J-S66020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MAURICE LONZO TIGNEY                       :
                                               :
                       Appellant               :   No. 107 WDA 2017

                Appeal from the PCRA Order December 13, 2016
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0012277-2012


BEFORE:      BENDER, P.J.E., DUBOW, J., and PLATT*, J.

MEMORANDUM BY DUBOW, J.:                             FILED NOVEMBER 30, 2017

       Appellant Maurice Lonzo Tigney seeks review of the denial of his

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-46. He avers that trial counsel provided ineffective assistance at

sentencing and challenges the discretionary aspects of his sentence.          We

affirm.

       On June 4, 2014, the trial court sentenced Appellant to a term of 20 to

40 years’ incarceration after a jury convicted him of Third-Degree Murder in

connection with the August 25, 2012 shooting death of Gary Hager in

Pittsburgh.1        After the denial of his Post-Sentence Motion, Appellant


____________________________________________


1
  Hager had approached Appellant in the parking lot of a convenience store
to demand that Appellant return his money because Appellant had sold him
fake crack cocaine. See N.T. Trial, March 18-21, 2014, at 118-127.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S66020-17



appealed to this Court.2          We affirmed the Judgment of Sentence, and

Appellant did not seek further review.           See Commonwealth v. Tigney,

1500 WDA 2014 (Pa. Super. filed July 8, 2015) (unpublished memorandum).

       Appellant filed the instant PCRA Petition on January 20, 2016.         The

court appointed counsel, and on April 29, 2016, counsel filed a Motion to

Withdraw and a Turner/Finley3 “no-merit” letter.          On May 6, 2016, the

PCRA court filed a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P.

907(1), and granted counsel’s request to withdraw from representation.

Appellant filed a pro se Response to the Rule 907 Notice in August 2016. On

December 14, 2016, the PCRA court dismissed the Petition.

       Appellant timely appealed pro se. Both Appellant and the PCRA court

complied with the mandates of Pa.R.A.P. 1925.

       Appellant presents the following questions for review in his Brief:

              1. Did the [t]rial [c]ourt abuse its discretion in failing to
                 grant Petitioner’s ineffective assistance of counsel
                 claims?

              2. Was [Appellant] denied the effective assistance of
                 counsel guaranteed by the 6th amendment?

              3. Did the sentencing judge abuse its discretion in failing
                 to state reason for the sentence imposed?

____________________________________________


2
 Appellant did not challenge the discretionary aspect of his sentence in that
appeal.
3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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              4. Did the sentencing judge abuse its discretion in failing
                 to consider factors mandated by 42 Pa.C.S. § 9721(b)?


Appellant’s Brief at 1 (numbering added; spelling and grammatical errors

corrected).

      As a prefatory matter we note that, although appellate courts are

“willing to construe liberally materials filed by a pro se litigant, pro se status

generally confers no special benefit upon an appellant. Accordingly, a pro se

litigant must comply with the procedural rules set forth in the Pennsylvania

Rules of the Court.” Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa.

Super. 2003) (citation omitted). “This Court will not act as counsel and will

not develop arguments on behalf of an appellant.”           Commonwealth v.

Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (citation omitted).           Further,

“[w]hen issues are not properly raised and developed in briefs, when the

briefs are wholly inadequate to present specific issues for review, a court will

not consider the merits thereof.” Commonwealth v. Sanford, 445 A.2d

149, 150 (Pa. Super. 1982).

      Here, Appellant’s Brief provides one argument under one heading,

“Argument,” rather than presenting an argument separately for each

question raised as required by Pa.R.A.P. 2119(a).         In addition, although

Appellant provides some citations to the record and case law, his argument

is disjointed, rambling, and comprised mostly of self-serving, conclusory

statements of error.     Although such a poorly developed argument would



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support a finding of waiver of the issues on appeal, the PCRA court was able

to discern the gist of the issues Appellant raised in his Pa.R.A.P. 1925(b)

Statement, which that court characterized as “unduly vague,” through

review of Appellant’s Response to the Rule 907 Notice to Dismiss. PCRA Ct.

Op., dated 6/21/17, at 6. Appellant’s Brief to this Court essentially mirrors

the arguments presented in his Rule 907 Response.          Notwithstanding the

defects in Appellant’s Brief, in the interests of judicial economy, we decline

to find waiver.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

free of legal error.    Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). This Court grants great deference to the findings of the PCRA court if

they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,

515 (Pa. Super. 2007). We give no such deference, however, to the court’s

legal conclusions.     Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).

      Appellant challenges the effective assistance of trial counsel at

sentencing, and the PCRA Court’s exercise of its discretion in failing to grant

him relief on this claim. Specifically, Appellant contends that “trial counsel

failed to ensure that the sentencing judge was aware of the requisite aspects

of sentencing,” “failed to correct erroneously high sentencing guidelines,”

and “failed to present mitigation evidence.”   Appellant’s Brief at 6.


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       The   law     presumes     counsel      has   rendered   effective    assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).                         The

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the

particular course of conduct pursued by counsel did not have some

reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceeding would have been different.”              Id.     Failure to

satisfy any prong of the test will result in rejection of the appellant’s

ineffective assistance of counsel claim.             Commonwealth v. Jones, 811

A.2d 994, 1002 (Pa. 2002).

       With respect to sentencing, our Supreme Court “has determined that

where 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)).

       In its Rule 1925(a) Opinion, the PCRA court addressed Appellant’s

claim of ineffective assistance of trial counsel at sentencing as follows:

       In the event that [Appellant] is referring to trial counsel’s
       purported ineffectiveness for failing to “advocate and advance

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     mitigat[ing] factors” relating to [Appellant’s] character and
     remorse at sentencing, such a claim [ ] lacks arguable merit.
     [Appellant] fails to specify the existence of any character
     witnesses that would have been willing and able to testify at his
     sentencing hearing. Even if such character witnesses existed,
     [Appellant] is unable to show that he suffered actual prejudice
     due to their absence at sentencing. Indeed, this court presided
     over the trial and was well-familiar with the facts of the case,
     including the fact that [Appellant] did not flee from the scene
     after he killed the victim. However, given the cold, calculated,
     and serious nature of [Appellant’s] offense conduct, the victim
     impact evidence presented at sentencing, and the other relevant
     sentencing factors, the court is confident that any character
     testimony would not have impacted the court’s determination as
     to his sentence. Similarly, [Appellant’s] general “remorse” for
     his crimes also was considered by this court, but was insufficient
     to warrant a lesser sentence. The court also notes that the facts
     adduced at trial completely rebutted [Appellant’s] claim that he
     killed the victim to protect his father, and the jury completely
     rejected any such notion that [Appellant] shot the victim three
     times in the back in order to protect his father.

     Additionally, the court was already aware of certain mitigating
     factors relating to [Appellant,] his history, and his background,
     and it did not need trial counsel to reiterate those factors at
     sentencing.     For example, the court had reviewed the
     presentence report prior to sentencing and it was aware of the
     fact that [Appellant’s] mother had passed away months before
     the incident. The mitigating evidence, however, was insufficient
     to overcome the other, more compelling sentencing factors
     which warranted the standard range sentence of 20-40 years.
     Accordingly, this court did not commit error in finding that
     [Appellant’s] sentencing claims did not contain arguable merit[.]

PCRA Ct. Op., dated 6/21/17, at 8-9.

     With respect to Appellant’s allegation that the sentence imposed was

“erroneously high,” the PCRA court observed the following:

     [Appellant] did not have any prior convictions and had a prior
     record score of 0.      The [] guideline range was properly
     calculated; his sentence was within the standard range of the
     guidelines; and the sentence did not exceed the statutory

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      maximum limits. Accordingly, the court did not impose an illegal
      sentence in any respect, and any sentencing claim as to the
      legality or propriety of his sentence should be rejected on
      appeal.

Id. at 8.

      Addressing Appellant’s contention that trial counsel failed to present

argument and information pertinent to the application of the sentencing

guidelines, the PCRA court noted that Appellant “does not specify what

aspect of the sentencing guidelines should have been challenged at

sentencing,” and the court was, thus, unable to address the argument.

PCRA Ct. Op. at 10.     The PCRA court nonetheless provided the following

information in response to Appellant’s averment:

      [T]he court [ ] notes that it had the benefit of [Appellant’s]
      presentence report to aid in its determination of sentence, and
      the sentencing guidelines were properly calculated.         Stated
      simply, [Appellant] is unable to prove that his seasoned and
      competent trial attorney, Lisa Phillips, Esq., provided deficient
      representation at any point during her representation, whether it
      be at trial or at sentencing. Because [Appellant] is unable to
      prove that he suffered any actual prejudice from any purported
      omission of trial counsel, [this] contention on appeal is without
      merit.
                                     ***
      As noted, the sentencing guidelines were calculated properly,
      and this court considered all the factors set forth in § 9721(b) in
      determining that the standard range sentence of 20-40 years
      was the appropriate sentence in this case.

Id. at 10-11.

      Our review of the certified record, including the sentencing transcript,

supports the PCRA court’s denial of relief. Appellant’s attempt to attack the

discretionary aspects of his sentence by alleging trial counsel ineffectiveness

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fails to acknowledge the existence of, and the trial court’s reliance on, the

presentence report. His conclusory allegations of trial counsel error are not

supported by facts or relevant law and fail to rebut the presumption that

trial counsel provided effective assistance. See Rivera, supra.

      Accordingly, we affirm the PCRA court’s denial of relief.

Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2017




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