J-S50020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROGER WILLIAMSON                           :
                                               :
                       Appellant               :   No. 116 WDA 2019

            Appeal from the PCRA Order Entered December 19, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0002932-2007

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROGER CHARLES WILLIAMSON                   :
                                               :
                       Appellant               :   No. 118 WDA 2019

            Appeal from the PCRA Order Entered December 19, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0000155-2016


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                              FILED OCTOBER 1, 2019

        Roger Charles Williamson (Appellant) appeals from the order dismissing

his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-9546. Upon review, we remand with instructions.

        A prior panel of this Court summarized the facts of this case as follows:

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     . . . On November 24, 2015, emergency first responders received
     a call that an individual needed assistance. When the responders
     arrived at the scene, they found Appellant lying on the ground.
     Appellant reeked of alcohol; his speech was slurred; and, he was
     having difficulty sitting up. Appellant refused medical attention
     and attempted to stagger away. Shortly after, the police arrived
     and arrested Appellant for public intoxication. Appellant became
     resistant at the police station, so the officers placed Appellant in
     control holds and escorted him to his cell where Appellant
     forcefully resisted entering it. The officers pinned Appellant to the
     ground; Officer Gabriel Carducci’s arm was locked around
     Appellant’s head, near his mouth; and, Appellant bit Officer
     Carducci’s arm repeatedly, causing an open wound.

     That day, the Commonwealth charged Appellant with aggravated
     assault, resisting arrest or other law enforcement, and public
     drunkenness and similar misconduct. A jury trial ensued on June
     7, 2016, and the jury convicted Appellant of the above-mentioned
     charges on June 9, 2016. With the benefit of a pre-sentence
     investigation (“PSI”) report, the court conducted Appellant’s
     sentencing hearing on July 12, 2016. At the conclusion of the
     hearing, the court sentenced Appellant to twenty-seven (27) to
     fifty-four (54) months’ imprisonment for aggravated assault and
     nine (9) to eighteen (18) months’ imprisonment for resisting
     arrest or other law enforcement. The court imposed no further
     penalty for public drunkenness and similar misconduct. The court
     also revoked Appellant’s probation, at docket number 2932 of
     2007, and sentenced him to one (1) to two (2) years’
     imprisonment for the theft conviction related to that docket
     number. The court ordered Appellant to serve all of the sentences
     consecutively; thus, Appellant received an aggregate sentence of
     four (4) to eight (8) years’ imprisonment.

     Appellant   filed  a   post-sentence      motion     for   sentence
     reconsideration on July 18, 2016, claiming the court failed to
     fashion a sentence that properly took into account Appellant’s
     need for mental health treatment. The court denied relief the
     following day. Appellant timely filed a notice of appeal on July 22,
     2016, and an amended notice of appeal on July 25, 2016.

Commonwealth v. Williamson, 1081 WDA 2016, at *1-3 (Pa. Super. Mar.

3, 2017) (unpublished memorandum). On March 3, 2017, this Court affirmed



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Appellant’s judgment of sentence. Appellant filed a petition for allowance of

appeal, which was denied by the Pennsylvania Supreme Court on October 4,

2017.

        On July 16, 2018, Appellant filed the underlying PCRA petition.      The

PCRA court appointed counsel, who filed a no-merit letter asserting that the

petition was untimely.      On November 27, 2018, PCRA counsel filed a

supplemental PCRA, advising the court that Appellant’s PCRA petition was, in

fact, timely. In the supplemental petition, counsel raised additional claims of

prosecutorial misconduct.

        The PCRA court held a hearing on Appellant’s petition on December 18,

2018. At the conclusion of the hearing, the PCRA court put its findings of fact

and legal conclusions on the record. On December 19, 2018, the PCRA court

issued an order dismissing Appellant’s petition based on the reasons set forth

in the record at the hearing. This timely appeal followed.

        On appeal, Appellant presents the following issues for review:

        A. Whether the PCRA Court erred in failing to find that the
           content and quality of the videotape provided by the
           Commonwealth was suspect either for nefarious reasons or
           unwittingly and under either circumstance, the Court erred in
           failing to grant a new trial predicated on a finding of
           prosecutorial misconduct or bad faith?

        B. Whether the sentence imposed upon the appellant was illegal
           in that he was sentenced at a level 4 for aggravated assault
           and at level 3 for resisting arrest with a consecutive sentence
           imposed, which sentence was outside of the standard range of
           the sentencing guidelines without legal basis and constituting
           an excessive sentence?



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Appellant’s Brief at 2.

      We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.

      Appellant’s first issue concerns the admission of evidence at trial;

specifically, Appellant challenges the admission of a videotape depicting

Appellant’s interactions with police. Appellant’s argument on this issue is as

follows:

      [Appellant] now argues that the videotape furnished to the
      defense was incomplete or there was missing footage or that the
      videotape was tampered with. [Appellant] argues misconduct on
      the part of the Commonwealth in the nature of the police failing
      to comply with the discovery order in good faith by withholding or
      suppressing the videotape footage. [Appellant] makes further
      averments that the police purposely tampered with the videotape
      or suppressed a damaging portion thereof and thereby obstructed
      justice and deprived him or exculpatory evidence and a fair trial.

Appellant’s Brief at 4-5.

      Deficiencies in Appellant’s argument preclude relief. Notably, Appellant

incorrectly frames his issue as trial court error in admitting the videotape. The

PCRA, however, procedurally bars claims of trial court error, by requiring a

petitioner to show the allegation or error is not previously litigated or waived.

42 Pa.C.S.A. §§ 9543(a)(3), 9544. At the PCRA stage, claims of trial court


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error are either previously litigated (if raised on direct appeal) or waived (if

not). See Commonwealth v. Spotz, 18 A.3d 244, 260-01, 270 (Pa. 2011)

(rejecting claims of trial court error as either previously litigated where raised

on direct appeal or waived where not raised on direct appeal). Trial court

error may constitute the arguable merit prong of an ineffective assistance of

counsel claim, but the issue must be framed properly for a petitioner to be

entitled to relief. See Commonwealth v. Paddy, 15 A.3d 431, 449 n.11

(Pa. 2011) (citing the three-prong test for ineffectiveness stated in

Commonwealth v. Pierce, 527 A.2d 973, 975–76 (Pa. 1987), and

admonishing against conflating claims of ineffective assistance of counsel with

claims of trial court error). As our Supreme Court has stated, “[w]hen an

appellant fails to meaningfully discuss each of the three ineffectiveness

prongs, he is not entitled to relief . . . .” Commonwealth v. Fears, 86 A.3d

795, 804 (Pa. 2014). Here, Appellant has not discussed the reasonable basis

or prejudice prongs of the Pierce test. Accordingly, this claim is waived.

      In his second claim, Appellant challenges the legality of his sentence.

Although a challenge to the discretionary aspects of sentencing is subject to

waiver, the legality of a sentence cannot be waived.        Commonwealth v.

Schutzues, 54 A.3d 86, 91 (Pa. Super. 2012). Moreover, issues concerning

the legality of sentence are cognizable under the PCRA. See Commonwealth

v. Hockenberry, 689 A.2d 283, 288 (Pa. Super. 1997). Whether Appellant’s

challenge implicates the legality of his sentence presents a pure question of


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law. Commonwealth v. Foster, 17 A.3d 332, 340 n.13 (Pa. 2011). Our

standard of review is de novo and our scope of review is plenary.

      Appellant’s second issue, in its entirety, reads:

      The sentence imposed upon [Appellant] was illegal in that he was
      sentenced at a level 4 for aggravated assault and at level 3 for
      resisting arrest with a consecutive sentence imposed, which
      sentence was outside of the standard range of the sentencing
      guidelines without legal basis and constituting an excessive
      sentence.

Appellant’s Brief at 6.

      Ignoring the obvious deficiencies in Appellant’s argument, it appears

that Appellant is asserting that his sentence is excessive because the trial

court imposed a sentence outside of the standard range of the sentencing

guidelines.   This contention does not implicate the legality of Appellant’s

sentence. Instead, it is a challenge to the discretionary aspect of his sentence.

Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (“A

challenge to an alleged excessive sentence is a challenge to the discretionary

aspects of a sentence.”).

      This claim is waived for two reasons.      First, requests for relief with

respect to the discretionary aspects of sentence are not cognizable in PCRA

proceedings. Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super.

2007) (“Challenges to the discretionary aspects of sentencing are not

cognizable under the PCRA.”); see also Commonwealth v. Jordan, 772

A.2d 1011, 1016 (Pa. Super. 2001) (observing that “[t]his Court’s case law

has stated that a challenge to the discretionary aspects of sentencing is a



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matter that must be reviewed in the context of a direct appeal and cannot be

reviewed in the context of a PCRA.”); see also 42 Pa.C.S.A. § 9543(a)(2).

Second, Appellant’s argument on this issue fails to include citations to legal

authority and record citations.     See Pa.R.A.P. 2119(a) (requiring that an

appellant develop an argument with citation to and analysis of relevant legal

authority).

      Because all of Appellant’s issues have been waived for purposes of our

review, pursuant to Commonwealth v. Rosado, 150 A.3d 425 (Pa. 2016),

we are constrained to hold that Appellant’s counsel, William J. Hathaway,

Esquire (Counsel), was per se ineffective by filing a wholly defective appellate

brief. Our Supreme Court in Rosado explained:

      The Sixth Amendment to the United States Constitution provides
      that “in all criminal prosecutions, the accused shall enjoy the right
      . . . to have the Assistance of Counsel for his defence.” U.S. Const.
      amend. VI. The right to counsel is not a mere hollow formality
      satisfied by trial alongside a person who happens to be a lawyer,
      but, instead, is the right to the effective assistance of counsel.

      Generally, an accused asserting that he has been denied his
      constitutional right to effective assistance of counsel must
      demonstrate that counsel engaged in errors which caused him
      prejudice—i.e., that there is a reasonable probability that, but for
      counsel’s errors, the result of the proceeding would have been
      different . . . However, in certain limited circumstances, including
      the actual or constructive denial of counsel, prejudice may be so
      plain that the cost of litigating the issue of prejudice is unjustified,
      and a finding of ineffective assistance of counsel per se is
      warranted.

                                *     *      *

      [T]his Court has . . . held that errors which completely
      foreclose appellate review amount to a constructive denial

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      of counsel and thus ineffective assistance of counsel per
      se, whereas those which only partially foreclose such review are
      subject to the ordinary [Strickland v. Washington, 104 S. Ct.
      2052 (U.S. 1984)]/[Commonwealth v. Pierce, 527 A.2d 973
      (Pa. 1987)] framework.

Rosado, 150 A.3d at 431-32, 438-39 (some citations and footnotes omitted,

emphasis added).

      The argument section of Appellant’s brief is so inadequate that it has

resulted in waiver of all claims on appeal, and therefore, “[C]ounsel has

forfeited all meaningful appellate review.” Rosado, 150 A.3d at 440; see

also Johnson, 889 A.2d at 623. As evidenced by counsel’s waiver of both of

Appellant’s questions presented, Appellant was denied the assistance of

counsel. Thus, counsel was per se ineffective, and we remand the matter to

the trial court for the appointment of new counsel to represent Appellant on

appeal.

      For the foregoing reasons, we remand Appellant’s case to the trial court.

Upon remand, we direct the trial court to withhold compensation from counsel

for his appointment and representation in this matter.      The trial court is

directed to appoint competent appellate counsel within fifteen days of the date

of this memorandum. Following his or her appointment, new counsel shall

undertake all appropriate measures, including, if deemed necessary, the filing

of a cogent appellate brief on behalf of Appellant.

      Case remanded with instructions. Panel jurisdiction retained.




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