J-S88036-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
              Appellee                    :
                                          :
     v.                                   :
                                          :
JEFRAN CANALES-TAPIA,                     :
                                          :
              Appellant                   :   No. 1143 EDA 2016

                 Appeal from the PCRA Order March 16, 2016
               in the Court of Common Pleas of Lehigh County
            Criminal Division, at No(s): CP-39-CR-0002036-2013

BEFORE:     OLSON, RANSOM, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED FEBRUARY 22, 2017

     Jefran Canales-Tapia (Appellant) appeals pro se from the March 16,

2016 order1 that dismissed his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     On December 18, 2013, Appellant pled guilty to conspiracy to commit

robbery in exchange for the Commonwealth’s withdrawal of charges of

homicide, conspiracy to commit homicide, and robbery.      On February 12,

2014, Appellant was sentenced to 75 to 240 months of incarceration.

Appellant filed a direct appeal challenging the discretionary aspects of his

sentence.   This Court concluded that Appellant presented a substantial

question for review, but affirmed the judgment of sentence following



1
  The order was dated March 14, 2016, docketed on March 15, 2016, and
served upon the parties on March 16, 2016.
*Retired Senior Judge assigned to the Superior Court.
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consideration of the merits of Appellant’s challenge.       Commonwealth v.

Canales-Tapia, 121 A.3d 1119 (Pa. Super. 2015).

      Appellant pro se timely filed a PCRA petition on January 5, 2016.

Counsel was appointed, and on February 11, 2016, filed a motion to

withdraw as counsel pursuant to Commonwealth v. Turner, 544 A.2d 927

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

1988) (en banc). On February 17, 2016, the PCRA court permitted counsel

to withdraw and issued notice of its intent to dismiss Appellant’s petition.

Appellant filed a lengthy response to the PCRA court’s notice on March 11,

2016. Finding Appellant’s response unpersuasive, the PCRA court dismissed

Appellant’s petition, and Appellant timely filed a notice of appeal. 2

      Appellant presents three questions for our review, which we have

reordered for ease of disposition:

      1. Did the trial court violate Appellant’s rights under the United
      States and Pennsylvania constitutions by imposing a sentence
      based on a crime committed by Appellant’s co-defendant?

      2. Was trial/appellate counsel ineffective in representing
      Appellant when he presented the core of his sentencing
      challenge without citing any case law in support thereof?

      3. Was PCRA counsel ineffective in representing Appellant when
      he submitted a “no merit” letter instead of challenging prior
      counsel’s ineffectiveness and challenging an improperly imposed
      sentence?

Appellant’s Brief at 4 (unnecessary articles and capitalization omitted).


2
 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal, and none was filed.
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     We begin with our standard of review.

            This Court analyzes PCRA appeals in the light most
     favorable to the prevailing party at the PCRA level. Our review
     is limited to the findings of the PCRA court and the evidence of
     record and we do not disturb a PCRA court’s ruling if it is
     supported by evidence of record and is free of legal error.
     Similarly, we grant great deference to the factual findings of the
     PCRA court and will not disturb those findings unless they have
     no support in the record. However, we afford no such deference
     to its legal conclusions. Where the petitioner raises questions of
     law, our standard of review is de novo and our scope of review is
     plenary. Finally, we may affirm a PCRA court's decision on any
     grounds if the record supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).

     With his first question, Appellant seeks to re-litigate the underlying

issue of whether the sentencing court relied on an improper factor in

sentencing him to the statutory maximum. Appellant’s Brief at 12-19. This

he may not do. See Commonwealth v. Brown, 872 A.2d 1139, 1145 (Pa.

2005) (“Appellant cannot obtain post conviction review of claims previously

litigated on appeal by presenting new theories of relief to support the

previously litigated claims.”).   Furthermore, “[r]equests for relief with

respect to the discretionary aspects of sentence are not cognizable in PCRA

proceedings.”   Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa.

Super. 2007). Accordingly, that claim merits no relief from this Court.

     Appellant’s remaining questions challenge the effectiveness of his

counsel.



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      Counsel is presumed effective and will only be deemed
      ineffective if the petitioner demonstrates that counsel’s
      performance was deficient and he was prejudiced by that
      deficient performance. Prejudice is established if there is a
      reasonable probability that, but for counsel’s errors, the result of
      the proceeding would have been different.            A reasonable
      probability is a probability sufficient to undermine confidence in
      the outcome.

      To properly plead ineffective assistance of counsel, a petitioner
      must plead and prove: (1) that the underlying issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) actual prejudice resulted from
      counsel’s act or failure to act. If a petitioner fails to plead or
      meet any elements of the above-cited test, his claim must fail.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citation

omitted).

      Appellant first claims that his direct appeal counsel was ineffective in

failing to offer case law to support his sentencing challenge in his appellate

brief. Counsel had, according to this Court, argued as follows:

      Appellant complains that this sentence was an abuse of the
      court’s discretion because the court relied solely on the fact that
      Appellant’s “actions led to the death of the victim….” Appellant
      maintains that the court essentially punished him for the
      homicide, despite the fact that he was not convicted of that
      offense. In other words, he argues that the sentence was “not
      justified by the facts and the charges to which [Appellant]
      entered his guilty plea.” Appellant also avers that his sentence
      was excessive where his codefendant, who was the actual
      shooter, received a lesser sentence for the crime of conspiracy to
      commit robbery.

Canales-Tapia, 121 A.3d 1119 (unpublished memorandum at 4) (citations

omitted). This Court considered the trial court’s explanation for its sentence,

which included the following:

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      The [trial c]ourt would note that [Appellant’s co-conspirator]
      pled to both [c]riminal [h]omicide and [conspiracy to commit]
      [r]obbery. He received an aggregated sentence of no less than
      20 years nor more than 40 years of incarceration. It is the [trial
      c]ourt’s assertion that the victim’s death was factored into the
      sentence imposed [for] the count of [c]riminal [h]omicide, a
      sentence far greater than the [75 to 240 months’ incarceration]
      imposed on [] Appellant for his guilty plea to [c]onspiracy to
      [c]ommit [r]obbery, although [] Appellant’s role in the victim’s
      death was not insignificant. It is the [trial c]ourt’s opinion that
      the sentence imposed on [] Appellant for his role in the robbery
      of the victim, which ultimately ended in the victim’s death, was
      not the result of an abuse of discretion.

Id. at 5-6. This Court thereafter disposed of Appellant’s claim as follows:

      The record of Appellant’s sentencing hearing, and the trial
      court’s statement of the factors it considered in fashioning
      Appellant’s sentence, convince us that the court did not abuse its
      discretion in imposing Appellant’s aggravated range sentence.
      Appellant offers no legal support for his suggestion that,
      because he did not plead guilty to homicide, the court was not
      permitted to consider the fact that the victim was shot and killed
      in determining the appropriate sentence for Appellant’s crime of
      conspiracy to commit robbery. Indeed, this Court has stated
      that criminal conduct for which a defendant “escaped
      prosecution has long been held [to be] an acceptable sentencing
      consideration” where “there is evidentiary proof linking the
      defendant to the conduct.” Commonwealth v. P.L.S., 894
      A.2d 120, 130 (Pa. Super. 2006). Here, Appellant admitted that
      he went to the victim’s home with [his co-conspirator] in order
      to rob the victim, who was ultimately shot and killed during the
      commission of that offense.        Although the Commonwealth
      withdrew Appellant’s homicide charge pursuant to his plea
      agreement, the court was well-within its discretion to consider
      the fact that the victim was murdered during the course of the
      robbery in fashioning Appellant’s sentence for conspiracy.
      Accordingly, Appellant’s sentencing claim does not entitle him to
      relief.




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Canales-Tapia,     121   A.3d   1119    (unpublished   memorandum      at   6-7)

(emphasis added). Appellant focuses upon the emphasized language above

to argue that his counsel offered constitutionally-deficient representation.

       Appellant offers a number of cases he believes his appellate counsel

should have cited to support his sentencing challenge. Appellant’s Brief at

7-8.   These cases stand for the uncontroversial principle that sentences

based upon impermissible considerations must be vacated.            See, e.g.,

Commonwealth v. Stufflet, 469 A.2d 240, 243 (Pa. Super. 1983) (“[I]f it

reasonably appears from a review of the entire record that the sentencing

court may have relied in whole or in part upon an impermissible

consideration, the sentence is invalid and must be vacated.” (citation and

internal quotation marks omitted)).

       However, none of these cases stands for the proposition Appellant

advanced in his direct appeal, and argues again in this appeal: that the

sentencing court was not permitted to consider the fact that the robbery

victim was killed during the course of the robbery committed by Appellant

because the homicide count was withdrawn by the Commonwealth. Rather,

the cases Appellant offers are based upon materially distinguishable factual

scenarios. See Commonwealth v. Bethea, 379 A.2d 102, 107 (Pa. 1977)

(“A fair reading of the trial court’s remarks prior to the imposition of

sentence… indicates that the judge may have been influenced by the fact

that appellant chose to stand trial rather than plead guilty, with a possible

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J-S88036-16


resultant augmentation of the sentences imposed.”); Stufflet, 469 A.2d at

242-43 (holding that it was improper for the sentencing court to consider

that one member of the group raped someone during an armed robbery

where Stufflet was not convicted of conspiracy3 and rape was not part of the

plan); Commonwealth v. Cruz, 402 A.2d 536, 536 (Pa. Super. 1979) (“An

unsubstantiated statement that a defendant is a major drug dealer would be

an inappropriate factor in a judge’s imposition of sentence.” (emphasis

omitted)).

      Accordingly, Appellant has failed to convince us that the outcome of

his appeal would have been different had counsel cited this case law in his

brief, and his claim fails for lack of prejudice.   Commonwealth v. Reed,

971 A.2d 1216, 1227 (Pa. 2009) (holding appellant could not prevail on



3
  Indeed, Appellant’s arguments appear to be fueled by his incredulity at
being held accountable for the actions of his co-conspirator after he pled
guilty to conspiracy. In all of the extensive research Appellant appears to
have done into state and federal law, Appellant must have overlooked the
well-established principles of co-conspirator liability.

      The general rule of law pertaining to the culpability of
      conspirators is that each individual member of the conspiracy is
      criminally responsible for the acts of his co-conspirators
      committed in furtherance of the conspiracy. The co-conspirator
      rule assigns legal culpability equally to all members of the
      conspiracy.     All co-conspirators are responsible for actions
      undertaken in furtherance of the conspiracy regardless of their
      individual knowledge of such actions and regardless of which
      member of the conspiracy undertook the action.

Commonwealth v. Lambert, 795 A.2d 1010, 1016-17 (Pa. Super. 2002)
(citation omitted).
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claim that appellate counsel filed a defective brief when he was unable to

establish actual prejudice).

       Because Appellant has not established that he suffered any prejudice

from direct appeal counsel’s failure to cite authority in his brief, Appellant’s

claim that PCRA counsel was ineffective in withdrawing pursuant to Turner

and    Finley   rather   than   litigating   that   meritless   claim   also   fails.

Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (“Counsel will

not be deemed ineffective for failing to raise a meritless claim.”).

       For the above reasons, Appellant has failed to persuade us that any

abuse of discretion or error of law on the part of the PCRA court entitles him

to relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/22/2017




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