J-S38007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DEXTER L. NEWSUAN :
:
Appellant : No. 2523 EDA 2016
Appeal from the Judgment of Sentence December 16, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009215-2008,
CP-51-CR-0009230-2008
BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 11, 2017
Appellant, Dexter L. Newsuan, appeals nunc pro tunc from the
judgment of sentence entered in the Philadelphia County Court of Common
Pleas, following his bench trial convictions for two counts of first-degree
murder and one count each of firearms not to be carried without a license,
carrying firearms on public streets or public property in Philadelphia, and
possessing instruments of crime (“PIC”).1 We affirm.
In its opinion, the trial court accurately set forth the relevant facts and
procedural history of this case. Therefore, we have no reason to restate
them.
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a); 6106(a); 6108; 907, respectively.
___________________________
*Former Justice specially assigned to the Superior Court.
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Appellant raises two issues for our review:
WAS THE EVIDENCE SUFFICIENT TO ESTABLISH BEYOND
A REASONABLE DOUBT THAT [APPELLANT] COMMITTED
THE HOMICIDES IN THIS CASE?
DID THE TRIAL COURT ERR IN DENYING [APPELLANT] THE
RIGHT TO FILE POST-SENTENCE MOTIONS NUNC PRO
TUNC FROM THE JUDGMENT OF SENTENCE BECAUSE THIS
DENIAL PREVENTED [APPELLANT] FROM ASSERTING THAT
THE VERDICTS OF GUILTY FIRST DEGREE MURDER WERE
AGAINST THE WEIGHT OF THE EVIDENCE?
(Appellant’s Brief at 2).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Jeffrey P.
Minehart, we conclude Appellant’s first issue merits no relief. The trial court
opinion comprehensively discusses and properly disposes of that issue.
(See Trial Court Opinion, filed September 9, 2016, at 4-7) (finding:
Commonwealth presented evidence that Appellant told two people he had
killed Victims; according to witness Mr. Bucci, Appellant stated he killed
Victims because they had burglarized his residence and were planning to do
it again; Appellant also told Mr. Bucci that Appellant was having problems
with people regarding sale of drugs, and Appellant borrowed nine millimeter
weapon from Mr. Bucci, just before murders; Appellant also told Mr. Koufie
he shot Victims; ballistic evidence showed Victims were killed by nine
millimeter weapon and were shot in vital parts of their bodies; circumstantial
evidence along with testimony about Appellant’s admissions was sufficient to
sustain Appellant’s first-degree murder convictions). Therefore, with respect
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to Appellant’s first issue, we affirm on the basis of the trial court’s opinion.
In his second issue, Appellant argues the court denied him the
opportunity to challenge the weight of the evidence on appeal by rejecting
Appellant’s request for reinstatement of his post-sentence motion rights
nunc pro tunc. Appellant asserts the Commonwealth’s case against him
hinged on the testimony of two witnesses who claimed Appellant had
confessed the murders to them. Appellant insists one of those witnesses
was a “corrupt and polluted source” with a lengthy criminal record, who
manipulated the system to escape prosecution for his own crimes by
blaming others. Appellant contends the other witness recanted at trial his
earlier testimony inculpating Appellant, and had an open assault charge
against him. Given the credibility issues surrounding these witnesses,
Appellant maintains he wanted to attack the weight of the evidence on
appeal. Appellant concludes he suffered prejudice where he was deprived of
the opportunity to litigate a weight-of-the-evidence claim on appeal, and this
Court should remand the matter so Appellant can file a post-sentence
motion nunc pro tunc challenging the weight of the evidence. We disagree.
Where the court reinstates direct appeal rights nunc pro tunc, the
appellant is not automatically entitled to reinstatement of his post-sentence
rights nunc pro tunc as well. Commonwealth v. Liston, 602 Pa. 10, 977
A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a defendant’s
post-sentence rights nunc pro tunc if the defendant successfully pleads and
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proves he was deprived of the right to file and litigate post-sentence motions
as a result of ineffective assistance of counsel. Id. at 20 n.9, 977 A.2d at
1095 n.9. Compare Commonwealth v. Fransen, 986 A.2d 154
(Pa.Super. 2009) (holding PCRA petitioner who obtains reinstatement of
direct appeal rights nunc pro tunc is not entitled to reinstatement of post-
sentence rights nunc pro tunc if he did not request that relief with PCRA
court; appellant’s claim that he was entitled to file post-sentence motions
and to have benefit of evidentiary hearing warranted no relief where
appellant did not plead or prove in PCRA petition that he was deprived of
right to file post-sentence motions).
Instantly, the court convicted Appellant on December 16, 2011, of two
counts of first-degree murder and one count each of firearms not to be
carried without a license, carrying firearms on public streets or public
property in Philadelphia, and PIC. The court sentenced Appellant that day to
consecutive life sentences for the murder convictions and imposed other
concurrent sentences for the remaining crimes. Appellant did not file post-
sentence motions. Instead, Appellant filed a timely direct appeal on
December 19, 2011. On January 14, 2013, this Court affirmed Appellant’s
judgment of sentence, deeming the sole issue waived for review.
Notwithstanding Appellant’s phrasing of the question presented on appeal as
challenging the sufficiency of the evidence, this Court decided Appellant’s
argument was actually an attack on the weight of the evidence, which
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Appellant had not preserved before the trial court. The Supreme Court
denied allowance of appeal on June 13, 2013. See Commonwealth v.
Newsuan, 64 A.3d 277 (Pa.Super. 2013), appeal denied, 620 Pa. 714, 69
A.3d 243 (2013).
Appellant filed a timely pro se PCRA petition on August 14, 2014. The
court appointed counsel, who filed an amended PCRA petition on February
26, 2016, along with a supporting memorandum of law. In his amended
PCRA petition and supporting memorandum, Appellant claimed appellate
counsel was ineffective for failing to raise any reviewable issues on appeal,
which effectively denied Appellant a chance to appeal his judgment of
sentence. Appellant maintained appellate counsel had no rational basis for
failing to present reviewable issues on appeal, and that Pennsylvania case
law favors restoration of a defendant’s direct appeal rights nunc pro tunc in
similar circumstances. In the “WHEREFORE” clauses of the amended
petition and supporting memorandum of law, Appellant requested
reinstatement of his post-sentence motion and direct appeal rights nunc pro
tunc.
The Commonwealth filed a response on May 26, 2016, opposing only
Appellant’s request for reinstatement of his post-sentence motion rights
nunc pro tunc. The Commonwealth insisted Appellant had made no
argument whatsoever under the traditional ineffective assistance of counsel
test to warrant reinstatement of his post-sentence motion rights nunc pro
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tunc. The Commonwealth highlighted that Appellant did not even mention
what he planned to challenge in a post-sentence motion nunc pro tunc.
On July 14, 2016, the court granted Appellant’s request to file a direct
appeal nunc pro tunc but denied his request to file post-sentence motions
nunc pro tunc. In its Rule 1925(a) opinion, the court explained its rationale
as follows:
A review of [Appellant’s] filing indicated that [Appellant]
did not present any argument in support of a claim that he
should be granted the right to file post-sentence motions.
Consequently it is suggested that [Appellant] be deemed
to have failed to meet his burden with respect to this claim
and it be dismissed.
(Trial Court Opinion at 9). We agree with the court’s decision.
Consistent with Liston and Fransen, Appellant needed to plead in his
PCRA petition that appellate counsel deprived him of the opportunity to
litigate a post-sentence motion. Significantly, Appellant attacked only
appellate counsel’s failure to raise any reviewable issues on appeal.
Appellant mentioned nothing about his right to litigate a post-sentence
motion until the “WHEREFORE” clause of his petition, in which he simply
requested the right to file post-sentence motions nunc pro tunc. Absent
proper pleading in his PCRA petition, that appellate counsel was ineffective
for depriving Appellant of a chance to litigate post-sentence motions, the
court correctly denied Appellant’s request for relief. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2017
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Circulated 06/16/2017 09:39 AM