J-S17020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARNELL STEPHENS,
Appellant No. 717 WDA 2014
Appeal from the PCRA Order Entered April 23, 2014,
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009749-2005, CP-02-CR-0009825-
2005, CP-02-CR-0009962-2005, CP-02-CR-0010464-2005
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 10, 2015
Appellant, Darnell Stephens, appeals from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
On direct appeal, a panel of this Court provided the following summary
of this case:
Between March 8, 2005 and May 20, 2005, Appellant and two
co-defendants committed several armed robberies of various
retail establishments in West Mifflin, McKeesport, Braddock, and
Forest Hills, Pennsylvania. Shortly after the May 20th robbery,
Tammy Kandar, Appellant’s girlfriend, contacted Captain Bryan
Washowich of the McKeesport Police Department and revealed
her suspicions of Appellant’s involvement in the robberies.
During this timeframe, the police also arrested one of Appellant’s
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*
Former Justice specially assigned to the Superior Court.
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co-defendants in connection with the robberies and learned of
Appellant’s involvement. As a result of the information provided
to him by Tammy Kandar, Captain Washowich procured a search
warrant for Appellant’s residence. The search yielded several
items that implicated Appellant, including masks, gloves, a black
leather jacket, a roll of duct tape, a safe containing $1,000 in
U.S. currency, a banking deposit ledger showing a $3,000
deposit, a police scanner, numerous Budget rental car receipts,
and a .40 caliber semiautomatic pistol.
Appellant was subsequently arrested on May 31, 2005 and
provided Captain Washowich with a written statement detailing
his involvement in the robberies of three McKeesport
businesses— Family Dollar, Foodland, and Coney Island Dog.
Later that evening, Appellant also spoke to Detective David
McCue of the West Mifflin Police Department and confessed in
writing to his involvement in the robberies of two Dollar General
stores in that borough. Additionally, Appellant also admitted in
writing to Allegheny County Police Detective William Newman
that he participated in the armed robberies of the Family Dollar
in Braddock Hills and the Domino’s Pizza in Forest Hills.
On August 17, 2005, Appellant was charged with 15 counts
of robbery and 7 counts of criminal conspiracy. On October 5,
2005, the Commonwealth filed a motion for joinder, and the trial
court granted said motion on October 27, 2005. Following
numerous postponements, trial was scheduled to begin on
October 16, 2006. Prior to the commencement of trial, the trial
court conducted a hearing on Appellant’s motion to suppress the
statements he made to police. Following the hearing, the trial
court denied Appellant’s suppression motion, and a jury trial
immediately followed. Thereafter, on October 18, 2006,
Appellant was found guilty of all counts and sentencing was
scheduled for December 18, 2006. On November 14, 2006,
Appellant filed a pro se “Motion for New Trial and In Arrest of
Judgment”. Appellant also made references to this motion on
the record during the sentencing hearing. At all relevant times
during this matter Appellant was represented by counsel from
the Allegheny County Office of the Public Defender. The trial
court declined to rule on Appellant’s pro se motion, and
Appellant was subsequently sentenced to 30 to 60 years’
imprisonment on December 18, 2006. Appellant, through
counsel, filed a timely notice of appeal on January 17, 2007.
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Commonwealth v. Stephens, 168 WDA 2007, 959 A.2d 974 (Pa. Super.
filed June 30, 2008) (unpublished memorandum at 1-3) (internal citations
and footnote omitted). This Court affirmed Appellant’s judgment of sentence
on June 30, 2008. Id.
On August 4, 2008, Appellant filed a pro se PCRA petition. Counsel
was appointed. On September 20, 2013, following many defense requests
for extensions of time, appointed counsel filed an amended petition asserting
that prior counsel was ineffective for failing to challenge the sentence
imposed. On April 7, 2014, the PCRA court issued a notice of intent to
dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907. Appellant filed a
counseled response. The PCRA court dismissed Appellant’s petition on April
23, 2014, as lacking merit. Appellant filed a timely notice of appeal. Both
Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant presents the following issue, which we set forth verbatim, for
our review:
Whether the sentencing court abused its discretion by imposing
an excessive and unreasonable sentence of thirty to sixty years’
incarceration, where the court exclusively focused upon the
seriousness of the offense and protection of the public and failed
to consider rehabilitative needs, in violation of the sentencing
code. And whether the court violated fundamental sentencing
norms by failing to consider relevant mitigating circumstances or
to impose an individualized sentence. And whether prior counsel
were ineffective in failing to recognize, assert and preserve this
sentencing challenge.
Appellant’s Brief at 5 (full capitalization omitted).
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Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
Although Appellant purports to present this Court with a single issue
for review, a careful reading of this statement belies this assertion. We
discern two separate claims in this single statement and will address each
individually.
Appellant first argues that the sentencing court erred in imposing an
“unnecessarily harsh, excessive and unreasonable sentence of 30 to 60
years” of incarceration. Appellant’s Brief at 21. Appellant maintains that, in
imposing this sentence, the trial court “erred in focusing exclusively on the
seriousness of the offense and the retributive aspect of punishment, to the
exclusion of rehabilitative needs and mitigating circumstances.” Appellant’s
Brief at 19.
This issue implicates the discretionary aspect of Appellant’s sentence.
See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)
(citation omitted) (“If a sentencing court considers improper factors in
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imposing sentence upon a defendant, although the sentence thereby
imposed is not rendered illegal, the court has committed an abuse of
discretion.”). This question, however, does not raise a cognizable challenge
under the PCRA, which provides only for challenges to sentences that have
been imposed in excess of the lawful maximum. 42 Pa.C.S. §
9543(a)(2)(vii); see also Commonwealth v. Wrecks, 934 A.2d 1287,
1289 (Pa. Super. 2007) (citation omitted) (“Requests for relief with respect
to the discretionary aspects of sentence are not cognizable in PCRA
proceedings.”). Here, Appellant’s sentence was within the lawful maximum, 1
which Appellant does not dispute. Accordingly, this claim fails.2
We next address Appellant’s contention that previous counsel was
ineffective for failing to challenge the discretionary aspects of his sentence.
We first note that, while we have determined that a claim challenging the
discretionary aspect of a sentence is not cognizable under the PCRA,
Wrecks, 934 A.2d at 1289, we have held that a claim regarding the
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1
18 Pa.C.S. § 1103(1) (a person who has been convicted of a felony of the
first degree may be sentenced to imprisonment for a term which shall be
fixed by the court at not more than 20 years.).
2
We further note that counsel did not object to this sentence either at
sentencing or in post-sentence motions. Thus, this claim is also waived.
Commonwealth v. Anderson, 830 A.2d 1013, 1016 (Pa. Super. 2003)
(citing Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003))
(“[O]bjections to the discretionary aspects of sentence are waived if they are
not raised at the sentencing hearing or in a motion to modify the sentence
imposed at that hearing.”).
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discretionary aspects of a sentence raised in the context of an
ineffectiveness claim is cognizable under the PCRA. Commonwealth v.
Watson, 835 A.2d 786, 801 (Pa. Super. 2003).
As outlined previously, Appellant argues that his aggregate sentence of
imprisonment of thirty to sixty years was manifestly excessive and
unreasonable because the sentencing court erred in focusing exclusively on
the seriousness of the offense and the retributive aspect of punishment, to
the exclusion of his rehabilitative needs and mitigating circumstances.
Appellant’s Brief at 19. Appellant maintains that counsel was ineffective for
failing to challenge the sentence and for failing to file appropriate post-
sentencing motions or otherwise pursuing and preserving the challenges on
appeal. Id. at 22.
When considering an allegation of ineffective assistance of counsel
(“IAC”), counsel is presumed to have provided effective representation
unless the PCRA petitioner pleads and proves that: (1) the underlying claim
is of arguable merit; (2) counsel had no reasonable basis for his or her
conduct; and (3) Appellant was prejudiced by counsel’s action or omission.
Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). “In order
to meet the prejudice prong of the ineffectiveness standard, a defendant
must show that there is a ‘reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).
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A claim of ineffective assistance of counsel will fail if the petitioner does not
meet any of the three prongs. Commonwealth v. Williams, 863 A.2d
505, 513 (Pa. 2004). “The burden of proving ineffectiveness rests with
Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).
Counsel cannot be found ineffective for failing to raise a meritless claim.
Commonwealth v. Messmer, 863 A.2d 567, 572 (Pa. Super. 2004).
Following trial, which included charges from four criminal informations,
Appellant was convicted of fifteen counts of robbery and seven counts of
criminal conspiracy. Appellant was sentenced as follows:
CC No. 200509825: a term of ten to twenty years of
imprisonment at Count 1 (robbery), and a concurrent ten to
twenty year term at Count 5 (robbery); there were no further
penalties imposed at Counts 2 (robbery), 3 (robbery), 4
(criminal conspiracy), 6 (robbery) and 7 (criminal conspiracy).
CC No. 200509749: a term of ten to twenty years of
imprisonment at Count 1 (robbery), to be served consecutively
to the sentence imposed at No. CC 200509825; there were no
further penalties at Counts 2 (robbery) and 5 (criminal
conspiracy). Counts 3 and 4 were withdrawn.
CC No. 200510464: a term of ten to twenty years of
imprisonment at Count 1 (robbery), to be served consecutively
to the sentence imposed at No. CC 200509749; there were no
further penalties imposed at Counts 2 (robbery) and 3 (criminal
conspiracy).
CC No. 200509962: a term of ten to twenty years of
imprisonment at Count 1 (robbery), to be served concurrently to
the sentence imposed at No. CC 200509825; a term of ten to
twenty years of imprisonment at Count 4 (robbery), to be served
concurrently to the sentence imposed at No. CC 200509749; and
a term of ten to twenty years of imprisonment at Count 8
(robbery), to be served concurrently to the sentence imposed at
No. CC 200510464; there were no further penalties imposed at
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Counts 2 (robbery), 3 (criminal conspiracy), 5 (robbery), 6
(robbery), 7 (criminal conspiracy) and 9 (criminal conspiracy).
N.T., 12/18/06, at 7-10; Criminal Information No. 200509825, 8/30/05;
Criminal Information No. 200509749, 8/17/05; Criminal Information No.
200510464, 9/2/05; Criminal Information No. 20059962, 9/1/15.. Thus, the
cumulative sentence to be served was thirty to sixty years. N.T., 12/18/06,
at 10.
The robbery convictions were graded as first degree felonies. An
individual convicted of a felony of the first degree may be sentenced to a
term of imprisonment of not more than twenty years. 18 Pa.C.S. § 1103(1).
We note that Appellant had a penalty imposed for only seven of the robbery
convictions. At the robbery convictions for which the trial court imposed a
penalty, each sentence was for ten to twenty years of imprisonment. Only
three of these first degree felony sentences were to be served consecutively.
The remaining sentences for the robberies were to be served concurrently.
N.T., 12/18/06, at 7-10.
In sentencing Appellant, the trial court noted that it had received and
reviewed a pre-sentence report. N.T., 12/18/06, at 3, 7. Additionally, the
trial court had documentation reflecting that Appellant was a repeat felony
offender and had an offense gravity score of ten. Id. at 3. The trial court
provided the following explanation in support of its sentencing order at the
sentencing hearing:
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I don’t think any less of a sentence would have been appropriate
given the totality of the circumstances and they could have
easily all been consecutive.
This behavior is just not acceptable. I think that the best
thing for society is to have you be in for this length of time and
based on the ten year mandatory that goes with your prior
record and these crimes I think that is appropriate.
N.T., 12/18/06, at 10. Additionally, the PCRA court provided the following
explanation in its Pa.R.A.P. 1925(a) opinion:
At the time of the sentencing, [Appellant] was a RFEL, a
repeat felony offender. He had an extensive and violent criminal
record consisting of robbery and firearm charges. [The trial
court] clearly did not abuse its discretion in sentencing
[Appellant] in the manner that it did.
PCRA Court Opinion, 8/19/14, at 3.
Based on this record, we conclude that the sentencing court was aware
of and gave due consideration to any mitigating factors and rehabilitative
needs and did not abuse its discretion in formulating its sentence of
confinement. Moreover, the sentencing court received and reviewed a pre-
sentence report. “[W]here 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)).
Accordingly, the sentence was neither manifestly excessive nor too
severe a punishment under the circumstances of this case, and no abuse of
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discretion attended its imposition. Thus, counsel was not ineffective for
failing to raise the meritless discretionary challenges alleged herein. See
Messmer, 863 A.2d at 572 (holding that counsel cannot be found ineffective
for failing to raise a meritless claim). As a result, the PCRA court properly
dismissed Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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