J-S68037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRONE GRANT
Appellant No. 3553 EDA 2014
Appeal from the PCRA Order December 4, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014144-2007
CP-51-CR-0014145-2007
CP-51-CR-0014153-2007
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED June 24, 2016
Appellant, Tyrone Grant, appeals pro se from the December 4, 2014
order denying his petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we
affirm.
The PCRA court has succinctly set forth the relevant factual history at
Appellant’s underlying three docket numbers, as follows.
I. CP-51-CR-0014144-2007
On September 4, 2007, Appellant and another
male entered into a store located at 15 South 60 th
Street, Philadelphia, PA which was owned and
operated by Complainant, Ali Hussein, whereupon
Appellant pointed a gun at Complainant and said
“Get on your knees, mother***er or I’ll blow your
brains out.” Appellant and his co-conspirator took
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six hundred dollars ($600) and Complainant’s cellular
telephone. On September 6, 2007, Philadelphia
Police Detectives Joseph Murray and Pelosi presented
Complainant with a photographic array and
Complainant positively identified Appellant as the
person who robbed him in possession of the gun. On
September 7, 2007, police officers secured a search
and seizure warrant for 133 North 58th Street,
Philadelphia, PA where they found Appellant in the
rear bedroom in bed, and Appellant was arrested.
Recovered from Appellant’s bedroom were clothing,
sneaker[s], numerous cellular telephones, and proof
of Appellant[’]s residency at that location. At the
time of the robbery, Appellant had a prior criminal
record for gun possession.
II. CP-51-CR-0014145-2007
On September 4, 2007, Appellant and another
male entered Complainant Grace Kim’s store located
at 6006 Market Street, Philadelphia, PA while in
possession of a handgun, and he placed the gun
under Complainant’s chin, and demanded that she
open the cash register. Appellant and his co-
conspirator took five hundred dollars ($500) from
the cash register, a cellular telephone, a ring of keys,
a rifle, and the video camera surveillance tape. On
September 6, 2007, Detectives Murray and Pelosi
showed Complainant a photographic array and she
positively identified Appellant as the perpetrator of
the robbery.
III. CP-51-CR-0014153-2007
On August 29, 2007, Appellant and another
male entered the 59th Street Fish Market located at
5933 Market Street, Philadelphia, PA where
Complainant Yong Jansen was working, whereupon
Appellant jumped over the store counter, placed a
gun to Complainants’ head, and pushed Complainant
to the back of the store. Appellant threatened that if
Complainant looked at him, Appellant would kill
Complainant and the Complainants’ son. Appellant
and his co-conspirator took nine hundred dollars
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($900) and the [C]omplainant’s cellular telephone
and then they fled. On September 7, 2007,
Philadelphia police officers executed a search and
seizure warrant at Appellants’ residence located at
133 North 58th Street, Philadelphia, PA where
Appellant was found and arrested and the officers
recovered Complainants’ cellular telephone, among
other contraband.
PCRA Court Opinion, 2/12/15, at 3-4.
The PCRA has also recounted the subsequent procedural history as
follows.
On September 7, 2007, Appellant was arrested
and charged with multiple counts of Robbery,
Receiving Stolen Property, Violation of Section 6105
of the Pennsylvania Uniform Firearms Act,
Possessing Instruments of Crime, and related
offenses. On February 23, 2009, he appeared before
th[e trial c]ourt and entered a negotiated plea of
nolo contendere and was found guilty of those
crimes. On April 7, 2009, Appellant was sentenced
to serve an [aggregate] sentence of imprisonment of
not less than ten (10) nor more than twenty (20)
years. Appellant filed Post Sentence Motions and,
following a hearing, the Motions were denied on
September 24, 2009. On October 26, 2009,
Appellant filed a Notice of Appeal to the Superior
Court of Pennsylvania. On April 5, 2010, Appellant
filed a Petition Pursuant to the Post Conviction Relief
Act (hereinafter, PCRA) and on March 31, 2011, the
PCRA Petition was dismissed due to the pending
appeal in the Superior Court of Pennsylvania. On
April 6, 2011, the Judgment of Sentence was
affirmed. [Commonwealth v. Grant, 29 A.3d 824
(Pa. Super. 2011) (unpublished memorandum),
appeal denied, 47 A.3d 845 (Pa. 2012).] On June
24, 2011, Appellant filed a Petition for Leave to File
Petition for Allowance of Appeal Nunc Pro Tunc in the
Supreme Court of Pennsylvania and on December
15, 2011, Appellant’s Petition was granted. On
January 12[, 2012,] Appellant filed a Petition for
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Allowance of Appeal in the Supreme Court of
Pennsylvania and on June 13, 2012, the Petition for
Allowance of Appeal was denied.
On January 10, 2013, Appellant filed the
instant PCRA Petition pro se and PCRA counsel was
appointed. On June 10, 2014, the Commonwealth
filed a Motion to Dismiss the PCRA Petition. The
Court gave Notice pursuant to Pa.R.Crim.P. 907 of its
intention to dismiss the PCRA Petition without a
hearing and on December 5, 2014, the PCRA Petition
was dismissed.
Id. at 1-2 (some commas added).
On December 8, 2014, Appellant filed a timely notice of appeal. 1 On
October 8, 2015, while this appeal was pending before this Court, Appellant,
through his appointed counsel, filed a motion requesting to represent
himself, and for this Court to remand for a Grazier2 hearing. On November
23, 2015, we granted Appellant’s request and remanded this matter for a
hearing. The PCRA court held a hearing and on December 31, 2015 entered
an order stating in relevant part, as follows.
At the Grazier hearing the [PCRA c]ourt conducted a
colloquy and found that Appellant voluntarily and
intelligently consented to a video hearing in lieu of
his physical presence in Court and that he
voluntarily, knowingly, and intelligently waives his
right to counsel. Appellant is therefore permitted to
proceed pro se and has been advised that he shall
file a brief within thirty days [of this order].
____________________________________________
1
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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PCRA Court Order, 12/31/15, at 1. Accordingly, Appellant’s pro se appeal is
now properly before us for review.
On appeal, Appellant raises the following issue for our review.
I. Did the trial court erred [sic] in not reinstating
[A]ppellant’s appeal rights from the judgment of
sentence nunc pro tunc because counsel on appeal
from the judgment of sentence in the above matter
was ineffective?
Appellant’s Brief at 2.
We begin by noting our well-settled standard of review. “In reviewing
the denial of PCRA relief, we examine whether the PCRA court’s
determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The 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.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
Instantly, Appellant’s two-page argument asserts that direct appeal
counsel was ineffective for not “rais[ing] any issues on appeal that could be
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adjudicated.” Appellant’s Brief at 7. Appellant further asserts that this
Court held that the only issue raised by direct appeal counsel was waived.
Id. Appellant asserts there were “substantial questions that counsel could
and should have raised showing that the sentence imposed was
unreasonable … because the trial court ran the two sentences consecutive.”
Id. at 7-8. Further, Appellant argues his 25 year probation sentence “raises
a substantial question as to the disparity of sentence[.]” Id. at 8.
When reviewing a claim of ineffectiveness, we apply the following test,
first articulated by our Supreme Court in Commonwealth v. Pierce, 527
A.2d 973 (Pa. 1987).
[C]ourts presume that counsel was effective, and
place upon the appellant the burden of proving
otherwise. 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
inaction; and (3) counsel’s ineffectiveness prejudiced
him.
…
[T]o demonstrate prejudice, appellant must
show there is a reasonable probability that, but for
counsel’s error, the outcome of the proceeding would
have been different.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013)
(citations and internal quotation marks omitted). “Failure to establish any
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prong of the test will defeat an ineffectiveness claim.” Commonwealth v.
Birdsong, 24 A.3d 319, 329 (Pa. 2011).
Instantly, we first observe that direct appeal counsel filed an appeal on
Appellant’s behalf challenging the discretionary aspects of his sentence.
Further, we note that this Court did not find Appellant’s claim waived, but
rather concluded that Appellant’s claim that the sentencing court failed to
weigh certain factors did not raise a substantial question. Grant, supra at
5. Accordingly, Appellant’s claim that direct appeal counsel did not advance
any claims on appeal, or paradoxically that the only claim he raised was
waived, is without merit. Thus, the PCRA court did not err in concluding
counsel was not ineffective in this regard. Michaud, supra; Birdsong,
supra.
Appellant also baldly argues counsel was ineffective for failing to raise
a claim that the trial court abused its discretion by running his sentences
consecutively and for adding a 25 year consecutive probationary term,
resulting in a disparate sentence. Appellant’s Brief at 7. We note that it is
within the trial court’s discretion to impose a consecutive rather than a
concurrent sentence. Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.
Super. 2014), appeal denied, 117 A.3d 297 (Pa. 2015). Significantly, “[a]
challenge to the imposition of consecutive rather than concurrent sentences
does not present a substantial question regarding the discretionary aspects
of sentence.” Id. Nevertheless, “we have recognized that a sentence can
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be so manifestly excessive in extreme circumstances that it may create a
substantial question.” Id. (citation omitted). The focus in such
determinations is “whether the decision to sentence consecutively raises the
aggregate sentence to, what appears upon its face to be, an excessive level
in light of the criminal conduct in this case.” Id. at 133-134 (citation
omitted).
Appellant does not attempt to argue that the aggregate sentence was
excessive in light of his criminal conduct nor explain how this claim would
have been successful if raised by counsel on direct appeal. “This Court will
not act as counsel and will not develop arguments on behalf of an
appellant.” Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010)
(citation omitted), appeal denied, 29 A.3d 796 (Pa. 2011); see also
generally Pa.R.A.P. 2119. Further, “[a]lthough this Court is willing to
liberally construe materials filed by a pro se litigant, pro se status confers no
special benefit upon the appellant.” Commonwealth v. Adams, 882 A.2d
496, 498 (Pa. Super. 2005). “[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.” Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011), appeal
denied, 47 A.3d 848 (Pa. 2012), quoting In re W.H., 25 A.3d 330, 339 (Pa.
Super. 2011), appeal denied, 24 A.3d 364 (Pa. 2011); see also generally
Pa.R.A.P. 2119(a). Therefore, Appellant’s claim is waived.
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Based on the foregoing, we conclude that Appellant’s claims are
waived or devoid of merit. Accordingly, we affirm the PCRA court’s
December 4, 2014 order dismissing Appellant’s PCRA petition.3
Order affirmed. Application for extension denied. Application to
dismiss denied.
Judge Donohue did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2016
____________________________________________
3
Based on our disposition, Appellant’s motion application for an extension of
time to file a reply brief is denied as moot. Additionally, we deny Appellant’s
February 8, 2016 motion to dismiss for lack of subject matter jurisdiction.
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