J-S62025-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                 Appellee                  :
                                           :
                    v.                     :
                                           :
CARRINGTON KEVON JOSEPH,                   :
                                           :
                 Appellant                 :     No. 823 MDA 2017

                 Appeal from the PCRA Order May 11, 2017
             in the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0002224-2014

BEFORE:    STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 18, 2018

     Carrington Kevon Joseph (Appellant) pro se appeals from the order

entered May 11, 2017, which denied his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     The trial court summarized the facts of this case.

            At trial, the Commonwealth established the following,
     gruesome facts. On May 2, 2014, [Appellant] stabbed the victim,
     his wife, more than eighty (80) times. The majority of the wounds
     were to the victim’s abdomen, neck, and head. During the attack,
     [Appellant] broke two knives and made multiple trips to the
     kitchen to retrieve additional knives. At one point, the victim
     attempted to stagger out of the apartment’s front door and, as
     the victim’s family attempted to assist her, [Appellant] pointed the
     knife at them and told them to move back before they too got
     stabbed. [Appellant] then dragged the victim back into the
     apartment and closed the door to continue his attack. During the
     majority of this extended attack, the victim was laying [sic]
     helplessly on the ground. [Appellant’s] infant children were
     seated in their car seats in the room in which the attack took
     place. [Appellant] was described as calm throughout this whole



*Retired Senior Judge assigned to the Superior Court.
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      incident and, after being taken into custody, calmly recounted
      these facts, in great detail, with little remorse shown.

Trial Court Opinion, 1/18/2016, at 2-3 (internal citations omitted).

      Appellant was arrested and charged with homicide.        In exchange for

waiving his right to a jury trial, the Commonwealth agreed not to pursue the

death penalty. Appellant’s trial began on October 1, 2015, and then continued

from November 9 to 12, 2015. At trial, Appellant did not testify, but counsel’s

cross-examination of witnesses and closing argument focused on Appellant’s

position that he should be acquitted based upon self-defense. On November

12, 2015, the trial court convicted Appellant of first-degree murder, and on

December 15, 2015, he was sentenced to life in prison without the possibility

of parole.

      Appellant did not file a post-sentence motion, but timely filed a direct

appeal. On July 14, 2016, a panel of this Court affirmed Appellant’s judgment

of sentence. Commonwealth v. Joseph, 154 A.3d 856 (Pa. Super. 2016)

(unpublished memorandum). Specifically, this Court concluded the evidence

was sufficient to sustain Appellant’s conviction and held that “Appellant’s

overall conduct was not the result of a heated exchange between the victim

and him, nor were his actions the product of self-defense.”1 Id. at 4.




1 Of note, this Court pointed to the following facts: (1) that Appellant, during
the attack, “had the wherewithal to stop his brutal attack [and] retrieve
additional knives;” (2) that emergency personnel had to remove a knife left
lodged in the victim’s back as it was hindering CPR; and (3) that Appellant

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      On September 12, 2016, Appellant filed pro se a PCRA petition. Counsel

was appointed, and on December 23, 2016, counsel filed a petition to

withdraw as counsel and no-merit letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc). On March 21, 2017, the PCRA court issued

a notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the petition in

20 days without a hearing. Appellant timely filed pro se a response, and on

May 11, 2017, the PCRA court dismissed Appellant’s petition and permitted

counsel to withdraw. Appellant filed a notice of appeal. 2 The PCRA court did

not order Appellant to file a concise statement, but did file an opinion

indicating its reliance on the memorandum accompanying its Pa.R.Crim.P. 907

notice.

      On appeal, Appellant sets forth nine issues for our review. We address

these issues mindful of the following. In reviewing an appeal from the denial

of PCRA relief, “[w]e must examine whether the record supports the PCRA




“was able to recount calmly and methodically his actions to police shortly”
after the attack. Id. at 3, 4.

2 The notice of appeal was docketed on May 10, 2017, one day before the
PCRA court issued its notice dismissing Appellant’s petition. It appears
Appellant was attempting to appeal prematurely from the Pa.R.Crim.P. 907
notice. However, because a subsequent final order was entered, we need not
quash this appeal. See Commonwealth v. Swartzfager, 59 A.3d 616 (Pa.
Super. 2012) (holding that pursuant to Pa.R.A.P. 905(a)(5), this Court does
not have to quash a notice of appeal filed from a Pa.R.Crim.P. 907 notice as
long as a final order dismissing the PCRA petition was entered subsequently).

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court’s determination, and whether the PCRA court’s determination is free of

legal error. The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record.” Commonwealth v. Mikell,

968 A.2d 779, 780 (Pa. Super. 2009) (quoting Commonwealth v.

Lawrence, 960 A.2d 473, 476 (Pa. Super. 2008) (citations omitted)). Since

most of Appellant’s claims concern the ineffective assistance of trial counsel,

the following principles apply.

         It is well-established that counsel is presumed to have
         provided effective representation unless the PCRA petitioner
         pleads and proves all of the following: (1) the underlying
         legal claim is of arguable merit; (2) counsel’s action or
         inaction lacked any objectively reasonable basis designed to
         effectuate his client’s interest; and (3) prejudice, to the
         effect that there was a reasonable probability of a different
         outcome if not for counsel’s error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (internal

citations omitted).

      Appellant first claims that trial counsel was ineffective for failing to file

a motion to suppress his confession. Appellant’s Brief at 10-15.         Appellant

argues that he was in custody when he gave his statement to police, and he

was not provided with proper warnings pursuant to Miranda v. Arizona, 384

U.S. 436 (1966).      Specifically, he contends that the detective’s failure to

request that Appellant sign the Miranda waiver form rendered his statement


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inadmissible and counsel was ineffective for failing to pursue this claim. Id. at

14.

      In considering this issue, “[t]he pertinent question is whether the

defendant in fact knowingly and voluntarily waived the rights delineated in the

Miranda case. Waiver can be clearly inferred from the actions and words of

the person interrogated.” Commonwealth v. Bomar, 826 A.2d 831, 843 (Pa.

2003) (internal citations and quotation marks omitted).

      The PCRA court offered the following.

            After a review of [Appellant’s] Miranda waiver, it is
      apparent that the waiver was voluntary and intelligent. At the
      [out]set, [Appellant] was informed by Detective Freysz about the
      subject matter of the interrogation and was read his Miranda
      rights. Detective Freysz then read the waiver form to [Appellant].
      In response to each Miranda warning, [Appellant] answered
      appropriately, thus demonstrating an outward manifestation that
      he understood the nature of his decision. [Appellant] also initialed
      beside each one of the answers that the written answers were his
      own. Although [Appellant] did not print and sign his full name at
      the bottom of the waiver form, Detective Freysz testified that this
      was because [Appellant] had difficulty writing his initials due to
      the injuries he suffered.

PCRA Court Opinion, 5/21/2017, at 8.

      The PCRA court’s conclusions are supported by the record. Detective

Freysz testified about Appellant’s Miranda warnings and waiver. See N.T.,

11/10/2015, at 208-215. In addition, even though Appellant could not sign

his name due to the lacerations on his hands, he was able to read the

paragraph on the form. Id. at 213. Based on the foregoing, we agree with

the PCRA court that there is no arguable merit to Appellant’s position that trial


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counsel was ineffective for failing to file a motion to suppress his confession

on this basis.

        Appellant next contends that trial counsel was ineffective for

counseling him to waive his right to a jury trial. Appellant’s Brief at 16-19.

Specifically, Appellant argues that the fact he was taking certain medication

rendered his waiver unknowing and involuntary, and trial counsel was

ineffective for permitting him to waive this right. Id. at 18.

      [W]hen a defendant seeks to collaterally attack his waiver of a
      jury trial, on grounds that it was caused by the ineffective
      assistance of his trial counsel, to prove prejudice, he must
      demonstrate a reasonable probability that but for counsel’s
      constitutionally deficient service, the outcome of the waiver
      proceeding would have been different, i.e., that he would not have
      waived his right to a jury trial.

Commonwealth v. Mallory, 941 A.2d 686, 704 (Pa. 2008).

      Instantly, Appellant makes no claim whatsoever that he would not have

waived his right to a jury trial; rather, he merely claims counsel was ineffective

for not investigating his mental health.       Moreover, as noted supra, the

Commonwealth agreed not to pursue the death penalty in exchange for

Appellant’s jury trial waiver. See N.T., 10/1/2015, at 3. Thus, counsel had a

reasonable basis to recommend Appellant waive his right to a jury trial.3




3 We recognize that generally an evidentiary hearing is required to ascertain
counsel’s basis for his or her advice to a defendant. Commonwealth v.
Hanible, 30 A.3d 426, 442 (Pa. 2011). However, in certain cases, such advice
is apparent from the record. Id. This is such a case.

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Therefore, we conclude that counsel cannot be ineffective on this basis, and

Appellant is not entitled to relief on this issue.

      On a related note, in Appellant’s third issue, he claims that trial counsel

was ineffective for failing to request a competency hearing. Appellant’s Brief

at 20-21. According to Appellant, he was taking “psychotropic medications

during all criminal proceedings in this matter, and these medications altered

Appellant’s ability to have assisted trial counsel with a defense.” Id. at 20.

                   A defendant’s competency is an absolute and
            basic condition of a fair trial, and conviction of a legally
            incompetent defendant violates his constitutionally
            guaranteed due process rights. Section 402(a) of the
            Mental Health Procedures Act, provides that a
            defendant is legally incompetent if he or she is
            substantially unable to understand the nature or
            object of the proceedings against him or her or to
            participate and assist in his or her defense. Stated
            otherwise, the relevant question is whether the
            defendant has sufficient ability at the pertinent time
            to consult with counsel with a reasonable degree of
            rational understanding, and have a rational as well as
            a factual understanding of the proceedings.

      Commonwealth v. Appel, 689 A.2d 891, 898-899 ([Pa.] 1997)
      (internal citations, quotations, modifications and footnotes
      omitted). However, a defendant’s “apparent lack of cooperation
      and failure to heed ... counsel’s advice [does] not establish a
      prima facie case for legal incompetency.” Commonwealth v.
      Mayer, [] 685 A.2d 571, 573 ([Pa. Super.] 1996).

Commonwealth v. Manuel, 844 A.2d 1, 8 (Pa. Super. 2004).

      Instantly, the PCRA court concluded that “there is no evidence

supporting [Appellant’s] claim.” PCRA Court Opinion, 5/21/2017, at 10.




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      [Appellant’s] interview with the police demonstrates that he was
      []cognizant to the circumstances surrounding the crime, as he was
      responsive to questions posed and understood the Miranda rights
      [that] were read to him. Further, [Appellant] graduated from high
      school and attended community college. [Appellant] further
      testified that he had never been treated for mental illness and,
      although he stated he was taking psychotropic medication,
      [Appellant] affirmed that the medicine did not interfere with his
      ability to understand court proceedings. [Appellant] presents no
      evidence to support his claim, and the record clearly contradicts
      [Appellant’s] contention that he did not understand the nature of
      the proceedings. As such, this claim is without merit.

Id. at 11. (internal citations omitted).

      Once again, the PCRA court’s conclusions are supported by the record.

Appellant did state that he was taking prescription medications during the jury

trial waiver colloquy. N.T., 10/1/2015, at 5. However, he also stated that he

had never been treated for mental illness and that he understood the

discussion they were having that morning. Id. Appellant has presented no

information that would have led counsel to believe Appellant was incompetent

at any point during his representation. Thus, we agree with the PCRA court

that there is no arguable merit to Appellant’s position that trial counsel was

ineffective for failing to request a competency hearing.

      Appellant’s next claim relates to potential impeachment evidence for a

Commonwealth witness. Appellant’s Brief at 22-24. By way of background,

at trial, the Commonwealth called Porschia Garcia to testify as an eyewitness.

She lived across the street from Appellant and the victim. She testified that

she heard screaming and went outside and saw blood on the foot of the



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victim’s sister. N.T., 11/9/2015, at 101-102. She testified that she and the

victim’s sister tried to help the victim, but Appellant dragged the victim back

into his house.

      According to Appellant, Garcia had “prior arrests and convictions which

arrests and convictions could have been used for impeachment purposes.”

Appellant’s Brief at 23. Appellant contends that the Commonwealth failed to

disclose this information in violation of Brady v. Maryland, 373 U.S. 83

(1963). In addition, Appellant argues that counsel was ineffective for failing

to discover this information.

      A claim that the Commonwealth failed to disclose Brady material is both

cognizable under the PCRA and applicable to impeachment evidence.

Commonwealth v. Simpson, 66 A.3d 253, 266 (Pa. 2013). “However, for a

defendant to be entitled to a new trial based on the prosecution’s failure to

disclose information relating to a witness’[s] credibility, the defendant must

demonstrate that the reliability of the witness may well be determinative of

his guilt or innocence.” Id. (internal citation and quotation marks omitted).

      Instantly, in addition to Garcia, the Commonwealth produced two

additional eyewitnesses, the victim’s sister and another next door neighbor.

Both testified to circumstances that were consistent with Garcia’s account.

See N.T., 11/9/2015, at 34-57, 87-99.        In addition, the Commonwealth

produced a host of physical evidence in support of its position that the victim

was stabbed over 80 times, while Appellant did not suffer one stab wound.


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Accordingly, even if admissible evidence about Garcia’s prior arrests or

convictions existed, and was discovered by counsel or disclosed by the

Commonwealth, the outcome of the trial would not have been different.

Accordingly, there was no Brady violation and counsel was not ineffective for

failing to discover this information.

      Appellant next claims that trial counsel was ineffective for failing to

pursue the defense of imperfect self-defense.       Appellant’s Brief at 25-26.

According to Appellant, trial counsel knew that the victim was the aggressor

and that Appellant acted in a “[heat] of passion moment.” Id. at 25. Appellant

claims he “never formed any intent to kill, [he] only formed an intent to

protect himself, in the heat of passion, based upon the circumstances that

transpired in the heat of the moment.” Id. at 26.

             A defense of “imperfect self-defense” exists where the
      defendant actually, but unreasonably, believed that deadly force
      was necessary. However, all other principles of self-defense must
      still be met in order to establish this defense. The requirements
      of self-defense are statutory: “The use of force upon or toward
      another person is justifiable when the actor believes that such
      force is immediately necessary for the purpose of protecting
      himself against the use of unlawful force by such other person on
      the present occasion.” 18 Pa.C.S.[] § 505(a). If the defender did
      not reasonably believe deadly force was necessary[,] he provoked
      the incident, or he could retreat with safety, then his use of deadly
      force in self-defense was not justifiable. A successful claim of
      imperfect     self-defense    reduces     murder      to   voluntary
      manslaughter.

Commonwealth v. Truong, 36 A.3d 592, 599 (Pa. Super. 2012) (some

internal citations and quotation marks omitted).



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      Instantly, the evidence established that Appellant stabbed the victim

more than 80 times while Appellant did not incur one stab wound. This fact

alone is sufficient to establish that Appellant’s belief deadly force was

necessary was unreasonable.        In addition, he used multiple knives over a

period of time and dragged the victim back inside the house when she tried

to escape. Thus, the evidence established that Appellant could have retreated

safely even if the victim were the aggressor. Thus, we conclude there is no

arguable merit to Appellant’s position that trial counsel was ineffective for

failing to offer a defense of imperfect self-defense. See id. (holding that the

evidence was sufficient to establish that Truong used more force than

necessary to defend himself where “[t]estimony was presented that [Truong]

was at least seven inches taller than the victim and that [he] had stabbed the

victim 19 times all over the front and back of his torso”).       Accordingly,

Appellant is not entitled to relief.

      Appellant next contends that trial counsel was ineffective for “coercing”

Appellant not to testify on his own behalf. Appellant’s Brief at 28. Appellant

argues that his testimony would have given him “the opportunity to explain

the events leading up to the homicide and that” counsel advised Appellant

improperly that this testimony would not be in his best interest. Id. at 29-30.

According to Appellant, counsel wished for Appellant not to testify in order to

“expedite the trial proceedings.” Id. at 30.




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      “In order to succeed on a claim that counsel was ineffective for failing

to put [a defendant] on the stand, [an] appellant must prove either: (1) that

counsel interfered with the defendant’s right to testify, or (2) that counsel

gave specific advice so unreasonable as to vitiate a knowing and intelligent

decision to testify on his own behalf.” Commonwealth v. Lawson, 762 A.2d

753, 755 (Pa. Super. 2000) (internal citation and quotation marks omitted).

To the extent Appellant is claiming that counsel interfered with Appellant’s

right to testify, that claim is belied by the record.

      At trial, the trial court informed Appellant that counsel had indicated

that it was Appellant’s wish that he testify on his own behalf. N.T.,

11/10/2015, at 276. When the trial court then went on to colloquy Appellant

about this decision, Appellant was asked if he believed he had “sufficient

opportunity to confer with counsel with regard” to his testifying. Id. Appellant

responded, “Not really.” Id. at 277. The trial court called a recess, and after

about 15 minutes, Appellant and counsel returned to the courtroom.      At that

point, the defense rested, and the trial court continued the colloquy of

Appellant about his new decision not to testify. Specifically, Appellant stated

that he was “comfortable” with the changed decision. Id. at 278. Based on

the foregoing, the record shows that Appellant had every opportunity to

exercise his right to testify, and we cannot agree with Appellant trial counsel

interfered with this right.




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      Moreover, Appellant has not suggested trial counsel offered any advice

that was “so unreasonable as to vitiate a knowing and intelligent decision” by

Appellant. Lawson, 762 A.2d at 755. According to Appellant, he should have

testified because he had no prior convictions for which he could be impeached.

Appellant’s Brief at 30. However, Appellant neglects to consider the myriad

of reasons as to why his testimony would not have been helpful to his cause.

While Appellant may not have been impeached by prior convictions, the

Commonwealth would have had the opportunity to cross-examine him about

this gruesome attack.     Accordingly, we conclude that Appellant has not

presented any evidence to support a claim that trial counsel’s advice was so

unreasonable that Appellant’s decision was not knowing and intelligent. See

Commonwealth v. Schultz, 707 A.2d 513, 520 (Pa. Super. 1997) (“While,

in retrospect, [Schultz] may believe that her failure to testify prejudiced her,

the fact remains that [her] decision was fully informed and voluntary.”).

Based on the foregoing, we conclude that Appellant is not entitled to relief on

this claim.

      Appellant next contends that the Commonwealth again violated Brady

“by withholding of [evidence that] the victim[’s] fingerprints [were] found on

the murder weapon, namely the knife used in the homicide.” Appellant’s Brief

at 31. “To establish a Brady violation, appellant must demonstrate that the

evidence at issue was favorable to him, because it was either exculpatory or

could have been used for impeachment; the prosecution either willfully or


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inadvertently suppressed the evidence; and prejudice ensued.” In re R.D.,

44 A.3d 657, 675 (Pa. Super. 2012).

         Here, the PCRA court concluded that this evidence was not exculpatory:

“[Appellant] fails to prove how the victim’s fingerprints on a kitchen knife

located in her home exculpates any guilt.” PCRA Court Opinion, 5/21/2017, at

14. The record supports this conclusion. Where Appellant stabbed the victim

over eighty times without being stabbed once himself, the existence of the

victim’s fingerprints on her own kitchen knives is certainly not material to his

guilt or innocence. Accordingly, we agree with the PCRA court that this claim

fails.

         Appellant next argues that trial counsel was ineffective for failing to

pursue a Rule 600 motion. “Appellant maintains that he was not brought to

trial in a timely manner under Rule 600 and trial counsel was ineffective for

failure to file a motion to dismiss the charges for violating Appellant’s [right].”

Appellant’s Brief at 33.

         The Pennsylvania Rules of Criminal Procedure provide that a defendant

must be brought to trial within 365 days after the complaint is filed.

Pa.R.Crim.P. 600. Excludable time and excusable delay are taken into account

when calculating the deadline within which a defendant must be brought to

trial. Excludable time includes delays attributable to a defendant or his

counsel. Excusable delay includes delays that occur beyond the control of the

Commonwealth and despite its due diligence. Commonwealth v. Goldman,


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70 A.3d 874, 879 (Pa. Super. 2013). Dismissal is required only when the

Commonwealth fails to bring a defendant to trial within 365 days, with the

deadline adjusted to take into account all excludable time and excusable

delay. Id. at 880.

      In the instant case, the written complaint was filed against Appellant on

May 2, 2014. Hence, Appellant’s trial was required to commence by May 2,

2015. See Pa.R.Crim.P. 600(A)(2)(a).         The trial actually commenced on

October 1, 2015, which is 153 days late.

      On June 12, 2014, the Commonwealth filed notice of intent to seek the

death penalty, and the record shows that counsel for Appellant was appointed

on June 28, 2014.     On July 30, 2014, counsel for Appellant requested to

continue the trial until November 30, 2014. That motion was unopposed by

the Commonwealth and granted by the trial court.          Thus, the 124 days

between July 30 and November 30, 2014, is clearly excludable time. See

Pa.R.Crim.P. 600(C)(3)(a)(ii).

      It is not clear what happened after November 30, 2014, but on January

16, 2015, the docket shows an order rescheduling the trial until May 19, 2015.

Then, on March 13, 2015, there is an order rescheduling trial until November

6, 2015.    According to Turner/Finley counsel, these delays were at the

request    of   Appellant.   Turner/Finley     Letter,   12/23/2016,   at   13

(unnumbered).




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          Our review of the record reveals that it is not clear if the scheduling

changes were due to Appellant’s unavailability or judicial unavailability. To

the extent Appellant requested and was granted continuances, that time is

clearly excludable.      Moreover, “[j]udicial delay may justify postponing trial

beyond the adjusted run date if the Commonwealth was prepared to

commence trial prior to the expiration of the mandatory period but the court

was       unavailable   because   of   scheduling   difficulties   and   the   like.”

Commonwealth v. Preston, 904 A.2d 1, 14 (Pa. Super. 2006) (internal

quotation marks omitted). Here, the record does not support a conclusion

that the Commonwealth was anything other than prepared to go to trial.

Accordingly, we conclude there is no arguable merit to Appellant’s position

that he would have prevailed on a Rule 600 motion, and he is not entitled to

relief.

          Lastly, we turn to Appellant’s claims that the evidence was insufficient

to sustain his conviction and that the verdict was against the weight of the

evidence. Appellant’s Brief at 34-35. “[A]n appellant may not raise allegations

of error in an appeal from the denial of PCRA relief as if he were presenting

the claims on direct appeal.”4 Commonwealth v. Price, 876 A.2d 988, 995



4 Appellant does not present either issue under the guise of the ineffective
assistance of counsel. Moreover, this Court, on direct appeal, concluded that
the evidence was sufficient to sustain Appellant’s conviction. See Joseph, 154
A.3d 856. In addition, Appellant did not file a post-sentence motion; therefore,
his weight-of-the-evidence claim would have been waived. See Pa.R.Crim.P.
607(A).

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(Pa. Super. 2005). Because these claims should have been presented on direct

appeal, Appellant is not entitled to relief.

      For the foregoing reasons, we conclude the PCRA court’s denial of relief

to Appellant was proper. Accordingly, we affirm the order of the PCRA court.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 01/18/2018




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