J-S68037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

TYRONE GRANT

                        Appellant                  No. 3553 EDA 2014


              Appeal from the PCRA Order December 4, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0014144-2007
                                       CP-51-CR-0014145-2007
                                       CP-51-CR-0014153-2007


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                             FILED June 24, 2016

      Appellant, Tyrone Grant, appeals pro se from the December 4, 2014

order denying his petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.      After careful review, we

affirm.

      The PCRA court has succinctly set forth the relevant factual history at

Appellant’s underlying three docket numbers, as follows.

           I. CP-51-CR-0014144-2007

                 On September 4, 2007, Appellant and another
           male entered into a store located at 15 South 60 th
           Street, Philadelphia, PA which was owned and
           operated by Complainant, Ali Hussein, whereupon
           Appellant pointed a gun at Complainant and said
           “Get on your knees, mother***er or I’ll blow your
           brains out.” Appellant and his co-conspirator took
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          six hundred dollars ($600) and Complainant’s cellular
          telephone.    On September 6, 2007, Philadelphia
          Police Detectives Joseph Murray and Pelosi presented
          Complainant with a photographic array and
          Complainant positively identified Appellant as the
          person who robbed him in possession of the gun. On
          September 7, 2007, police officers secured a search
          and seizure warrant for 133 North 58th Street,
          Philadelphia, PA where they found Appellant in the
          rear bedroom in bed, and Appellant was arrested.
          Recovered from Appellant’s bedroom were clothing,
          sneaker[s], numerous cellular telephones, and proof
          of Appellant[’]s residency at that location. At the
          time of the robbery, Appellant had a prior criminal
          record for gun possession.

          II. CP-51-CR-0014145-2007

                 On September 4, 2007, Appellant and another
          male entered Complainant Grace Kim’s store located
          at 6006 Market Street, Philadelphia, PA while in
          possession of a handgun, and he placed the gun
          under Complainant’s chin, and demanded that she
          open the cash register.         Appellant and his co-
          conspirator took five hundred dollars ($500) from
          the cash register, a cellular telephone, a ring of keys,
          a rifle, and the video camera surveillance tape. On
          September 6, 2007, Detectives Murray and Pelosi
          showed Complainant a photographic array and she
          positively identified Appellant as the perpetrator of
          the robbery.

          III. CP-51-CR-0014153-2007

                On August 29, 2007, Appellant and another
          male entered the 59th Street Fish Market located at
          5933 Market Street, Philadelphia, PA where
          Complainant Yong Jansen was working, whereupon
          Appellant jumped over the store counter, placed a
          gun to Complainants’ head, and pushed Complainant
          to the back of the store. Appellant threatened that if
          Complainant looked at him, Appellant would kill
          Complainant and the Complainants’ son. Appellant
          and his co-conspirator took nine hundred dollars

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           ($900) and the [C]omplainant’s cellular telephone
           and then they fled.        On September 7, 2007,
           Philadelphia police officers executed a search and
           seizure warrant at Appellants’ residence located at
           133 North 58th Street, Philadelphia, PA where
           Appellant was found and arrested and the officers
           recovered Complainants’ cellular telephone, among
           other contraband.

PCRA Court Opinion, 2/12/15, at 3-4.

      The PCRA has also recounted the subsequent procedural history as

follows.

                  On September 7, 2007, Appellant was arrested
           and charged with multiple counts of Robbery,
           Receiving Stolen Property, Violation of Section 6105
           of the      Pennsylvania Uniform       Firearms Act,
           Possessing Instruments of Crime, and related
           offenses. On February 23, 2009, he appeared before
           th[e trial c]ourt and entered a negotiated plea of
           nolo contendere and was found guilty of those
           crimes. On April 7, 2009, Appellant was sentenced
           to serve an [aggregate] sentence of imprisonment of
           not less than ten (10) nor more than twenty (20)
           years. Appellant filed Post Sentence Motions and,
           following a hearing, the Motions were denied on
           September 24, 2009.          On October 26, 2009,
           Appellant filed a Notice of Appeal to the Superior
           Court of Pennsylvania. On April 5, 2010, Appellant
           filed a Petition Pursuant to the Post Conviction Relief
           Act (hereinafter, PCRA) and on March 31, 2011, the
           PCRA Petition was dismissed due to the pending
           appeal in the Superior Court of Pennsylvania. On
           April 6, 2011, the Judgment of Sentence was
           affirmed. [Commonwealth v. Grant, 29 A.3d 824
           (Pa. Super. 2011) (unpublished memorandum),
           appeal denied, 47 A.3d 845 (Pa. 2012).] On June
           24, 2011, Appellant filed a Petition for Leave to File
           Petition for Allowance of Appeal Nunc Pro Tunc in the
           Supreme Court of Pennsylvania and on December
           15, 2011, Appellant’s Petition was granted.        On
           January 12[, 2012,] Appellant filed a Petition for

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              Allowance of Appeal in the Supreme Court of
              Pennsylvania and on June 13, 2012, the Petition for
              Allowance of Appeal was denied.

                    On January 10, 2013, Appellant filed the
              instant PCRA Petition pro se and PCRA counsel was
              appointed. On June 10, 2014, the Commonwealth
              filed a Motion to Dismiss the PCRA Petition. The
              Court gave Notice pursuant to Pa.R.Crim.P. 907 of its
              intention to dismiss the PCRA Petition without a
              hearing and on December 5, 2014, the PCRA Petition
              was dismissed.

Id. at 1-2 (some commas added).

       On December 8, 2014, Appellant filed a timely notice of appeal. 1 On

October 8, 2015, while this appeal was pending before this Court, Appellant,

through his appointed counsel, filed a motion requesting to represent

himself, and for this Court to remand for a Grazier2 hearing. On November

23, 2015, we granted Appellant’s request and remanded this matter for a

hearing. The PCRA court held a hearing and on December 31, 2015 entered

an order stating in relevant part, as follows.

              At the Grazier hearing the [PCRA c]ourt conducted a
              colloquy and found that Appellant voluntarily and
              intelligently consented to a video hearing in lieu of
              his physical presence in Court and that he
              voluntarily, knowingly, and intelligently waives his
              right to counsel. Appellant is therefore permitted to
              proceed pro se and has been advised that he shall
              file a brief within thirty days [of this order].
____________________________________________


1
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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J-S68037-15



PCRA Court Order, 12/31/15, at 1. Accordingly, Appellant’s pro se appeal is

now properly before us for review.

      On appeal, Appellant raises the following issue for our review.

               I. Did the trial court erred [sic] in not reinstating
               [A]ppellant’s appeal rights from the judgment of
               sentence nunc pro tunc because counsel on appeal
               from the judgment of sentence in the above matter
               was ineffective?

Appellant’s Brief at 2.

      We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA   relief,   we   examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The 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.”         Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).           “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”            Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      Instantly, Appellant’s two-page argument asserts that direct appeal

counsel was ineffective for not “rais[ing] any issues on appeal that could be

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adjudicated.”   Appellant’s Brief at 7.     Appellant further asserts that this

Court held that the only issue raised by direct appeal counsel was waived.

Id. Appellant asserts there were “substantial questions that counsel could

and   should    have   raised   showing    that   the   sentence   imposed   was

unreasonable … because the trial court ran the two sentences consecutive.”

Id. at 7-8. Further, Appellant argues his 25 year probation sentence “raises

a substantial question as to the disparity of sentence[.]”    Id. at 8.

      When reviewing a claim of ineffectiveness, we apply the following test,

first articulated by our Supreme Court in Commonwealth v. Pierce, 527

A.2d 973 (Pa. 1987).

            [C]ourts presume that counsel was effective, and
            place upon the appellant the burden of proving
            otherwise. Counsel cannot be found ineffective for
            failure to assert a baseless claim.

                   To succeed on a claim that counsel was
            ineffective, Appellant must demonstrate that: (1) the
            claim is of arguable merit; (2) counsel had no
            reasonable strategic basis for his or her action or
            inaction; and (3) counsel’s ineffectiveness prejudiced
            him.

                                       …

                 [T]o demonstrate prejudice, appellant must
            show there is a reasonable probability that, but for
            counsel’s error, the outcome of the proceeding would
            have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013)

(citations and internal quotation marks omitted).       “Failure to establish any




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prong of the test will defeat an ineffectiveness claim.” Commonwealth v.

Birdsong, 24 A.3d 319, 329 (Pa. 2011).

      Instantly, we first observe that direct appeal counsel filed an appeal on

Appellant’s behalf challenging the discretionary aspects of his sentence.

Further, we note that this Court did not find Appellant’s claim waived, but

rather concluded that Appellant’s claim that the sentencing court failed to

weigh certain factors did not raise a substantial question. Grant, supra at

5. Accordingly, Appellant’s claim that direct appeal counsel did not advance

any claims on appeal, or paradoxically that the only claim he raised was

waived, is without merit.   Thus, the PCRA court did not err in concluding

counsel was not ineffective in this regard.     Michaud, supra; Birdsong,

supra.

      Appellant also baldly argues counsel was ineffective for failing to raise

a claim that the trial court abused its discretion by running his sentences

consecutively and for adding a 25 year consecutive probationary term,

resulting in a disparate sentence. Appellant’s Brief at 7.   We note that it is

within the trial court’s discretion to impose a consecutive rather than a

concurrent sentence.    Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.

Super. 2014), appeal denied, 117 A.3d 297 (Pa. 2015). Significantly, “[a]

challenge to the imposition of consecutive rather than concurrent sentences

does not present a substantial question regarding the discretionary aspects

of sentence.” Id. Nevertheless, “we have recognized that a sentence can


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be so manifestly excessive in extreme circumstances that it may create a

substantial   question.”    Id.    (citation   omitted).   The   focus   in   such

determinations is “whether the decision to sentence consecutively raises the

aggregate sentence to, what appears upon its face to be, an excessive level

in light of the criminal conduct in this case.”        Id. at 133-134 (citation

omitted).

      Appellant does not attempt to argue that the aggregate sentence was

excessive in light of his criminal conduct nor explain how this claim would

have been successful if raised by counsel on direct appeal. “This Court will

not act as counsel and will not develop arguments on behalf of an

appellant.” Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010)

(citation omitted), appeal denied, 29 A.3d 796 (Pa. 2011); see also

generally Pa.R.A.P. 2119.         Further, “[a]lthough this Court is willing to

liberally construe materials filed by a pro se litigant, pro se status confers no

special benefit upon the appellant.” Commonwealth v. Adams, 882 A.2d

496, 498 (Pa. Super. 2005). “[W]here an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is

waived.” Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011), appeal

denied, 47 A.3d 848 (Pa. 2012), quoting In re W.H., 25 A.3d 330, 339 (Pa.

Super. 2011), appeal denied, 24 A.3d 364 (Pa. 2011); see also generally

Pa.R.A.P. 2119(a). Therefore, Appellant’s claim is waived.


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       Based on the foregoing, we conclude that Appellant’s claims are

waived or devoid of merit.             Accordingly, we affirm the PCRA court’s

December 4, 2014 order dismissing Appellant’s PCRA petition.3

       Order affirmed.       Application for extension denied.   Application to

dismiss denied.

       Judge Donohue did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/24/2016




____________________________________________


3
  Based on our disposition, Appellant’s motion application for an extension of
time to file a reply brief is denied as moot. Additionally, we deny Appellant’s
February 8, 2016 motion to dismiss for lack of subject matter jurisdiction.



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