J-S38007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    DEXTER L. NEWSUAN                          :
                                               :
                      Appellant                :       No. 2523 EDA 2016

           Appeal from the Judgment of Sentence December 16, 2011
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009215-2008,
                            CP-51-CR-0009230-2008


BEFORE:      GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                              FILED JULY 11, 2017

        Appellant, Dexter L. Newsuan, appeals nunc pro tunc from the

judgment of sentence entered in the Philadelphia County Court of Common

Pleas, following his bench trial convictions for two counts of first-degree

murder and one count each of firearms not to be carried without a license,

carrying firearms on public streets or public property in Philadelphia, and

possessing instruments of crime (“PIC”).1 We affirm.

        In its opinion, the trial court accurately set forth the relevant facts and

procedural history of this case.         Therefore, we have no reason to restate

them.
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a); 6106(a); 6108; 907, respectively.


___________________________

*Former Justice specially assigned to the Superior Court.
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      Appellant raises two issues for our review:

         WAS THE EVIDENCE SUFFICIENT TO ESTABLISH BEYOND
         A REASONABLE DOUBT THAT [APPELLANT] COMMITTED
         THE HOMICIDES IN THIS CASE?

         DID THE TRIAL COURT ERR IN DENYING [APPELLANT] THE
         RIGHT TO FILE POST-SENTENCE MOTIONS NUNC PRO
         TUNC FROM THE JUDGMENT OF SENTENCE BECAUSE THIS
         DENIAL PREVENTED [APPELLANT] FROM ASSERTING THAT
         THE VERDICTS OF GUILTY FIRST DEGREE MURDER WERE
         AGAINST THE WEIGHT OF THE EVIDENCE?

(Appellant’s Brief at 2).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Jeffrey P.

Minehart, we conclude Appellant’s first issue merits no relief. The trial court

opinion comprehensively discusses and properly disposes of that issue.

(See Trial Court Opinion, filed September 9, 2016, at 4-7) (finding:

Commonwealth presented evidence that Appellant told two people he had

killed Victims; according to witness Mr. Bucci, Appellant stated he killed

Victims because they had burglarized his residence and were planning to do

it again; Appellant also told Mr. Bucci that Appellant was having problems

with people regarding sale of drugs, and Appellant borrowed nine millimeter

weapon from Mr. Bucci, just before murders; Appellant also told Mr. Koufie

he shot Victims; ballistic evidence showed Victims were killed by nine

millimeter weapon and were shot in vital parts of their bodies; circumstantial

evidence along with testimony about Appellant’s admissions was sufficient to

sustain Appellant’s first-degree murder convictions). Therefore, with respect

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to Appellant’s first issue, we affirm on the basis of the trial court’s opinion.

      In his second issue, Appellant argues the court denied him the

opportunity to challenge the weight of the evidence on appeal by rejecting

Appellant’s request for reinstatement of his post-sentence motion rights

nunc pro tunc.     Appellant asserts the Commonwealth’s case against him

hinged on the testimony of two witnesses who claimed Appellant had

confessed the murders to them.        Appellant insists one of those witnesses

was a “corrupt and polluted source” with a lengthy criminal record, who

manipulated the system to escape prosecution for his own crimes by

blaming others. Appellant contends the other witness recanted at trial his

earlier testimony inculpating Appellant, and had an open assault charge

against him.     Given the credibility issues surrounding these witnesses,

Appellant maintains he wanted to attack the weight of the evidence on

appeal. Appellant concludes he suffered prejudice where he was deprived of

the opportunity to litigate a weight-of-the-evidence claim on appeal, and this

Court should remand the matter so Appellant can file a post-sentence

motion nunc pro tunc challenging the weight of the evidence. We disagree.

      Where the court reinstates direct appeal rights nunc pro tunc, the

appellant is not automatically entitled to reinstatement of his post-sentence

rights nunc pro tunc as well. Commonwealth v. Liston, 602 Pa. 10, 977

A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a defendant’s

post-sentence rights nunc pro tunc if the defendant successfully pleads and


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proves he was deprived of the right to file and litigate post-sentence motions

as a result of ineffective assistance of counsel. Id. at 20 n.9, 977 A.2d at

1095 n.9.        Compare Commonwealth v. Fransen, 986 A.2d 154

(Pa.Super. 2009) (holding PCRA petitioner who obtains reinstatement of

direct appeal rights nunc pro tunc is not entitled to reinstatement of post-

sentence rights nunc pro tunc if he did not request that relief with PCRA

court; appellant’s claim that he was entitled to file post-sentence motions

and to have benefit of evidentiary hearing warranted no relief where

appellant did not plead or prove in PCRA petition that he was deprived of

right to file post-sentence motions).

      Instantly, the court convicted Appellant on December 16, 2011, of two

counts of first-degree murder and one count each of firearms not to be

carried without a license, carrying firearms on public streets or public

property in Philadelphia, and PIC. The court sentenced Appellant that day to

consecutive life sentences for the murder convictions and imposed other

concurrent sentences for the remaining crimes. Appellant did not file post-

sentence motions.      Instead, Appellant filed a timely direct appeal on

December 19, 2011. On January 14, 2013, this Court affirmed Appellant’s

judgment    of   sentence,   deeming    the   sole   issue   waived   for   review.

Notwithstanding Appellant’s phrasing of the question presented on appeal as

challenging the sufficiency of the evidence, this Court decided Appellant’s

argument was actually an attack on the weight of the evidence, which


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Appellant had not preserved before the trial court.      The Supreme Court

denied allowance of appeal on June 13, 2013.        See Commonwealth v.

Newsuan, 64 A.3d 277 (Pa.Super. 2013), appeal denied, 620 Pa. 714, 69

A.3d 243 (2013).

        Appellant filed a timely pro se PCRA petition on August 14, 2014. The

court appointed counsel, who filed an amended PCRA petition on February

26, 2016, along with a supporting memorandum of law.          In his amended

PCRA petition and supporting memorandum, Appellant claimed appellate

counsel was ineffective for failing to raise any reviewable issues on appeal,

which effectively denied Appellant a chance to appeal his judgment of

sentence. Appellant maintained appellate counsel had no rational basis for

failing to present reviewable issues on appeal, and that Pennsylvania case

law favors restoration of a defendant’s direct appeal rights nunc pro tunc in

similar circumstances.     In the “WHEREFORE” clauses of the amended

petition   and   supporting   memorandum     of   law,   Appellant   requested

reinstatement of his post-sentence motion and direct appeal rights nunc pro

tunc.

        The Commonwealth filed a response on May 26, 2016, opposing only

Appellant’s request for reinstatement of his post-sentence motion rights

nunc pro tunc.       The Commonwealth insisted Appellant had made no

argument whatsoever under the traditional ineffective assistance of counsel

test to warrant reinstatement of his post-sentence motion rights nunc pro


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tunc. The Commonwealth highlighted that Appellant did not even mention

what he planned to challenge in a post-sentence motion nunc pro tunc.

      On July 14, 2016, the court granted Appellant’s request to file a direct

appeal nunc pro tunc but denied his request to file post-sentence motions

nunc pro tunc. In its Rule 1925(a) opinion, the court explained its rationale

as follows:

         A review of [Appellant’s] filing indicated that [Appellant]
         did not present any argument in support of a claim that he
         should be granted the right to file post-sentence motions.
         Consequently it is suggested that [Appellant] be deemed
         to have failed to meet his burden with respect to this claim
         and it be dismissed.

(Trial Court Opinion at 9). We agree with the court’s decision.

      Consistent with Liston and Fransen, Appellant needed to plead in his

PCRA petition that appellate counsel deprived him of the opportunity to

litigate a post-sentence motion.      Significantly, Appellant attacked only

appellate counsel’s failure to raise any reviewable issues on appeal.

Appellant mentioned nothing about his right to litigate a post-sentence

motion until the “WHEREFORE” clause of his petition, in which he simply

requested the right to file post-sentence motions nunc pro tunc.        Absent

proper pleading in his PCRA petition, that appellate counsel was ineffective

for depriving Appellant of a chance to litigate post-sentence motions, the

court correctly denied Appellant’s request for relief. Accordingly, we affirm.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2017




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