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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MAURICE LONZO TIGNEY :
:
Appellant : No. 107 WDA 2017
Appeal from the PCRA Order December 13, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012277-2012
BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT*, J.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 30, 2017
Appellant Maurice Lonzo Tigney seeks review of the denial of his
Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-46. He avers that trial counsel provided ineffective assistance at
sentencing and challenges the discretionary aspects of his sentence. We
affirm.
On June 4, 2014, the trial court sentenced Appellant to a term of 20 to
40 years’ incarceration after a jury convicted him of Third-Degree Murder in
connection with the August 25, 2012 shooting death of Gary Hager in
Pittsburgh.1 After the denial of his Post-Sentence Motion, Appellant
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1
Hager had approached Appellant in the parking lot of a convenience store
to demand that Appellant return his money because Appellant had sold him
fake crack cocaine. See N.T. Trial, March 18-21, 2014, at 118-127.
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* Retired Senior Judge assigned to the Superior Court.
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appealed to this Court.2 We affirmed the Judgment of Sentence, and
Appellant did not seek further review. See Commonwealth v. Tigney,
1500 WDA 2014 (Pa. Super. filed July 8, 2015) (unpublished memorandum).
Appellant filed the instant PCRA Petition on January 20, 2016. The
court appointed counsel, and on April 29, 2016, counsel filed a Motion to
Withdraw and a Turner/Finley3 “no-merit” letter. On May 6, 2016, the
PCRA court filed a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P.
907(1), and granted counsel’s request to withdraw from representation.
Appellant filed a pro se Response to the Rule 907 Notice in August 2016. On
December 14, 2016, the PCRA court dismissed the Petition.
Appellant timely appealed pro se. Both Appellant and the PCRA court
complied with the mandates of Pa.R.A.P. 1925.
Appellant presents the following questions for review in his Brief:
1. Did the [t]rial [c]ourt abuse its discretion in failing to
grant Petitioner’s ineffective assistance of counsel
claims?
2. Was [Appellant] denied the effective assistance of
counsel guaranteed by the 6th amendment?
3. Did the sentencing judge abuse its discretion in failing
to state reason for the sentence imposed?
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2
Appellant did not challenge the discretionary aspect of his sentence in that
appeal.
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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4. Did the sentencing judge abuse its discretion in failing
to consider factors mandated by 42 Pa.C.S. § 9721(b)?
Appellant’s Brief at 1 (numbering added; spelling and grammatical errors
corrected).
As a prefatory matter we note that, although appellate courts are
“willing to construe liberally materials filed by a pro se litigant, pro se status
generally confers no special benefit upon an appellant. Accordingly, a pro se
litigant must comply with the procedural rules set forth in the Pennsylvania
Rules of the Court.” Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa.
Super. 2003) (citation omitted). “This Court will not act as counsel and will
not develop arguments on behalf of an appellant.” Commonwealth v.
Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (citation omitted). Further,
“[w]hen issues are not properly raised and developed in briefs, when the
briefs are wholly inadequate to present specific issues for review, a court will
not consider the merits thereof.” Commonwealth v. Sanford, 445 A.2d
149, 150 (Pa. Super. 1982).
Here, Appellant’s Brief provides one argument under one heading,
“Argument,” rather than presenting an argument separately for each
question raised as required by Pa.R.A.P. 2119(a). In addition, although
Appellant provides some citations to the record and case law, his argument
is disjointed, rambling, and comprised mostly of self-serving, conclusory
statements of error. Although such a poorly developed argument would
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support a finding of waiver of the issues on appeal, the PCRA court was able
to discern the gist of the issues Appellant raised in his Pa.R.A.P. 1925(b)
Statement, which that court characterized as “unduly vague,” through
review of Appellant’s Response to the Rule 907 Notice to Dismiss. PCRA Ct.
Op., dated 6/21/17, at 6. Appellant’s Brief to this Court essentially mirrors
the arguments presented in his Rule 907 Response. Notwithstanding the
defects in Appellant’s Brief, in the interests of judicial economy, we decline
to find waiver.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). This Court grants great deference to the findings of the PCRA court if
they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,
515 (Pa. Super. 2007). We give no such deference, however, to the court’s
legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.
Super. 2012).
Appellant challenges the effective assistance of trial counsel at
sentencing, and the PCRA Court’s exercise of its discretion in failing to grant
him relief on this claim. Specifically, Appellant contends that “trial counsel
failed to ensure that the sentencing judge was aware of the requisite aspects
of sentencing,” “failed to correct erroneously high sentencing guidelines,”
and “failed to present mitigation evidence.” Appellant’s Brief at 6.
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The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The
burden of demonstrating ineffectiveness rests on Appellant. Id. 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 proceeding would have been different.” Id. Failure to
satisfy any prong of the test will result in rejection of the appellant’s
ineffective assistance of counsel claim. Commonwealth v. Jones, 811
A.2d 994, 1002 (Pa. 2002).
With respect to sentencing, our Supreme Court “has determined that
where 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)).
In its Rule 1925(a) Opinion, the PCRA court addressed Appellant’s
claim of ineffective assistance of trial counsel at sentencing as follows:
In the event that [Appellant] is referring to trial counsel’s
purported ineffectiveness for failing to “advocate and advance
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mitigat[ing] factors” relating to [Appellant’s] character and
remorse at sentencing, such a claim [ ] lacks arguable merit.
[Appellant] fails to specify the existence of any character
witnesses that would have been willing and able to testify at his
sentencing hearing. Even if such character witnesses existed,
[Appellant] is unable to show that he suffered actual prejudice
due to their absence at sentencing. Indeed, this court presided
over the trial and was well-familiar with the facts of the case,
including the fact that [Appellant] did not flee from the scene
after he killed the victim. However, given the cold, calculated,
and serious nature of [Appellant’s] offense conduct, the victim
impact evidence presented at sentencing, and the other relevant
sentencing factors, the court is confident that any character
testimony would not have impacted the court’s determination as
to his sentence. Similarly, [Appellant’s] general “remorse” for
his crimes also was considered by this court, but was insufficient
to warrant a lesser sentence. The court also notes that the facts
adduced at trial completely rebutted [Appellant’s] claim that he
killed the victim to protect his father, and the jury completely
rejected any such notion that [Appellant] shot the victim three
times in the back in order to protect his father.
Additionally, the court was already aware of certain mitigating
factors relating to [Appellant,] his history, and his background,
and it did not need trial counsel to reiterate those factors at
sentencing. For example, the court had reviewed the
presentence report prior to sentencing and it was aware of the
fact that [Appellant’s] mother had passed away months before
the incident. The mitigating evidence, however, was insufficient
to overcome the other, more compelling sentencing factors
which warranted the standard range sentence of 20-40 years.
Accordingly, this court did not commit error in finding that
[Appellant’s] sentencing claims did not contain arguable merit[.]
PCRA Ct. Op., dated 6/21/17, at 8-9.
With respect to Appellant’s allegation that the sentence imposed was
“erroneously high,” the PCRA court observed the following:
[Appellant] did not have any prior convictions and had a prior
record score of 0. The [] guideline range was properly
calculated; his sentence was within the standard range of the
guidelines; and the sentence did not exceed the statutory
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maximum limits. Accordingly, the court did not impose an illegal
sentence in any respect, and any sentencing claim as to the
legality or propriety of his sentence should be rejected on
appeal.
Id. at 8.
Addressing Appellant’s contention that trial counsel failed to present
argument and information pertinent to the application of the sentencing
guidelines, the PCRA court noted that Appellant “does not specify what
aspect of the sentencing guidelines should have been challenged at
sentencing,” and the court was, thus, unable to address the argument.
PCRA Ct. Op. at 10. The PCRA court nonetheless provided the following
information in response to Appellant’s averment:
[T]he court [ ] notes that it had the benefit of [Appellant’s]
presentence report to aid in its determination of sentence, and
the sentencing guidelines were properly calculated. Stated
simply, [Appellant] is unable to prove that his seasoned and
competent trial attorney, Lisa Phillips, Esq., provided deficient
representation at any point during her representation, whether it
be at trial or at sentencing. Because [Appellant] is unable to
prove that he suffered any actual prejudice from any purported
omission of trial counsel, [this] contention on appeal is without
merit.
***
As noted, the sentencing guidelines were calculated properly,
and this court considered all the factors set forth in § 9721(b) in
determining that the standard range sentence of 20-40 years
was the appropriate sentence in this case.
Id. at 10-11.
Our review of the certified record, including the sentencing transcript,
supports the PCRA court’s denial of relief. Appellant’s attempt to attack the
discretionary aspects of his sentence by alleging trial counsel ineffectiveness
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fails to acknowledge the existence of, and the trial court’s reliance on, the
presentence report. His conclusory allegations of trial counsel error are not
supported by facts or relevant law and fail to rebut the presumption that
trial counsel provided effective assistance. See Rivera, supra.
Accordingly, we affirm the PCRA court’s denial of relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2017
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