J-S47026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

ELBERT JOHNSON

                          Appellant                     No. 2776 EDA 2016


                  Appeal from the PCRA Order August 8, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0015349-2007


BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                        FILED DECEMBER 07, 2017

      Elbert Johnson appeals from the August 8, 2016 order entered in the

Philadelphia County Court of Common Pleas dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

We affirm.

      We set forth the factual and procedural history of this matter in a

previous memorandum where we reinstated Johnson’s appellate rights nunc

pro tunc.     See Commonwealth v. Johnson, No. 1221 EDA 2012,

unpublished mem. at 2 (Pa.Super. filed Apr. 23, 2013) (quoting Trial Ct. Op.,

7/18/12, at 1-2, and adopting trial court’s recitation of relevant factual history,

id. at 2-7). The Pennsylvania Supreme Court denied Johnson’s petition for

allowance of appeal on September 17, 2013.
J-S47026-17



      On December 30, 2013, Johnson filed a pro se PCRA petition. The PCRA

court appointed counsel, who subsequently filed an amended PCRA petition

on January 20, 2016. On April 27, 2016, the Commonwealth filed a motion

to dismiss. On July 6, 2016, the PCRA court sent notice of intent to dismiss

Johnson’s petition without a hearing pursuant to Pennsylvania Rule of Criminal

Procedure 907. On August 8, 2016, the PCRA court dismissed the petition.

Johnson timely filed a notice of appeal.

      Johnson raises the following issues on appeal:

         I.    Whether the court erred in denying [Johnson]’s PCRA
               petition without an evidentiary hearing on the issues
               raised in the amended PCRA petition regarding trial
               counsel’s ineffectiveness.

         II.   Whether the court erred in not granting relief on the
               PCRA petition alleging counsel was ineffective.

Johnson’s Br. at 8 (answers below omitted).

      Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error. We will not disturb

findings that are supported by the record.” Commonwealth v. Ousley, 21

A.3d 1238, 1242 (Pa.Super. 2011) (internal citation omitted).

      Furthermore, the right to an evidentiary hearing on a PCRA petition is

not absolute. Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.Super.

2008). “[I]f the PCRA court can determine from the record that no genuine

issues of material fact exist, then a hearing is not necessary.” Id. (quoting

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008)).                “A

                                     -2-
J-S47026-17


reviewing court must examine the issues raised in the PCRA petition in light

of the record in order to determine whether the PCRA court erred in concluding

that there were no genuine issues of material fact and in denying relief without

an evidentiary hearing.” Id.

       Johnson claims that trial counsel was ineffective for failing to file a post-

sentence motion to reconsider sentence.1

       We conclude that Johnson has waived this issue. Under section 9544(b)

of the PCRA, “an issue is waived if the petitioner could have raised it but failed

to do so before trial, at trial, . . . on appeal or in a prior state postconviction

proceeding.” 42 Pa.C.S. § 9544(b). We have held that the waiver provision

of the PCRA applies to improperly raised claims:

           We note that the PCRA’s definition of waiver speaks only of
           claims that could have been raised, but were not. See 42
           Pa.C.S.[] § 9544(b). It does not specifically address claims
           that were raised, but raised improperly. Nonetheless, we
           see no reason the definition would not apply to both types
           of waiver; thus, we assume it applies to all claims not
           preserved, whether by omission or imprecision . . . .

Commonwealth v. Jones, 932 A.2d 179, 182 (Pa.Super. 2007) (emphasis

in original).

       In Johnson’s first amended PCRA petition, filed on October 7, 2011,

Johnson requested that the PCRA court reinstate his right to file post-sentence

motions and his direct appeal rights nunc pro tunc. The PCRA court granted

____________________________________________


       Johnson filed an untimely pro se “Motion for Reconsideration and/or
       1

Reduction of Sentence” on June 24, 2009.


                                           -3-
J-S47026-17


the petition to reinstate his direct appeal rights, but denied his request to

reinstate his post-sentence motion rights. Johnson then appealed the PCRA

court’s decision to this Court.         We observed that “in his PCRA petition,

[Johnson] gave no reasons for why his post-sentence motion rights should be

reinstated.” Johnson, No. 1221 EDA 2012, unpublished mem. at 4. We also

noted that a PCRA court is free to reinstate a defendant’s right to file post-

sentence motions nunc pro tunc “[i]f a defendant successfully pleads and

prove that he was deprived of the right to file and litigate [post-sentence]

motions as a result of the ineffective assistance of counsel.”     Id. (quoting

Commonwealth v. Liston, 977 A.2d 1089, 1094 n.9 (Pa. 2009)). We agreed

with the PCRA court that Johnson’s claim was “‘completely unsupported’

because [Johnson] failed to plead and prove why post-sentence motion rights

should be reinstated.” Id. at 4-5.

       Because Johnson did not adequately plead and prove the issue of trial

counsel’s ineffectiveness for failing to file post-sentence motions when he

previously could have – that is, when he sought reinstatement of his post-

sentence motion rights nunc pro tunc in 2011 – we will not permit him to now

argue the identical issue. Accordingly, we conclude that he has waived this

issue.2 Because Johnson has waived this issue, there is no genuine issue of

____________________________________________


       2Even had Johnson not waived the issue, we would conclude that he is
not entitled to relief. Our Supreme Court has held that counsel’s failure to file
a post-sentence motion “does not fall within the limited ambit of situations



                                           -4-
J-S47026-17


material fact, and the PCRA court appropriately dismissed the petition without

an evidentiary hearing.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/2017




____________________________________________


where a defendant alleging ineffective assistance of counsel need not prove
prejudice to obtain relief.” Commonwealth v. Liston, 977 A.2d 1089, 1092
(Pa. 2009). In Commonwealth v. Reaves, the Court held:

          Whether . . . counsel can be deemed ineffective . . . depends
          upon whether appell[ant] has proven that a motion to
          reconsider sentence, if filed . . . , would have led to a
          different and more favorable outcome at . . . sentencing. In
          this context, the only way the proceeding would have been
          more favorable would be if counsel[] . . . secured a reduction
          in the sentence.

923 A.2d 1119, 1131-32 (Pa. 2007). Here, Johnson has failed to prove that
he would have received a more favorable sentence had trial counsel filed a
motion for reconsideration of sentence.


                                           -5-
