J-S26007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAYNARD TAYLOR,                            :
                                               :
                       Appellant               :   No. 1944 EDA 2018

              Appeal from the PCRA Order Entered June 13, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0706561-2006


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.:                           FILED AUGUST 09, 2019

        Raynard Taylor 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.

        We briefly recount the relevant facts and procedural history of this case.

        On February 19, 2006, at approximately 12:55 p.m., [A]ppellant
        shot the victim, Rath Chamroeun, in the stomach. The victim
        refused to identify [A]ppellant at trial despite having identified him
        as the perpetrator in prior statements to police and in a
        photographic line-up.      Thus, the victim’s prior out-of-court
        statements were admitted at trial as substantive evidence of
        [A]ppellant’s guilt. On March 25, 2008, following a non-jury trial
        before the Honorable M. Harold Kane, [A]ppellant was found guilty
        of aggravated assault, criminal attempt to commit murder,
        possession of an instrument of a crime, and two firearms
        violations.[1] . . .

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2702(a)(1), 901(a), 907(a), 6106(a), and 6108.
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Commonwealth v. Taylor, 2821 EDA 2008, 1-2 (Pa. Super., filed Jan. 31,

2011) (unpublished memorandum).

       On September 11, 2008, the trial court sentenced Appellant to not less

than fifteen nor more than thirty years of incarceration for the attempted

murder conviction, and imposed a consecutive sentence of ten years of

probation for aggravated assault.          The court imposed no sentence on the

remaining counts.

       Appellant filed a direct appeal on October 9, 2008, which this Court

dismissed for failure to file a brief. On December 1, 2009, after finding that

Appellant’s counsel had abandoned him, this Court granted Appellant’s

request to file a direct appeal nunc pro tunc, and appointed new counsel. On

January 31, 2011, this Court affirmed Appellant’s conviction and sentence.

See Taylor. The Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on July 31, 2012.

       Appellant filed the instant PCRA petition, his first, on December 14,

2012. The PCRA court appointed counsel, who filed an amended petition on

March 2, 2015. The PCRA court granted the petition, in part, agreeing that

the sentences for aggravated assault and attempted murder should have

merged, and denied Appellant’s other claims for relief.2 This timely appeal

followed.

____________________________________________


2 The PCRA court vacated the ten-year probation sentence for aggravated
assault, and merged the sentences for aggravated assault and attempted
murder.

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      Appellant raises one question on appeal.

      1. Whether the PCRA [c]ourt erred by denying [Appellant] post-
         conviction relief because trial counsel was ineffective for failing
         to file a post-sentence motion and preserve the claim that the
         verdict was against the weight of the evidence[?]

Appellant’s Brief, at 2.

      Our scope and standard of review is as follows.

            We review the denial of PCRA relief for a determination of
      whether the PCRA court’s findings are supported by the record and
      free of legal error. A petitioner is eligible for PCRA relief only when
      he proves by a preponderance of the evidence that his conviction
      or sentence resulted from one or more of the circumstances
      delineated in 42 Pa.C.S.[A.] § 9543(a)(2).

            To be eligible for relief under the PCRA, an appellant must
      prove that his conviction resulted from one of several enumerated
      events, including the ineffective assistance of counsel.

             It 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. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
      973, 975-76 (1987); Strickland v. Washington, 466 U.S. 668,
      104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The PCRA court may
      deny an ineffectiveness claim if “the petitioner’s evidence fails to
      meet a single one of these prongs.”           Commonwealth v.
      Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (2000). . . .
      Because courts must presume that counsel was effective, it is the
      petitioner’s burden to prove otherwise.

Commonwealth v. Johnson, 179 A.3d 1105, 1113–14 (Pa. Super. 2018),

appeal denied, 197 A.3d 1174 (Pa. 2018) (some citations and formatting

omitted).



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      Here, Appellant claims that the verdict was against the weight of the

evidence because the victim testified that he did not see and could not identify

who shot him, and the Commonwealth’s eyewitness testified that he could

neither see the shooter’s face, nor describe the shooter. See Appellant’s Brief,

at 10. Therefore, Appellant argues that the credibility of the Commonwealth’s

witnesses is in question, and trial counsel was ineffective for failing to file a

post sentence motion preserving his claim that the verdict was against the

weight of the evidence. We disagree.

      “It is well-settled that a weight of the evidence claim must be preserved

in a motion before the trial court, and that this Court will only review the trial

court’s exercise of discretion in considering whether a new trial is necessary.”

Commonwealth v. Smith, 181 A.3d 1168, 1186 (Pa. Super. 2018), appeal

denied, 193 A.3d 344 (Pa. 2018) (citations omitted).

      [O]ne 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. A new trial is warranted in this
      context only when the verdict is so contrary to the evidence that
      it shocks one’s sense of justice and the award of a new trial is
      imperative so that right may be given another opportunity to
      prevail.

Id. at 1187 (brackets in original; citation omitted).

      Here, the PCRA court rejected Appellant’s claim of ineffective assistance

of counsel. Specifically, it found that the victim “knew the Appellant, was able

to identify him, and recanted out of fear of retaliation.” PCRA Court Opinion,

11/29/18, at 7. Therefore, it held that because the verdict did not shock the


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conscience, the underlying claim lacked merit, and Appellant failed to meet

the first prong of the Pierce test.

      Upon review, we conclude that the PCRA court’s findings are supported

by the record.    Appellant did not meet his burden to prove ineffective

assistance of counsel because he failed to show that his underlying weight

claim had arguable merit. See Smith, supra at 1186. Accordingly, we hold

that the PCRA court did not err by denying Appellant relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/19




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