J-S48023-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
QUINTON CORPREW,                         :
                                         :
                   Appellant             :   No. 2032 WDA 2014

               Appeal from the PCRA Order November 24, 2014,
                   Court of Common Pleas, Cambria County,
               Criminal Division at No. CP-11-CR-0000675-2011

BEFORE: PANELLA, DONOHUE and WECHT, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED AUGUST 19, 2015

        Quinton R. Corprew (“Corprew”) appeals from the order of court

denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541–9546.       Following our review, we vacate the PCRA

court’s order and remand for the reinstatement of Corprew’s direct appeal

rights.

        On September 8, 2011, at the conclusion of a two-day trial, a jury

found Corprew guilty of aggravated assault – serious bodily injury,

aggravated assault – bodily injury with a deadly weapon, simple assault, and

recklessly endangering another person.1      These charges stemmed from a

fight Corprew had with his girlfriend’s former paramour in the Johnstown

area. On November 8, 2011, Corprew was sentenced to an aggregate term



1
    18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4), 2701(a)(1), 2705.
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of ten years to twenty years of incarceration and further ordered to pay the

costs of prosecution and restitution.

        Corprew filed a timely notice of appeal and this Court affirmed the

judgment of sentence on December 28, 2012.2           See Commonwealth v.

Corprew, 64 A.3d 37 (Pa. Super. 2012) (unpublished memorandum). Our

Supreme Court denied further review. See Commonwealth v. Corprew,

77 A.3d 635 (Pa. 2013) (table).       Corprew filed a pro se PCRA petition on

June 25, 2014 and Timothy Burns (“Burns”) was appointed as counsel.

Burns filed an amended petition on Corprew’s behalf on September 4, 2014.

The PCRA court held a hearing on the amended petition on September 4,

2014, following which it entered an order and opinion denying relief.

        This appeal follows, in which Corprew presents three issues for our

review, which we have reordered for ease of disposition:

              1. [Whether] [t]he [t]rial [c]ourt erred in finding
                 that the sentence imposed was not illegal under
                 Alleyne v. United States, 133 S.Ct. 2151 []
                 (2013)[?]

              2. [Whether] [t]he [t]rial [c]ourt erred in finding
                 that [Corprew’s] [t]rial [c]ounsel was not
                 ineffective for failing to file a Motion to Suppress
                 Evidence[?]

              3. [Whether] [t]he [t]rial [c]ourt erred in finding
                 that [Corprew’s] [t]rial [c]ounsel was not
                 ineffective for failing to perfect [] [Corprew’s]
                 direct appeal[?]

Corprew’s Brief at 3.

2
    This Court found all issues waived on appeal.


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              In conducting review of a PCRA matter, we consider
              the record “in the light most favorable to the
              prevailing party at the PCRA level.” Commonwealth
              v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en
              banc). Our review is limited to the evidence of record
              and the factual findings of the PCRA court. Id. This
              Court will afford “great deference to the factual
              findings of the PCRA court and will not disturb those
              findings unless they have no support in the record.”
              Id. Thus, when a PCRA court's ruling is free of legal
              error and is supported by record evidence, we will
              not disturb its decision. Id. Of course, if the issue
              pertains to a question of law, “our standard of review
              is de novo and our scope of review is plenary.” Id.
Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015).

        In his first issue, Corprew argues that his sentence violates the United

States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct.

2151 (2013).       Corprew argues that the trial court imposed an illegal

sentence per Alleyne by applying a deadly weapon enhancement3 to his

aggravated assault sentence. We disagree. This Court recently considered

whether Alleyne applies to cases involving sentencing enhancements and

concluded that it does not.     Commonwealth v. Ali, 112 A.3d 1210 (Pa.

Super. 2015).     In Ali, the defendant was convicted of offenses including

possession with intent to deliver, and the trial court applied the school zone

and youth enhancements4 to his sentence.         The defendant challenged the



3
 204 Pa. Code §§ 303.10(a)(2), 303.17(b) (setting forth the Deadly
Weapon Enhancement/Used Matrix).
4
    204 Pa. Code §§ 303.10(b), 303.18(a)-(c).


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application of the enhancements as a violation of Alleyne, and we reasoned

as follows:

              Alleyne has no application to the sentencing
              enhancements at issue in this case. The parameters
              of Alleyne are limited to the imposition of
              mandatory minimum sentences, i.e., where a
              legislature has prescribed a mandatory baseline
              sentence that a trial court must apply if certain
              conditions are met. The sentencing enhancements at
              issue    impose    no    such    floor.  Rather,   the
              enhancements only direct a sentencing court to
              consider a different range of potential minimum
              sentences, while preserving a trial court's discretion
              to fashion an individual sentence. By their very
              character, sentencing enhancements do not share
              the attributes of a mandatory minimum sentence
              that the Supreme Court held to be elements of the
              offense that must be submitted to a jury. The
              enhancements do not bind a trial court to any
              particular sentencing floor, nor do they compel a trial
              court in any given case to impose a sentence higher
              than the court believes is warranted. They require
              only that a court consider a higher range of possible
              minimum sentences. Even then, the trial court need
              not sentence within that range; the court only must
              consider it. Thus, even though the triggering facts
              must be found by the judge and not the jury—which
              is one of the elements of an Apprendi [v. New
              Jersey, 120 S.Ct. 2348 (2000)] or Alleyne
              analysis—the enhancements that the trial court
              applied in this case are not unconstitutional under
              Alleyne.

              Ali  maintains    that,  because     both    of   the
              enhancements contain the word “shall,” the
              enhancements are mandatory in nature, and must
              fall within Alleyne's holding. However, the
              enhancements only require the trial court to consider
              a certain range of sentences. The enhancements do
              not bind the trial court to impose any particular
              sentence, nor do they compel the court to sentence



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            within the specified range. Indeed, it is well-settled
            that the sentencing guidelines ultimately are only
            advisory. Commonwealth v. Griffin, 804 A.2d 1, 8
            (Pa. Super. 2002). Thus, Alleyne has no application
            to the enhancements.

Id. at 1226 (emphasis in the original).

      We   recognize     that   this   case   involves   a   different   sentencing

enhancement from that in Ali; however, we conclude that the same

principles apply to the enhancement the trial court used here. The deadly

weapon enhancement, like the school and youth enhancements, imposes no

mandatory minimum sentence; rather, it only directs the sentencing court to

consider a different range of potential minimum sentences by adding months

of incarceration to the low and high ends of the guideline range. With each

enhancement, the trial court retains the discretion to fashion an individual

sentence and is not compelled to sentence within the specified range.

Accordingly, we conclude that Alleyne is not implicated in Corprew’s

sentence and therefore he is not entitled to relief on this basis.

      Corprew’s remaining issues involve claims of ineffective assistance of

counsel.   To prove ineffective assistance of counsel, a petitioner must

establish that: (1) the underlying issue has arguable merit; (2) counsel's

actions lacked an objective reasonable basis; and (3) actual prejudice

resulted from counsel's act or failure to act. Stultz, 114 A.3d at 880. The

failure to satisfy any prong of this test requires rejection of the claim. See

Commonwealth        v.    Daniels,     104    A.3d   267,     281    (Pa.   2014);



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Commonwealth v. Luster, 71 A.3d 1029, 1039 (Pa. Super. 2013). Trial

counsel will not be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Keaton, 82 A.3d 419, 426                   (Pa. 2013) (citing

Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999)).

      In his first claim of ineffective assistance, Corprew argues that trial

counsel (“Counsel”) was ineffective for failing to seek suppression of

statements made by the victim, William McGinnis (“McGinnis”), at the

preliminary hearing regarding the sequence of events on the night of the

altercation. Corprew’s basis for this claim is that McGinnis’ version of events

is inconsistent with his version,5 and that at the time of the events, McGinnis

was under the influence of alcohol and/or drugs and therefore his

statements should have been suppressed.6 See N.T., 9/30/14, at 15.

      The PCRA court found that there is no merit to this claim. PCRA Court

Opinion, 11/24/14, at 6. We find no error in this determination. A motion

to suppress “specifically protects constitutional rights[.]”   Commonwealth


5
  McGinnis testified at the preliminary hearing that he and Corprew decided
that they were going to walk around the building to fight, and that Corprew
was walking in front of him. He further testified that Corprew unexpectedly
turned around and started stabbing him with the knife. N.T., 9/7/11, at 53-
54. Corprew, on the other hand, testified that he and the victim were face
to face when McGinnis took his jacket off and lunged at him, and that he
pulled out the knife to protect himself from McGinnis’ attack. Id. at 179-
181.
6
 Corprew also contends that the testimony of the Commonwealth’s witness,
Dave Herring, supports his version of the events. N.T., 9/30/14, at 15-16.
However, our review of the record reveals that Herring’s testimony is
consistent with McGinnis’ testimony. See N.T., 9/7/11, at 123-143.


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v.   Metzer,   634    A.2d   228,    233    (Pa.    Super.      1993);    see   also

Commonwealth v. Wood, 833 A.2d 740, 743 (Pa. Super. 2003) (quoting

Commonwealth v. Haynes, 577 A.2d 564, 570 (Pa. Super. 1990))

(“[w]hen ruling on suppression motions, the suppression court is required to

make findings of fact and conclusions of law as to whether evidence was

obtained in violation of the defendant’s constitutional rights.”). Suppression

motions “do[] not contemplate suppression of evidence simply because its

introduction may be prejudicial[.]” Commonwealth v. Murphy, 328 A.2d

842, 843 (Pa. 1974); see also Commonwealth v. King, 689 A.2d 918,

921 (Pa. Super. 1997) (stating “a suppression motion [is] designed to

preclude   evidence   that   was    obtained   in   violation    of   a   defendant’s

constitutional rights, [not] evidence that was constitutionally obtained but

which is prejudicial to the moving party.”).

      Corprew asserts no constitutional violation in this appeal.             Rather,

Corprew’s claim is directed to McGinnis’ credibility as a witness and the

weight the jury could give his testimony as to the sequence of events. As

such, it is not the proper subject matter for a suppression motion. Further,

we note that to the extent that Corprew’s claim is based on McGinnis’

alleged intoxication, it is well-settled that statements made while under the

influence of alcohol, even if prejudicial, “do[] not affect the admissibility of

the[] statements, but rather goes to the weight the jury may [] give[ the

witness’s] testimony.” Commonwealth v. Slout, 432 A.2d 609, 612 (Pa.



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Super. 1981).     Accordingly, we agree with the trial court that there is no

merit    to   Corprew’s   claim   that   these   statements   could   have   been

suppressed.7 Therefore, we find no abuse of discretion in the PCRA court’s

ruling on this issue.

        In his second claim of ineffective assistance of counsel, Corprew

argues that Counsel’s actions with regard to his direct appeal, which resulted

in this Court finding all issues waived, constitutes ineffectiveness per se. We

agree.

        The sole issue stated in Corprew’s Pa.R.A.P. 1925(b) (“Rule 1925(b)”)

statement on direct appeal was as follows: “[Corprew] believes that

evidence presented at trial was insufficient to sustain conviction [sic].”

Concise Statement of Matters Complained of on Appeal, 12/30/11.                In

Corprew’s direct appeal brief, Counsel raised the following single issue:

“Whether the Commonwealth presented insufficient evidence to convict

[Corprew] of aggravated assault, simple assault, and recklessly endangering



7
  We also note that Corprew’s trial counsel in this case reached the same
conclusion. This is illustrated by their testimony at the PCRA hearing as to
their reasons for not pursuing a suppression motion. Michael Filia testified
that upon review of the evidence, he did not believe there was a legitimate
basis for such motion. N.T., 9/30/14, at 6-7. Co-counsel, Lisa Lazzari,
similarly testified that she advised Corprew that this was not a proper
suppression issue as it went to the credibility of the victim as a witness and
not to the admissibility of his testimony. Id. at 10-11. In light of this
testimony, which the PCRA court found credible, Corprew would not be able
to prove that his counsel lacked a reasonable basis for their failure to seek
suppression of these statements, and his claim would fail for this reason, as
well. Stultz, 114 A.3d at 880; Daniels, 104 A.3d at 281.


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another person[?]” See Corprew, 64 A.3d 37 (unpublished memorandum);

Corprew’s Brief at 9.      Presented with the vague statement, this Court

concluded that “[Corprew]’s failure to specify any crimes and/or elements []

in his [Rule] 1925(b) statement results in the waiver of the sufficiency of the

evidence claim.”     Id.   This Court further opined: “Even if [Corprew] had

properly preserved this issue in his [] [Rule] 1925(b) statement, we would

find he failed to properly develop it in his brief.” Id. In so concluding, this

Court refused to address the issue on its merits.

      When addressing ineffectiveness claims, this Court traditionally applies

the three-prong test previously set forth in this Memorandum.       See, e.g.,

Commonwealth v. Mikell, 968 A.2d 779, 781-82 (Pa. Super. 2009).

However, this test does not apply, and prejudice is presumed, in situations

where counsel’s failures effectively denied the defendant his direct appeal

rights. See, e.g., Commonwealth v. Johnson, 889 A.2d 620, 622-23 (Pa.

Super. 2005). “[A]n accused who is deprived entirely of his right of direct

appeal … is per se without effective assistance of counsel, and is entitled to

reinstatement of his direct appellate rights.” Id. at 622 (emphasis added).

See also Commonwealth v. Britt, 83 A.3d 198, 203 (Pa. Super. 2013)

(stating that per se ineffectiveness occurs when “representation [is] so

deficient [on appeal] that the defendant [i]s completely … denied counsel or

entirely denied merits review.”); Commonwealth v. Lantzy, 736 A.2d 564

(Pa. Super. 1999).



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      Among “[t]he recognized instances of per se ineffectiveness entitling a

defendant to automatic relief” is counsel’s failure to file an appellate

brief. Commonwealth v. Brown, 18 A.3d 1147, 1156 (Pa. Super. 2011)

(citing Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007)). Further,

when an appellate brief is so defective that it substantially hampers the

court’s ability to review the merits of the issues presented, “the result [i]s no

different than if counsel had failed to file a brief at all.” Johnson, 889 A.2d

at 623. See Commonwealth v. Fink, 24 A.3d 426, 433 (Pa. Super. 2011)

(presuming ineffectiveness “where … this Court [] reviewed the defendant’s

direct appeal [brief,] deemed the sole issue waived and did not conduct an

alternative merits review.”). Compare Commonwealth v. Reed, 971 A.2d

1216, 1226 (Pa. 2009) (where “the issues [on appeal] [a]re sufficiently

presented to allow the court to address the merits of defendant’s

arguments,” counsel’s filing of a deficient appellate brief “does not constitute

a complete failure to function as a client’s advocate[.]”).

      This Court addressed a highly similar scenario in Commonwealth v.

Franklin, 823 A.2d 906 (Pa. Super. 2003).            As in the present case,

Franklin involved a situation in which the appellant’s appointed counsel filed

a brief on direct appeal that was so deficient that this Court refused to




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consider the merits of his claims.8    As a result, this Court quashed the

appeal. The appellant filed a PCRA petition alleging that original appellate

counsel was ineffective for failing to properly brief his appeal.     The PCRA

court dismissed the petition, but on review, this Court vacated the PCRA

court’s denial and reinstated appellant’s direct appeal rights.     This Court

reasoned that “an accused has an absolute right to appeal, […] and counsel

can be faulted for allowing that right to be waived[.]” Franklin, 823 A.2d at

908-09. We held that where “[c]ounsel’s brief [is] so procedurally defective

that [this Court] c[an] not reach the merits of appellant’s assignments[,]” it

“has the same result as filing no brief at all.”   Id. at 909-10.   This Court

concluded that “counsel’s performance … was so ineffective as to have

deprived appellant of his direct appeal.” Id.

      The present case is clearly analogous to the situation in Franklin. In

both cases, the Superior Court refused to address the merits of appellants’

claims because of defective briefing by their counsel; thus, neither appellant

received an independent review of their case. It is of no matter here that

the PCRA court, which also presided over Corprew’s trial, addressed the

merit of his claim in its opinion authored for his direct appeal. This Court

further noted in Franklin that “counsel’s failure [i]s not overcome by the

lower court’s review of the [issue raised in the] original appeal.”    Id. We


8
   Specifically, this Court concluded that counsel “improperly failed to
support [the] legal claims with specific evidence contained in the record.”
Franklin, 823 A.2d at 908 (alteration in original) (citation omitted).


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concluded that regardless of the lower court’s actions, the Franklin

appellant did not receive the independent legal review of his case that he

was entitled to.   For the same reasons, we conclude here that Corprew,

being deprived of an independent review, was effectively denied his right to

direct appeal.   Accordingly, Counsel was ineffective per se, and the PCRA

court committed error in denying Corprew’s amended PCRA petition on this

issue. We therefore vacate the PCRA court’s order and remand for the entry

of an order reinstating Corprew’s direct appeal rights.       See id. at 911;

Johnson, 889 A.2d at 624.

      Order vacated. Case remanded for entry of an order reinstating the

right to direct appeal with assistance of counsel. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/19/2015




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