J-S21028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

JAMES GRAHAM

                             Appellant               No. 2344 EDA 2014


                   Appeal from the PCRA Order July 14, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010428-2007


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                            FILED APRIL 08, 2015

        James Graham appeals from an order dismissing his first petition

under the Post Conviction Relief Act (“PCRA”). We affirm.

        Following a dispute in a pick-up basketball game, Graham shot and

killed Albert Hughes. Three eye-witnesses identified Graham to police as the

shooter. A jury convicted him of third-degree murder1 and possession of an

instrument of crime (“PIC”).2 The court sentenced him to consecutive terms

of 15-40 years’ imprisonment for third degree murder and 2½-5 years’

imprisonment for PIC.            Graham did not file post-sentence motions
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(c).
2
    18 Pa.C.S. § 907.
J-S21028-15


challenging the length of his sentence. He did, however, file a timely direct

appeal. On October 8, 2010, this Court affirmed his judgment of sentence,

and on March 8, 2011, the Supreme Court denied his petition for allowance

of appeal.

      On April 4, 2011, Graham filed a pro se PCRA petition. The PCRA court

appointed counsel to represent him, and counsel filed an amended PCRA

petition and two supplemental PCRA petitions.         In his final supplemental

petition, PCRA counsel alleged that trial counsel was ineffective for: (1)

failing to file post-sentence motions challenging the weight of the evidence;

(2) failing to file post-sentence motions challenging the length of Graham’s

sentence; and (3) advising Graham to reject three plea offers based on his

assurance that he could win the case. On July 14, 2014, the PCRA court

held an evidentiary hearing and dismissed the petition.          Graham filed a

timely notice of appeal, and both Graham and the PCRA court complied with

Pa.R.A.P. 1925.

      In this appeal, Graham raises three issues:

             1. Whether the PCRA Court erred in failing to grant
             [Graham]’s motion for implementation of a pre-trial
             offer of 7½ to 15 years’ incarceration when
             [Graham] proceeded to verdict based on the
             unreasonable recommendation of trial counsel that
             he could beat the case and for failing to find that trial
             counsel provided ineffective assistance of counsel for
             making such a representation where counsel’s
             representations violated [Graham]’s constitutional
             rights to legal counsel under the 6th and 14th
             Amendments of the U.S. Constitution, and article I,
             [section] 9 of the Pennsylvania Constitution?

                                       -2-
J-S21028-15



            2. Whether [Graham] was denied his right to counsel
            in violation of the 6th and 14th Amendments of the
            U.S. Constitution, and in violation of [article I,
            section 9 of] the Pennsylvania Constitution where
            [Graham] was abandoned when trial counsel’s
            inaction resulted in the waiver of [Graham]’s post
            sentence rights, i.e., his right to an effective appeal
            which resulted in prejudice to [Graham]?

            3. Whether the trial court imposed an illegal
            sentence where [Graham] was sentenced for third
            degree homicide where the statute is vague and
            unconstitutional?

Brief For Appellant, p. 5.

      Our standard of review from the grant or denial of post-conviction

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.

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997). “The PCRA

court’s factual determinations are entitled to deference, but its legal

determinations are subject to our plenary review.” Commonwealth v.

Hawkins, 894 A.2d 716, 722 (Pa.2006); see also Commonwealth v.

Jones, 912 A.2d 268, 293 (Pa.2006) (“the findings of a post-conviction

court, which hears evidence and passes on the credibility of witnesses,

should be given great deference”); Commonwealth v. White, 734 A.2d

374, 381 (Pa.1999) (appellate court is bound by credibility determinations of

PCRA court where determinations are supported by record).

      Our standard of review for claims of ineffective assistance of counsel is

well settled.   Counsel is presumed to be effective, and the burden of

                                     -3-
J-S21028-15


demonstrating ineffectiveness rests on the appellant.      Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010). A petitioner must show (1)

that the underlying claim has merit; (2) counsel had no reasonable strategic

basis for his or her action or inaction; and (3) but for counsel’s errors or

omissions, there is a reasonable probability that the outcome of the

proceedings would have been different. Id. The failure to prove any one of

the three prongs results in the failure of the petitioner’s claim. Id.


      In his first argument, Graham alleges that trial counsel advised him

against accepting an offer of 7½-15 years’ imprisonment and assured him

that he would win the case. The PCRA court held, and we agree, that this

claim lacks arguable merit.

      During an evidentiary hearing on Graham’s PCRA petition, Beth

McCaffery, the assistant district attorney who prosecuted Graham, testified

that she conveyed only one offer to Graham: 22½-45 years’ imprisonment.

N.T., 7/14/14, p. 25.     In support of her testimony, the Commonwealth

submitted into evidence an email to McCaffery from her supervisor

approving this offer. Id. at 28. Graham testified that the Commonwealth

made three offers: the first for 25-50 years’ imprisonment offered before the

first trial, the second for 12½-25 years’ imprisonment offered at the

beginning of the second trial, and the third for 7½-15 years’ imprisonment

offered while the jury was deliberating. Id. at 12-14, 19. Graham claimed

that trial counsel advised him to reject these offers because he had the case


                                      -4-
J-S21028-15


won. Id. Trial counsel testified that it is not his practice to tell clients that

he had a case won. Id. at 37-38. Trial counsel did not recall any offer of

7½-15 years’ imprisonment. Id. at 40.

      The PCRA court credited the testimony of McCaffery and trial counsel

that there was never any offer of 7½-15 years’ imprisonment.           Pa.R.A.P.

1925(a) Opinion, pp. 9-10.       The court further observed that Graham’s

credibility

              is undermined by his own pro se filings. In both
              [Graham]’s pro se petition and his affidavit dated
              May 25, 2014, [Graham] asserted that the second
              offer of [12½-25] years was conveyed pre-trial, not
              during trial as he testified. In his June 1, 2012
              supplemental pro se petition, [Graham] avers that
              trial counsel conveyed the offer of [7½-15] years the
              day before the second trial began, not while the jury
              deliberated as he testified. [Graham] has changed
              his version of events every time he has
              communicated with this Court.

Id. at 10.

      As stated above, we will not disturb the PCRA court’s findings of fact

and credibility determinations that have support in the record. The record

supports the PCRA court’s determination that the assistant district attorney

and trial counsel were credible and that Graham was not. The record further

supports the PCRA court’s determination that there was no offer of 7½-15

years’ imprisonment, and that the only offer was 22½-45 years. For these

reasons, we conclude that Graham’s claim that trial counsel was ineffective




                                      -5-
J-S21028-15


for advising him to reject an offer of 7½-15 years’ imprisonment lacks

arguable merit.

       In his second argument, Graham alleges that trial counsel was

ineffective for failing to file a post-sentence motion challenging the length of

his sentence.     According to Graham, counsel should have filed a post-

sentence motion asserting that his sentence was in excess of the sentencing

guidelines.   We agree with the PCRA court that this claim does not entitle

Graham to relief.

       Graham     was   sentenced   to    consecutive   terms   of   15-40   years’

imprisonment for third degree murder and 2½-5 years’ imprisonment for

PIC.   Graham has waived any claim that his PIC sentence is excessive by

failing to develop any argument relating to PIC in his appellate brief.

Lackner v. Glosser, 892 A.2d 21, 29–30 (Pa.Super.2006) (“arguments

which are not appropriately developed are waived”).

       Graham contends that his proper minimum sentence for third degree

murder under the guidelines is 7½ years’ imprisonment. This, too, is waived

due to the absence of the sentencing hearing transcript from the certified

record.   Commonwealth v. Houck, 102 A.3d 443, 456 (Pa.Super.2014)

(where appellant has not made transcript of the proceedings at issue a part

of the certified record, any claims that cannot be resolved in the absence of

the necessary transcript are waived for purpose of appellate review). Even if




                                         -6-
J-S21028-15


Graham had preserved this issue, it is devoid of merit. In our memorandum

affirming Graham’s judgment of sentence on direct appeal, we wrote:

              [Graham’s] claim [that his sentence is excessive] is
              belied by the record. With a prior record score of
              zero (0), an offense gravity score of fourteen (14),
              and    the    applicable    deadly    weapon   ‘used’
              enhancement, the standard range for [Graham’s]
              third degree murder conviction was seven and one-
              half (7½) to twenty (20) years. Thus, [Graham’s]
              minimum      sentence     of   fifteen   (15)   years
              imprisonment actually fell within the standard range
              of the sentencing guidelines.

Commonwealth v. Graham, 2397 EDA 2009, p. 7 (Pa.Super., Oct. 8,

2010).3

       In his final argument, Graham asserts that the provision defining third

degree murder, 18 Pa.C.S. § 2502(c), is void for vagueness. Graham has

waived this claim for failure to raise it in his pro se or amended PCRA

petitions.   Commonwealth v. Elliott, 80 A.3d 415, (Pa.2013) (petitioner

waived claim that trial counsel rendered ineffective assistance by failing to

meet with him personally prior to trial or otherwise prepare for trial, because

petitioner failed to include this claim in PCRA petition or obtain permission to
____________________________________________


3
  Graham also claimed in his PCRA petition that trial counsel was ineffective
for failing to file a post-sentence motion challenging the weight of the
evidence. The PCRA court explained in its Pa.R.A.P. 1925(a) opinion that
the weight of the evidence overwhelmingly supported Graham’s convictions.
Pa.R.A.P. 1925(a) Opinion, pp. 3-6. In this appeal, Graham failed to
develop any argument relating to the weight of the evidence. Accordingly,
he has waived this claim. Lackner, 892 A.2d at 29-30. Even if he had
preserved this argument, we agree with the PCRA court’s cogent analysis of
this question.



                                           -7-
J-S21028-15


amend his petition to include the issue); see generally Pa.R.A.P. 302(a)

(“issues not raised in the lower court are waived and cannot be raised for

the first time on appeal”). While PCRA counsel made the vague comment

during the PCRA evidentiary hearing that section 2502(c) is “unconstitutional

because it doesn’t give anyone notice of the type of sentence that you would

receive,” N.T., 7/14/14, pp. 56-57, he failed to develop this argument any

further. His passing remark did not preserve this issue for appeal.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015




                                    -8-
                                                                                             Circulated 03/18/2015 01:48 PM




                                      IN THE COURT OF COMMON PLEAS
____ J                           FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                          CRIMINAL TRIAL DIVISION


            COMMONWEALTH OF PENNSYLVANIA                            CP-51-CR-0010428-2007


                    v.
                                                                                                   FILED
            JAMES GRAHAM
                                                        OPINION
                                                                                             AUG    r-3 2014
                                                                                            Post Trial Unit
            Mclrermott, J.                                                                August 13, 2014

            Procedural History

                    On March 16, 2007, the petitioner, James Graham, was arrested and charged with Murder

            and Possession of an Instrument of Crime (PIC). On June 23, 2008, the Honorable Carolyn Engel

            Temin declared a mistrial after the jury could not return a verdict. On May 11, 2009, after a

            second trial, the jury found petitioner guilty of Third Degree Murder and PIC.

                   On July 24, 2009, the trial court sentenced petitioner to fifteen to forty years of

         • imprisonment for Third Degree Murder and a consecutive term of two and one-half to five years

            of imprisonment for PIC, for a total sentence of seventeen and a half to forty five years of

            imprisonment.

                   On August 13, 2009, petitioner filed a Notice of Appeal. On October 8, 2010, the

            Superior Court of Pennsylvania affirmed petitioner's judgment of sentence, rejecting petitioner's

           challenges to the weight of the evidence and his sentence. On March 8, 2011, the Supreme Court

           of Pennsylvania denied petitioner's Petition for Allowance of Appeal.

                   On April 4, 2011, petitioner filed a prose Post Conviction Relief Act (PCRA) petition.

           On October 26, 2011 PCRA counsel was appointed to represent petitioner. On January 27, 2012,
                                 1




                                                                     EXHIBIT.      A
                                                                               Circulated 03/18/2015 01:48 PM




PCRA counsel filed an amended PCRA petition. On June 1, 2012, petitioner filed a second pro

se PCRA petition alleging ineffective assistance of trial counsel. On April 1, 2014, PCRA

counsel filed a supplemental PCRA petition incorporating petitioner's allegation that trial

counsel advised him against taking three plea offers. On June 18, 2014, PCRA counsel filed

another supplemental PCRA petition that included an affidavit by the petitioner. On July 14,

2014, this Court held an evidentiary hearing, after which this Court dismissed the petition. On

August 12, 2014, petitioner filed a Notice of Appeal.



       The Honorable Carolyn Engel Temin summarized the facts of this case in her November

30, 2009 Opinion:

                  On March 12, 2007, at approximately two o'clock p.m., a
              group of basketball players arrived at Dickinson Square Park, a
              neighborhood park with a basketball court, a recreation center, and
              a playground, surrounded by 3rd Street, 4th Street, Morris Street,
              and Tasker Street. George Ocasio ("Ocasio") and Justin Davis
              ("Davis") arrived in Ocasio's white Mercury Sable and parked on
              Morris Street. Mark Wilson ("Wilson'\ David Stokes ("Stokes"),
              Terrell Drummond ("Drummond'\ and Hughes arrived together in
              Wilson's silver Oldsmobile Intrigue. They parked directly behind
         •    Ocasio' s car on Morris Street. William Duncan ("Duncan") parked
              his blue Grand Marquis directly behind Wilson's car.
                  Duncan, Ocasio, and Davis were from 5th Street and played for
              one team. Stokes, Drummond, and Wilson were from 7th Street and
              played for the other team. Most of the players had known each
              other for years. Each team bet $300 on the game. Markel White
              ("White"), Graham, and Graham's brother, Kareem Graham
              ("Kareem"), all from 5th Street, sat next to the basketball court and
              watched the game, along with Hughes from 7th Street. There were
              many other people in the park at that time as well-some watching
              the game, others playing on the playground. (Footnote omitted).
                  The game went on for approximately twenty minutes until a
              foul call started an argument between the two teams. Stokes and
              Graham were verbally arguing when Stokes asked Hughes to pass
              him his gun. When Hughes passed Stokes a gun, people began to
              leave the basketball court. Stokes, Hughes, and Drummond walked
              back to Wilson's Oldsmobile. Stokes entered the passenger seat,

                                                                                                  2
                                                                                 Circulated 03/18/2015 01:48 PM




                while the other two men sat in the backseat, Hughes behind the
                driver seat, and Drummond behind the passenger seat.
                    From approximately 50-55 yards away from the car, on a
                pathway in Dickinson Square Park, Graham pulled out a gun,
                aimed it with two hands at the Oldsmobile and fired twice at the
               car. Two fired cartridge casings were found on the pathway where
               witnesses placed Graham.
                    One of the shots went through the glass window of the
               Oldsmobile and hit Hughes in his head. He was taken to the
               hospital and on March 13, 2007, he was pronounced dead as a
               result of this gunshot wound. The Medical Examiner did find
               stipling on Hughes' face which he testified could be a result of a
               close range shot or due to the shattered car window glass.
                    On March 13, 2007, March 15, 2007, and March 19, 2007,
               respectively, Duncan, White, and Davis gave statements to
               detectives identifying Graham as the shooter. On March 16, 2007,
               an arrest warrant was issued for Graham and the Fugitive Squad
               went to his house that morning at 6 a.m. When the police saw a
               man fitting Graham's description, he showed them identification
               with the name "Malik Lamore Graham" and claimed that he was
               Graham's brother. However, when police investigated further, this
               man was in fact Graham himself. He was arrested at this time. On
               May 17, 2007, Kareem, Graham's brother, told a social worker at
               his juvenile detention facility that he had witnessed his brother
               murder someone. The social worker called Homicide Headquarters
               and Kareem gave a statement identifying Graham as the shooter on
               March 12.

Commonweath v, Graham, Opinion Sur PA. R.A.P. 1925(a) (filed November 30, 2009).
                       ..

       In her amended petitioner PCRA counsel alleges trial counsel was ineffective for: (1)

failing to challenge that the weight of the evidence; (2) failing to challenge the length of

petitioner's sentence; and (3) advising petitioner to reject three plea offers based on counsel's

assurance that he could win the case.

       To warrant relief based on a claim of ineffective assistance of counsel, a petitioner must

show that such ineffectiveness "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." Commonwealth v. Jones, 912 A.2d 268, 278 (Pa 2006); 42 Pa.C.S. § 9543(a)(2)(ii).
                                                                                                    3
                                                                                  Circulated 03/18/2015 01:48 PM




 Counsel is presumed to have rendered effective assistance. Commonwealth v, Weiss, 81 A.3d

 767, 783 (Pa. 2013)(citing Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012)).

        To overcome the presumption, the petitioner has to satisfy the performance and prejudice

test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court of

Pennsylvania has applied the Strickland test by looking to three elements, whether: (1) the

underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or

failure to act; and (3) the petitioner has shown that he suffered prejudice as a result of counsel's

lapse, i.e., that there is a reasonable probability that the result of the proceeding would have been

different. Commonwealth v. Bennett, 57 A.3d 1185, 1195-96 (Pa. 2012)(citing Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987)). If a claim fails under any necessary element of the

Strickland test, the court may proceed to that element first. Bennett, 57 A.3d at 1195-96. Counsel

will not be deemed ineffective for failing to raise a meritless claim. Jones, 912 A.2d at 278

(citing Commonwealth v. Darrick Hall, 701 A.2d 190, 203 (Pa. 1997)).

        An allegation that the verdict is against the weight of the evidence is addressed to the

sound discretion of the trial court. Commonwealth v, Widmer, 744 A.2d 745, 751-752 (Pa. 2000);

Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super. 2005). The fact finder is free to

believe all, part, or none of the evidence and to determine the credibility of the witnesses.

Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008). A new trial should not be granted

because of a mere conflict in the testimony or because the judge on the same facts would have

arrived at a different conclusion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)(citing

Widmer, 744 A.2d at 752).

       Our Superior Court has explained that the test is whether the evidence is "so tenuous,

vague and uncertain that the verdict shocks the conscience of the court." Commonwealth v.



                                                                                                       4
                                                                                 Circulated 03/18/2015 01:48 PM




Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003). For one to prevail on a challenge of the weight of

the evidence, the jury's verdict must be so contrary to the evidence as to shock one's sense of

justice. Id (citing Commonwealth v. Goodwine, 692 A.2d 233, 236 (Pa. Super. 1997)).

        In Commonwealth v. Luster, 71 A.3d 1029, 1049 (Pa. Super. 2013) appeal denied, 83

A.3d 414 (Pa. 2013), the Superior Court affirmed the PCRA court's dismissal of appellant's

allegation that trial counsel was ineffective for failing to raise a challenge to the weight of the

evidence where the petitioner was convicted of Murder after beating a woman and leaving her on

a highway, where she was subsequently nm over. The PCRA court determined that even if the

claim had been raised, it would have found that "the jury's verdict was not so contrary to the

evidence as to shock one's sense of justice" and that it "would not have granted a new trial on a

weight of the evidence argument." Id. (citing PCRA Court Opinion, 2/28/11, at 4-5 (emphasis

supplied)).

        In the instant case, trial counsel did not file a motion challenging the weight of the

evidence. Even if counsel had raised such a challenge, the issue is meritless and the trial court

would have denied such a motion. First, petitioner argues the verdict was against the weight of

the evidence because the witnesses did not name him as the shooter at trial. Petitioner is correct

that none of the eyewitnesses identified him as the shooter at trial) claiming that they did not see

the shooting or did not remember the incident. However, three eyewitnesses, including the

petitioner's brother, identified the petitioner as the shooter to Homicide detectives in their formal

statements. N.T. 5.5.2009 at 216, 218-220; N.T. 5.6.2009 at 192, 195; N.T. 5.7.2009 at 97-103,

200, 207-211, 269-271, 307-310. Duncan and White identified petitioner as the shooter within

three days after the shooting and petitioner's brother identified the petitioner about two months

after the shooting. Rashida Ingram, a social worker, testified at trial that in May of 2007



                                                                                                       5
                                                                                  Circulated 03/18/2015 01:48 PM




petitioner's brother told her he had seen his brother murder a man named A.J. at a playground.

N.T. 5.6.2009 at 83. Although the witnesses changed their testimony at trial, their statements

were competent evidence for the jury to consider. See Commonwealth v. Brady, 507 A.2d 66

(Pa. 1986)(permitting the admission, as substantive evidence, of prior inconsistent statements by

a non-party witness); Commonwealth v. Lively, 630 A.2d 7, 8 (Pa. 1992). The fact-finder is free

to believe all, part, or none of the evidence, and credibility determinations rest solely within the

purview of the fact-finder. Commonwealth v. Treiber, 874 A.2d 26, 30 (Pa. 2005). It is well

within the jury's fact finding purview to credit the eyewitnesses' original signed statements

identifying petitioner as the shooter, which were given, in the case of Duncan and White, within

days of the murder. The weight of the identification evidence overwhelmingly supported

conviction of the petitioner.

        The petitioner also alleges that the location of the recovered fired cartridge casings, fifty

feet away from the decedent, is inconsistent with the assistant medical examiner's testimony that

there was gunpowder stippling present on victim. Petitioner asserts that this fact requires the

conclusion that the decedent was shot from close range. Petitioner is mistaken. The firearms

expert testified that the projectile had been fired through a car window before entering the head

of the decedent. N.T. 5.7.2009 at 174. The assistant medical examiner offered two possible

explanations for the stippling present on the victim's face: the stipple could have come from

either the shattered car window glass or from a close range shot. N.T. 5.7.2009 at 245-251. The

witness statements buttress the former explanation as they all saw a non-close range shooting.

The totality of the evidence proved that petitioner shot the victim with a bullet that passed

through a car window spraying the victim's face with stippling.




                                                                                                        6
                                                                                   Circulated 03/18/2015 01:48 PM




        Petitioner's allegations in no way undermine the strength of the evidence against him.

The jury's verdict was not against the weight of the evidence and, if counsel had raised a weight

of the evidence claim, it would have been rejected as meritless. As stated in Jones, counsel is not

ineffective for failing to raise a meritless claim. Thus, the petitioner's request for relief on the

issue of weight of the evidence must be denied.

        Petitioner claims that counsel was ineffective for failing to challenge the petitioner's

sentence. The petitioner alleges that his sentence falls in excess of the sentencing guidelines.

While the Superior Court found that this claim was waived, it addressed the merits of the issue:

                Moreover, Appellant's claim is belied by the record. With a prior
                record score of zero (0), an offense gravity score of fourteen (14),
                and the applicable deadly weapon "used" enhancement, the
                standard range for ApBellant's third degree murder conviction was
                seven and one-half (7 12) to twenty (20) years. Thus, Appellant's
                minimum sentence of fifteen (15) years imprisonment actually fell
                within the standard range of the sentencing guidelines.
        Commonwealth v. Graham, 2397 EDA 2009 (filed October 8, 2010).

        Petitioner has failed to prove, under 42 Pa.C.S. § 9543(a)(3), that the issue has not been

previously litigated or waived. Even if this issue had not been previously litigated, it is meritless.
                  .                                                           .
As noted by the Superior Court, petitioner's sentence for Third Degree Murder was well within

standard range of the sentencing guidelines. Petitioner was also sentenced to a consecutive two

and a half to five years of imprisonment for his PIC conviction. This Court recognizes that the

petitioner's sentence for the PIC charge was outside the sentencing guidelines; however, the

sentence was within the statutory limit and the trial court stated its reasons for the departure.

Commonwealth v. Warren, 84 A.3d 1092, 1097 (Pa. Super. 2014)(when sentencing a defendant

beyond the ranges recommended by the sentencing guidelines, the trial court must state its

reasons for departing from the guidelines on the record).



                                                                                                       7
                                                                                 Circulated 03/18/2015 01:48 PM




        At sentencing, the trial court had the benefit of a presentence report, mental health report,

 and the testimony of multiple Commonwealth and defense witnesses. The trial court

 demonstrated an understanding of the sentencing guidelines. N.T. 7.29.2009 at 8. Taking all of

this information into consideration, the court found it was necessary to keep the petitioner under

supervision for a significant period of time because of his extensive history of aggressive

behavior. Id. at 58p59. Petitioner's total sentence of seventeen and a half to forty five years of

imprisonment was reasonable and well under the Commonwealth's          recommendation of twenty

two and a half to forty five years. Id at 56. Trial counsel was not ineffective for failing to

challenge petitioner's sentence where the trial court crafted an individualized and reasonable

sentence. This claim is meritless,

        Petitioner alleges that trial counsel advised him against accepting a series of three plea

offers. The petitioner contends that trial counsel advised petitioner that he would win the case.

An attorney has a duty to communicate a plea offer to his client and to explain the advantages

and disadvantages of the offer. Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa. Super.

2001). "As a general rule, defense counsel has the duty to communicate formal offers from the
                              ..                                                         ..
prosecution to accept a plea on terms and conditions that may be favorable to the accused."

Missouri v. Frye, 132 S. Ct. 1399, 1408, 182 L. Ed. 2d 379 (2012)(counsel rendered ineffective

assistance for failing to convey a plea offer to appellant before it expired). Failure to do so may

be considered ineffectiveness of counsel if the petitioner is sentenced to a longer prison term

than the term he would have accepted under the plea bargain. Id (citing Commonwealth v.

Korb, 617 A.2d 715, 716 (Pa. Super. 1992)); see Commonwealth v. Copeland. 554 A.2d 54, 60-

61 (Pa. Super. 1988). In the context of plea agreements, petitioner can show prejudice under the

Strickland test if he establishes that the outcome of the plea decision would have been different


                                                                                                      8
                                                                                    Circulated 03/18/2015 01:48 PM




 with competent advice from counsel. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012)(citing

Missouri v. Frye, 132 S. Ct. 1399, 1388~1389).

         In Lafler v. Cooper. both parties conceded that counsel's representation fell below the

objective standard of reasonableness when respondent's counsel advised the respondent to reject

a plea offer on the grounds that the respondent could not be convicted at trial. The Supreme

Court found that the respondent demonstrated prejudice as he was convicted at trial and received

a sentence three and a halftimes greater than the sentence offered in the plea deal. Id at 1391.

The Court explained that a "petitioner who goes to trial instead of taking a more favorable plea

may be prejudiced from either a conviction on more serious counts or the imposition of a more

severe sentence." Id. at 1386.

        Here, petitioner cannot show that trial counsel's representation fell below an objective

standard of reasonableness; nor can he demonstrate prejudice. As a matter of fact, this Court

finds that the only offer ever conveyed to petitioner was an offer of twenty two and a half to

forty five years. This offer was conveyed by trial counsel to the petitioner prior to the first trial.

No other offers were made to the petitioner at any point during either trial. This Court accepts the

testimony of the Assistant District Attorney that she conveyed only one offer to the petitioner:

twenty two and a half to forty five years of incarceration. N.T. 7.14.2014 at 25. Her testimony

was supported by an email from her supervisor approving this offer. Id at 28.

        Petitioner's assertions to the contrary are not credible. At the evidentiary hearing

petitioner testified that trial counsel advised him against accepting three plea offers: the first for

twenty five to fifty years offered before the first trial) the second for twelve and a half to twenty-

five years offered at the beginning of the second trial, and the third for seven and a half to fifteen

years, offered while the jury was deliberating. N.T. 7.14.2014 at 12-14, 19. Specifically)



                                                                                                         9
                                                                                   Circulated 03/18/2015 01:48 PM




 petitioner claims trial counsel advised him that he had the case won. Trial counsel credibly

 testified that it is not his practice to tell clients that he had a case won. N.T. 7.14.2014 at 37-38.

 Petitioner's credibility is undermined by his own prose filings. In both petitioner's prose

 petition and his affidavit dated May 25, 2014, petitioner asserted that the second offer of twelve

 and a half to twenty five years was conveyed pre-trial, not during trial as he testified. In his June

 l, 2012 supplemental pro se petition, petitioner avers that trial counsel conveyed the offer of

seven and a half to fifteen years the day before the second trial began, not while the jury

deliberated as he testified. Petitioner has changed his version of events every time he has

communicated with this Court.

        This Court finds that trial counsel properly conveyed the sole plea offer of twenty two

and a half to forty five years to the petitioner and did not advise petitioner against accepting the

offer on the grounds that he would not be convicted at trial. Petitioner, of his own voluntary free

will, declined said offer. Petitioner has not demonstrated that trial counsel's representation fell

below an objective standard ofreasonableness by way of giving unsound advice to persuade the

petitioner to reject his sole plea offer.,

        Petitioner has also failed to establish prejudice. Petitioner was offered a sentence of

twenty two and a half to forty years in exchange for pleading guilty to Third Degree Murder and

PIC. By rejecting this offer and going to trial, petitioner was convicted to Third Degree Murder

and PIC. Petitioner was subsequently sentenced to seventeen and a half to forty years of

imprisonment. Clearly, petitioner's rejection of the plea offer resulted in a more lenient sentence

on the same charges. The petitioner's third issue is without merit.




                                                                                                      10
                                                                              Circulated 03/18/2015 01:48 PM




        The petition does not meet the requirements of an ineffective assistance of counsel claim

and does not merit substantive relief under the Post-Conviction Relief Act. For the foregoing

reasons, the decision of this Court should be affirmed.

                                                            BY THE COURT,




                                                            Barbara A. McDermott, J.




                                                                                                11
                                                                               Circulated 03/18/2015 01:48 PM



 Commonwealth v, James Graham
 CP-5 l-CR-0010428-2007
                                        PROOF OF SERVICE

       I hereby certify that I am this day serving the foregoing filing upon the person/s), and in the
manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:

                            Philadelphia    District Attorney's Office
                            Three South     Penn Square
                            Philadelphia,    PA 19107
                            Attn: Robin     Godfrey, Esquire

Type of Service:            Hand Delivery

                            Sandjai Weaver, Esquire
                            1315 Walnut Street, Suite 1624
                            Philadelphia, PA 19107

Type of Service:            First-Class Mail

                            James Graham
                            JE2934
                            SCI Coal Township
                            1 Kelley Drive
                            Coal Township, PA 17866-1020

Type of Service:            First-Class Mail



Dated: August 13, 2014




~
Law Clerk to the
Honorable Barbara A. McDermott
