J-S69037-19 & J-S69038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     :     IN THE SUPERIOR COURT OF
                                                     :          PENNSYLVANIA
                                                     :
                v.                                   :
                                                     :
                                                     :
    BAIHEEM GRESHAN                                  :
                                                     :
                       Appellant                     :     No. 328 EDA 2019

              Appeal from the PCRA Order Entered January 14, 2019
     In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002458-2012

    COMMONWEALTH OF PENNSYLVANIA                     :     IN THE SUPERIOR COURT OF
                                                     :          PENNSYLVANIA
                                                     :
                v.                                   :
                                                     :
                                                     :
    BAIHEEM GRESHAN                                  :
                                                     :
                       Appellant                     :     No. 331 EDA 2019

              Appeal from the PCRA Order Entered January 14, 2019
     In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0008824-2014


BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

DISSENTING MEMORANDUM BY SHOGAN, J.:                                 FILED JULY 31, 2020

        I respectfully dissent. After careful review of the record, I agree with

the Commonwealth’s conclusion that Appellant failed to present a challenge

to    the   discretionary   aspects    of      his       sentence   in   his   PCRA   petition.

Commonwealth’s Brief at 7. Accordingly, Appellant waived this issue, and he

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S69037-19 & J-S69038-19


may not raise it for the first time on appeal.    Pa.R.A.P. 302(a); see also

Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2019) (issues not raised

in the PCRA petition are waived; a claim for post-conviction relief cannot be

raised for the first time on appeal).

      The Majority relies on Commonwealth v. Reaves, 923 A.2d 1119 (Pa.

2007), and Commonwealth v. Presley, 193 A.3d 436 (Pa. Super. 2018), in

support of its decision to reverse the order of the PCRA court. However, in

both Reaves and Presley, the petitioners raised issues concerning the

discretionary aspects of their sentences in the PCRA court and preserved them

for appeal.   See Reaves, 923 A.2d at 1122 (petitioner alleged that the

violation of probation court abused its discretion in imposing a sentence in

excess of the Sentencing Guidelines without stating the reasons for doing so

on the record); see also Presley, 193 A.3d at 440 (petitioner challenged the

discretionary aspects of his sentence and alleged the sentence was harsh and

excessive).

      In the case at bar, Appellant alleged in his PCRA petition only that prior

counsel was ineffective for “fail[ing] to attach an[] order VACATING the

sentence … Counsel also failed to contact the Honorable Rayford A. Means and

either request a date for the Reconsideration Hearing or ask His Honor to Deny

the Motion Without a Hearing.” PCRA Petition, 4/2/18, at ¶10. Appellant does

not mention the discretionary aspects of his sentence or aver that the

revocation court failed to provide reasons for the sentence imposed.


                                        -2-
J-S69037-19 & J-S69038-19


Therefore, I conclude that any issue Appellant has relative to the discretionary

aspects of sentence was waived. Jones, 912 A.2d at 278. Accordingly, I

respectfully dissent.




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