J-S12021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ROBERT KEITH,

                        Appellant                   No. 1868 EDA 2015


                Appeal from the PCRA Order of June 2, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-52-CR-0012205-2009


BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED FEBRUARY 08, 2016

     Appellant, Robert Keith, appeals from the order entered on June 2,

2015, dismissing his petition filed under the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     The PCRA court ably explained the underlying facts of this case:

        The instant matter arises out of an incident that occurred on
        June 27, 2009, at the Piazza [Apartment Complex], located
        in [the] Northern Liberties section of Philadelphia[. The
        incident] culminated in the [robbery, shooting, and murder]
        of Timothy Gilmore and Rian Thal. . . .

        The genesis of the [crimes] can be traced to events that
        began in early June [] 2009[,] when [] Leon Woodward
        contracted to have a large amount of cocaine delivered to
        Thal’s apartment[, which was] located inside of the Piazza
        Apartment Complex[. The Piazza Apartment Complex is]
        located at 1050 N[orth] Hancock Street.      The delivery
        occurred on June 26, 2009, and was witnessed by both
        Woodward and Vernon Williams[. Williams was a drug]



*Retired Senior Judge assigned to the Superior Court.
J-S12021-16


           dealer who, purportedly, was going to buy three kilograms
           of the cocaine.

           Upon seeing the cocaine, Williams contacted Keith Epps and
           the men agreed to rob the cocaine. Epps was friends with a
           woman named Katoya Jones. . . .

           [Epps enlisted Appellant in the scheme. At approximately
           3:45 a.m. on] June 27, 2009, Epps [and Appellant] entered
           the building with Jones’ assistance. . . . Instead of going to
           Thal’s apartment[,] both men broke into a vacant
           apartment located a floor below Thal’s [apartment]. Both
           men then left the building.

           Later that day, three other men entered the building with
           Jones’ assistance.    The men, Antonio Wright, Donnell
           Murchison, and Edward Daniels, immediately proceeded to
           the seventh floor of the building where Thal’s apartment
           was located. The men encountered Thal and Gilmore in the
           hallway and after Gilmore began struggling with Wright,
           Wright and Murchison shot and killed Gilmore and Thal.

PCRA Court Opinion, 8/25/15, at 2-3.

         On November 8, 2011, Appellant entered an open guilty plea to

burglary, criminal conspiracy, criminal trespass, and possessing instruments

of crime.1     During the plea hearing, Appellant admitted to the following

facts:

           Were [the Commonwealth] to prove this case, at sometime
           around 3:00 a.m. on June [27, 2009], the apartment, 617,
           located at 1050 North Hancock [Street] was broken into
           without permission. . . .




____________________________________________


1
   18 Pa.C.S.A.         § 3502(a),      903(a)(1),   3503(a)(1)(i),   and   907(a),
respectively.



                                           -2-
J-S12021-16


       [The Commonwealth] would also prove that [Appellant] told
       in a statement to Detective Pitts what his involvement was
       in this incident. . . . I will read verbatim. . . .

       Question[:] [Appellant] . . . did you know the people who
       were killed inside the apartment at 1050 North Hancock
       Street [on] June [27,] 2009?

       Answer[:] No, I have never met them before.

       Question[:] Have you ever been to that location in the past?

       Answer[:] Earlier that day I had met with a friend of mine
       that goes by the name of Pooh, which was later identified as
       Mr. Epps. Before that I was at a bar called Buffy’s off of
       Hunting Park Avenue, and some peoples were saying that a
       guy by the name of Zah had the bricks for 31. That means
       he was selling drugs for and keys of cocaine for
       $31,000[.00]. . . . I never met Zah. I had heard his name
       before in the past.

       I left there and then I met with [Epps] at the gas station at
       Ridge and Midvale Streets. It was that night maybe around
       8:00 p.m. to 9:00 p.m., he asked me if I wanted some easy
       money and I told him yeah. Then I left from the gas
       station. I had a black Caddy. We had talked about 20
       minutes and then [Epps] left. He had a car, but I don’t
       know what kind.         It was parked across the street
       somewhere.

       I called him back around 12:00 a.m. and he told me to wait
       for a little later because they were going out to Onyx on
       Columbus Boulevard. He said the guy whose money we
       were going to take was from out of town. He said he was
       going to some girl and he would meet back up with me. I
       asked him how much money he was talking and he told me
       over $400,000[.00]. He told me that it was going to be
       easy. He told me all of this while we were at the gas
       station.

       He then called me around 2:30 or 3:00 [a.m.] and asked
       me to meet him at 8th and Spring Garden. I drove a green
       Denali there. . . . He was on the corner when I got there.
       He told me that the girl had dropped him off. He went

                                   -3-
J-S12021-16


        down Hancock Street. We parked in the parking lot across
        the street. We both get out of the car and I saw a green
        Crown Vic and a black truck and a guy who dropped
        someone off in a black Grand Prix. He dropped the guy off
        and the guy went in on his own and the Grand Prix drove
        off. The guy kept circling around the street. Before the guy
        in the Grand Prix drove off he got out of the car and was
        talking and started to talk loud. He was like reaching, I told
        him that we were going to talk to some girl, and him and
        [Epps] had some words and then he finally drove off.

        Me and [Epps] went to the front door and there was a black
        girl and she was waiting inside of the lobby door and she let
        us in. We took the elevator to the second floor and went to
        her apartment, which was empty. The three of us were in
        there for about ten minutes and then she left out and she
        said she had to go to work. When she left me and [Epps]
        we were talking and he said she had to get something. He
        mentioned like $20,000[.00].

        Then me and [Epps] go up to the 6th floor because that is
        where the guy’s apartment with the money was supposed to
        be. And before I went to the 6th floor I went outside to my
        car and got a wonderbar to pry the door open. I went back
        inside, [Epps] let me in. We went to the 6th floor and went
        to 615 or 617 and I broke the door down and there was no
        one in there and there was no money. There was nothing in
        there.

        We went out of the apartment and [Epps] called someone
        on the phone and was telling them that they had given him
        the wrong floor. The person on the phone was telling
        [Epps] that the white girl was coming. I guess that meant
        the girl got killed was coming. He said, how can you not
        know the difference between the 6th and the 7th floor. I told
        him that I was leaving and he left with me. We got into my
        car and I dropped him off at 8th and Spring Garden Street.

N.T. Plea Hearing, 11/8/11, at 9-13.

     Appellant proceeded to a sentencing hearing on April 13, 2012.

During this hearing, the trial court stated on the record that the guideline



                                    -4-
J-S12021-16



ranges for Appellant’s burglary conviction were 15 to 21 months in prison,

plus or minus six months. N.T. Sentencing Hearing, 4/13/12, at 2-3. The

trial court then sentenced Appellant to serve a term of six to 12 years in

prison for the burglary conviction, followed by a term of four years of

probation for the criminal conspiracy conviction.2,   3, 4
                                                             Id. at 7-8. The trial

court stated its reasons for sentencing Appellant as follows:

         It seems like you are making the right decision. This is a
         serious offense but I tried this case here. It was a horrible,
         horrible case. You had nothing to do with that. You got
         involved because you wanted to make some money and
         maybe you realize now by making fast money, you are
         going to break into a place, steal money and maybe drugs
         but I want to point out other members of this Piazza
         [Apartment Complex] case came back and got involved in a
         homicide, came back with the intention to rob. There is no
         indication that this is a case in which the [burglary] spilled
         over, where [Appellant’s] involvement spilled over or in any
         way [was] involved with the Piazza [Apartment Complex]
         homicide, Piazza [Apartment Complex robbery].

Id. at 6-7.



____________________________________________


2
  The trial court imposed no further penalty for the criminal trespass and
possession of an instrument of crime convictions. N.T. Sentencing Hearing,
4/13/12, at 8.
3
  The trial court ordered that Appellant serve his sentence of imprisonment
concurrently with the federal sentence that he was then serving. N.T.
Sentencing Hearing, 4/13/12, at 7-8.
4
  During the sentencing hearing, Appellant’s trial counsel requested that the
trial court sentence Appellant to a term of five to ten years in prison for the
convictions. N.T. Sentencing Hearing, 4/13/12, at 3-4.



                                           -5-
J-S12021-16



       Appellant did not file a post-sentence motion or a direct appeal from

his judgment of sentence.

       On October 5, 2012, Appellant filed a timely, pro se PCRA petition

where he claimed that he was entitled to relief because:

         My lawyer didn’t argue to get my sentence to my guidelines.
         I was sentence over my guidelines. I also asked him to
         argue why I was being charge for my crime. I was charge
         with a crime of violence. I should been drop to a criminal
         trespass not a violence burglary.

Appellant’s Pro Se PCRA Petition, 10/5/12, at 3.

       The PCRA court appointed counsel to represent Appellant and, within

the later-filed amended PCRA petition, Appellant raised the following claim

for relief:

         [] After sentencing[, Appellant] requested that his [plea
         counsel] file a post-sentence motion seeking reconsideration
         of his sentence;

         [] [Appellant] was denied his rights to due process and
         effective counsel, under the laws and Constitutions of the
         United States and Pennsylvania, as [Appellant’s plea
         counsel] failed to file a post-sentence motion as there were
         legitimate grounds for relief.

Appellant’s Amended PCRA Petition, 1/3/14, at 2.

       Appellant requested that the PCRA court hold an evidentiary hearing

“to determine whether [plea] counsel was ineffective for failing to file a

post[-]sentence motion” and to reinstate Appellant’s right to file a post-

sentence motion nunc pro tunc.        Id.   Moreover, Appellant attached a

memorandum to his amended PCRA petition, where Appellant further



                                    -6-
J-S12021-16



explained the basis for his claims.            Within this memorandum, Appellant

argued that his plea counsel was ineffective for failing to file a post-sentence

motion because: 1) he requested that his plea counsel file a post-sentence

motion to challenge the discretionary aspects of his sentence; 2) plea

counsel failed to file the motion; and, 3) the motion would have been

successful because, at sentencing, the trial court both failed to consider the

sentencing guidelines and sentenced Appellant outside of the guideline

ranges but failed to place adequate reasons on the record for its sentence.5

Memorandum to Appellant’s Amended PCRA Petition, 1/3/14, at 1 and 5-6.

       On April 8, 2015, the PCRA court provided Appellant with notice that it

intended to dismiss the PCRA petition in 20 days, without holding a hearing.
____________________________________________


5
  Within the memorandum of law Appellant attached to his amended PCRA
petition, Appellant argued that his plea counsel was also ineffective for
failing to file a direct appeal on his behalf. See Memorandum to Appellant’s
Amended PCRA Petition, 1/3/14, at 1 and 8-10. Appellant did not plead any
such claim in his actual PCRA petition and the PCRA court did not consider
the claim in its opinion to this Court. See Appellant’s Pro Se PCRA Petition,
10/5/12, at 3; Appellant’s Amended PCRA Petition, 1/3/14, at 1-2; PCRA
Court Opinion, 8/25/15, at 1-7.             Therefore, the claim is waived.
Commonwealth v. Williams, 899 A.2d 1060, 1066 n.5 (Pa. 2006) (“[the
a]ppellant also argues trial counsel’s failure to obtain DNA testing violated
his confrontation and discovery rights under Article 1, § 9 of the
Pennsylvania Constitution. [The a]ppellant did not raise these issues in his
PCRA petition, so they are waived”); Commonwealth v. Wallace, 724 A.2d
916, 921 n.5 (Pa. 1999) (holding that a failure to raise a claim “in the PCRA
petitions presented to the PCRA court” waives the claim for purposes of
appellate review); Commonwealth v. Rainey, 928 A.2d 215, 226 (Pa.
2007) (same); see also 42 Pa.C.S.A. § 9543(a) (“[t]o be eligible for relief
under [the PCRA], the petitioner must plead and prove by a preponderance
of the evidence all of the following. . .”); Pa.R.Crim.P. 902 (“Content of
Petition for Post-Conviction Collateral Relief”).



                                           -7-
J-S12021-16



See Pa.R.Crim.P. 907(1). The PCRA court finally dismissed Appellant’s PCRA

petition on June 2, 2015 and Appellant filed a timely notice of appeal. See

Docket Entry, 6/2/15, at 1. Appellant raises one claim on appeal:

        Did the [PCRA] court err in denying PCRA relief without
        holding an evidentiary hearing to determine whether
        counsel was ineffective for failing to file post[-]sentence
        motions?

Appellant’s Brief at 9 (some internal capitalization omitted).

      As we have stated:

        [t]his Court’s standard of review regarding an order
        dismissing a petition under the PCRA is whether the
        determination of the PCRA court is supported by evidence of
        record and is free of legal error. In evaluating a PCRA
        court’s decision, 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 prevailing party at
        the trial level. We may affirm a PCRA court’s decision on
        any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness of counsel which, 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).


                                     -8-
J-S12021-16



      Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”      Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).         To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

        (1) his underlying claim is of arguable merit; (2) the
        particular course of conduct pursued by counsel did not
        have some reasonable basis designed to effectuate his
        interests; and, (3) but for counsel’s ineffectiveness, there is
        a reasonable probability that the outcome of the challenged
        proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).             “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Id.

      As our Supreme Court has held, “the failure to file post-sentence

motions does not fall within the limited ambit of situations where a

[petitioner] alleging ineffective assistance of counsel” is entitled to a

presumption of prejudice. Commonwealth v. Liston, 977 A.2d 1089, 1092

(Pa. 2009).   Rather, our Supreme Court held, a petitioner claiming that

counsel was ineffective for failing to file a post-sentence motion must “rebut

the presumption of [counsel’s] effectiveness by showing that there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”      Commonwealth v.

Reaves, 923 A.2d 1119, 1131 (Pa. 2007) (internal quotations and citations

omitted). Further, the Supreme Court held, in the context of a challenge to

the discretionary aspects of one’s sentence, prejudice may be established


                                     -9-
J-S12021-16



only by pleading and proving that the challenge would have resulted in “a

reduction in the sentence.” Id. at 1032 (emphasis added).

       Here, the PCRA court judge was the same judge that accepted

Appellant’s guilty plea and imposed Appellant’s judgment of sentence.     As

the PCRA court judge explained, even if Appellant’s plea counsel had filed a

timely post-sentence motion and claimed that the judge failed to consider

the sentencing guidelines and failed to place adequate reasons on the record

for the sentence,6 the trial judge would not have reduced Appellant’s

sentence. As the PCRA court explained:

         The sentence imposed on [Appellant] was the result of
         careful consideration of the facts of the case, the contents
         of the pre-sentence reports, and [Appellant’s] evidence and
         personal circumstances. Consequently, there was nothing
         either [plea] counsel or [Appellant] could have said to
         convince [the trial court] to impose a lesser sentence than
         the one imposed on him. While the sentence imposed on
         [Appellant] did exceed the recommended sentencing range,
         the sentence was appropriate because [Appellant]
         participated in a failed robbery inside an apartment building
____________________________________________


6
   A claim that the trial court failed to adequately consider the sentencing
guidelines and a claim that the trial court sentenced a defendant outside of
the guideline ranges, but failed to place adequate reasons on the record for
its sentence, are both challenges to the discretionary aspects of a sentence.
See Commonwealth v. Smith, 534 A.2d 836, (Pa. Super. 1987) (a claim
that “the trial court abused its discretion because it failed to consider the
sentencing guidelines in imposing sentence” is a challenge to the
discretionary aspects of a sentence); Commonwealth v. Naranjo, 53 A.3d
66, 72 (Pa. Super. 2012) (claim that the “sentencing court violated the
Sentencing Code by failing to state sufficient reasons for imposing a
sentence outside the sentencing guidelines” is a challenge to the
discretionary aspects of a sentence).



                                          - 10 -
J-S12021-16


           filled with people. But for his and Epps[’] incompetence, it
           is clear that he and Epps would have committed a violent
           robbery. Moreover, despite being aware of the [robbery]
           plan[, Appellant] did not contact the authorities thereby
           allowing the double homicide to occur.

PCRA Court Opinion, 8/25/15, at 6 (internal footnote omitted).

     Thus, even if Appellant’s plea counsel had filed a post-sentence motion

in this case, the trial court would not have reduced Appellant’s sentence. As

such, Appellant cannot prove that he was prejudiced by counsel’s alleged

ineffectiveness. Reaves, 923 A.2d at 1132. Therefore, the PCRA court did

not err when it dismissed Appellant’s PCRA petition without holding a

hearing.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/2016




                                      - 11 -
