J-S47009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DARNELL C. BALDWIN

                            Appellant                 No. 366 EDA 2013


                  Appeal from the PCRA Order January 25, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0907791-2004


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                             FILED AUGUST 27, 2014

        Appellant, Darnell C. Baldwin, appeals from the January 25, 2013

order denying his second counseled petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546.          After careful

review, we affirm.

        A prior panel of this Court summarized the relevant factual history of

this case as follows.

                                         -degree    murder    and
              possessing instruments of crime (PIC)] conviction[s]
              arose out of the shooting death of his wife, Donna
              Baldwin, on September 3, 2004.[1] That evening, at
              approximately 7:45 p.m., [Appellant], who was then
              separated from his wife, drove to her home
              ostensibly to discuss circumstances surrounding the
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c) and 907, respectively.
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           failure of their marriage. The record shows that the
           victim, who had recently suffered from cervical
           cancer, discovered that [Appellant] had been
           engaged in an extramarital affair for several years.
           Distraught over the situation, Mrs. Baldwin had
           telephoned her husband on his cell phone some [14]
           times that day.

                  When [Appellant] arrived at the house, he
           encountered Stephanie Pinder, who had also just
                                                          -year-
           old son, [D.B.J.], after babysitting.      [] Pinder
           observed [Appellant] enter the house and sent
           [D.B.J.], inside to tell his parents he was home.
           While inside the house, [D.B.J.], saw his parents
           standing in the hallway near their bedroom and
           overheard them carrying on a discussion in hushed
           voices. After [D.B.J.] went into his own room, he
           left his parents to their discussion and went outside
           to play with his friends.

                   Subsequently, at 8:23 p.m., the Philadelphia
           Police received a radio transmission of a man with a
           gun in the 6700 block of Carlisle Street, where the
           Baldwin home was located. At that same time,
           [Appellant] had called 911 and reported the
           shooting. When the 911 dispatcher asked him what
                                                   sic
           Shortly thereafter, Officer Lamar Poole arrived at the
           Baldwin home and found [Appellant] sitting outside.
           When Baldwin took [the officer] upstairs, the officer
           discovered Donna Baldwin lying halfway off her bed,
           still alive[,] but unable to move. She was moaning
           and gurgling blood and a large puddle of blood
           soaked the bed surrounding her head. Above her
           head lay a .22 caliber long rifle handgun, which later
           forensic examination showed had been fired into the
           back of her head at point blank range. Although

           life, she died shortly after arriving at the hospital.

Commonwealth v. Baldwin, 998 A.2d 999 (Pa. Super. 2010) (unpublished

memorandum at 1-3), appeal denied, 4 A.3d 1050 (Pa. 2010).

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        On May 3, 2006, a jury found Appellant guilty of the aforementioned

crimes.    Following a pre-sentence investigation and psychiatric evaluation,



imprisonment for his third-degree murder conviction.          The trial court also



conviction.

        On February 26, 2007, Appellant filed his first PCRA petition,

requesting the reinstatement of his appellate rights nunc pro tunc.           The

PCRA court granted this petition on January 23, 2009.           On direct appeal,

Appellant challenged the sufficiency of the evidence underlying his murder

conviction. See Baldwin, supra at 5. On April 7, 2010, we affirmed the

                                          See generally id. Appellant then filed a

petition for allowance of appeal with our Supreme Court, which was denied

on August 27, 2010. Id.

        On April 8, 2011, Appellant filed the instant PCRA petition.2      Herein,

Appellant alleges that his trial counsel provided him with ineffective

assistance    by failing to      file   a post-sentence   motion   requesting the

reconsideration of

4/13/12, at ¶ 55. Appellant requested leave to file such a motion nunc pro

tunc.    Id. at ¶ 101.      On September 4, 2012, the Commonwealth filed a
____________________________________________


2
    On April 13, 2012, court-appointed counsel filed an amended PCRA petition




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                                                                          ucting a



petition, pursuant to Pennsylvania Rule of Criminal Procedure 907, on



25, 2013.3 On January 28, 2013, Appellant filed a timely notice of appeal.4

       On appeal, Appellant presents the following issue for our review.

              [1].   Is [A]ppellant entitled to post-conviction relief
                     in the form of the grant of leave to file a post-
                     sentence motion nunc pro tunc in the nature of
                     a motion for reconsideration of sentence or a
                     remand for an evidentiary hearing as a result
                     of the ineffective assistance of trial counsel for
                     failing to file and litigate a post-sentence
                     motion in the nature of a motion for
                     reconsideration of sentence as requested by
                     [A]ppellant?



       We begin by noting our well-settled standard and scope of review.



                                                        findings are supported by

                                           Commonwealth v. Edmiston, 65 A.3d

339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v.

Pennsylvania
____________________________________________


3
 The PCRA court amended its November 1, 2012 notice on November 30,
2012.
4
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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the findings of the PCRA court and the evidence of record, viewed in the light



Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

                                                                        t issue,

we apply a de novo standard of review. Commonwealth v. Spotz, 18 A.3d

244, 259 (Pa. 2011).

      In order to be eligible for relief under the PCRA, a petitioner must

plead and prove, by a preponderance of the evidence, that his conviction or

sentence arose from one or more of the errors listed within Section

9543(a)(2).



in the circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

                     Id. § 9543(a)(2)(ii).

      Herein, Appellant alleges that he received post-sentence ineffective

                                              4.   When reviewing a claim of

ineffective assistance of counsel we apply the following test, first articulated

by our Supreme Court in Commonwealth v. Pierce, 527 A.2d 973 (Pa.

1987) (adopting the ineffectiveness standard set forth in Strickland v.

Washington, 466 U.S. 668 (1984)).

                   When considering such a claim, courts
              presume that counsel was effective, and place upon
              the appellant the burden of proving otherwise.


                                     -5-
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              Counsel cannot be found ineffective for failure to
              assert a baseless claim.

                    To succeed on a claim that counsel was
              ineffective, Appellant must demonstrate that: (1) the
              claim is of arguable merit; (2) counsel had no
              reasonable strategic basis for his or her action or

              him.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal

quotation marks and citations omitted). It is well settled that

establish   any      prong   of   [Pierce        -prong]   test   will   defeat   an

                             Commonwealth v. Birdsong, 24 A.3d 319, 330

(Pa. 2011).

      Pursuant to the first prong of the Pierce

merit where the factual averments, if accurate, could establish cause for

        Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013)

(en banc) (citation and quotation marks omitted), appeal denied, --- A.3d --

-, 2014 Pa. LEXIS 1428 (Pa. 2014). Whether the factual allegations raised

by a petitioner amount to arguable merit is a legal conclusion subject to de

novo review. Id.; see also Spotz, supra.

       With regard to the second, reasonable basis prong, we do not

question whether there were other more logical courses of action which



                                            Commonwealth v. Chmiel, 30 A.3d

1111, 1127 (Pa. 2011) (citation and internal quotation marks omitted).


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                                                            Commonwealth v.

Philitin, 53 A.3d 1,

attorney performance requires that every effort be made to eliminate the

distorting effects of

challenged conduct, and to evaluate the conduct

                 Commonwealth v. Carson, 913 A.2d 220, 226-227 (Pa.

2006), cert. denied, Carson v. Pennsylvania, 552 U.S. 954 (2007), citing

Strickland, supra at 689.

                                                                                 a



                                              Michaud, supra (citation omitted).



                Stewart, supra (citation and quotation marks omitted). Our




of the proceedings [pursuant to the third prong of the Pierce test], the claim

may be dismissed on that basis alone and the court need not first determine



Commonwealth        v.   Rios,   920   A.2d    790,   799   (Pa.   2007);   accord

Commonwealth v. Luster, 71 A.3d 1029, 1039-1040 (Pa. Super. 2013) (en




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banc) (internal quotation marks omitted), appeal denied, 71 A.3d 1029 (Pa.

2013).

       Presently, Appellant claims that trial counsel was ineffective for failing

to file a post-sentence motion requesting the trial court to reconsider the

sentence     imposed     pursuant      to      his   third-degree   murder   conviction.

              Brief at 16-31. He asserts the imposed sentence of 12½ to 25



                               Id. at 18. Appellant believes the trial court either

failed to consider or gave improper weight to his status as a good,

hardworking father, who provided for his family and did not use drugs, and

the situation surrounding the murder. Id. at 24. Appell

all likelihood, the sentence imposed was impermissibly based solely on the



account within the offense gravity score applied. Id. at 23. Appellant also

claims the trial court failed to consider the factors necessary when imposing

total confinement.        Id. at 24, citing 42 Pa.C.S.A. § 9725.5              Further,

____________________________________________


5
  Section 9725 of the Judicial Code, 42 Pa.C.S.A. §§ 101-9913, states as
follows.

              § 9725. Total confinement.

              The court shall impose a sentence of total
              confinement if, having regard to the nature and
              circumstances of the crime and the history,
              character, and condition of the defendant, it is of the
(Footnote Continued Next Page)


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Appellant asserts the trial judge did not state on the record the reasons

supporting his sentence. Id. at 24, citing Pa.R.Crim.P. 704(C)(2) (providing,




trial counsel failed to file a requested post-sentence motion challenging the

discretionary aspects of his sentence. See Commonwealth v. Taylor, 65

A.3d 462, 467 (Pa. Super. 2013) (providing that a claim that the trial court

violated the sentencing procedure found at Rule 704(C)(2) challenges the

discretionary aspects of a sentence, not its legality), appeal denied, --- A.3d

---, 2014 Pa. LEXIS 296 (Pa. 2014), citing Commonwealth v. Evans, 866

A.2d 442, 442-445 (Pa. 2005).



issue lacked arguable merit, reasoning as follows.
                       _______________________
(Footnote Continued)

             opinion that the total confinement of the defendant
             is necessary because:

             (1)       there is undue risk that during a period of
                       probation or partial confinement the defendant
                       will commit another crime;

             (2)       the defendant is in need of correctional
                       treatment that can be provided most
                       effectively by his commitment to an institution;
                       or

             (3)       a lesser sentence will depreciate            the
                       seriousness of the crime of the defendant.

42 Pa.C.S.A. § 9725.



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                  Instantly, the [trial c]ourt sentenced Appellant
            to a standard range sentence.           The minimum
            sentence of 150 months was closer to the bottom of
            the standard range of 90 months than the top of the
            standard range of 240 months. Prior to imposing
            [its] sentence[,] th[e trial c]ourt heard testimony



            his right to allocution, which the [trial c]ourt also
            considered.

                  Although the [trial c]ourt did not specifically
            state prior to sentencing that it considered the
            presentence and psychiatric reports, the sentencing
            notes of testimony clearly and unambiguously
            indicate that these reports were reviewed and

            contains those reports and also contains character

            sentencing. Those letters also were reviewed and
            considered by the [trial c]ourt prior to sentencing.
            Accordingly, prior to imposing [its] sentence, th[e
            trial c]ourt possessed and considered all relative
            sentencing information.

                  Had prior counsel sought, through timely filed
            post[-]sentence motions[,] a reconsideration of
            sentence, it would have been denied.

PCRA Court Opinion, 3/6/14, at 6 (citation to transcript and some

capitalization omitted).

      It is well settled that there is no automatic right to appeal the

discretionary aspects of a sentence. Commonwealth v. W.H.M., Jr., 932

A.2d 155, 163 (Pa. Super. 2007). Rather, we consider such appeals to be

petitions for allowance of appeal. Id. We permit such appeals only when

the appellant has advanced a colorable argument that the sentence is


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inconsistent with the Sentencing Code or contrary to the fundamental norms

that underlie the sentencing process.        Commonwealth v. Hyland, 875

A.2d 1175, 1183 (Pa. Super. 2005) (citations and quotation marks omitted),

appeal denied, 890 A.2d 1057 (Pa. 2005).         In other words, an appellant

must seek permission from this Court to appeal and must establish that a

substantial question exists that the sentence was not appropriate under the

Sentencing Code.    Commonwealth v. Mouzon, 812 A.2d 617, 627-628

(Pa. 2002); 42 Pa.C.S.A. § 9781(b).

      Prior to reaching the merits of a discretionary sentencing issue, we

conduct a four-part analysis to determine the following.

            (1) [W]hether appellant has filed a timely notice of
            appeal, see Pa.R.A.P. 902 and 903; (2) whether the
            issue was properly preserved at sentencing or in a
            motion to reconsider and modify sentence, see

            fatal defect, Pa.R.A.P. 2119(f); and (4) whether
            there is a substantial question that the sentence
            appealed from is not appropriate under the
            Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Prisk, 13 A.3d 526, 532 (Pa. Super. 2011).                 As

Appellant presently argues that his counsel failed to file a motion requesting

the reconsideration of his sentence, we need only consider whether

Appellant has presented a substantial question for our review.

         substantial question will be found where the defendant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the [sentencing] code or is contrary to the fundamental


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                                                  Commonwealth v. Booze,

953 A.2d 1263, 1278 (Pa. Super. 2008) (citation omitted), appeal denied,

13 A.3d 474 (Pa. 2010); see also 42 Pa.C.S.A. § 9781(b). This Court has

long recogniz



Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012), appeal

denied, 62 A.3d

sentencing court failed to adequately consider mitigating factors in favor of a

lesser sentence does not present a substantial question appropriate for our

          Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super.

2011); accord Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.

2010). Rather, the weight to be afforded the various sentencing factors is a

discretionary matter for the sentencing court and its determination will not

be disturbed simply because the defendant would have preferred that

different weight be given to any particular factor. See Commonwealth v.

Marts, 889 A.2d 608, 616 (Pa. Super. 2005).



Appellant would not be entitled to appellate review because he has failed to

raise a substantial question. Herein, Appellant concedes that the sentence

                                     in the statutory maximum allowable by




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                                                                    Id. at 14-

                                                                     -working,

good father, who provides for his family and does not use drugs. Id. at 15.



in the victi

consider.      Id.   However, these claims do not raise a substantial question

that would permit us to conduct an appellate review of his discretionary

aspects of sentence claim. See Fisher, supra; Ratushny, supra; Moury,

supra.      Since Appellant has failed to raise a substantial question, his

discretionary aspects of sentence claim lacks arguable merit. See Stewart,

supra.      Therefore, Appellant would not have been able to successfully

pursue this claim within a post-sentence motion or on direct appeal. Prisk,

supra

and the PCRA court did not err in denying Appellant PCRA relief on this

claim. See Birdsong, supra.

      Based




      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2014




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