J-S08026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

KEVIN D. WEAVER

                        Appellant                   No. 1880 EDA 2014


               Appeal from the PCRA Order of June 20, 2014
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No.: CP-51-CR-0008078-2009


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                           FILED MARCH 13, 2015

     Kevin D. Weaver appeals from the order denying Weaver’s first,

counseled petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46, after an evidentiary hearing. We affirm.

     The PCRA court set forth the facts of this case as follows:

     On January 25, 2011, [Weaver] appeared before the [trial court]
     and entered a negotiated guilty plea to third-degree murder,
     possession of an instrument of crime[ (“PIC”),] and violation of
     the Uniform Firearms Act (VUFA). Evidence adduced at the
     hearing established that[,] at approximately 1:06 a.m. on March
     8, 2009, [Weaver] was observed pulling a black semi-automatic
     handgun from his van parked at or near 5243 South Irving
     Street[, Philadelphia, PA]. While [Weaver] was removing the
     gun from his van, the decedent, Idris Marion Jackson, parked his
     own van nearby. Decedent exited his vehicle and walked toward
     [Weaver]; as the decedent stepped onto the curb, [Weaver]
     began shooting. The decedent was struck six times (twice while
     the decedent was standing and four times while he was on the
     ground).    A witness who had watched these events unfold
     observed [Weaver] stand over the body and shoot the decedent
     twice in the head. Consequently, [the trial court] sentenced
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       [Weaver] to an aggregate term of twenty-two and one-half
       (22½) to fifty-two years of imprisonment.

       On February 2, 2011, a pro se motion for reconsideration of
       sentence was filed. On February 3, 2011, [the trial court]
       denied the motion. [Weaver] did not appeal.

       Thereafter, [on January 3, 2012, Weaver] filed a pro se petition
       for post-conviction relief raising a claim of actual innocence and
       ineffective assistance of counsel for failing to file a motion under
       Pa.R.Crim.P. 600(g). In an addendum to his filing, [Weaver]
       argued that counsel was ineffective for failing to contest the
       court’s refusal and/or failure to state reasons for deviating from
       the sentencing guidelines; [Weaver] claims his sentence is
       excessive.    [Counsel] was appointed and filed an amended
       petition arguing that trial counsel was ineffective for failing to file
       a direct appeal raising the disparity of the sentence. [Counsel]
       also sought reinstatement of [Weaver’s] direct appellate rights
       as well as his right to file post-sentence motions.

       A hearing was held before [the PCRA] court on April 30, 2014.
       [The PCRA] court denied the petition on June 20, 2014.

PCRA Court Opinion (“P.C.O.”), 8/8/2014, at 1-2 (record citations omitted).

Weaver timely appealed on June 23, 2014. The PCRA court did not order

Weaver to file a statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).        The court issued an opinion pursuant to Pa.R.A.P.

1925(a) on August 8, 2014.

       Weaver raises one question for our review:          “Was the trial defense

counsel ineffective for failing to file an appeal after the trial court denied

counsel’s motion to reconsider sentence when there were substantial

questions as to the appropriateness of the sentence?” Weaver’s Brief at 2.1
____________________________________________


1
    We note that, despite being granted an extension of time, the
Commonwealth has failed to file a brief on appeal.



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      Weaver argues that trial counsel “was ineffective for failing to appeal

the sentence imposed . . . because the sentence imposed by the trial court

was unjust, improper, manifestly unreasonable, irrational, and an abuse of

discretion[.]” Id. at 7. Accordingly, he contends that the PCRA court erred

in not reinstating his right to appeal his judgment of sentence nunc pro tunc.

Id. We disagree.

      Our standard of review on appeal from an order denying a PCRA

petition is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.         See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not

be disturbed unless there is no support for them in the certified record. See

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

“Further, the PCRA court’s credibility determinations are binding on this

Court,   where   there   is   record   support   for    those   determinations.”

Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (citation

omitted).

      The governing legal standard of review of ineffective assistance of

counsel claims is well-settled:

      [C]ounsel is presumed effective, and to rebut that presumption,
      the PCRA petitioner must demonstrate that counsel’s
      performance was deficient and that such deficiency prejudiced
      him. Strickland v. Washington, 466 U.S. 668 (1984). This
      Court has described the Strickland standard as tripartite by
      dividing the performance element into two distinct components.
      Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
      Accordingly, to prove [plea] counsel ineffective, the petitioner
      must demonstrate that: (1) the underlying legal issue has

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       arguable merit; (2) counsel’s actions lacked an objective
       reasonable basis; and (3) the petitioner was prejudiced by
       counsel’s act or omission. Id. A claim of ineffectiveness will be
       denied if the petitioner’s evidence fails to satisfy any one of
       these prongs.

Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012) (citations

formatted).     Furthermore, “[i]n accord with these well-established criteria

for   review,   [an   appellant]   must   set   forth   and   individually   discuss

substantively each prong of the [Pierce] test.”               Commonwealth v.

Fitzgerald, 979 A.2d 908, 910 (Pa. Super. 2009).

       It is well settled that when a lawyer fails to file a direct appeal
       requested by the defendant, the defendant is automatically
       entitled to reinstatement of his direct appeal rights.
       Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (Pa.
       1999). Where a defendant does not ask his attorney to file a
       direct appeal, counsel still may be held ineffective if he does not
       consult with his client about the client’s appellate rights. Roe v.
       Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d
       985 (2000); [Commonwealth v.] Carter, [21 A.3d 680, 682
       (Pa. Super. 2011)]. Such ineffectiveness, however, will only be
       found where a duty to consult arises either because there were
       issues of merit to raise on direct appeal or the defendant, in
       some manner, displayed signs of desiring an appeal. Roe v.
       Flores-Ortega, supra.

Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa. Super. 2011).

       With regard to counsel’s duty to consult with a defendant regarding

the filing of an appeal, this Court has held as follows:

       [Case law] impose[s] a duty on counsel to adequately consult
       with the defendant as to the advantages and disadvantages of
       an appeal where there is reason to think that a defendant would
       want to appeal. The failure to consult may excuse the defendant
       from the obligation to request an appeal . . . such that counsel
       could still be found to be ineffective in not filing an appeal even
       where appellant did not request the appeal.

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Commonwealth         v.    Bath,   907     A.2d   619,    623   (Pa.   Super.   2006)

(quotations, quotation marks, and citations omitted).

     Here, Weaver does not contend that counsel disregarded a request to

appeal; rather, he argues that there were nonfrivolous grounds for appeal

because the judgment of sentence imposed following his open guilty plea

was unreasonable.         Weaver’s Brief at 8; see also Commonwealth v.

Shugars, 895 A.2d 1270, 1274 n.5 (Pa. Super. 2006) (“[O]pen plea

agreements are an exception in which a defendant will not be precluded

from appealing the discretionary aspects of the sentence.”). Accordingly, we

turn to a review of this claim in order to determine whether the underlying

legal issue has arguable merit. See Busanet, 54 A.3d at 45.

     [S]entencing is a matter vested in the sound discretion of the
     sentencing judge, and a sentence will not be disturbed on appeal
     absent a manifest abuse of discretion. To be entitled to relief,
     the appellant must establish, by reference to the record, 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. Samuel, 102 A.3d 1001, 1007 (Pa. Super. 2014)

(citations and quotation marks omitted).

     As   required        by   Pa.R.A.P.    2119(f)      and    Commonwealth       v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), Weaver has included in his brief a

separate statement of reasons in support of review of the discretionary

aspects of his sentence. See Weaver’s Brief at 3. Weaver must raise in his

statement a substantial question as to the appropriateness of his sentence in



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order to permit appellate review.      See Commonwealth v. Macias, 968

A.2d 773, 776 (Pa. Super. 2009).

      Where the appellant’s Rule 2119(f) statement sufficiently
      articulates the manner in which the sentence violates either a
      specific provision of the sentencing scheme set forth in the
      Sentencing Code or a particular fundamental norm underlying
      the sentencing process, such a statement will be deemed
      adequate to raise a substantial question so as to permit a grant
      of allowance of appeal of the discretionary aspects of the
      sentence.

Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006)

(quoting Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002)

(plurality)).

      Here, Weaver argues that his judgment of sentence raised a

substantial question because: the trial court failed to consider Weaver’s

background and failed to state any reason for imposing a sentence in the

aggravated range, the trial court did not have the benefit of a presentence

investigation report (PSI), and the trial court ordered the sentences to run

consecutively. Weaver’s Brief at 3.

      “[A]n appellant’s allegation that the trial court imposed sentence

without considering the requisite statutory factors or stating adequate

reasons for dispensing with a pre-sentence report does raise a substantial

question.”      Commonwealth v. Flowers, 950 A.2d 330, 332 (Pa. Super.

2008) (internal quotation marks omitted). Likewise, “a substantial question

is raised where an appellant alleges the sentencing court erred by imposing

an   aggravated     range   sentence   without   consideration   of   mitigating

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circumstances.”   Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa.

Super. 2012) (citations omitted). However, a general claim that the court

erred by ordering the sentences to run consecutively does not raise a

substantial question.   See Commonwealth v. Pass, 914 A.2d 442, 446

(Pa. Super. 2006). Thus, we will only address Weaver’s claims that the trial

court did not order a PSI or state any reason for the sentence imposed when

sentencing in the aggravated range.

      In the instant case, on January 25, 2011, Weaver entered an open

guilty plea and the trial court immediately proceeded to sentencing, where it

imposed an aggregate judgment of sentence of not less than twenty-two and

one half years nor more than fifty-two years’ incarceration.          Notes of

Testimony (“N.T.”), 1/25/2011, at 51.       At the beginning of the guilty plea

hearing, the trial court asked Weaver: “Now, it’s my understanding that

you’re prepared to waive your right to a presentence investigation and to go

a sentence today; is that correct?”    Id. at 5. Weaver replied, “Yes.”    Id.

After pleading guilty, the court again told Weaver, “You’re giving up your

right to a presentence investigation which is an investigation that would tell

me about your life and about you.” Id. at 23. After a discussion, Weaver’s

counsel stated, “I explained to [Weaver] he has no prior history whatsoever

and [the court has] already been made aware of the fact and would be made

aware of that fact in the presentence report.” Id. at 25.

      The longstanding rule of Pennsylvania law is that a defendant
      may not challenge his guilty plea by asserting that he lied while
      under oath, even if he avers that counsel induced the lies. A

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      person who elects to plead guilty is bound by the statements he
      makes in open court while under oath and he may not later
      assert grounds for withdrawing the plea which contradict the
      statements he made at his plea colloquy.

Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007)

(citations omitted).

      Here, Weaver was twice given the opportunity to object to the lack of

a PSI and twice chose to waive that right. He does not contend that his plea

was entered involuntarily or that he lacked capacity to understand what was

transpiring during the guilty plea hearing.   Therefore, he is bound by the

statements he made in open court. Id. Accordingly, his underlying claim

that the trial court erred in failing to order a PSI is contradicted by the

record where Weaver explicitly waived his right to said PSI.   See Ragan,

923 A.2d at 1170.

      Likewise, Weaver’s claim that the trial court sentenced him in the

aggravated sentencing range without considering the requisite factors on the

record lacks merit.    At the sentencing hearing, the court was informed of

Weaver’s prior record score of zero, offense gravity of fourteen, and the

statutory limits of the sentences.   N.T., 1/25/2011, at 32-33.   The court

heard statements from the decedent’s mother and sister, Weaver’s mother,

and Weaver himself. Id. at 25-28, 30-31, 36-37, and 42-49. Counsel for

Weaver spoke at length about Weaver’s background and character. Id. at

37-42. Ultimately, the court told Weaver:

      You had choices. [The decedent] made some bad choices, too.
      I’m not saying he didn’t. But you made some really bad choices.

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     And I can’t make excuses for it. I really can’t. I was hoping you
     were going to tell me something that I could at least understand.
     But this. You don’t put two bullets in the back of a man’s head
     that’s been your friend for a decade, according to what you told
     me.

                                *     *      *

     [Y]ou put two bullets in the back of [the decedent’s] head and
     you put a bullet in the back of his neck that burned his skin. You
     shot him dead center in the chest. If it was over a gun to your
     head[, as the decedent had held a gun to Weaver’s head two
     months prior], if it was over a gun to your head, you were 21
     years old at the time, [the worst] mistake you ever made was
     not telling the police. . . . [b]ecause with his criminal history, he
     would have been in jail and you would have been just fine. . . .

                                *     *      *

     I actually do believe you are sorry. I really do. And one day I
     hope that [the decedent’s mother] can hear you and know that
     you are sorry. I know that you are sorry. I really do believe
     that. I don’t know what happened on the street that day, but I
     believe you are sorry.

     But I can’t do what [counsel for Weaver] wants and I can’t quite
     do what [the Commonwealth] wants either.            I’m going to
     sentence you on the murder in the third degree to 20 to 40
     years[’] incarceration. Followed by a consecutive one and a half
     to seven on the VUFA. And one to five on the PIC, for a total of
     22 and a half to 52. I sentence you to the mandatory costs of
     court [and] $1,800 in restitution for funeral expenses.

Id. at 46-51. The trial court thoroughly explored Weaver’s background and

the reasons for the sentence imposed before sentencing him the aggravated

range. Thus, we conclude that the trial court did not abuse its discretion in

sentencing Weaver. Samuel, 102 A.3d 1001, 1007. Weaver’s claims to the

contrary are not supported by the record and would not merit relief.




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         Because Weaver “is not entitled to relief with regard to the underlying

claim upon which his ineffectiveness claim is premised[, he] is not entitled to

relief    with   regard    to   his   ineffectiveness   of   PCRA   counsel   claim.”

Commonwealth v. Ousley, 21 A.3d 1238, 1246 (Pa. Super. 2011). Thus,

the PCRA court’s decision to decline to reinstate Weaver’s direct appeal

rights nunc pro tunc and to dismiss his PCRA petition after a hearing is

supported by the record and free of legal error. See Ragan, 923 A.2d at

1170. Weaver’s issue does not merit relief.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2015




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