J-S11010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DESEAN KINGWOOD                          :
                                          :
                    Appellant             :   No. 987 EDA 2018

                 Appeal from the PCRA Order March 8, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0012048-2008


BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                          FILED AUGUST 14, 2019

      Appellant, Desean Kingwood, appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

      The PCRA court summarized the procedural history of this case as

follows:

             On August 8, 2008, [Appellant] was arrested and charged
      with Attempt[ed] Murder and related offenses. On April 22, 2013,
      [Appellant] appeared before this [c]ourt and elected to be tried by
      a jury. On April 26, 2013, a jury convicted [Appellant] of
      Attempt[ed] Murder, Aggravated Assault, Firearms Not to be
      Carried Without a License (“VUFA 6106”) and Recklessly
      Endangering Another Person (“REAP”). On December 11, 2013,
      this [c]ourt imposed a sentence of fifteen to thirty years of
      incarceration on Attempt[ed] Murder, and concurrent sentences
      of five to ten years of incarceration on Aggravated Assault and
      one to two years of incarceration on VUFA 6106 and REAP, for a
      total sentence of fifteen to thirty years of incarceration.
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              On January 6, 2014, [Appellant] filed a timely appeal to the
        Superior Court arguing that a pre-trial ruling regarding the
        admission of prior bad acts was in error.1 On July 21, 2014[,
        Appellant] entered into a negotiated guilty plea in two unrelated
        cases, CP-51-CR-0005759-2013 and CP-51-CR-0005760-2013, to
        Third-Degree Murder, Attempt[ed] Murder, and VUFA 6106 for a
        cumulative term of twenty to forty years of incarceration.2 On
        August 5, 2015, the Superior Court ruled that the motion court
        abused its discretion in regards to the 404(b) evidence and
        remanded this case for a new trial.

              1On January 11, 2013, the Honorable Earl Trent heard
              the pre[-]trial motions and ruled that evidence
              regarding another robbery was admissible, finding
              that its probative value outweighed its prejudicial
              impact.

              2  [Appellant] was sentenced in CP-51-CR-0005759-
              2013 to twenty to forty years of incarceration for
              Third-Degree Murder and a concurrent period of one
              to five years of incarceration on VUFA 6106.
              [Appellant] was sentenced concurrently in CP-51-CR-
              0005760-2013 to nineteen to forty years of
              incarceration on Attempt[ed] Murder. That [c]ourt
              ordered the sentence served under CP-51-CR-
              0005759-2013 to be served consecutively to the
              fifteen to thirty year sentence imposed by this [c]ourt
              for a cumulative sentence of thirty five to seventy
              years of incarceration.

               On June 23, 2016, [Appellant] entered into an open guilty
        plea before this [c]ourt on Attempt[ed] Murder, Aggravated
        Assault, VUFA 6106, and REAP[1]. On September 7, 2016, the
        [c]ourt imposed a sentence of ten to twenty years on Attempt[ed]
        Murder and two to four years of incarceration on VUFA 6106,3 for
        a cumulative sentence of ten to twenty years of incarceration, to
        be served consecutive[ly] to the unrelated sentences on CP-51-
        CR-0005759-2013 and CP-51-CR-0005760-2013. [Appellant] did
        not file a direct appeal.



____________________________________________


1   18 Pa.C.S. §§ 2502(a), 2702(a), 6106(a)(2), and 2705, respectively.

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           3 This [c]ourt imposed no         further   penalty   on
           Aggravated Assault and REAP.

           On October 2, 2017, [Appellant] filed a timely pro se Post-
     Conviction Relief Act (“PCRA”) petition. On January 24, 2018,
     appointed PCRA counsel filed an amended petition. On January
     25, 2018, after finding [Appellant’s] claims meritless, this [c]ourt
     issued a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907.
     On February 13, 2018, [Appellant] filed a response to the 907
     Notice.4

           4 Though [Appellant] asserts in his response that he
           believes the [c]ourt mistakenly imposed a consecutive
           sentence, he offers no new claims.

PCRA Court Opinion, 3/8/18, at 1-2.

     On March 8, 2018, the PCRA court dismissed Appellant’s PCRA petition.

On March 17, 2018, Appellant filed a motion to reconsider the PCRA court’s

March 8, 2018 order, which the PCRA court denied on March 20, 2018.

Appellant filed a notice of appeal on March 29, 2018, followed by a Pa.R.A.P.

1925(b) statement.   The docket entries reflect that the Pa.R.A.P. 1925(a)

opinion filed was the same opinion that was filed March 8, 2018.

     Appellant presents the following issues for our review:

     1. Did the [PCRA] court judge commit error or abuse its discretion
     by denying the Appellant’s request to file a direct appeal, nunc pro
     tunc, from the judgment of sentence that was imposed upon
     [Appellant] in this matter on September 7, 2016 where his trial
     attorney in this matter failed to file such a direct appeal from that
     sentence of ten (10) to twenty (20) years, consecutive to
     [Appellant’s] previously imposed negotiated sentence of twenty
     (20) to forty (40) years in CP-51-CR-0005759-2013 and CP-51-
     CR-0005760-2013.




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       2. Did the [PCRA] court[2] commit error or an abuse of discretion
       by refusing to conduct an evidentiary hearing on the Appellant’s
       Motion for Reconsideration of the lower court’s Order of March 8,
       2018, where the [PCRA] court could have heard testimony at such
       a hearing which would have been helpful to it in more fairly and
       justly adjudicating [Appellant’s] sentence, including the following:

              a. Testimony from prior defense counsel as to
              [Appellant’s] limited intelligence and why [Appellant]
              misunderstood the terms of his open guilty plea and
              expected greater leniency from the trial court judge
              than what he ultimately received at sentencing;

              b. Testimony from a mental health expert, or his
              mental health report, who could testify as to what
              abilities and disabilities would be characteristic of an
              individual with an IQ level of 63, such as [Appellant],
              who was classified as either “mentally retarded” or
              “mentally disabled,” a phrase that was used later in
              the field of psychoanalytics.

              c. Testimony from the Appellant himself as to what he
              claims to have understood from his conversations with
              prior defense counsel, both before and at the time of
              his open guilty plea hearing on June 23, 2016 and his
              sentencing hearing on September 7, 2016.

Appellant’s Brief at 3-4.

       When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).     This Court is limited to determining whether the evidence of


____________________________________________


2   Appellant incorrectly refers to the lower court as the trial court. As
illustrated, however, Appellant is challenging the PCRA court’s action following
the entry of the order denying his PCRA petition.

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record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that are

supported in the record and will not disturb them unless they have no support

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.

Super. 2014).

      In his first issue as listed in his brief’s statement of questions involved,

Appellant asserts that the PCRA court erred by denying his request to file a

direct appeal, nunc pro tunc, from his judgment of sentence, where his

attorney failed to file a direct appeal. Appellant’s Brief at 3. Further, in the

summary of the argument section of his brief, Appellant maintains that the

PCRA court erred in denying his request to file an appeal, nunc pro tunc, where

Appellant had a discussion with his attorney prior to and after his plea of guilty

that would lead Appellant to believe that a direct appeal would be filed for

him. Id. at 10. Appellant’s Pa.R.A.P. 1925(b) statement also lists as his first

issue counsel’s ineffectiveness for failure to file a direct appeal following

Appellant’s request that he file an appeal.      Pa.R.A.P. 1925(b) Statement,

4/5/18, at 1. Thus, it appears that Appellant is making an argument that

counsel was ineffective for failing to file a direct appeal when Appellant had

requested that he do so.

      In the argument section of his brief, however, Appellant varies his

argument and asserts that the PCRA court erred in denying his request to file


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a direct appeal nunc pro tunc because he did not voluntarily and intelligently

enter his plea.   Appellant’s Brief at 11-14. Appellant did not assert in his

Pa.R.A.P. 1925(b) statement, however, that he should be permitted to file a

direct appeal nunc pro tunc based on an unknowing and unintelligent entry of

a guilty plea. Pa.R.A.P. 1925(b) Statement. Because Appellant did not raise

this claim in his Pa.R.A.P. 1925(b) statement, it is waived.                 See

Commonwealth        v.   Hill,   16   A.3d   484,   491   (Pa.   2011)   (quoting

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)) (“Any issues not

raised in a Pa.R.A.P. 1925(b) statement will be deemed waived.”). Thus, only

Appellant’s claim that counsel was ineffective for failing to file a direct appeal

pursuant to Appellant’s request has been preserved for our review.

      Furthermore, despite preserving and raising the issue regarding

counsel’s ineffectiveness for failure to file a direct appeal per his request,

Appellant has failed to develop it. As a result, such claim is waived. See

Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009) (finding claims

waived “for failure to develop them in any meaningful fashion capable of

review”); Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super.

2017) (“It is well-established that [w]hen issues are not properly raised and

developed in briefs, when the briefs are wholly inadequate to present specific

issues for review, a court will not consider the merits thereof.”).

      Assuming arguendo that the issue was not waived for failure to develop

it, we would conclude that Appellant’s claim is meritless. Our Supreme Court


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has explained the following in addressing an ineffective assistance of counsel

claim:

         To prevail in a claim of ineffective assistance of counsel, a
      petitioner must overcome the presumption that counsel is
      effective by establishing all of the following three elements, as set
      forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
      975–76 (1987): (1) the underlying legal claim has arguable
      merit; (2) counsel had no reasonable basis for his or her action or
      inaction; and (3) the petitioner suffered prejudice because of
      counsel’s ineffectiveness.

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). “In order to meet

the prejudice prong of the ineffectiveness standard, a defendant must show

that there is a ‘reasonable probability that but for counsel’s unprofessional

errors,   the   result   of   the   proceeding   would   have   been   different.’”

Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). An allegation

of ineffective assistance of counsel will fail if the petitioner does not meet any

of the three prongs. Commonwealth v. Williams, 863 A.2d 505, 513 (Pa.

2004).     “The burden of proving ineffectiveness rests with Appellant.”

Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

      Appellant’s cursory averment that he asked trial counsel to file a direct

appeal on his behalf, and counsel failed to do so, is insufficient to satisfy

Appellant’s burden. “[B]efore a court will find ineffectiveness of trial counsel

for failing to file a direct appeal, Appellant must prove that he requested an

appeal and that counsel disregarded this request.”          Commonwealth v.

Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999). “A mere allegation will not

suffice to prove that counsel ignored a petitioner’s request to file an appeal.”

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Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006) (citing

Harmon, 738 A.2d at 1024.). Appellant presents no evidence supporting his

claim that he directed counsel to file a direct appeal. Thus, this claim lacks

merit.

      Moreover, to the extent that Appellant may aver that even in the

absence of a request by a defendant, counsel may still be ineffective for failing

to file a direct appeal, his claim lacks merit. This Court in Commonwealth

v. Touw, 781 A.2d 1250 (Pa. Super. 2001) summarized the United States

Supreme Court case of Roe v. Flores-Ortega, 528 U.S. 470 (2000), as

follows:

            If counsel has not consulted with the defendant, the
            court must in turn ask a second, and subsidiary,
            question: whether counsel’s failure to consult with the
            defendant itself constitutes deficient performance.
            That question lies at the heart of this case: Under
            what circumstances does counsel have an obligation
            to consult with the defendant about an appeal?

      The Court answered this question by holding:

            [C]ounsel has a constitutionally-imposed duty to
            consult with the defendant about an appeal when
            there is reason to think either (1) that a rational
            defendant would want to appeal (for example,
            because there are nonfrivolous grounds for appeal),
            or (2) that this particular defendant reasonably
            demonstrated to counsel that he was interested in
            appealing. In making this determination, courts must
            take into account all the information counsel knew or
            should have known.

      A deficient failure on the part of counsel to consult with the
      defendant does not automatically entitle the defendant to
      reinstatement of his or her appellate rights; the defendant must

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       show prejudice. The Court held that “to show prejudice in these
       circumstances, a defendant must demonstrate that there is a
       reasonable probability that, but for counsel’s deficient failure to
       consult with him about an appeal, he would have timely
       appealed.”

Touw, 781 A.2d at 1254 (quoting Roe, 528 U.S. at 480).

             Where no request has been made, an appellant must
       establish that a duty to consult was owed. Under Roe and Touw,
       an appellant may establish a duty to consult by indicating issues
       that had any potential merit for further review.

Commonwealth v. Bath, 907 A.2d 619, 623 (Pa. Super. 2006).

       Appellant does not assert that counsel failed to consult with him about

an appeal. Additionally, Appellant has failed to establish that a consultation

was owed. Appellant has failed to indicate any issues that had potential merit

for further review.      Bath, 907 A.2d at 623.    Therefore, we conclude that

Appellant has not met his burden of establishing prejudice by counsel’s failure

to consult with him regarding a direct appeal. In the absence of prejudice, we

cannot find that counsel was ineffective.3 Thus, even if Appellant’s claim is

not deemed waived, he would not be entitled to relief.




____________________________________________


3 We are cognizant of the holding in Commonwealth v. Liebel, 825 A.2d 630
(Pa. 2003), and its progeny, which eliminated the requirement of proof of
prejudice in an ineffective assistance of counsel claim regarding a failure to
file a direct appeal. Liebel applies only where the appellant has requested
the filing of a petition for allowance of appeal and counsel has failed to comply.
Bath, 907 A.2d at 623 (Pa. Super. 2006). Because this analysis is conducted
on the basis of Appellant’s claim that counsel was required to file a direct
appeal, absent Appellant’s request, it is inapplicable.


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      In the second issue presented in his brief, Appellant argues that the

PCRA court erred or abused its discretion by refusing to conduct an evidentiary

hearing on his motion for reconsideration of the PCRA court’s denial of his

PCRA petition.    Appellant’s Brief at 3.     Appellant maintains that if an

evidentiary hearing had been held, the PCRA court would have heard

testimony that would have been helpful to it “in more fairly and justly

adjudicating [Appellant’s] sentence.”   Id.   Specifically, Appellant maintains

that there would have been testimony regarding Appellant’s limited

intelligence, Appellant’s IQ and Appellant’s testimony as to “what he claims to

have understood from his conversations with prior defense counsel, both

before and at the time of his open guilty plea hearing on June 23, 2016[,] and

his sentencing hearing on September 7, 2016.” Id. at 3-4.

      Review of Appellant’s pro se PCRA petition and amended PCRA petition,

however, reflects the absence of any assertion of the PCRA court’s error for

failing to hold an evidentiary hearing on Appellant’s motion for reconsideration

in order to hear testimony related to Appellant’s limited intelligence or any

intellectual disability. Pro Se PCRA Petition, 10/2/17, at 1-3; Amended PCRA

Petition, 1/24/18, at 1-10. Further, Appellant’s Pa.R.A.P. 1925(b) statement

includes a claim that the trial court erred in denying Appellant’s motion for

reconsideration without holding an evidentiary hearing to hear testimony from

Appellant’s trial attorney regarding Appellant’s expectations related to

sentencing. Pa.R.A.P. 1925(b) Statement, 4/5/18, at 1-3. No assertion was


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made therein that the PCRA court erred in failing to hold an evidentiary

hearing in order to gather evidence regarding an alleged intellectual disability.

Id. Thus, to the extent that Appellant argues on appeal that the PCRA court

erred in dismissing Appellant’s motion for reconsideration without holding an

evidentiary hearing regarding Appellant’s intellectual disability, such claim is

waived.     See Commonwealth v. Washington, 927 A.2d 586, 601 (Pa.

2007) (claim raised for first time on motion for reconsideration of PCRA court’s

dismissal of PCRA petition is waived); Hill, 16 A.3d at 491.

        Furthermore, had such claim not been waived, we would conclude that

the PCRA court did not err in failing to hold an evidentiary hearing on the

motion for reconsideration of the denial of the PCRA petition. We first note

that there is no right to an evidentiary hearing on a PCRA petition.        See

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (“There is

no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA

court can determine from the record that no genuine issues of material fact

exist, then a hearing is not necessary.”) (citation omitted); Pa.R.Crim.P.

907(2).    Here, Appellant has failed to demonstrate that any of the claims

presented to the PCRA court raised a genuine issue concerning any material

fact.

        Moreover, there is no requirement that a PCRA court hold an evidentiary

hearing prior to denying a motion for reconsideration of an order denying a

PCRA petition. “A motion for reconsideration is not a post-trial motion. A


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motion for reconsideration is addressed to the sound discretion of the trial

court and may be filed within thirty days of the date of the order upon which

reconsideration is sought.” Ellenbogen v. PNC Bank, N.A., 731 A.2d 175 n.

7 (Pa. Super. 1999) (emphasis added) (quoting Moore v. Moore, 634 A.2d

163, 166 (Pa. 1993).      A court is not required to act upon a motion for

reconsideration.   Pa.R.A.P. 1701(b)(3).      As this Court has explained in

addressing motions for reconsideration:

      the filing of [a motion for reconsideration] does not toll the time
      period for the filing of an appeal. Rather, preserving the trial
      court’s discretion in this regard merely protects the trial court’s
      prerogative to review its own decision within thirty days after its
      issuance.

Vietri ex rel. Vietri v. Delaware Valley High School, 63 A.3d 1281, 1286

n. 3 (Pa. Super. 2013).     Moreover, the comment to Pa.R.A.P. 1701(b)(3)

provides: “If the [motion for reconsideration] lacks merit the trial court ...

may deny [it] by the entry of an order to that effect or by inaction.” Pa.R.A.P.

1701(b)(3) cmt. (emphasis added). See also Commonwealth v. Moir, 766

A.2d 1253, 1254 (Pa. Super. 2000) (discussing Pa.R.A.P. 1701 and the

requirement that a motion for reconsideration must be expressly granted in

order to toll the appeal period).

      Thus, it is clear that the PCRA court did not err in declining to grant

Appellant an evidentiary hearing on the motion to reconsider the denial of his

PCRA petition. There is no requirement that the PCRA court act on a motion

to reconsider; thus, it has no obligation to hold an evidentiary hearing on it.


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Moreover, the         information and report regarding Appellant’s         asserted

intellectual disability was presented to the trial court at the time of sentencing.

N.T. (Sentencing), 9/7/16, at 6-7, 18-20. The trial court at that time offered

sound reasons for the sentence it imposed.             Id. at 25-28. Therefore, the

PCRA court committed no abuse of discretion in declining to give Appellant an

opportunity for a repeat performance.

          Furthermore, assuming arguendo that Appellant had not waived his

claim that he expected a more lenient sentence, his claim would not warrant

relief.     Appellant’s challenge to the alleged excessive harshness of his

sentence constitutes a challenge to the discretionary aspects of his sentence.4

“Challenges to the discretionary aspects of sentencing are not cognizable

under the PCRA.” Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super.

2007) (citing 42 Pa.C.S. § 9543(a)(2)(vii)). As such, we would be precluded

from reviewing Appellant’s discretionary aspects of sentencing claims.

          Order affirmed.

          Judge Murray joins the Memorandum.

          P.J.E. Ford Elliott concurs in the result.



____________________________________________


4 “Upon entry of a guilty plea, a defendant generally waives all defects and
defenses except those concerning the validity of the plea, the jurisdiction of
the trial court, and the legality of the sentence imposed. However, when the
plea agreement is open, containing no bargain for a specific or stated term of
sentence, the defendant will not be precluded from appealing the discretionary
aspects of his sentence.” Commonwealth v. Boyd, 835 A.2d 812, 816 (Pa.
Super. 2003).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/19




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