J-S38021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSE LUIS PERALTA,

                            Appellant                   No. 2971 EDA 2016


                Appeal from the PCRA Order September 6, 2016
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0007919-2011


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

MEMORANDUM BY SHOGAN, J.:                          FILED DECEMBER 08, 2017

       Appellant, Jose Luis Peralta, appeals from the order denying his first

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

42 Pa.C.S. §§ 9541-9546.          In addition, counsel for Appellant has filed an

application to withdraw and a 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). In a previous memorandum filed by

this panel, we temporarily denied counsel’s request to withdraw and

instructed him to send a letter to Appellant properly informing Appellant of

his rights to immediately proceed pro se or via privately retained counsel.

Appellate counsel has redrafted his letter to Appellant and submitted it to
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S38021-17


this Court. We now grant counsel’s application to withdraw and affirm the

order of the PCRA court.

     The trial court summarized the history of this case as follows:

           The victim in this case was six years old at the time of the
     offense on trial. She lived in a single-family residence located
     [on] Oak Road, in Warrington Township, Bucks County with her
     parents, her twelve-year-old brother, her two-year-old sister,
     her paternal grandfather, and her paternal aunt and [paternal
     aunt’s] husband. On the evening of September 3, 2011, the
     victim’s family held a party for family and friends to celebrate
     the baptism of the youngest child at a local hall they had rented.
     [Appellant] is not a relative of the victim and did not know the
     family prior to that day. At the time, [Appellant] lived in
     Brooklyn, New York, with his uncle Roberto Peralta. The victim’s
     maternal uncle also resided in Brooklyn. This uncle chose to
     invite his friend, Javier Peralta, to the party. Javier Peralta, in
     turn, asked his nephew, [Appellant], to come along with him.

           After the party, the victim’s immediate family remained
     behind to pack up the food and other items. Afterward, on the
     drive home, the victim fell asleep in their car. When they
     arrived home, [Appellant], Javier Peralta, and Roberto Peralta
     were there. The victim’s father had not invited them into his
     home and was surprised to find them there. “Out of courtesy,”
     he did not tell them to leave. He carried the victim into her
     brother’s bedroom on the ground floor of their home. Her mother
     changed her from her party dress into her pajamas. When she
     put her to bed, the victim was wearing underwear, a pajama top,
     and pajama shorts. When she left the room, [the victim] was
     asleep and the bedroom window was closed. [The victim’s
     mother] left the bedroom light on and the bedroom door open.
     Shortly thereafter, she and her husband left the residence to
     pick up some of the party supplies that another family had taken
     from the hall after the party. The children remained at the
     house with the other family members and the Peraltas.

          Testimony of the victim’s family and evidence obtained
     from the scene established the following sequence of events.
     [Appellant] was present when the victim was put to bed in the
     ground floor bedroom at her residence.        After the victim’s
     parents left the home, [Appellant] entered the bathroom next to

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     the [victim’s] room and went out the bathroom window. He then
     made forcible entry into the [victim’s] room through the window.
     [Appellant] turned off the light, locked the door, and removed
     the [victim’s] pajama shorts and underwear while the victim
     slept. When [the victim] awoke, she found [Appellant] in the
     room. When she tried to flee he struck her in the face. Injured,
     bleeding, and crying, she frantically tried to open the door,
     smearing blood on the wall and the door in the process. She
     was ultimately able to escape. [Appellant] fled through the now
     open bedroom window.

            Specifically, the evidence established that after his parents
     left the residence to retrieve the party items, the victim’s brother
     remained awake. He noticed the door to his bedroom where the
     victim was sleeping was open and that the light inside the room
     was on. Later, he saw [Appellant] walk into the hallway where
     [his] bedroom and the bathroom were located. Five minutes
     later, he heard screaming from that area.           He ran to the
     bedroom and found that the bedroom door was locked from the
     inside. He and other family members were unable to force the
     door open. The family heard the victim yelling and crying on the
     other side of the door and instructed her to open it. When she
     finally opened the door, her family saw that she was not wearing
     her pajama shorts or underwear. She was crying and her hair
     was disheveled. She was bleeding from her nose and had a lot
     of blood on her face and pajama top. Her upper lip was swollen
     and she had a large lump on her forehead. While another family
     member called 911, the victim’s aunt took her into the adjacent
     bathroom, cleaned off some of the blood and wrapped the victim
     in a blanket.       Family members noticed that the bathroom
     window that had been previously closed was now open.

           The police were initially dispatched to [a residence on] Oak
     Road for a report of a young girl bleeding at that location. En
     route, the information was updated to include a reported
     burglary in progress. Police arrived at the residence within two
     minutes of being dispatched. The victim’s parents returned
     home as the police were arriving at the scene.

           The police immediately spoke to the six-year-old victim.
     She reported that the man who assaulted her had a ponytail and
     was wearing a dark shirt. She stated that he fled the residence
     through the bedroom window. Shortly after their arrival at the
     scene, the police were notified that a neighbor had reported

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     seeing a person matching [Appellant’s] description flee the
     residence, run across Oak [Road] and continue behind the
     residence across from the victim’s home. After a brief foot
     chase, the person seen by the neighbor, later identified as
     [Appellant], ran into the police who were still responding to the
     scene. [Appellant] was apprehended at 3:07 AM. He was
     wearing a dark shirt, jeans and a sneaker on his left foot. His
     clothes were wet and covered with “debris from bushes and so
     forth.” His hair was in a ponytail. Two baggies of white powder,
     later identified as cocaine, were found in an Altoids Mints tin
     seized from his person at his arrest. The victim was taken to
     Doylestown Hospital.

           When police inspected the scene, the bathroom window
     and screen were open but undamaged. Forcible entry had been
     made through the bedroom window. The window was open.
     The screen was torn open. Police found and photographed scuff
     marks below that bedroom window. Police found [Appellant’s]
     right sneaker below the window inside the bedroom. As the
     victim struggled to find and open the door after the assault, she
     transferred her blood onto the wall, the door, the door frame and
     the door jamb. Blood was found on the victim’s pajama top.
     Bloody paper towels were found on the floor.

            [Appellant] was interview[ed] on the morning of his arrest.
     After, [sic] being read his Miranda warnings, [Appellant] agreed
     to talk without an attorney present. During that interview,
     [Appellant] told the police that the victim was his niece, that he
     was at her residence for a party and that he first saw her at her
     home. After he was confronted with the fact that his sneaker
     had been found in the bedroom where the [victim] was attacked,
     [Appellant] told police that while at the residence, he went to the
     bathroom, walked past the bedroom where the victim was
     sleeping and saw a Hispanic male he identified as a gang
     member from Norristown in the room.             He stated that he
     confronted the man, the two scuffled and the “gang member”
     went out the window. He stated that he gave chase and lost his
     shoe. [Appellant] did not respond when asked on multiple
     occasions how he knew the individual was a Hispanic male gang
     member from Norristown.

           Ten days later, on September 14, 2011, the victim
     appeared at the child advocacy center to be interviewed. The
     investigating officer noted that [the victim] was afraid to have

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      the door to the interview room shut. When she was left alone,
      [the victim] began to draw. Unprompted, she drew a picture of
      her assailant, depicting him with a ponytail. When interviewed,
      she stated that she was sleeping and woke up without her
      pajama bottoms and underwear [on]. When she tried to get up,
      she was punched in the nose and head.

            On September 4, 2011, [Appellant] was charged with
      attempted rape of a child; attempted involuntary deviate sexual
      intercourse with a child; attempted aggravated indecent assault
      of a child; indecent assault - forcible compulsion; burglary,
      criminal trespass, indecent assault, false imprisonment, unlawful
      restraint, simple assault, possession of a controlled substance,
      possession of drug paraphernalia, harassment, and criminal
      mischief. On December 5, 2011, a preliminary hearing was held.
      All charges were held for court.

            On March 21, 2012, [Appellant] filed a petition for writ of
      habeas corpus challenging the sufficiency of the evidence
      presented at the preliminary hearing. On April 2, 2012, the [trial
      court] granted [Appellant’s] habeas corpus petition as to the
      charges of attempted rape of a child; attempted involuntary
      deviate sexual intercourse with a child; attempted aggravated
      assault of a child; and indecent assault - forcible compulsion.

            On April 15, 2012, [Appellant] entered a guilty plea to the
      remaining charges. On April 25, 2012, [Appellant] filed a motion
      to withdraw his guilty plea. On July 31, 2012, the [trial court]
      granted that motion.

             On November 9, 2012, [Appellant] waived his right to a
      trial by jury and a [nonjury] trial was held[.] [Appellant] was
      found guilty of all remaining charges.

Trial Court Opinion, 10/3/13, at 1-6 (citations and footnotes omitted).

      On December 18, 2012, the trial court sentenced Appellant to serve an

aggregate term of incarceration of seventeen and one-half to forty years, to

be followed by two years of probation. Appellant filed timely post-sentence

motions. The trial court held an evidentiary hearing on February 22, 2013.


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On May 23, 2013, the trial court vacated the sentence it had imposed for

indecent assault, thus reducing Appellant’s aggregate sentence to a term of

incarceration of fifteen to thirty years, to be followed by two years of

probation.   That same date, the trial court denied Appellant’s remaining

post-sentence motions.

     This Court affirmed Appellant’s judgment of sentence on direct appeal.

Commonwealth v. Peralta, 102 A.3d 532, 1846 EDA 2013 (Pa. Super.

filed April 15, 2014) (unpublished memorandum). Subsequently, Appellant

filed a petition for reargument/reconsideration with this Court, which was

denied by an order dated June 18, 2014. The Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal on November 25, 2014.

Commonwealth v. Peralta, 104 A.3d 3, 496 MAL 2014 (Pa. 2014).

     On August 14, 2015, Appellant filed, pro se, the instant PCRA petition.

The PCRA court appointed counsel to represent Appellant on September 29,

2015. On December 30, 2015, counsel filed an amended PCRA petition. On

February 23, 2016, the Commonwealth filed an answer to Appellant’s

amended PCRA petition.     The PCRA court issued notice of its intent to

dismiss pursuant to Pa.R.Crim.P. 907 on June 30, 2016. On July 19, 2016,

appointed counsel filed a reply to the PCRA court’s notice of intent to

dismiss. The PCRA court denied Appellant’s PCRA petition on September 6,

2016. This timely appeal followed.




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         Appellant’s counsel filed with the PCRA court a statement pursuant to

Pa.R.A.P. 1925(c)(4) indicating his intent to seek permission to withdraw

and noting that there were no meritorious issues supporting the appeal. The

PCRA court did not draft a Pa.R.A.P. 1925(a) opinion, but rather authored a

letter explaining that, in light of PCRA counsel’s statement pursuant to

Pa.R.A.P. 1925(c)(4), it was directing that the record be forwarded to this

Court for review.

         On March 10, 2017, PCRA counsel filed with this Court an application

to withdraw and a Turner/Finley letter.                Counsel appended to the

application to withdraw a copy of the letter sent to Appellant, which advised

Appellant that he could represent himself or that he could retain private

counsel.

         In a memorandum filed on August 25, 2017, this panel temporarily

denied appellate counsel’s request to withdraw, concluding that counsel’s

letter    to   Appellant   contained   contradictory    and   confusing   language

pertaining to when Appellant may invoke his right to proceed pro se or

through privately retained counsel.         Memorandum, 8/25/17, at 5.          In

addition, we determined that, due to Appellant’s lack of fluency in the

English language, an interpreter is necessary at all levels of this case. Id. at

8.

         Ultimately, we issued the following directive:

              [C]ounsel is hereby instructed to refile his “no-merit” letter
         under Turner/Finley. His letter to Appellant shall provide, inter

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       alia, accurate notice of Appellant’s immediate right to proceed
       pro se or with private counsel. [Commonwealth v.] Muzzy,
       141 A.3d [590,] 512 [(Pa. Super. 2015)].             Moreover, any
       documents sent by counsel to Appellant must be translated and
       proper documentation must be filed with the appropriate court.
       Mindful of the need for proper translation of documents,
       counsel’s revised petition to withdraw and certification of
       translation shall be filed within forty-five days of the date of this
       decision. Appellant shall have thirty days from receipt of the
       revised petition to file either a pro se brief or a brief by newly
       retained private counsel, if he so chooses. The Commonwealth
       will then have thirty days in which to file a responsive brief.

Memorandum, 8/25/17, at 8-9.

       On October 30, 2017, counsel refiled with this Court his application to

withdraw, a “no-merit” letter under Turner/Finley, as well as a copy of a

revised letter to Appellant dated October 6, 2017.         The October 6, 2017

letter alerted Appellant that he has the right to represent himself now or

retain new counsel now.          Application to Withdraw as Counsel, 10/30/17,

Exhibit B.      In addition, the letter to Appellant indicated that, should

Appellant wish to respond to counsel’s application, Appellant should do so in

writing and should act within thirty days of the date of the letter. Id. Also,

counsel appended to his application to withdraw Spanish-language copies of

the application to withdraw, the “no-merit” letter, and the October 6, 2017

letter addressed to Appellant.1 Appellant has not filed a response with this

Court.

____________________________________________


1 We remind counsel that, in the future, he should be more diligent in
advising his clients that they have an immediate right to retain private
(Footnote Continued Next Page)


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      Prior to addressing the merits of Appellant’s claim on appeal, we must

first decide whether counsel has fulfilled the procedural requirements for

withdrawing his representation.          Commonwealth v. Daniels, 947 A.2d

795, 797 (Pa. Super. 2008). This Court has listed the following conditions to

be met by counsel in seeking to withdraw in a collateral appeal:

             Counsel petitioning to withdraw from PCRA representation
      must proceed ... under [Turner, supra and Finley, supra and]
      ... must review the case zealously. Turner/Finley counsel must
      then submit a “no-merit” letter to the trial court, or brief on
      appeal to this Court, detailing the nature and extent of counsel’s
      diligent review of the case, listing the issues which petitioner
      wants to have reviewed, explaining why and how those issues
      lack merit, and requesting permission to withdraw.

            Counsel must also send to the petitioner: (1) a copy of the
      “no merit” letter/brief; (2) a copy of counsel’s petition to
      withdraw; and (3) a statement advising petitioner of the right to
      proceed pro se or by new counsel.

                                         ***

             [W]here counsel submits a petition and no-merit letter that
      ... satisfy the technical demands of Turner/Finley, the court-
      trial court or this Court-must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the
      claims are without merit, the court will permit counsel to
      withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted) (brackets in original).

(Footnote Continued) _______________________

counsel or proceed pro se upon the filing of an application to withdraw.
Indeed, given the frequent practice of this Court to decide applications to
withdraw within the decision on the merits of the appeal, appellants should
file any response to the application to withdraw promptly.



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      In the application filed with this Court, counsel explained that he had

been appointed to represent Appellant at the PCRA proceedings and that he

reviewed the case, evaluated the issues, conducted an independent review

of the record, and concluded there were no issues of merit.           Counsel also

listed the issue relevant to this appeal in his no-merit letter and explained

why the appeal is without merit. In addition, counsel averred that he served

upon Appellant a copy of the application to withdraw, the “no-merit” letter,

and a letter addressed to Appellant accompanying those documents. Thus,

we will allow counsel to withdraw if, after our review, we conclude that the

issue relevant to this appeal lacks merit.

      We have discerned the following issue presented by PCRA counsel on

behalf of Appellant in the Turner/Finley letter: (1) whether appellate

counsel was ineffective under the Fifth, Sixth and Fourteenth Amendments

to the United States Constitution and Art. I, §9 and Art. V, §9 of the

Pennsylvania Constitution for failing to comply with [Pa.R.A.P.] 2119(f),

resulting   in   waiver   of   [Appellant’s]    sentencing   claim   upon   appeal.

Application to Withdraw, Exhibit A Turner/Finley Letter, at 3.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence


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of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

       Appellant’s claim challenges the effective assistance of his trial

counsel. Our Supreme Court has long stated that in order to succeed on a

claim of ineffective assistance of counsel, an appellant must demonstrate (1)

that   the   underlying claim   is of   arguable   merit; (2) that   counsel’s

performance lacked a reasonable basis; and (3) that the ineffectiveness of

counsel caused the appellant prejudice.      Commonwealth v. Pierce, 786

A.2d 203, 213 (Pa. 2001).

       We have explained that trial counsel cannot be deemed ineffective for

failing to pursue a meritless claim.    Commonwealth v. Loner, 836 A.2d

125, 132 (Pa. Super. 2003) (en banc). Moreover, with regard to the second

prong of the Pierce test, we have reiterated that trial counsel’s approach

must be “so unreasonable that no competent lawyer would have chosen it.”

Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000)

(quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).

       Our Supreme Court has defined “reasonableness” as follows:

             Our inquiry ceases and counsel’s assistance is deemed
       constitutionally effective once we are able to conclude that the

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       particular course chosen by counsel had some reasonable basis
       designed to effectuate his client’s interests. The test is not
       whether other alternatives were more reasonable, employing a
       hindsight evaluation of the record.        Although weigh the
       alternatives we must, the balance tips in favor of a finding of
       effective assistance as soon as it is determined that trial
       counsel’s decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.

1967)) (emphasis in original).

       In addition, we are mindful that prejudice requires proof that there is a

reasonable probability that, but for counsel’s error, the outcome of the

proceeding would have been different. Pierce, 786 A.2d at 213. “A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim

of ineffectiveness.”   Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,

when it is clear that a petitioner has failed to meet the prejudice prong of an

ineffective-assistance-of-counsel claim, the claim may be disposed of on that

basis alone, without a determination of whether the first two prongs have

been met.     Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super.

2005).

       It is presumed that the petitioner’s counsel was effective, unless the

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,

1177     (Pa. 1999).      We   are   bound by the          PCRA   court’s credibility

determinations    where    there     is    support   for   them    in   the   record.



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Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).                  Furthermore,

claims   of    ineffective   assistance   of   counsel   are   not   self-proving.

Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).

      The sole issue Appellant raised in his PCRA petition, and on appeal

through the Turner/Finley letter, is that direct appeal counsel was

ineffective for failing to include a Pa.R.A.P. 2119(f) statement in Appellant’s

appellate brief filed with this Court. Amended PCRA Petition, 12/30/15, at 1;

Turner/Finley Letter at 3.       Appellant contends that this error by direct

appeal counsel resulted in waiver of Appellant’s sentencing issue on direct

appeal. Id.

      Our review of the certified record reflects that Appellant preserved the

following sentencing issue in his Pa.R.A.P. 1925(b) statement filed in

connection with his direct appeal:

             A. The trial court erred and abused its discretion by
      imposing a sentence that exceeded the Sentencing Guidelines
      without providing adequate reasons to justify the sentence and
      failing to take into account the Appellant’s lack of any criminal
      record or personal circumstances of the Appellant, or testimony
      presented by his family at sentencing, while relying upon some
      impermissible factors that were presented at sentencing.

Pa.R.A.P. 1925(b) Statement, 7/1/13, at 1. In addition, our review further

reflects that Appellant raised the following issue in his appellate brief filed

with this Court on direct appeal:

              A. DID THE TRIAL COURT ERR IN IMPOSING A SENTENCE
      THAT     EXCEEDED THE SENTENCING GUIDELINES LACKING

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      ADEQUATE REASONS TO JUSTIFY THE STATUTORY MAXIMUM
      WHICH DID NOT TAKE INTO ACCOUNT [APPELLANT’S]
      CIRCUMSTANCES AND REHABILITATIVE NEEDS BUT ONLY
      FOCUSED ON THE NATURE OF THE OFFENSE?

Peralta, 1846 EDA 2013 (unpublished memorandum at *9). Furthermore,

Appellant’s brief to this Court on direct appeal contained the following

language at the beginning of the argument section pertaining to Appellant’s

sentencing issue:

             The Appellant asserts that the trial court committed errors
      and abused its discretion in imposing an aggregate sentence of
      fifteen (15) to thirty (30) years. That sentence manifestly
      exceeded the sentencing guidelines.

      1. Concise statement of reasons relied upon in support of appeal.

             Appellant received an aggregate sentence of fifteen (15) to
      thirty (30) years. This sentence was compiled by sentencing the
      Appellant to the statutory maximum on every charge and then
      running each sentence consecutively to each charge that did not
      merge for sentencing.

            Appellant had no prior criminal record. In sentencing the
      Appellant to the statutory maximum on each charge, the trial
      court greatly exceeded the applicable range of the Sentencing
      Guidelines.

            A claim that the sentencing court imposed an unreasonable
      sentence by sentencing outside the guidelines presents a
      substantial question and is reviewable on appeal.          See,
      Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999);
      Commonwealth v. Eby, 784 A.2d 2004 (Pa. Super. 2001).

Commonwealth’s Answer to Amended PCRA Petition, 2/22/16, Exhibit B

(Appellant’s Brief on Direct Appeal) at 3-4.

      In spite of the above cited language, in disposing of Appellant’s

sentencing issue, this Court stated:

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           In the present case, Appellant has failed to include in his
     brief a concise statement pursuant to Pa.R.A.P. 2119(f). The
     Commonwealth objects to Appellant’s failure to include a
     Pa.R.A.P. 2119(f) statement, and argues that Appellant’s
     sentencing claim is waived. We agree.

          This Court has held:

                 [W]hen the appellant has not included a Rule
          2119(f) statement and the [Commonwealth] has not
          objected, this Court may ignore the omission and
          determine if there is a substantial question that the
          sentence imposed was not appropriate, or enforce
          the requirements of Pa.R.A.P. 2119(f) sua sponte,
          i.e., deny allowance of appeal. However, this option
          is lost if the [Commonwealth] objects to a 2119(f)
          omission.     In such circumstances, this Court is
          precluded from reviewing the merits of the claim and
          the appeal must be denied.

     Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super.
     2004); see also Commonwealth v. Robinson, 931 A.2d 15,
     22 (Pa. Super. 2007).

           In the present case, Appellant has failed to include in his
     brief a statement pursuant to Pa.R.A.P. 2119(f), and the
     Commonwealth has objected to the omission. Accordingly, we
     may not review the merits of Appellant’s appeal.         Kiesel,
     supra. 2


          2  Absent waiver, the record refutes Appellant’s
          sentencing claim. The trial court fully explained the
          reasons it chose to deviate from the sentencing
          guidelines both at sentencing and again when
          denying     Appellant’s   motion      for   sentence
          reconsideration. Appellant’s true claim challenges
          the weight the trial court assigned legitimate
          sentencing factors. Such a challenge does not raise
          a    substantial   question.       See     generally
          Commonwealth v. Griffin, 804 A.2d 1 (Pa. Super.
          2002).

Peralta, 1846 EDA 2013 (unpublished memorandum at *11-12).


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      Thus, it appears that this Court mistakenly concluded in the body of its

memorandum disposing of Appellant’s direct appeal that Appellant waived

his sentencing issue due to a failure to include a Pa.R.A.P. 2119(f) statement

in his brief. Nevertheless, this Court addressed the merits of the sentencing

claim in footnote two and determined that it was refuted by the record.

Accordingly, the underlying issue of Appellant’s ineffective assistance of

counsel claim, which hinges on the proposition that appellate counsel failed

to include a Pa.R.A.P. 2119(f) statement in the appellate brief, lacks

arguable merit. Moreover, in light of the fact that this Court addressed the

sentencing issue in footnote two, Appellant cannot demonstrate any

resulting prejudice.    Hence, Appellant’s ineffective assistance of counsel

claim fails. Therefore, we can discern no error on the part of the PCRA court

in refusing to grant relief.

      Furthermore, upon our independent review, no relief is due, and the

PCRA court’s determination is supported by the record and free of legal

error. Having determined that Appellant is not entitled to PCRA relief, we

allow counsel to withdraw under the precepts of Turner/Finley.

      Application to withdraw granted. Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




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