J-S17020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DARNELL STEPHENS,

                            Appellant                 No. 717 WDA 2014


               Appeal from the PCRA Order Entered April 23, 2014,
               In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0009749-2005, CP-02-CR-0009825-
           2005, CP-02-CR-0009962-2005, CP-02-CR-0010464-2005


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

MEMORANDUM BY SHOGAN, J.:                              FILED APRIL 10, 2015

        Appellant, Darnell Stephens, appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

        On direct appeal, a panel of this Court provided the following summary

of this case:

        Between March 8, 2005 and May 20, 2005, Appellant and two
        co-defendants committed several armed robberies of various
        retail establishments in West Mifflin, McKeesport, Braddock, and
        Forest Hills, Pennsylvania. Shortly after the May 20th robbery,
        Tammy Kandar, Appellant’s girlfriend, contacted Captain Bryan
        Washowich of the McKeesport Police Department and revealed
        her suspicions of Appellant’s involvement in the robberies.
        During this timeframe, the police also arrested one of Appellant’s
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*
    Former Justice specially assigned to the Superior Court.
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     co-defendants in connection with the robberies and learned of
     Appellant’s involvement. As a result of the information provided
     to him by Tammy Kandar, Captain Washowich procured a search
     warrant for Appellant’s residence. The search yielded several
     items that implicated Appellant, including masks, gloves, a black
     leather jacket, a roll of duct tape, a safe containing $1,000 in
     U.S. currency, a banking deposit ledger showing a $3,000
     deposit, a police scanner, numerous Budget rental car receipts,
     and a .40 caliber semiautomatic pistol.

           Appellant was subsequently arrested on May 31, 2005 and
     provided Captain Washowich with a written statement detailing
     his involvement in the robberies of three McKeesport
     businesses— Family Dollar, Foodland, and Coney Island Dog.
     Later that evening, Appellant also spoke to Detective David
     McCue of the West Mifflin Police Department and confessed in
     writing to his involvement in the robberies of two Dollar General
     stores in that borough. Additionally, Appellant also admitted in
     writing to Allegheny County Police Detective William Newman
     that he participated in the armed robberies of the Family Dollar
     in Braddock Hills and the Domino’s Pizza in Forest Hills.

           On August 17, 2005, Appellant was charged with 15 counts
     of robbery and 7 counts of criminal conspiracy. On October 5,
     2005, the Commonwealth filed a motion for joinder, and the trial
     court granted said motion on October 27, 2005. Following
     numerous postponements, trial was scheduled to begin on
     October 16, 2006. Prior to the commencement of trial, the trial
     court conducted a hearing on Appellant’s motion to suppress the
     statements he made to police. Following the hearing, the trial
     court denied Appellant’s suppression motion, and a jury trial
     immediately followed.        Thereafter, on October 18, 2006,
     Appellant was found guilty of all counts and sentencing was
     scheduled for December 18, 2006. On November 14, 2006,
     Appellant filed a pro se “Motion for New Trial and In Arrest of
     Judgment”. Appellant also made references to this motion on
     the record during the sentencing hearing. At all relevant times
     during this matter Appellant was represented by counsel from
     the Allegheny County Office of the Public Defender. The trial
     court declined to rule on Appellant’s pro se motion, and
     Appellant was subsequently sentenced to 30 to 60 years’
     imprisonment on December 18, 2006.             Appellant, through
     counsel, filed a timely notice of appeal on January 17, 2007.


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Commonwealth v. Stephens, 168 WDA 2007, 959 A.2d 974 (Pa. Super.

filed June 30, 2008) (unpublished memorandum at 1-3) (internal citations

and footnote omitted). This Court affirmed Appellant’s judgment of sentence

on June 30, 2008. Id.

      On August 4, 2008, Appellant filed a pro se PCRA petition.      Counsel

was appointed. On September 20, 2013, following many defense requests

for extensions of time, appointed counsel filed an amended petition asserting

that prior counsel was ineffective for failing to challenge the sentence

imposed.    On April 7, 2014, the PCRA court issued a notice of intent to

dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907. Appellant filed a

counseled response. The PCRA court dismissed Appellant’s petition on April

23, 2014, as lacking merit. Appellant filed a timely notice of appeal. Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant presents the following issue, which we set forth verbatim, for

our review:

      Whether the sentencing court abused its discretion by imposing
      an excessive and unreasonable sentence of thirty to sixty years’
      incarceration, where the court exclusively focused upon the
      seriousness of the offense and protection of the public and failed
      to consider rehabilitative needs, in violation of the sentencing
      code. And whether the court violated fundamental sentencing
      norms by failing to consider relevant mitigating circumstances or
      to impose an individualized sentence. And whether prior counsel
      were ineffective in failing to recognize, assert and preserve this
      sentencing challenge.

Appellant’s Brief at 5 (full capitalization omitted).




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      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).     The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      Although Appellant purports to present this Court with a single issue

for review, a careful reading of this statement belies this assertion.    We

discern two separate claims in this single statement and will address each

individually.

      Appellant first argues that the sentencing court erred in imposing an

“unnecessarily harsh, excessive and unreasonable sentence of 30 to 60

years” of incarceration. Appellant’s Brief at 21. Appellant maintains that, in

imposing this sentence, the trial court “erred in focusing exclusively on the

seriousness of the offense and the retributive aspect of punishment, to the

exclusion of rehabilitative needs and mitigating circumstances.” Appellant’s

Brief at 19.

      This issue implicates the discretionary aspect of Appellant’s sentence.

See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)

(citation omitted) (“If a sentencing court considers improper factors in


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imposing sentence upon a defendant, although the sentence thereby

imposed is not rendered illegal, the court has committed an abuse of

discretion.”). This question, however, does not raise a cognizable challenge

under the PCRA, which provides only for challenges to sentences that have

been    imposed     in   excess    of   the    lawful   maximum.   42   Pa.C.S.   §

9543(a)(2)(vii); see also Commonwealth v. Wrecks, 934 A.2d 1287,

1289 (Pa. Super. 2007) (citation omitted) (“Requests for relief with respect

to the discretionary aspects of sentence are not cognizable in PCRA

proceedings.”). Here, Appellant’s sentence was within the lawful maximum, 1

which Appellant does not dispute. Accordingly, this claim fails.2

       We next address Appellant’s contention that previous counsel was

ineffective for failing to challenge the discretionary aspects of his sentence.

We first note that, while we have determined that a claim challenging the

discretionary aspect of a sentence is not cognizable under the PCRA,

Wrecks, 934 A.2d at 1289, we have held that a claim regarding the

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1
   18 Pa.C.S. § 1103(1) (a person who has been convicted of a felony of the
first degree may be sentenced to imprisonment for a term which shall be
fixed by the court at not more than 20 years.).
2
  We further note that counsel did not object to this sentence either at
sentencing or in post-sentence motions. Thus, this claim is also waived.
Commonwealth v. Anderson, 830 A.2d 1013, 1016 (Pa. Super. 2003)
(citing Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003))
(“[O]bjections to the discretionary aspects of sentence are waived if they are
not raised at the sentencing hearing or in a motion to modify the sentence
imposed at that hearing.”).



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discretionary   aspects   of   a   sentence   raised   in   the   context   of   an

ineffectiveness claim is cognizable under the PCRA.          Commonwealth v.

Watson, 835 A.2d 786, 801 (Pa. Super. 2003).

      As outlined previously, Appellant argues that his aggregate sentence of

imprisonment of thirty to sixty years was manifestly excessive and

unreasonable because the sentencing court erred in focusing exclusively on

the seriousness of the offense and the retributive aspect of punishment, to

the exclusion of his rehabilitative needs and mitigating circumstances.

Appellant’s Brief at 19. Appellant maintains that counsel was ineffective for

failing to challenge the sentence and for failing to file appropriate post-

sentencing motions or otherwise pursuing and preserving the challenges on

appeal. Id. at 22.

      When considering an allegation of ineffective assistance of counsel

(“IAC”), counsel is presumed to have provided effective representation

unless the PCRA petitioner pleads and proves that: (1) the underlying claim

is of arguable merit; (2) counsel had no reasonable basis for his or her

conduct; and (3) Appellant was prejudiced by counsel’s action or omission.

Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). “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).


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A claim 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).

Counsel cannot be found ineffective for failing to raise a meritless claim.

Commonwealth v. Messmer, 863 A.2d 567, 572 (Pa. Super. 2004).

      Following trial, which included charges from four criminal informations,

Appellant was convicted of fifteen counts of robbery and seven counts of

criminal conspiracy. Appellant was sentenced as follows:

      CC No. 200509825:          a term of ten to twenty years of
      imprisonment at Count 1 (robbery), and a concurrent ten to
      twenty year term at Count 5 (robbery); there were no further
      penalties imposed at Counts 2 (robbery), 3 (robbery), 4
      (criminal conspiracy), 6 (robbery) and 7 (criminal conspiracy).

      CC No.     200509749:    a term of ten to twenty years of
      imprisonment at Count 1 (robbery), to be served consecutively
      to the sentence imposed at No. CC 200509825; there were no
      further penalties at Counts 2 (robbery) and 5 (criminal
      conspiracy). Counts 3 and 4 were withdrawn.

      CC No. 200510464:        a term of ten to twenty years of
      imprisonment at Count 1 (robbery), to be served consecutively
      to the sentence imposed at No. CC 200509749; there were no
      further penalties imposed at Counts 2 (robbery) and 3 (criminal
      conspiracy).

      CC No. 200509962:        a term of ten to twenty years of
      imprisonment at Count 1 (robbery), to be served concurrently to
      the sentence imposed at No. CC 200509825; a term of ten to
      twenty years of imprisonment at Count 4 (robbery), to be served
      concurrently to the sentence imposed at No. CC 200509749; and
      a term of ten to twenty years of imprisonment at Count 8
      (robbery), to be served concurrently to the sentence imposed at
      No. CC 200510464; there were no further penalties imposed at

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         Counts 2 (robbery), 3 (criminal conspiracy), 5 (robbery), 6
         (robbery), 7 (criminal conspiracy) and 9 (criminal conspiracy).

N.T., 12/18/06, at 7-10; Criminal Information No. 200509825, 8/30/05;

Criminal Information No. 200509749, 8/17/05; Criminal Information No.

200510464, 9/2/05; Criminal Information No. 20059962, 9/1/15.. Thus, the

cumulative sentence to be served was thirty to sixty years. N.T., 12/18/06,

at 10.

         The robbery convictions were graded as first degree felonies.       An

individual convicted of a felony of the first degree may be sentenced to a

term of imprisonment of not more than twenty years. 18 Pa.C.S. § 1103(1).

We note that Appellant had a penalty imposed for only seven of the robbery

convictions. At the robbery convictions for which the trial court imposed a

penalty, each sentence was for ten to twenty years of imprisonment. Only

three of these first degree felony sentences were to be served consecutively.

The remaining sentences for the robberies were to be served concurrently.

N.T., 12/18/06, at 7-10.

         In sentencing Appellant, the trial court noted that it had received and

reviewed a pre-sentence report. N.T., 12/18/06, at 3, 7. Additionally, the

trial court had documentation reflecting that Appellant was a repeat felony

offender and had an offense gravity score of ten. Id. at 3. The trial court

provided the following explanation in support of its sentencing order at the

sentencing hearing:




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      I don’t think any less of a sentence would have been appropriate
      given the totality of the circumstances and they could have
      easily all been consecutive.

            This behavior is just not acceptable. I think that the best
      thing for society is to have you be in for this length of time and
      based on the ten year mandatory that goes with your prior
      record and these crimes I think that is appropriate.

N.T., 12/18/06, at 10. Additionally, the PCRA court provided the following

explanation in its Pa.R.A.P. 1925(a) opinion:

            At the time of the sentencing, [Appellant] was a RFEL, a
      repeat felony offender. He had an extensive and violent criminal
      record consisting of robbery and firearm charges. [The trial
      court] clearly did not abuse its discretion in sentencing
      [Appellant] in the manner that it did.

PCRA Court Opinion, 8/19/14, at 3.

      Based on this record, we conclude that the sentencing court was aware

of and gave due consideration to any mitigating factors and rehabilitative

needs and did not abuse its discretion in formulating its sentence of

confinement. Moreover, the sentencing court received and reviewed a pre-

sentence report.   “[W]here the trial court is informed by a pre-sentence

report, it is presumed that the court is aware of all appropriate sentencing

factors and considerations, and that where the court has been so informed,

its discretion should not be disturbed.” Commonwealth v. Ventura, 975

A.2d 1128, 1135 (Pa. Super. 2009) (citing Commonwealth v. Devers, 546

A.2d 12, 18–19 (Pa. 1988)).

      Accordingly, the sentence was neither manifestly excessive nor too

severe a punishment under the circumstances of this case, and no abuse of



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discretion attended its imposition.     Thus, counsel was not ineffective for

failing to raise the meritless discretionary challenges alleged herein.   See

Messmer, 863 A.2d at 572 (holding that counsel cannot be found ineffective

for failing to raise a meritless claim). As a result, the PCRA court properly

dismissed Appellant’s PCRA petition.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




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