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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GEORGE MAJOR
Appellant : No. 2442 EDA 2017
Appeal from the Judgment of Sentence February 13, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005516-2014
BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER*, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 07, 2019
George Major appeals nunc pro tunc from the judgment of sentence
imposed on February 13, 2015, in the Court of Common Pleas of Philadelphia
County. A jury found Major guilty of two counts of aggravated assault, and
one count each of firearms not to be carried without a license, carrying
firearms on public streets or public property, possessing an instrument of
crime and terroristic threats.' In addition, the trial court convicted Major of
persons not to possess firearms.2 The trial court sentenced Major to eight to
16 years' incarceration on one count of aggravated assault, with no further
penalty imposed on the remaining convictions. Major contends (1) the trial
* Retired Senior Judge assigned to the Superior Court.
' 18 Pa.C.S. §§ 2702(a)(1) and (a)(5), 6106(a)(1), 6108, 907(a), and
2706(a)(1).
2 18 Pa.C.S. § 6105(a)(1).
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court's failure to reinstate his right to file post -sentence motions to challenge
the discretionary aspects of his sentence amounts to a deprivation of due
process as protected under the 5th and 14th Amendments of the United States
Constitution and Article I § 9 of the Pennsylvania Constitution, and (2) the
trial court abused its discretion when it sentenced him to a manifestly
excessive term of eight to 16 years' incarceration, in violation of the
considerations pursuant to 42 Pa.C.S. § 9721(b). Based upon the following,
we affirm.
The trial court summarized the relevant facts of this case, as follows:
The facts of this case are not in dispute. On March 15, 2014, at
approximately 10:30 p.m., complainant Terrence Reese went to
Travelers Motorcycle Club at 20th Street and Ridge Avenue in
Philadelphia to have some drinks and shoot pool. At
approximately 12:00 a.m., Mr. Reese started to play a round of
pool with [Major], whom he had known for several months.
During the match, [Major] became annoyed with Mr. Reese's
getting the better of him and slammed down his pool stick, yelling
"Call your shot." A brief argument ensued and [Major] left the
premises. Mr. Reese went outside to smoke a cigarette. While
standing by the front door, he observed [Major] retrieve a hand
gun from the trunk of his car. [Major] then walked back to the
club pointing the handgun at Mr. Reese's chest. Mr. Reese, who
was 50 years old at the time, stood there in shock. [Major]
"cracked" Mr. Reese in the forehead with the butt of his gun.
Blood started gushing out and into his eyes. Mr. Reese bent over,
at which point [Major] struck him with the gun two more times in
the back of the head. As he repeatedly struck the older male,
[Major] stated, "I told you to stop playing with me" Mr. Reese's
.
head was now split open and gushing blood from the front and the
back; undeterred, [Major] pointed his firearm at Mr. Reese's
temple and stated, "I should bust you". [Major] then fled the
scene in his car.
Mr. Reese went directly to the police station to report the incident;
he was covered in blood. Police transported him to the emergency
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room at Hahnemann Hospital, where he received numerous
stitches and staples to the front and back of his head. Mr. Reese
subsequently positively identified [Major] "without hesitation"
from a photo array, and [Major] was taken into custody. At trial,
Mr. Reese displayed his large, visible scars to the jury, which
found [Major] guilty of the above offenses.3
3 Mr. Reese testified that, prior to trial, he was
propositioned with an offer of money not to appear in
court. He declined the offer and reported it to detectives.
(See 12/02/14, pp. 75-77). At trial, the Commonwealth
played audio recordings from prison phone[] call[s] during
which [Major] asked for Mr. Reese to be contacted and told
not to come to court, and further blamed Mr. Reese for the
assault, essentially claiming "he had it coming." The
transcripts from these calls were published to the jury and
introduced into evidence. (See 12/03/14, pp. 31-34).
Trial Court Opinion, 3/19/2018, at 2-3.
Major did not file a direct appeal. On July 16, 2015, he filed a petition
pursuant to the Post Conviction Relief Act (PCRA),3 alleging ineffective
assistance of counsel for failure to file a requested direct appeal. PCRA counsel
was appointed and filed an amended petition, additionally alleging
ineffectiveness of counsel for failure to file post sentence motions to challenge
the discretionary aspects of his sentence. Following an evidentiary hearing on
July 21, 2017, the PCRA court reinstated Major's direct appeal rights nunc pro
tunc, but denied his request to file a post -sentence motion nunc pro tunc.
This appeal followed.4
3 42 Pa.C.S. §§ 9541-9546.
4Major timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.
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Major contends he was deprived meaningful due process because his
post sentence motion rights were not reinstated. He claims the trial court
abused its discretion when it sentenced him to a manifestly excessive term of
eight to 16 years' incarceration, in violation of the considerations of 42 Pa.C.S.
§ 9721(b).5 He argues reinstatement of his direct appeal rights is an empty
reward since he remains barred from raising the sole claim raised on appeal
- a challenge to the discretionary aspects of his sentence based on his claim
the trial court imposed a manifestly excessive sentence of eight to 16 years'
incarceration.
To address Major's first issue - whether he was denied meaningful due
process when his post -sentence motion rights were not reinstated - we begin
with a review of Major's PCRA proceeding that led to this nunc pro tunc appeal.
In the PCRA proceeding, not only did Major seek reinstatement of his
direct appeal rights, he also sought reinstatement of his post -sentence motion
rights, based upon his claim of trial counsel's ineffectiveness for failing to
preserve a discretionary aspects of sentencing claim. See Pennsylvania Rule
of Criminal Procedure 720 (governing post -sentence motions). See also
Commonwealth v. Heaster, 171 A.3d 268, 272 (Pa. Super. 2017), appeal
denied, 181 A.3d 1078 (Pa. February 14, 2018) (Issues challenging the
5 Section 9721(b) provides, in relevant part: "[T]he court shall follow the
general principle that the sentence imposed should call for confinement that
is consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant." 42 Pa.C.S. § 9721(b).
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discretionary aspects of sentencing must be preserved pursuant to Rule 720,
either by raising the claim at sentencing or in a motion to reconsider and
modify sentence; if not, they are waived.).
Generally, in reviewing claims of ineffective assistance of counsel, our
courts must consider whether there is arguable merit to the underlying claim,
whether counsel had a reasonable basis for his or her action or inaction, and
whether the petitioner was prejudiced by counsel's ineffectiveness. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); Commonwealth v.
Pierce, 527 A.2d 973, 975 (Pa. 1987).
In Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007), the
Pennsylvania Supreme Court explained that in limited situations, the prejudice
inquiry "is not required because there are certain circumstances that are so
likely to prejudice the accused that the cost of litigating their effect in a
particular case is unjustified." Id. at 1128 (citation and quotation marks
omitted). Nevertheless, the Reaves Court held that the failure to file post -
sentence motions is not one of those situations, stating that whether "counsel
can be deemed ineffective, then, depends upon whether [the defendant] has
proven that a motion to reconsider sentence, if filed. . ., would have led to a
different and more favorable outcome at [] sentencing." Id. at 1131-1132.
Subsequently, in Commonwealth v. Liston, 977 A.2d 1089 (Pa.
2008), the Pennsylvania Supreme Court reaffirmed the Reaves decision that
a petitioner must demonstrate the prejudice prong by rejecting a panel of this
Court's holding that would have required an automatic reinstatement of the
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right to file a post -sentence motion nunc pro tunc whenever a court granted
the reinstatement of appellate rights nunc pro tunc. Liston, 977 A.2d at 1093-
1094. Thus, a PCRA petitioner alleging ineffectiveness for failing to file a post -
sentence motion must establish Strickland/Pierce actual prejudice.
Turning to the present matter, the PCRA judge, who also presided at
Major's trial and sentencing, declined to reinstate Major's post -sentence
rights, "having determined that [Major] did not meet his burden under
Strickland v. Washington, 466 U.S. 668 (1984), and Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987). Trial Court Opinion, 3/19/2018, at 2. The
PCRA Court found:
The case law does require that, in regard to the failure to file a
post -verdict motion, just phrasing that failure alone in a PCR--in
a petition does not meet the defendant's burden.
The defendant has to establish actual prejudice. In this case, he
would have to show a basis for actual meritorious - chance of
being meritorious on the post -sentence motion to reconsider his
sentence.
In this petition, there is no -- as I discussed previously, there was
no basis offered by the defendant, other than he believes that the
post -sentence motion should have been filed because he got a
sentence higher than what he may have anticipated.
That's not enough to show actual merit to the filing of a motion to
reconsider sentence.
And, in looking over the notes from the sentencing hearing,
indeed, there was a full discussion by the court that went on for
pages in regard to Mr. Major's background, Mr. Major's -- both
accomplishments in life, as well as Mr. Major's difficulties and prior
convictions and criminal record, including, then, the nature of the
incident for which he was being tried and sentenced.
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N.T., 7/21/2017, at 24-25. Hence, the court concluded Major failed to show
a post -sentence motion would have been successful, and therefore he had not
proved actual prejudice. See also Trial Court Opinion, 3/19/2017, at 7-9
(discussing merits of Major's discretionary aspects of sentencing claim).
Instantly, Major argues that by application of Pa.R.Crim.P. 720, he was
denied procedural due process under the 5th and 14th Amendment of the
United States Constitution and Article I, Section 9 of the Pennsylvania
Constitution. This argument warrants no relief.
The Pennsylvania Supreme Court has explained: "[T]the basic elements
of procedural due process are adequate notice, the opportunity to be heard,
and the chance to defend oneself before a fair and impartial tribunal having
jurisdiction over the case." Commonwealth v. Turner, 80 A.3d 754, 764
(Pa. 2013) (citations omitted). "[C]ourts examine procedural due process
questions in two steps: the first asks whether there is a life, liberty, or
property interest that the state has interfered with; and the second examines
whether the procedures attendant to that deprivation were constitutionally
sufficient." Id. Although Major has cited Turner, he has failed to address
the due process analysis set forth therein. In any event, here, Major had the
opportunity to be heard at the jury trial, and at sentencing, and could have
objected to his sentence at the sentencing hearing or in a timely -filed post -
sentence motion.
The Pennsylvania Supreme Court has held that "[i]ssue preservation is
foundational to proper appellate review." In the Interest of F.C. III, 2 A.3d
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1201, 1211-1212 (Pa. Super. 2010). Major was not denied due process simply
because he was required to comply with our procedural rules to preserve his
discretionary aspects of sentencing claim. See Pa.R.Crim.P. 720. See also
Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal."). Additionally, any waived issues are
subject to an ineffectiveness of counsel claim under the PCRA. See
Commonwealth v. Grant, 813 A.2d 726, 728 (Pa. 2002) (holding that, in
general, all ineffectiveness claims should be raised at the PCRA stage collateral
review). In this regard, trial counsel's failure to file a post -sentence motion is
no different than any other waived claims. Therefore, Major's first issue fails.
In his final argument, Major contends the trial court abused its discretion
in sentencing him to a manifestly excessive term of eight to 16 years'
incarceration, in violation of the required considerations of 42 Pa.C.S. §
9721(b). However, as discussed above, Major did not properly preserve his
discretionary sentencing claim for review as required by Rule 720, and the
PCRA court concluded Major failed to demonstrate actual prejudice that
warranted reinstatement of his right to file post -sentence motions.6
Therefore, this issue is not properly before this Court and we may not review
the merits.
Judgment of sentence affirmed.
6We note that Major did not appeal the PCRA court's finding that he failed to
establish prejudice by his counsel's failure to file a post -sentence motion.
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Judgment Entered.
seph D. Seletyn,
Prothonotary
Date: 1/7/19
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