J-S07025-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JASON DELVALLE                             :
                                               :
                       Appellant               :      No. 3362 EDA 2018

                  Appeal from the PCRA Order October 6, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012055-2008


BEFORE:      NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.:                              Filed: April 15, 2020

        Appellant, Jason Delvalle, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which granted in part and denied

in part his first petition filed under the Post-Conviction Relief Act (“PCRA”).1

We affirm in part, vacate in part, and remand for resentencing.

        The relevant facts and procedural history of this case are as follows. In

2008, Appellant raped and sexually abused Victim, a minor.                   The

Commonwealth subsequently charged Appellant with rape of a child,

involuntary deviate sexual intercourse (“IDSI”) with a child, aggravated

indecent assault of a child, endangering the welfare of a child (“EWOC”), and


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.
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related offenses. On February 4, 2010, Appellant proceeded to a jury trial,

during which Appellant testified in his own defense.       Following Appellant’s

testimony, the court accepted the parties’ stipulation to Appellant’s prior

adjudication of delinquency for theft.

        On February 9, 2010, the jury convicted Appellant of rape of a child,

IDSI with a child, aggravated indecent assault of a child, EWOC, indecent

assault of a person less than 13, and corruption of minors. With the benefit

of a pre-sentence investigation report, the court sentenced Appellant on May

13, 2010, to an aggregate term of twenty-three and one-half (23½) to forty-

seven (47) years’ incarceration, plus seven (7) years’ probation; the sentence

for IDSI with a child included a mandatory minimum term of ten (10) years’

incarceration.     The court also imposed lifetime sex offender registration

requirements.2      On May 20, 2010, Appellant timely filed a post-sentence

motion, challenging the discretionary aspects of sentencing, which the court

denied that same day.         This Court affirmed the judgment of sentence on

August 5, 2013, and our Supreme Court denied allowance of appeal on March

5, 2014. See Commonwealth v. Delvalle, 83 A.3d 1056 (Pa.Super. 2013)

(unpublished memorandum), appeal denied, 624 Pa. 686, 87 A.3d 318

(2014).

        Appellant timely filed pro se his first PCRA petition on December 29,



____________________________________________


2   The court did not adjudicate Appellant a sexually violent predator.

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2014, and an amended pro se PCRA petition on April 8, 2015. The PCRA court

subsequently appointed counsel, who filed an amended petition on August 25,

2016, and a supplemental amended petition on November 2, 2016. In his

petition, Appellant raised multiple claims of ineffective assistance of counsel

and asserted his sentence included an illegal mandatory minimum term per

Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013) and its Pennsylvania progeny. On October 6, 2017, the PCRA court

granted in part and denied in part Appellant’s PCRA petition. Specifically, the

court granted resentencing without imposition of the mandatory minimum

sentence for the IDSI with a child conviction, but denied PCRA relief in all

other respects regarding Appellant’s ineffectiveness claims. Even though the

court’s order formally denied PCRA relief concerning the ineffectiveness

claims, the order confusingly indicated that it would be issuing notice of its

intent to dismiss the petition without a hearing, per Pa.R.Crim.P. 907,

sometime in the future. The court, however, did not issue Rule 907 notice

subsequent to its order.

      On November 19, 2018, the court vacated the May 13, 2010 judgment

of sentence for IDSI with a child, and resentenced Appellant on that charge to

eight and one-half (8½) to sixteen (16) years’ incarceration; the sentences on

Appellant’s other convictions remained intact. Appellant’s aggregate sentence

remained twenty-three and one-half (23½) to forty-seven (47) years’

incarceration, plus seven (7) years’ probation.      During the resentencing


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hearing, the following exchange occurred regarding the absence of Rule 907

notice with respect to the denial of Appellant’s ineffectiveness claims:

         THE COURT:              Okay.    I already ruled on the
         [resentencing issue] of the PCRA [petition], I believe, back
         on October 6 of 2017. The other issues in the PCRA
         [petition], I dismissed those, but I allowed the
         Commonwealth to, as further agreement, on the
         resentencing issue on the one charge. I have not filed a
         [Rule] 907 notice or anything along those lines on the
         dismissal pending the results of this resentencing hearing.
         So there’s nothing to offer.

                                  *    *    *

         THE COURT:              As a result of the [c]ourt’s decision
         on the Post-Conviction Relief Act proceeding, [Appellant] is
         advised he has the right to appeal.

         [COMMONWEALTH]:          That’s correct, Your Honor. Your
         Honor has given the defense adequate notice in advance of
         its intention to dismiss. [Appellant] is present in court and
         counsel is well aware of the fact that this [c]ourt intended
         to dismiss the other issues.

         THE COURT:              You’re saying it obviates the need
         for a [Rule] 907 [notice]?

         [COMMONWEALTH]:         I believe so.

         THE COURT:              Does defense agree?

         [DEFENSE COUNSEL]: I agree, because [Appellant]’s going
         to appeal.

(N.T. Resentencing Hearing, 11/19/18, at 5-6).

      On November 21, 2018, Appellant filed a notice of appeal. The court

ordered Appellant on December 6, 2018, to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b); Appellant timely complied on


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January 4, 2019, raising challenges only to the denial of PCRA relief on his

ineffectiveness claims.

       Appellant raises two issues for our review:

          WHETHER THE COURT ERRED IN DENYING…APPELLANT’S
          PCRA PETITION WITHOUT AN EVIDENTIARY HEARING ON
          THE ISSUES RAISED IN THE AMENDED PCRA PETITION
          REGARDING TRIAL COUNSEL’S INEFFECTIVENESS[?]

          WHETHER THE COURT ERRED IN NOT GRANTING RELIEF ON
          THE   PCRA    PETITION ALLEGING   COUNSEL    WAS
          INEFFECTIVE[?]

(Appellant’s Brief at 10).

       As a preliminary matter, the timeliness of an appeal is a jurisdictional

question, which this Court may raise sua sponte.                   Commonwealth v.

Trinidad, 96 A.3d 1031 (Pa.Super. 2014), appeal denied, 627 Pa. 758, 99

A.3d 925 (2014). “[T]he notice of appeal required by Rule 902 (manner of

taking appeal) shall be filed within 30 days after the entry of the order from

which the appeal is taken.”           Pa.R.A.P. 903(a).        Absent extraordinary

circumstances such as fraud or some breakdown in the processes of the court,

this   Court   has   no      jurisdiction    to   entertain   an    untimely   appeal.

Commonwealth v. Patterson, 940 A.2d 493 (Pa.Super. 2007), appeal

denied, 599 Pa. 691, 960 A.2d 838 (2008).

       In general, where a PCRA court denies relief on all ineffectiveness claims

but grants limited relief in the form of resentencing, an appellant must appeal

from the order denying relief on the ineffectiveness claims within 30 days; the

appeal period is not tolled pending resentencing.                  Commonwealth v.

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Gaines, 127 A.3d 15 (Pa.Super. 2015) (en banc).         Specifically, this Court

explained:

         In general, appeals are properly taken from final orders.
         See Pa.R.A.P. 341(b)(2) (stating…appeal lies from…order
         that “is expressly defined as a final order by statute[]”). …
         Pennsylvania Rule of Criminal Procedure 910 governs PCRA
         appeals and provides as follows.

             An order granting, denying, dismissing, or otherwise
             finally disposing of a petition for post-conviction
             collateral relief shall constitute a final order for
             purposes of appeal.

         Pa.R.Crim.P. 910. By its plain text, Rule 910 has no
         exceptions. It is absolute. Further, the comment to Rule
         910 states that “[a] partial disposition under Rule 907[3] is
         not a final order until the judge has fully disposed of all
         claims.” Id. at cmt.

         In our view, there can be no serious dispute that the order
         granting in part and denying in part all the issues raised in
         the PCRA petition “finally disposed” of [a]ppellant’s PCRA
         petition.   Pa.R.Crim.P. 910.     Here, [a]ppellant’s PCRA
         petition raised several claims, each seeking either a new
         trial or resentencing.      The PCRA court granted one
         sentencing claim and denied all claims for a new trial. As a
         result, the court’s July 15, 2013 order ended collateral
         proceedings and called for a new sentencing proceeding,
         which is a trial court function, not a collateral proceeding
         function. Therefore, the PCRA court’s order disposed of all
         of [a]ppellant’s claims in his PCRA petition, terminating its
         role in the proceedings. See id. at cmt. Under a plain,
         straightforward application of Rule 910, the PCRA court’s
         order was a final one.

Id. at 17-18 (internal footnotes omitted) (quashing appeal where appellant

did not appeal within 30 days of order denying PCRA relief on all claims

requesting new trial but granting limited resentencing relief).

      Instantly, the PCRA court entered an order granting in part and denying

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in part Appellant’s PCRA petition on October 6, 2017. Because the court’s

order denied all of Appellant’s ineffectiveness claims, the order was “final” for

purposes of Rule 910, ending all collateral proceedings. See id. Although the

court also ordered resentencing, the resentencing proceeding is a trial court

function, not a collateral proceeding function. Id. Consequently, Appellant’s

appeal from the denial of PCRA relief on his ineffectiveness claims was due

within 30 days, on Monday, November 6, 2017.

      Nevertheless, the October 6, 2017 order created confusion by indicating

that Rule 907 notice would be forthcoming, even though Rule 907 notice

should have preceded the court’s order. See Pa.R.Crim.P. 907(1) (explaining

that if judge is satisfied from review of PCRA petition that there are no genuine

issues concerning any material fact and that defendant is not entitled to post-

conviction relief, and no purpose would be served by any further proceedings,

judge shall give notice to parties of intention to dismiss petition and shall state

in notice reasons for dismissal; defendant may respond to dismissal within 20

days of date of notice; judge thereafter shall order petition dismissed, grant

leave to file amended petition, or direct that proceedings continue).          The

court’s October 6, 2017 order also failed to advise Appellant of his appellate

rights. See Pa.R.Crim.P. 907(4) (stating when petition is dismissed without

hearing, judge shall promptly issue order to that effect and shall advise

defendant by certified mail, return receipt requested, of right to appeal from

final order disposing of petition and of time limits within which appeal must


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be filed).

      Under these circumstances, it was reasonable for Appellant to believe

the October 6, 2017 order was not a “final” order under Rule 910. The PCRA

court’s errors constitute a breakdown in the operations of the court, which

excuses Appellant’s late filing of his notice of appeal. See Patterson, supra.

See also Commonwealth v. Meehan, 628 A.2d 1151 (Pa.Super. 1993),

appeal denied, 538 Pa. 667, 649 A.2d 670 (1994) (excusing untimeliness of

appeal from denial of PCRA petition, where PCRA court failed to advise

petitioner of his right to appeal). Thus, we decline to dismiss the appeal as

untimely and proceed to address the issues Appellant raises in his brief.

      In his issues combined, Appellant argues trial counsel failed to present

an expert witness to rebut the testimony of the Commonwealth’s expert, Dr.

Maria McColgan, that 95% of the sexual abuse victims she had examined

exhibited no signs of physical injury. Appellant asserts trial counsel also failed

to present character witnesses in response to the admission of Appellant’s

prior adjudication for theft, a crimen falsi offense.     Appellant claims trial

counsel further erred by failing to preserve a challenge to the discretionary

aspects of his sentence on direct appeal by excluding from Appellant’s post-

sentence motion, a claim that the original sentencing court failed to explain

its sentencing rationale on the record. Appellant maintains appellate counsel

attempted to challenge the discretionary aspects of his sentence on direct

appeal, but this Court deemed the issue waived for the insufficient post-


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sentence motion.         Appellant avers his EWOC sentence was above the

aggravated range of the sentencing guidelines, so but for counsel’s failure to

preserve the issue, Appellant would have received a reduced sentence.

Appellant contends his various ineffective assistance of counsel claims amount

to cumulative error. Appellant insists the PCRA court erred by declining to

hold an evidentiary hearing on his claims.       Appellant concludes this Court

should vacate the order denying PCRA relief and grant appropriate relief.3 We

disagree.

       Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101, 108 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the findings of the PCRA court if


____________________________________________


3 Appellant also argues on appeal that he received an illegal mandatory
minimum sentence on his IDSI with a child conviction. The record confirms
the PCRA court vacated the illegal sentence and Appellant received a new
sentence that did not include a mandatory minimum term. Thus, the record
belies this claim.

Further, to the extent Appellant complains about the lack of Rule 907 notice,
Appellant agreed during the November 19, 2018 resentencing hearing that
Rule 907 notice was unnecessary. Additionally, Appellant did not include in
his Rule 1925(b) statement any claim regarding Rule 907 notice or his claim
of “cumulative error.” Therefore, those complaints are waived on appeal. See
Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005)
(quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309
(1998)) (stating: “[A]ny issues not raised in a [Rule] 1925(b) statement will
be deemed waived”); Pa.R.A.P. 302(a) (stating: “Issues not raised in the
[PCRA] court are waived and cannot be raised for the first time on appeal”).

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the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d

74 (2007).     We give no such deference, however, to the court’s legal

conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.

2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of

right; the PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.

Wah, 42 A.3d 335 (Pa.Super. 2012).

      The provision of the PCRA regarding a request for an evidentiary hearing

in effect at the time Appellant filed his petition provided: “Where a petitioner

requests an evidentiary hearing, the petition shall include a signed certification

as to each intended witness stating the witness’s name, address, date of birth

and substance of testimony and shall include any documents material to that

witness’s testimony. Failure to substantially comply with the requirements of

this paragraph shall render the proposed witness’s testimony inadmissible.”

42 Pa.C.S.A. § 9545(d)(1) (effective through December 23, 2018). See also

Pa.R.Crim.P. 902(A)(15). It is within a PCRA court’s discretion to decline to

hold an evidentiary hearing where a petitioner fails to provide any certification

regarding potential witnesses. Commonwealth v. Brown, 767 A.2d 576,

583 (Pa.Super. 2001).     “[T]he certification requirement can be met by an

attorney or pro se petitioner certifying what the witness will testify


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regarding[;]” the certification requirement can also be met by the proposed

witness or the witness’ attorney. Commonwealth v. Pander, 100 A.3d 626,

640-41 (Pa.Super. 2014) (en banc), appeal denied, 631 Pa. 712, 109 A.3d

679 (2015).       The content of the certification must comply with Section

9545(d)(1) and include an accurate summary of the missing witness

testimony, to the best of the certifier’s knowledge. Id. Significantly:

         PCRA hearings are not discovery expeditions, but are
         conducted when necessary to offer the petitioner an
         opportunity to prove his explicit assertion of ineffectiveness
         raising a colorable claim about which there remains an issue
         of material fact. Particularly when PCRA claims require
         examination of trial strategy, it is not enough to take a cold
         record, state alternative choices counsel could have made,
         and then declare an entitlement to relief. Mere conclusory
         allegations, without some proffer as to what counsel would
         say in response to the allegations are insufficient to
         establish entitlement to relief. Thus a supporting document
         from counsel stating his reasons for the course chosen is
         generally necessary to establish potential entitlement to a
         hearing.

         …    Although [the Pennsylvania Supreme] Court has
         dismissed claims of ineffectiveness where appellant has not
         provided counsel’s affidavit, [the Court has] indicated [the
         Court] may overlook the failure where appellant adequately
         explains why he did not submit it.

Commonwealth v. Cousar, 638 Pa. 171, 192-93, 154 A.3d 287, 299-300

(2017) (internal citations omitted).

      The   law    presumes   counsel     has   rendered   effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). To prevail

on a claim of ineffective assistance of counsel, a petitioner bears the burden

to prove his claims by a preponderance of the evidence. Commonwealth v.

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Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940

A.2d 365 (2007). The petitioner must demonstrate: (1) the underlying claim

has arguable merit; (2) counsel had no reasonable strategic basis for the

asserted action or inaction; and (3) but for the errors and omissions of

counsel, there is a reasonable probability that the outcome of the proceedings

would have been different. Id. See also Commonwealth v. Kimball, 555

Pa. 299, 724 A.2d 326 (1999). “A reasonable probability is a probability that

is sufficient to undermine confidence in the outcome of the proceeding.”

Commonwealth v. Spotz, 624 Pa. 4, 34, 84 A.3d 294, 312 (2014) (quoting

Commonwealth v. Ali, 608 Pa. 71, 86-87, 10 A.3d 282, 291 (2010)).

“Where it is clear that a petitioner has failed to meet any of the three, distinct

prongs of the…test, the claim may be disposed of on that basis alone, without

a determination of whether the other two prongs have been met.”

Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786, 797 (2008).

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

         Once this threshold is met we apply the “reasonable basis”
         test to determine whether counsel’s chosen course was
         designed to effectuate his client’s interests. If we conclude
         that the particular course chosen by counsel had some

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         reasonable basis, our inquiry         ceases      and   counsel’s
         assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

         Prejudice is established when [an appellant] demonstrates
         that counsel’s chosen course of action had an adverse effect
         on the outcome of the proceedings. The [appellant] must
         show that there is a reasonable probability that, but for
         counsel’s unprofessional errors, the result of the proceeding
         would have been different. A reasonable probability is a
         probability sufficient to undermine confidence in the
         outcome. In [Kimball, supra], we held that a criminal
         [appellant] alleging prejudice must show that counsel’s
         errors were so serious as to deprive the defendant of a fair
         trial, a trial whose result is reliable.

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)

(internal citations and quotation marks omitted).

         [T]o prevail on a claim of ineffectiveness for failing to call a
         witness, a [petitioner] must prove, in addition to meeting
         the three Pierce requirements, that: (1) the witness
         existed; (2) the witness was available to testify for the
         defense; (3) counsel knew or should have known of the
         existence of the witness; (4) the witness was willing to
         testify for the defense; and (5) the absence of the [witness’]
         testimony was so prejudicial as to have denied him a fair
         trial.

Commonwealth v. Wright, 599 Pa. 270, 331, 961 A.2d 119, 155 (2008). A

petitioner’s failure to identify or present potential witnesses is grounds for

denial of relief. Commonwealth v. Treiber, 632 Pa. 449, 498, 121 A.3d

435, 464 (2015).

      To succeed on an ineffectiveness claim for failure to preserve a challenge

to the discretionary aspects of sentencing, the petitioner must demonstrate

the   underlying   sentencing    claim    entitles   the    petitioner   to   relief.

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Commonwealth v. Jones, 942 A.2d 903 (Pa.Super. 2008), appeal denied,

598 Pa. 764, 956 A.2d 433 (2008). See also Commonwealth v. Reaves,

592 Pa. 134, 923 A.2d 1119 (2007) (providing claim of ineffectiveness for

failure to preserve discretionary sentencing issue requires showing of

reasonable probability that sentencing court would have imposed lesser

sentence).

     Instantly, regarding Appellant’s claim trial counsel was ineffective for

failing to present opposing expert testimony, the PCRA court reasoned:

        There was no indication in [Appellant’s PCRA] petition of
        what relief such an endeavor would have provided, the
        grounds for any such relief, [and] an identification of any
        affidavits, documents, or other evidence showing that such
        grounds existed. Nor was the petition accompanied, with
        regard to this issue, by a signed certification as to any
        proposed expert witness and the substance of the witness’s
        proposed testimony or any documentation material to that
        testimony.     One can only presume that the proposed
        testimony would have been required to have included any
        scientific foundation for the proposition that it is not true
        that in more than 95% of cases involving children who are
        sexually abused, no physical evidence of abuse is revealed
        during clinical examinations. Having not provided any of
        that information, [Appellant] would have been precluded
        from attempting to assert any support for any relief or to
        present any witnesses to provide such support at any
        evidentiary hearing. [PCRA] counsel appears to have been
        under the impression that [Appellant] was entitled to a
        hearing to see if he could dig up any such information….

        … In terms of the failure to call a witness there was no
        indication that (1) such an expert existed (2) who would
        have been available to testify and would have been able to
        scientifically refute the state’s expert’s statement and [of]
        whose existence (3) [trial] counsel was or should have been
        informed and (4) that the witness was prepared to
        cooperate and would have testified on [A]ppellant’s behalf

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         and in his favor on the subject of physical evidence of sexual
         abuse and (5) that the absence of such testimony was
         prejudicial to [Appellant]’s case. … [Appellant]’s only
         explicit [asse]rtion is that his [trial] attorney should have
         called an expert witness to refute a single proposition by the
         Commonwealth’s expert and nothing more. He made no
         attempt to demonstrate what the endeavor would have
         accomplished…. Nor did [Appellant] attempt to support his
         mere conclusory allegation with some proffer as to what trial
         counsel would have said in response to that allegation
         without which the claim was of insufficient support to
         establish entitlement to relief. …

(PCRA Court Opinion, filed June 28, 2019, at 16-18). The record supports the

PCRA court’s rationale. See Conway, supra. Appellant failed to meet his

burden of satisfying the five-pronged test to succeed on a claim of

ineffectiveness for failing to call a witness and did not identify any potential

expert witness. See Treiber, supra; Wright, supra. Additionally, Appellant

did not (1) obtain a statement from trial counsel detailing counsel’s rationale

for not presenting an opposing expert witness at trial or (2) provide an

explanation for Appellant’s failure to procure such a statement. See Cousar,

supra.    Therefore, the PCRA court properly denied Appellant’s claim of

ineffectiveness for failure to present expert witness testimony and Appellant’s

request for an evidentiary hearing on that claim. See Wah, supra; Conway,

supra.

      With respect to Appellant’s claim that trial counsel was ineffective for

failing to call character witnesses in response to the Commonwealth’s

introduction of his prior adjudication of delinquency for theft, Appellant did not

establish trial counsel knew or should have known of the proposed character

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witnesses. See Wright, supra. Additionally, Appellant did not (1) obtain a

statement from trial counsel detailing counsel’s reasoning for not presenting

character witnesses at trial or (2) provide an explanation for Appellant’s failure

to procure such a statement. See Cousar, supra. Therefore, Appellant was

not entitled to PCRA relief or an evidentiary hearing on that claim. See Wah,

supra; Conway, supra.

      Regarding Appellant’s infectiveness claim for failure to preserve a

challenge to the discretionary aspects of Appellant’s EWOC sentence, initially,

Appellant cites no law articulating why this claim would have raised a

substantial question for review on direct appeal had it been properly preserved

in his post-sentence motion.     See Pa.R.A.P. 2119(a); Commonwealth v.

Johnson, 604 Pa. 176, 191, 985 A.2d 915, 924 (2009), cert. denied, 562 U.S.

906, 131 S.Ct. 250, 178 L.Ed.2d 165 (2010) (stating claim is waived where

appellate brief does not include citation to relevant authority or fails to develop

issue in any meaningful fashion capable of review). Therefore, this ineffective

assistance of counsel claim is arguably waived.

      Moreover, the PCRA court stated:

         [A]ppellant having failed to develop any argument, either
         factual or legal, that there was any possibility that a post-
         sentence motion alleging that the trial court had not set
         forth adequate reasons on the record to support its sentence
         would have had any possibility of success and resulted in a
         lesser sentence…again failed to meet the three part
         Strickland/Pierce ineffective assistance of counsel test. …
         Present counsel’s banal but completely unsupported
         reproach that [Appellant] was ‘prejudiced by this
         ineffectiveness because it precluded him from having a

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         potentially meritorious issue reviewed by the appellate court
         and prior counsels’ failure to preserve this issue before the
         courts in a sufficient manner cost him the opportunity to
         have his sentence reduced or reviewed’ is just overblown
         hyperbole which by no means amounted to the development
         of a colorable claim demonstrating that there were actual
         issues of material fact that the PCRA requires petitioners to
         supply.

(PCRA Court Opinion at 22-23). We accept the PCRA court’s analysis that

Appellant failed to establish prejudice. See Steele, supra; Reaves, supra.

Therefore, the PCRA court properly denied Appellant’s claim of ineffective

assistance of counsel concerning the discretionary aspects of sentencing and

Appellant’s request for an evidentiary hearing on this claim.        See Wah,

supra; Conway, supra.

      Notwithstanding the propriety of the court’s denial of PCRA relief on

Appellant’s ineffectiveness claims, our review of the record shows the court’s

November    19, 2018    judgment    of   sentence   is   legally infirm.   See

Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super. 2003) (en banc)

(explaining challenges to illegal sentence may be raised by this Court sua

sponte; illegal sentence must be vacated). Issues related to the legality of a

sentence are questions of law. Commonwealth v. Diamond, 945 A.2d 252,

256 (Pa.Super 2008), appeal denied, 598 Pa. 755, 955 A.2d 356 (2008). Our

“standard of review is de novo and our scope of review is plenary.” Id. The

Sentencing Code provides, in relevant part: “The court shall impose a

minimum sentence of confinement which shall not exceed one-half of the

maximum sentence imposed.” 42 Pa.C.S.A. § 9756(b)(1).

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       Instantly, upon resentencing, the court imposed a term of eight and

one-half (8½) to sixteen (16) years’ incarceration on the IDSI with a child

conviction.     (See Resentencing Order, 11/19/18, at 1.)      The minimum

incarceration term, 8½ years, is greater than half of the maximum

incarceration term, 16 years. Therefore, the November 19, 2018 sentence for

the IDSI with a child conviction is illegal. See 42 Pa.C.S.A. § 9756(b)(1).

       Based upon the foregoing, we affirm the PCRA court’s denial of relief

concerning Appellant’s ineffectiveness claims, vacate the November 19, 2018

judgment of sentence in its entirety, and remand for resentencing. 4      See

____________________________________________


4  Upon remand, the resentencing court must be cognizant of which sexual
offender reporting requirements apply to Appellant’s convictions.         In
December 2012, SORNA, at 42 Pa.C.S.A. §§ 9799.10-9799.41, became
effective as the statute governing the registration and supervision of sex
offenders. Following Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189
(2017), cert. denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018)
and Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017) (“Butler
I”), rev’d, 25 WAP 2018, ___ Pa. ___, ___ A.3d ___, 2020 WL 1466299 (Pa.
filed March 26, 2020), the Pennsylvania General Assembly enacted legislation
to amend SORNA. See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act 10”). Act
10 amended several provisions of SORNA, and also added several new
sections found at 42 Pa.C.S.A. §§ 9799.42, 9799.51-9799.75. In addition,
the Governor of Pennsylvania signed new legislation striking the Act 10
amendments and reenacting several SORNA provisions, effective June 12,
2018. See Act of June 12, 2018, P.L. 1952, No. 29 (“Act 29”). Through Act
10, as amended in Act 29, the General Assembly created Subchapter I, which
addresses sexual offenders who committed an offense on or after April 22,
1996, but before December 20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75.
Subchapter I contains less stringent reporting requirements than Subchapter
H, which applies to offenders who committed an offense on or after December
20, 2012. See 42 Pa.C.S.A. §§ 9799.13, 9799.54. Notably, this Court
recently determined the internet dissemination provision of Subchapter I is
unconstitutional because it violates the federal ex post facto clause. See



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Commonwealth v. Bartrug, 732 A.2d 1287 (Pa.Super. 1999), appeal

denied, 561 Pa. 651, 747 A.2d 896 (1999) (holding sentencing error on one

count in multi-count case generally requires all sentences for all counts to be

vacated so court can restructure entire sentencing scheme).         See also

Commonwealth v. Goldhammer, 512 Pa. 587, 593, 517 A.2d 1280, 1283

(1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987)

(stating generally if appellate court alters overall sentencing scheme, then

remand for re-sentencing is proper).

       Order affirmed; judgment of sentence vacated; case remanded for

resentencing. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/20




____________________________________________


Commonwealth v. Moore, 222 A.3d 16 (Pa.Super. 2019). Here, Appellant’s
sex offenses took place in 2008, so Subchapter I applies to his convictions.

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