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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROBERT KEITH,
Appellant No. 1868 EDA 2015
Appeal from the PCRA Order of June 2, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-52-CR-0012205-2009
BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 08, 2016
Appellant, Robert Keith, appeals from the order entered on June 2,
2015, dismissing his petition filed under the Post-Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court ably explained the underlying facts of this case:
The instant matter arises out of an incident that occurred on
June 27, 2009, at the Piazza [Apartment Complex], located
in [the] Northern Liberties section of Philadelphia[. The
incident] culminated in the [robbery, shooting, and murder]
of Timothy Gilmore and Rian Thal. . . .
The genesis of the [crimes] can be traced to events that
began in early June [] 2009[,] when [] Leon Woodward
contracted to have a large amount of cocaine delivered to
Thal’s apartment[, which was] located inside of the Piazza
Apartment Complex[. The Piazza Apartment Complex is]
located at 1050 N[orth] Hancock Street. The delivery
occurred on June 26, 2009, and was witnessed by both
Woodward and Vernon Williams[. Williams was a drug]
*Retired Senior Judge assigned to the Superior Court.
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dealer who, purportedly, was going to buy three kilograms
of the cocaine.
Upon seeing the cocaine, Williams contacted Keith Epps and
the men agreed to rob the cocaine. Epps was friends with a
woman named Katoya Jones. . . .
[Epps enlisted Appellant in the scheme. At approximately
3:45 a.m. on] June 27, 2009, Epps [and Appellant] entered
the building with Jones’ assistance. . . . Instead of going to
Thal’s apartment[,] both men broke into a vacant
apartment located a floor below Thal’s [apartment]. Both
men then left the building.
Later that day, three other men entered the building with
Jones’ assistance. The men, Antonio Wright, Donnell
Murchison, and Edward Daniels, immediately proceeded to
the seventh floor of the building where Thal’s apartment
was located. The men encountered Thal and Gilmore in the
hallway and after Gilmore began struggling with Wright,
Wright and Murchison shot and killed Gilmore and Thal.
PCRA Court Opinion, 8/25/15, at 2-3.
On November 8, 2011, Appellant entered an open guilty plea to
burglary, criminal conspiracy, criminal trespass, and possessing instruments
of crime.1 During the plea hearing, Appellant admitted to the following
facts:
Were [the Commonwealth] to prove this case, at sometime
around 3:00 a.m. on June [27, 2009], the apartment, 617,
located at 1050 North Hancock [Street] was broken into
without permission. . . .
____________________________________________
1
18 Pa.C.S.A. § 3502(a), 903(a)(1), 3503(a)(1)(i), and 907(a),
respectively.
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[The Commonwealth] would also prove that [Appellant] told
in a statement to Detective Pitts what his involvement was
in this incident. . . . I will read verbatim. . . .
Question[:] [Appellant] . . . did you know the people who
were killed inside the apartment at 1050 North Hancock
Street [on] June [27,] 2009?
Answer[:] No, I have never met them before.
Question[:] Have you ever been to that location in the past?
Answer[:] Earlier that day I had met with a friend of mine
that goes by the name of Pooh, which was later identified as
Mr. Epps. Before that I was at a bar called Buffy’s off of
Hunting Park Avenue, and some peoples were saying that a
guy by the name of Zah had the bricks for 31. That means
he was selling drugs for and keys of cocaine for
$31,000[.00]. . . . I never met Zah. I had heard his name
before in the past.
I left there and then I met with [Epps] at the gas station at
Ridge and Midvale Streets. It was that night maybe around
8:00 p.m. to 9:00 p.m., he asked me if I wanted some easy
money and I told him yeah. Then I left from the gas
station. I had a black Caddy. We had talked about 20
minutes and then [Epps] left. He had a car, but I don’t
know what kind. It was parked across the street
somewhere.
I called him back around 12:00 a.m. and he told me to wait
for a little later because they were going out to Onyx on
Columbus Boulevard. He said the guy whose money we
were going to take was from out of town. He said he was
going to some girl and he would meet back up with me. I
asked him how much money he was talking and he told me
over $400,000[.00]. He told me that it was going to be
easy. He told me all of this while we were at the gas
station.
He then called me around 2:30 or 3:00 [a.m.] and asked
me to meet him at 8th and Spring Garden. I drove a green
Denali there. . . . He was on the corner when I got there.
He told me that the girl had dropped him off. He went
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down Hancock Street. We parked in the parking lot across
the street. We both get out of the car and I saw a green
Crown Vic and a black truck and a guy who dropped
someone off in a black Grand Prix. He dropped the guy off
and the guy went in on his own and the Grand Prix drove
off. The guy kept circling around the street. Before the guy
in the Grand Prix drove off he got out of the car and was
talking and started to talk loud. He was like reaching, I told
him that we were going to talk to some girl, and him and
[Epps] had some words and then he finally drove off.
Me and [Epps] went to the front door and there was a black
girl and she was waiting inside of the lobby door and she let
us in. We took the elevator to the second floor and went to
her apartment, which was empty. The three of us were in
there for about ten minutes and then she left out and she
said she had to go to work. When she left me and [Epps]
we were talking and he said she had to get something. He
mentioned like $20,000[.00].
Then me and [Epps] go up to the 6th floor because that is
where the guy’s apartment with the money was supposed to
be. And before I went to the 6th floor I went outside to my
car and got a wonderbar to pry the door open. I went back
inside, [Epps] let me in. We went to the 6th floor and went
to 615 or 617 and I broke the door down and there was no
one in there and there was no money. There was nothing in
there.
We went out of the apartment and [Epps] called someone
on the phone and was telling them that they had given him
the wrong floor. The person on the phone was telling
[Epps] that the white girl was coming. I guess that meant
the girl got killed was coming. He said, how can you not
know the difference between the 6th and the 7th floor. I told
him that I was leaving and he left with me. We got into my
car and I dropped him off at 8th and Spring Garden Street.
N.T. Plea Hearing, 11/8/11, at 9-13.
Appellant proceeded to a sentencing hearing on April 13, 2012.
During this hearing, the trial court stated on the record that the guideline
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ranges for Appellant’s burglary conviction were 15 to 21 months in prison,
plus or minus six months. N.T. Sentencing Hearing, 4/13/12, at 2-3. The
trial court then sentenced Appellant to serve a term of six to 12 years in
prison for the burglary conviction, followed by a term of four years of
probation for the criminal conspiracy conviction.2, 3, 4
Id. at 7-8. The trial
court stated its reasons for sentencing Appellant as follows:
It seems like you are making the right decision. This is a
serious offense but I tried this case here. It was a horrible,
horrible case. You had nothing to do with that. You got
involved because you wanted to make some money and
maybe you realize now by making fast money, you are
going to break into a place, steal money and maybe drugs
but I want to point out other members of this Piazza
[Apartment Complex] case came back and got involved in a
homicide, came back with the intention to rob. There is no
indication that this is a case in which the [burglary] spilled
over, where [Appellant’s] involvement spilled over or in any
way [was] involved with the Piazza [Apartment Complex]
homicide, Piazza [Apartment Complex robbery].
Id. at 6-7.
____________________________________________
2
The trial court imposed no further penalty for the criminal trespass and
possession of an instrument of crime convictions. N.T. Sentencing Hearing,
4/13/12, at 8.
3
The trial court ordered that Appellant serve his sentence of imprisonment
concurrently with the federal sentence that he was then serving. N.T.
Sentencing Hearing, 4/13/12, at 7-8.
4
During the sentencing hearing, Appellant’s trial counsel requested that the
trial court sentence Appellant to a term of five to ten years in prison for the
convictions. N.T. Sentencing Hearing, 4/13/12, at 3-4.
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Appellant did not file a post-sentence motion or a direct appeal from
his judgment of sentence.
On October 5, 2012, Appellant filed a timely, pro se PCRA petition
where he claimed that he was entitled to relief because:
My lawyer didn’t argue to get my sentence to my guidelines.
I was sentence over my guidelines. I also asked him to
argue why I was being charge for my crime. I was charge
with a crime of violence. I should been drop to a criminal
trespass not a violence burglary.
Appellant’s Pro Se PCRA Petition, 10/5/12, at 3.
The PCRA court appointed counsel to represent Appellant and, within
the later-filed amended PCRA petition, Appellant raised the following claim
for relief:
[] After sentencing[, Appellant] requested that his [plea
counsel] file a post-sentence motion seeking reconsideration
of his sentence;
[] [Appellant] was denied his rights to due process and
effective counsel, under the laws and Constitutions of the
United States and Pennsylvania, as [Appellant’s plea
counsel] failed to file a post-sentence motion as there were
legitimate grounds for relief.
Appellant’s Amended PCRA Petition, 1/3/14, at 2.
Appellant requested that the PCRA court hold an evidentiary hearing
“to determine whether [plea] counsel was ineffective for failing to file a
post[-]sentence motion” and to reinstate Appellant’s right to file a post-
sentence motion nunc pro tunc. Id. Moreover, Appellant attached a
memorandum to his amended PCRA petition, where Appellant further
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explained the basis for his claims. Within this memorandum, Appellant
argued that his plea counsel was ineffective for failing to file a post-sentence
motion because: 1) he requested that his plea counsel file a post-sentence
motion to challenge the discretionary aspects of his sentence; 2) plea
counsel failed to file the motion; and, 3) the motion would have been
successful because, at sentencing, the trial court both failed to consider the
sentencing guidelines and sentenced Appellant outside of the guideline
ranges but failed to place adequate reasons on the record for its sentence.5
Memorandum to Appellant’s Amended PCRA Petition, 1/3/14, at 1 and 5-6.
On April 8, 2015, the PCRA court provided Appellant with notice that it
intended to dismiss the PCRA petition in 20 days, without holding a hearing.
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5
Within the memorandum of law Appellant attached to his amended PCRA
petition, Appellant argued that his plea counsel was also ineffective for
failing to file a direct appeal on his behalf. See Memorandum to Appellant’s
Amended PCRA Petition, 1/3/14, at 1 and 8-10. Appellant did not plead any
such claim in his actual PCRA petition and the PCRA court did not consider
the claim in its opinion to this Court. See Appellant’s Pro Se PCRA Petition,
10/5/12, at 3; Appellant’s Amended PCRA Petition, 1/3/14, at 1-2; PCRA
Court Opinion, 8/25/15, at 1-7. Therefore, the claim is waived.
Commonwealth v. Williams, 899 A.2d 1060, 1066 n.5 (Pa. 2006) (“[the
a]ppellant also argues trial counsel’s failure to obtain DNA testing violated
his confrontation and discovery rights under Article 1, § 9 of the
Pennsylvania Constitution. [The a]ppellant did not raise these issues in his
PCRA petition, so they are waived”); Commonwealth v. Wallace, 724 A.2d
916, 921 n.5 (Pa. 1999) (holding that a failure to raise a claim “in the PCRA
petitions presented to the PCRA court” waives the claim for purposes of
appellate review); Commonwealth v. Rainey, 928 A.2d 215, 226 (Pa.
2007) (same); see also 42 Pa.C.S.A. § 9543(a) (“[t]o be eligible for relief
under [the PCRA], the petitioner must plead and prove by a preponderance
of the evidence all of the following. . .”); Pa.R.Crim.P. 902 (“Content of
Petition for Post-Conviction Collateral Relief”).
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See Pa.R.Crim.P. 907(1). The PCRA court finally dismissed Appellant’s PCRA
petition on June 2, 2015 and Appellant filed a timely notice of appeal. See
Docket Entry, 6/2/15, at 1. Appellant raises one claim on appeal:
Did the [PCRA] court err in denying PCRA relief without
holding an evidentiary hearing to determine whether
counsel was ineffective for failing to file post[-]sentence
motions?
Appellant’s Brief at 9 (some internal capitalization omitted).
As we have stated:
[t]his Court’s standard of review regarding an order
dismissing a petition under the PCRA is whether the
determination of the PCRA court is supported by evidence of
record and is free of legal error. In evaluating a PCRA
court’s decision, our scope of review is limited to the
findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at
the trial level. We may affirm a PCRA court’s decision on
any grounds if it is supported by the record.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal
citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffectiveness of counsel which, in the
circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
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Counsel is, however, presumed to be effective and “the burden of
demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). 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
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to
satisfy any prong of the test for ineffectiveness will require rejection of the
claim.” Id.
As our Supreme Court has held, “the failure to file post-sentence
motions does not fall within the limited ambit of situations where a
[petitioner] alleging ineffective assistance of counsel” is entitled to a
presumption of prejudice. Commonwealth v. Liston, 977 A.2d 1089, 1092
(Pa. 2009). Rather, our Supreme Court held, a petitioner claiming that
counsel was ineffective for failing to file a post-sentence motion must “rebut
the presumption of [counsel’s] effectiveness by showing that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Commonwealth v.
Reaves, 923 A.2d 1119, 1131 (Pa. 2007) (internal quotations and citations
omitted). Further, the Supreme Court held, in the context of a challenge to
the discretionary aspects of one’s sentence, prejudice may be established
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only by pleading and proving that the challenge would have resulted in “a
reduction in the sentence.” Id. at 1032 (emphasis added).
Here, the PCRA court judge was the same judge that accepted
Appellant’s guilty plea and imposed Appellant’s judgment of sentence. As
the PCRA court judge explained, even if Appellant’s plea counsel had filed a
timely post-sentence motion and claimed that the judge failed to consider
the sentencing guidelines and failed to place adequate reasons on the record
for the sentence,6 the trial judge would not have reduced Appellant’s
sentence. As the PCRA court explained:
The sentence imposed on [Appellant] was the result of
careful consideration of the facts of the case, the contents
of the pre-sentence reports, and [Appellant’s] evidence and
personal circumstances. Consequently, there was nothing
either [plea] counsel or [Appellant] could have said to
convince [the trial court] to impose a lesser sentence than
the one imposed on him. While the sentence imposed on
[Appellant] did exceed the recommended sentencing range,
the sentence was appropriate because [Appellant]
participated in a failed robbery inside an apartment building
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6
A claim that the trial court failed to adequately consider the sentencing
guidelines and a claim that the trial court sentenced a defendant outside of
the guideline ranges, but failed to place adequate reasons on the record for
its sentence, are both challenges to the discretionary aspects of a sentence.
See Commonwealth v. Smith, 534 A.2d 836, (Pa. Super. 1987) (a claim
that “the trial court abused its discretion because it failed to consider the
sentencing guidelines in imposing sentence” is a challenge to the
discretionary aspects of a sentence); Commonwealth v. Naranjo, 53 A.3d
66, 72 (Pa. Super. 2012) (claim that the “sentencing court violated the
Sentencing Code by failing to state sufficient reasons for imposing a
sentence outside the sentencing guidelines” is a challenge to the
discretionary aspects of a sentence).
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filled with people. But for his and Epps[’] incompetence, it
is clear that he and Epps would have committed a violent
robbery. Moreover, despite being aware of the [robbery]
plan[, Appellant] did not contact the authorities thereby
allowing the double homicide to occur.
PCRA Court Opinion, 8/25/15, at 6 (internal footnote omitted).
Thus, even if Appellant’s plea counsel had filed a post-sentence motion
in this case, the trial court would not have reduced Appellant’s sentence. As
such, Appellant cannot prove that he was prejudiced by counsel’s alleged
ineffectiveness. Reaves, 923 A.2d at 1132. Therefore, the PCRA court did
not err when it dismissed Appellant’s PCRA petition without holding a
hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2016
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