealth]: I believe it’s crimen falsi. Escape is crimen
     falsi.

     [Trial court]: Do you have case law on escape being crimen falsi?

     [Commonwealth]: No.

     [Trial court]: It may or may not come in. So if that’s the only
     thing affecting your decision to go ahead and not testify, we can
     make a decision over the luncheon recess.

     [Trial counsel]: The other thing that worries me is the
     possession of prohibited offensive weapon and firearms. If he
     were to say something to the effect of, I didn’t possess a gun, I
     don’t possess guns, generally speaking, then you might allow
     those convictions to come in. They come in to show access --



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     [Trial court]: If he ended up saying, I’ve never had a weapon in
     my life or something like that.

     [Trial counsel]: That sort of thing, yes. That’s what I had
     discussed with [Appellant].

     [Trial court]: So there’s that possibility. So if you advised him
     properly, I guess he wouldn’t be foolish enough to say something
     like, never in my life have I had any weapon. Other than saying
     something like that, which then makes it true because you have
     – you’ve been convicted of it at least – then that would, as they
     say, open the door to [the Commonwealth] being able to say, oh,
     never had a weapon? What about this time? Weren’t you convicted
     of such and such? [The Commonwealth] probably wouldn’t even
     be allowed to say that. [The Commonwealth would] have to bring
     it in through the files. But if that’s what’s making you --and there
     might be a number of reason why you have decided --

     [Appellant]: No, that’s it.

     [Trial court]: That’s the only reason?

     [Appellant]: That’s it.

     [Trial court]: Do you want time to discuss it further with [trial
     counsel]?

     [Appellant]: Yeah, that would be helpful.

     [Trial court]: Okay. We’ll go ahead and break for lunch now.
     Have a seat. In the meantime, maybe [the Commonwealth] can
     call [its] appeals unit and see if escape under the circumstances
     presented here would constitute crimen falsi, which I don’t know
     that it’s that clear.

     [Commonwealth]: I’ll go down and research it.

                                       ***

     [Trial court]: So during this break, [Appellant] will be put in the
     booth to speak with [trial counsel] about the decision to testify or
     not to testify, and [the Commonwealth will] call [its] office.



                                    -5-
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      [Commonwealth]: I’ll go downstairs and run a quick Lexis
      check.

      [Trial court]: Okay.

      (Whereupon, a luncheon recess is taken.)

      [Trial court]: Good afternoon. [Appellant], if you would stand
      back up. You’ve had time now to discuss it with [trial counsel] with
      the understanding that it is a very slim and rare possibility that
      your prior convictions would come in against you in any way. So
      knowing and understanding all of that, do you wish to testify?

      [Appellant]: No, ma’am.

      [Trial court]: All right. So who’s made this decision, [Appellant]?

      [Appellant]: I have.

N.T., 1/21/2011, at 114-22. The trial court asked several follow-up questions

before ultimately finding Appellant’s decision not to testify was knowingly,

intelligently, and voluntarily made.    Id. at 123.   There was no additional

mention of the conversation that Appellant had with counsel during the break,

if Appellant did indeed have any crimen falsi convictions, and what case law,

if any, the Commonwealth was able to procure on this subject.         Trial then

resumed.

      Upon the conclusion of trial, Appellant was convicted of third-degree

murder and conspiracy. On March 17, 2011, Appellant was sentenced 1 to 20


1
 Pertinent for reasons that become clear infra, at sentencing, Appellant spoke
at length about his decision not to testify, what influenced that decision, and
his regret in not taking the stand. In large part, Appellant attributed his
decision not to testify to his concern that his testimony would be used to
convict his co-defendant and cousin, Villines. See N.T., 3/11/2017, at 21
(Appellant stating at sentencing that “If [he] would have got up there,
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to 40 years’ imprisonment for third degree-murder and a concurrent term of

10 to 20 years’ imprisonment for conspiracy, followed by a consecutive 10

years of probation.

        This Court affirmed Appellant’s judgment of sentence and our Supreme

Court denied his petition for allowance of appeal.     Villines, 81 A.3d 1005,

appeal denied, 781 A.2d 1091 (Pa. 2013). On April 29, 2014, Appellant filed

pro se a timely PCRA petition. Counsel was appointed and filed multiple

amended PCRA petitions.2       On August 23, 2018, the PCRA court issued a

notice of its intent to dismiss Appellant’s petition without a hearing pursuant

to Pa.R.Crim.P. 907, and on September 28, 2018, the PCRA court dismissed

Appellant’s petition. Appellant timely filed a notice of appeal.3

        On appeal, Appellant sets forth two issues for our review, which we

consider mindful of the following. “On review of orders denying PCRA relief,

our standard is to determine whether the PCRA court’s ruling is free of legal

error and supported by the record.” Commonwealth v. Boyer, 962 A.2d

1213, 1215 (Pa. Super. 2008).



[Villines] definitely would have got found guilty of first-degree murder, and
[he] ain’t [sic] want to be the reason.”).

2
  Counsel later withdrew and new counsel was assigned. However, upon
Appellant’s request to proceed pro se, a Grazier hearing was held, see
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), and counsel was
subsequently removed. Appellant was later assigned new counsel, who
presently represents Appellant on appeal.
3
    Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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J-S35040-19

      In his first issue, Appellant argues the PCRA court abused its discretion

by dismissing his PCRA petition without a hearing, asserting that he properly

established that trial counsel rendered ineffective assistance of counsel when

counsel erroneously informed Appellant that if Appellant elected to testify on

his own behalf at trial, he could be impeached4 with a prior escape conviction.

Appellant’s Brief at 8. Appellant argues that, because the crime of escape is

not crimen falsi,5 trial counsel misadvised him that this conviction would be

admissible if he chose to testify. Id. at 9-10. Appellant asserts that he was

“considering testifying but was discouraged from testifying” based on trial

counsel’s advice. Id. at 8.   Thus, according to Appellant, he was prejudiced

“because he was unable to explain what words, if any, were uttered to

[Villines] prior to the shooting of [the victim].” Id.

      In considering this issue, we observe that

      [t]he right to an evidentiary hearing on a post-conviction petition
      is not absolute. It is within the PCRA court’s discretion to decline
      to hold a hearing if the petitioner’s claim is patently frivolous and
      has no support either in the record or other evidence. It is the


4 See Pa.R.E. 609(a) (“For the purpose of attacking the credibility of any
witness, evidence that the witness has been convicted of a crime, whether by
verdict, or by plea of guilty or nolo contendere, shall be admitted if it involved
dishonesty or false statement.”). See also Commonwealth v. Moser, 999
A.2d 602, 607 (Pa. Super. 2010) (“Crimes involving dishonesty or false
statement [are] commonly referred to as crimen falsi crimes.”)
5 Case law from this Commonwealth supports Appellant’s averment. See
Commonwealth v. Dale, 836 A.2d 150, 155 (Pa. Super. 2003) (“Dale was
unable to find any support for his argument that the crime of escape is a
crimen falsi crime, … and we also found none. Moreover, we fail to see how
escape meets the requirements for a crime of crimen falsi.”).

                                      -8-
J-S35040-19


      responsibility of the reviewing court on appeal to examine each
      issue raised in the PCRA petition in light of the record certified
      before it in order to determine if the PCRA court erred in its
      determination that there were no genuine issues of material fact
      in controversy and in denying relief without conducting an
      evidentiary hearing.

Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) (citations

omitted). In addition, we point out that

         [i]t is well-established that counsel is presumed to have
         provided effective representation unless the PCRA petitioner
         pleads and proves all of the following: (1) the underlying
         legal claim is of arguable merit; (2) counsel’s action or
         inaction lacked any objectively reasonable basis designed to
         effectuate his client’s interest; and (3) prejudice, to the
         effect that there was a reasonable probability of a different
         outcome if not for counsel’s error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (internal

citations omitted).

             The decision of whether or not to testify on one’s own behalf
      is ultimately to be made by the defendant after full consultation
      with counsel. In order to sustain a claim that counsel was
      ineffective for failing to advise the appellant of his rights in this
      regard, the appellant must demonstrate either that counsel
      interfered with his right to testify, or that counsel gave specific
      advice so unreasonable as to vitiate a knowing and intelligent
      decision to testify on his own behalf.

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (citations

omitted).




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        In its Rule 1925(a) opinion, the PCRA court conceded that trial counsel

“stated that escape may be crimen falsi.”6 PCRA Court Opinion, 1/30/2019,

at 5.      However, the court nonetheless found that Appellant “voluntarily

waived his right to testify.” Id.

        [The trial c]ourt requested case law supporting [the proposition
        that escape is a crimen falsi crime], and none was provided. T[he
        trial c]ourt advised [Appellant] that it was “not likely” that his prior
        record would be admissible, unless [Appellant] “opened the door”
        to such evidence while testifying. [Appellant] still chose not to
        testify. He understood that the decision regarding testifying was
        his alone to make.

              Additionally, at the March 17, 2011 sentencing hearing,
        during allocution, [Appellant] stated that the main reason he
        chose not to testify was out of concern that he might have
        inculpated [Villines] of these crimes because “[i]f [Appellant]
        would have got up there, [Villines] definitely would have got found
        guilty of first-degree murder, and [Appellant] ain’t [sic] want to
        be the reason.” Therefore, as [Appellant] cannot establish that it
        was trial counsel’s advice, as opposed to his own motivation not
        to incriminate [Villines] that caused him not to testify in his
        defense, this claim failed.

Id. at 5-6.

        In this case, while the record indicates the trial court was skeptical as

to whether escape constituted a crimen falsi offense, there was no clear

confirmation on the record by any party or the trial court to settle this

confusion. Indeed, it appears that Appellant was under the impression that




6
  We acknowledge that trial counsel initially stated that Appellant did not have
any crimen falsi convictions. See N.T., 1/21/2011, at 115. However, counsel
later backtracked on this statement when he advised the trial court that
Appellant had an “escape” conviction upon the court’s inquiry as to whether
Appellant had any “convictions involving dishonesty[.]” Id. at 116.
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J-S35040-19

his counsel’s position was that escape is a crimen falsi crime.      See N.T.,

1/21/2011, at 117 (Appellant stating on the record “I don’t understand. [Trial

counsel] just said the escape would fall under dishonesty. Am I wrong?”).

      Even more problematic is the PCRA court’s finding that Appellant was

unable to establish that his motivation not to testify was based on counsel’s

advice as opposed to his desire not to implicate his cousin and co-defendant,

Villines. The record does not firmly support this finding. While Appellant later

indicated at his sentencing hearing that he did not want to testify and be the

“reason” Villines was convicted, Appellant clearly and unequivocally stated

during the aforementioned colloquy that his decision not to testify was based

on trial counsel’s advice regarding his prior convictions.7 Id. at 119-120. See




7We note that, unlike trial counsel’s assertions concerning Appellant’s escape
conviction, counsel’s statement that the Commonwealth may be permitted to
ask questions about Appellant’s criminal past if Appellant “opened the door[,]”
N.T., 1/21/2011, at 115, was accurate advice.

      Evidence that might otherwise be inadmissible may be introduced
      for some other purpose, particularly where [a defendant’s] own
      testimony “opens the door” for such evidence to be used for
      impeachment purposes. See Pa.R.E. 607(b) (“The credibility of a
      witness may be impeached by any evidence relevant to that issue,
      except as otherwise provided by statute or these rules.”). “A
      litigant opens the door to inadmissible evidence by presenting
      proof that creates a false impression refuted by the otherwise
      prohibited evidence.” Commonwealth v. Nypaver, 69 A.3d 708,
      716–17 (Pa. Super. 2013) (citations omitted). Further, it is
      noteworthy that trial judges retain wide latitude as to the scope
      of cross-examination[.]

Commonwealth v. Murphy, 182 A.3d 1002, 1005 (Pa. Super. 2018).

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J-S35040-19

Commonwealth v. Walker, 110 A.3d 1000, 1005 (Pa. Super. 2015)

(concluding that “the appropriate standard for assessing whether a defendant

was prejudiced by trial counsel’s ineffectiveness regarding the waiver of his

right to testify is whether the result of the waiver proceeding would have been

different absent counsel’s ineffectiveness”) (emphasis in original).

      Based upon the foregoing, we find “[a]t a minimum, the claim raises

genuine issues of material fact which cannot be resolved on the existing

record.” Id. Specifically, there is an issue of material fact as to whether,

following the trial court’s recess for lunch, trial counsel was able to clarify that

escape did not constitute a crimen falsi crime. Additionally, trial counsel’s

testimony    regarding   his   conversations    with   Appellant   and    counsel’s

understanding of why Appellant chose not to testify is of equal importance to

resolving this claim.    Thus, we conclude that Appellant is entitled to an

evidentiary hearing in order to attempt to prove that “counsel interfered with

his right to testify, or that counsel gave specific advice so unreasonable as to

vitiate a knowing and intelligent decision to testify on his own behalf.”8

Nieves, 746 A.2d at 1104; See also Commonwealth v. Savage, 695 A.2d

820, 825 (Pa. Super. 1997) (“When an arguable claim of ineffective assistance




8
 To be clear, this Court’s decision to remand this case in no way reflects this
Court’s opinion on whether Appellant is entitled to relief on this issue;
Appellant is still required to prove all three prongs of the ineffective assistance
of counsel standard in order to be entitled to PCRA relief. We merely recognize
that a genuine issue of material fact exists, warranting an evidentiary hearing
on this claim.
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J-S35040-19

of counsel has been made, and there has been no evidentiary hearing in the

[PCRA court] to permit the defendant to develop evidence on the record to

support the claim, and to provide the Commonwealth an opportunity to rebut

the claim, this Court will remand for such a hearing.”).

      Turning now to Appellant’s remaining claim, Appellant contends trial

counsel was ineffective for failing to preserve properly a discretionary-

aspects-of-sentencing claim for direct appeal. Appellant’s Brief at 11. In this

case, although trial counsel filed a post-sentence motion requesting the trial

court reconsider his sentence, on appeal, this Court found that the boilerplate

averments in Appellant’s motion resulted in waiver of his discretionary aspects

issue. See Villines, supra.

      Instantly, the PCRA court concluded that Appellant satisfied the first two

prongs of the ineffective assistance of counsel test, but held that Appellant

was not prejudiced.    Trial Court Opinion, 1/30/2019, at 6-8.       On appeal,

Appellant asserts he was prejudiced by counsel’s actions because (1) “[t]he

sentence   imposed    is   excessive    and     unreasonable   and   shocks   the

conscience[;]” and (2) the trial court “did not properly explain how the

sentence imposed was consistent with the protection of the public or how the

sentence would serve Appellant’s rehabilitative needs.” Appellant’s Brief at

13. We address these arguments sequentially.9



9
 Because Appellant’s arguments challenge the discretionary aspects of his
sentence, we bear in mind the following.

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      In this case, the trial court sentenced Appellant to 20 to 40 years’

incarceration, a standard-range sentence and 10-20 years’ concurrent

incarceration for conspiracy.   The latter sentence was below the mitigated

range of the sentencing guidelines.10 This Court has long held that a claim

that a standard range sentence is excessive fails to raise a substantial

question. Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).




      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage in
         a four part analysis to determine: (1) whether the appeal
         is timely [filed]; (2) whether Appellant preserved his issue;
         (3) whether Appellant’s brief includes a concise statement
         of the reasons relied upon for allowance of appeal with
         respect to the discretionary aspects of sentence; and (4)
         whether the concise statement raises a substantial question
         that the sentence is appropriate under the sentencing
         code....    [I]f the appeal satisfies each of these four
         requirements, we will then proceed to decide the
         substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted). “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.”
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation and
quotation marks omitted).
10
  With Appellant’s prior record score of five and an offense gravity score of 14
for both third-degree murder and conspiracy to commit murder, the standard-
range sentence for both crimes, using a “deadly weapon possessed”
enhancement, is 201 to 240 months’ incarceration.
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      Even if he raised a substantial question, Appellant’s claim fails as the

record before us reflects the following. Prior to sentencing, the trial court was

apprised of the guideline ranges for each of the crimes Appellant was

convicted. N.T., 3/17/2011, at 12. Furthermore, the trial court noted that

there was a pre-sentence investigation (PSI) report11 and prior-record-score

computation that had been created. Id. at 3. Moreover, the trial court heard

statements made by Appellant, his counsel, and the Commonwealth, as well

as listened to a victim impact statement.      Most notably, upon sentencing

Appellant to the aforementioned periods of incarceration, against the

recommendation      of   the   Commonwealth,       Appellant’s   sentences     of

incarceration were ordered to run concurrently with one another.

      In light of the foregoing, we conclude the trial court did not abuse its

discretion in sentencing Appellant. See Commonwealth v. Corley, 31 A.3d

293, 298 (Pa. Super. 2011) (“[W]here the sentencing court imposed a

standard-range sentence with the benefit of a [PSI] report, we will not

consider the sentence excessive. In those circumstances, we can assume the

sentencing court was aware of relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory




11
  “[W]here the sentencing judge had the benefit of a [PSI] report, it will be
presumed that he or she was aware of the relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa.
Super. 2016).

                                     - 15 -
J-S35040-19

factors.”) (some quotation marks omitted). Nor has Appellant demonstrated

to this Court 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. Johnson,

125 A.3d 822, 826 (Pa. Super. 2015) (quoting Disalvo, 70 A.3d at 903); see

also Commonwealth v. Mouzon, 812 A.2d 617, 620 (Pa. 2002)

(“Traditionally, the trial court is afforded broad discretion in sentencing

criminal defendants ‘because of the perception that the trial court is in the

best position to determine the proper penalty for a particular offense based

upon an evaluation of the individual circumstances before it.’”) (citation

omitted).

      Lastly, while we acknowledge that the trial court failed to put forth

reasons on the record for the sentence it imposed,12 the trial court

acknowledged the existence of a PSI report in this case and thus, as set forth

supra, is presumed to have considered and weighed all relevant facts.       See

Commonwealth v. Fowler, 893 A.2d 758, 766-67 (Pa. Super. 2006) (“[T]he

sentencing court must state its reasons for the sentence on the record. The

sentencing judge can satisfy the requirement that reasons for imposing [the]

sentence be placed on the record by indicating that he or she has been




12
  See Commonwealth v. Flowers, 149 A.3d 867, 871 (Pa. Super. 2016)
(noting that an appellant raises “a substantial question for our review by
asserting that the trial court failed to state adequate reasons on the record for
[an a]ppellant’s sentence”).
                                     - 16 -
J-S35040-19

informed by the [PSI] report[,] thus properly considering and weighing all

relevant factors.”) (citations omitted).

      Because our review reveals that Appellant’s sentence was neither

manifestly excessive nor the product of the trial court’s abuse of its discretion,

Appellant has failed to establish that he was prejudiced by his counsel’s failure

to preserve his sentencing claim. Thus, Appellant is not entitled to relief on

this claim.

      Accordingly, we vacate the order in part and remand this matter for an

evidentiary hearing on Appellant’s issue concerning the advice received from

trial counsel regarding Appellant’s decision to testify on his own behalf, and

affirm the September 28, 2018 order of the PCRA court in all other respects.

      Order affirmed in part and vacated in part.           Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/19




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