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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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