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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAROD BENSON,                             :
                                               :
                       Appellant               :   No. 231 EDA 2018

               Appeal from the PCRA Order Entered July 13, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0003974-2011,
                            CP-51-CR-0007687-2011


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                                 Filed July 20, 2018

        Sharod Benson appeals from the order entered on July 13, 2017,

denying his request for relief under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

        A jury found Benson guilty in November 2012, of attempted murder,

aggravated assault, carrying a firearm on the public streets or property in

Philadelphia, and possession of an instrument of crime. 1 The trial court

subsequently sentenced Benson to an aggregate term of 12½ to 25 years’

incarceration followed by five years of probation. On August 4, 2014, this

Court affirmed the judgment of sentence. See Commonwealth v. Benson,


____________________________________________


*    Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 901(a), 2502, 2702, 6108, 907(a), respectively.
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1910 EDA 2013 (Pa.Super. filed Aug. 4, 2014) (unpublished memorandum).

Benson did not seek allowance of appeal.

       On May 20, 2015, Benson filed a pro se PCRA petition that gave rise to

this appeal. The trial court appointed counsel, who filed a Finley2 letter on

April 16, 2017. Benson filed an amended pro se PCRA petition, on May 4,

2017, and counsel filed a supplemental Finley letter on June 13, 2017,

addressing the new issues in Benson’s amended pro se PCRA petition. Benson

then filed a second amended pro se PCRA petition. On July 13, 2017, the trial

court dismissed Benson’s PCRA petition. The court did not send Benson notice

of intent to dismiss the petition pursuant to Pa.R.Crim.P. 907. This appeal

followed.

       Benson asserts the following issues in his Appellant’s Brief:

       I.     Had counsel failed to demand of the court to instruct the
              jury as to the law governing in court statements lacking
              identification under oath, outweighs misinterpreted facts,
              which warrants an acquittal, when in court lack of
              identification of the actual offender cannot be identified, and
              one witness clearly states that police fabricated the 1/22/11
              statement based upon police personal belief; based upon
              the 1/15/11 interview, which the witness was unable to see
              during the 1/22/11 questioning because he was not wearing
              his glasses at the time of signing the statement, and told
              the jury he had not told the police he witnessed who the
              shooter actually was?

       II.    Was PCRA counsel ineffective for not amending the petition
              to challenge trial counsel’s failure to demand proper jury
              instructions as noted in question 1 above, when filing a “No
              Merit” letter?
____________________________________________


2   Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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     III.   Was the [trial] court in error to proclaim the witness, Korvel
            Odd, had stated in his out of court statement and during
            trial: that the witness observed [Benson] as one of the
            shooters; to avoid vacating [Benson’s] convictions, when
            the witness had not made any such statements?

     IV.    Was the [trial] court in error to dismiss [Benson’s] PCRA in
            support of cou[n]sel’s “No Merit” letter, when knowing the
            court’s assertions as to what the witness had proclaimed to
            have witnessed [Benson] as one of the shooters, but knew
            otherwise; rather than to have vacated [Benson’s]
            convictions and dismissed all charges with prejudice, when
            the Commonwealth failed to prove the police had obtained
            the required evidence to prove [Benson] was in fact one of
            the shooters, and had nonetheless proceeded to trial;
            without proper evidence to substantiate probable cause?

     V.     Was the [trial] court in error not to vacate the jury’s verdict
            of guilt, when the Commonwealth lacked the required
            evidence to prove actual identification of [Benson] during
            trial, that [Benson] was in fact one of the shooters which
            the witnesses could not identify, and such lack thereof is
            insufficient to sustain the jury’s determination of guilt;
            which is outweighed by the testimony of the witnesses?

     VI.    Was the [trial] court in error to proclaim that [Benson] had
            admitted to being one of the shooters, but then admit that
            [Benson] had not actually admitted to such an offense;
            when the court acknowledged that [Benson] was only giving
            the court an example that one of the shooters was shooting
            into the air rather than at a victim, which is what one of the
            witnesses had testified to seeing a shooter doing; but still
            nonetheless refused to vacate [Benson’s] convictions[,]
            despite the fact the Commonwealth lacked any form of
            actual evidence that [Benson] was one of the shooters,
            other than what the court trial to claim [Benson] admitted
            to; but actually had [not]?

Benson’s Br. at 5-6 (pages numbers added; unnecessary capitalization and

suggested answers omitted).




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      The Commonwealth argues that we should quash this appeal as

untimely. Although the information in the certified record makes it unclear

whether our jurisdiction is proper under the prisoner mailbox rule, we decline

to quash. Ordinarily, we would issue a Rule to Show Cause to resolve the

factual question, but we need not engage in that procedure here because

Benson has waived all issues on appeal and his issues are meritless in any

event.

      Benson waived his arguments on appeal because the arguments in his

brief are entirely different from those in his Pa.R.A.P. 1925(b) statement.

Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.

1998) (concluding that failure to raise issue in Rule 1925(b) statement waives

issue); Burgoyne v. Pinecrest Cmty. Ass'n, 924 A.2d 675, 680 n.4

(Pa.Super. 2007) (holding appellant waived issue presented in Rule 1925(b)

statement for failure to present developed argument on that issue in brief).

      Even if Benson’s claims were not considered waived, no relief would be

due because his claims are meritless. Benson first claims both trial and PCRA

counsel were ineffective. We presume counsel was effective and a PCRA

petitioner bears the burden of proving otherwise. Commonwealth v.

Turetsky, 925 A.2d 876, 880 (Pa.Super. 2007). A claim of ineffective

assistance of counsel requires the petitioner to show: (1) that the claim is of

arguable merit; (2) that counsel had no reasonable strategic basis for his or

her action or inaction; and (3) that, but for the errors and omissions of

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

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would have been different. Commonwealth v. Kimball, 724 A.2d 326, 333

(Pa. 1999).

      Benson claims that trial counsel was ineffective for not asking the trial

court to instruct the jury that in-court testimony outweighs a witness’s prior

inconsistent statement. See Benson’s Br. at 11. However, “[t]he weight of the

evidence is exclusively for the finder of fact who is free to believe all, part, or

none of the evidence.” Commonwealth v. Champney, 832 A.2d 403, 408

(Pa. 2003) (citing Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa.

1995)). Benson’s underlying claim thus lacks arguable merit and this claim

fails. See Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006)

(“Counsel will not be deemed ineffective for failing to raise a meritless claim”).

      In any event, the trial court properly instructed the jury about its ability

to weigh in-court testimony against prior inconsistent statements:

             Ladies and gentlemen, you have heard evidence that on
      prior occasions two witnesses made statements or gave testimony
      which in certain respects were inconsistent with their testimony at
      this trial . . . You may, if you choose, regard evidence relating to
      the contents of any prior inconsistent statement or testimony as
      proof of the truth of anything each of these witnesses said in his
      earlier statement or testimony. You may also consider this
      evidence to help you assess the credibility and weight of the
      testimony of each witness at this trial. Keep in mind that when
      you assess credibility and weight of testimony, you are deciding
      whether you believe it and how important you think it is.

N.T. Trial, 11/21/12, at 12-13.

      Benson’s claim that PCRA counsel was ineffective for not amending the

PCRA petition to include a claim of trial counsel’s alleged ineffectiveness, as



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discussed above, is likewise meritless. PCRA counsel cannot be ineffective for

failing to raise a meritless claim. See Spotz, 896 A.2d at 1210.

      Benson also contends that the PCRA court incorrectly stated in its

Pa.R.A.P. 1925(a) opinion that one of the witnesses, Korvel Odd, identified

Benson at trial as the shooter. This is a misrepresentation of the PCRA court’s

opinion. Rather, in the course of evaluating whether PCRA counsel’s Finley

letter contained misstatements about Odd’s trial testimony, the court noted

the inconsistency between Odd’s testimony and his prior statements to police,

in which he had identified Benson as one of the shooters. The court then

concluded that even if PCRA counsel had made the misstatements Benson

claimed, it did not matter, as the PCRA petition was meritless in either case.

We agree with this assessment.

      Last, Benson argues that the trial court erred in dismissing his PCRA

petition because the Commonwealth’s witnesses could not identify Benson as

one of the shooters. This claim amounts to a challenge to the weight of the

evidence, which is not cognizable under the PCRA. See 42 Pa.C.S.A. § 9543.

Therefore, no relief is due. Additionally, Benson presented a weight of the

evidence claim in his direct appeal, which this Court found waived for failure

to raise the issue in the trial court. See Commonwealth v. Benson, 1910

EDA 2013, unpublished memorandum at 4-5 (Pa.Super. filed Aug. 4, 2014).

We affirm the order of the PCRA court.

      Order affirmed.




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P.J.E. Stevens joins the Memorandum.

Judge Ott concurs in the result.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2018




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