Com. v. Collins, J.

J-S81042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHNNY MARCELLUS COLLINS :
:
Appellant : No. 1175 MDA 2018

Appeal from the PCRA Order Entered July 5, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0006085-2010

BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 19, 2019

Appellant, Johnny Marcellus Collins, appeals pro se from the order

entered by the Court of Common Pleas of Dauphin County dismissing his first

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. Based on the holdings in Alleyne v. United States, 133 S.Ct.

2151 (2013) and Commonwealth v. Cardwell, 105 A.3d 748 (Pa.Super.

2014), we reverse the order of the PCRA court only with respect to Appellant’s

legality of sentence claim, vacate the judgment of sentence, and remand for

resentencing.

On October 19, 2010, authorities arrested Appellant for his alleged

unlawful delivery of a controlled substance1 to a confidential informant during

____________________________________________

1 35 P.S. § 780-113(a)(30).

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S81042-18

a September 16, 2010, controlled buy. A search of his person incident to the

arrest revealed contraband supporting additional charges, including one count

of possession with the intent to deliver a controlled substance (“PWID”).2

The PCRA court aptly sets forth the subsequent procedural history as

follows:3

Appellant, through the assistance of Brian Perry, Esq., filed an
Omnibus Pre-trial Motion on August 2, 2011. On September 20,
2011, a Pre-trial Suppression Hearing was held before [the trial
court]. Thereafter, the parties were ordered to submit briefs. On
October 3, 2011, Appellant informed [the trial court] through pro
se correspondence that he wanted to fire his private counsel of
record. On October 14, 2011, Brian Perry, Esq. filed a Brief in
Support of the Omnibus Pre-Trial Motion. The Commonwealth
submitted [its] Brief in Opposition on October 25, 2011. Shortly
thereafter, on November 15, 2011, Appellant filed a pro se
Application to Proceed in Forma Pauperis, a Motion to go pro se,
and a pro se Motion for Change of Custody. These Motions were
distributed to counsel of record, Brian Perry, Esq., pursuant to
Rule 576(A)(f). However, on November 21, 2011, Brian Perry,
Esq. filed a Motion to Withdraw as Counsel. In consideration of
Appellant’s October 3, 2011, correspondence, said withdrawal was
granted that same day.

***
Finally, [after the court’s disposition of serial pro se filings], on
January 11, 2012, a hearing was held before [the trial court]
wherein Appellant’s Omnibus Pre-Trial Suppression Motion and his
various other pro se Motions were denied. Moreover, pursuant to
Appellant’s pro se Motion for Speedy Trial, a trial date was set.

[After the court’s continued disposition of serial pro se filings], on
February 27, 2012, trial was continued and Karl Romminger, Esq.,
entered his appearance on behalf of Appellant.

____________________________________________

235 P.S. § 780-113(a)(30).
3The PCRA court’s Pa.R.A.P. 1925(a) opinion also provides a detailed account
of pertinent facts, which we need not reproduce for our present purposes.

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A jury trial commenced on May 7, 2012. On May 8, 2012, the jury
returned a guilty verdict on all counts. Sentencing was deferred
pending a pre-sentence investigation.

Appellant was sentenced on July 25, 2012, [to a three to six year
sentence of incarceration for Unlawful Delivery of a Controlled
substance; a five to ten year sentence of incarceration for PWID;
a one to two year sentence of incarceration for
Tampering/Fabricating Physical Evidence; a twelve month
sentence of state supervision; and no further sentence for
Unlawful Possession of a Small Amount of Marijuana]. Sentences
were ordered to run consecutively, plus a fine of $50 and costs
imposed on each count.

On August 24, 2012 Appellant filed a direct appeal with the
Superior Court of Pennsylvania. . . . The Superior Court affirmed
judgment of sentence on or around October 18, 2013.

On February 2, 2014, Appellant filed a pro se PCRA [petition. A
counseled amended petition followed, which resulted in the PCRA
court reinstating Appellant’s direct appeal rights nunc pro tunc.
Appellant filed a timely counseled direct appeal nunc pro tunc with
the Pennsylvania Superior Court, which, by its order and
memorandum of February 19, 2016, rejected Appellant’s claim
based on the “hot pursuit” exception provided in the Municipal
Police Jurisdictional Act (MPJA).

***
On May 4, 2016, Appellant filed a pro se PCRA [petition] and
Memorandum of Law. On May 2, 2016, [the PCRA] court ordered
the Commonwealth to respond. Subsequently, [the PCRA court]
appointed [PCRA] counsel . . . as it would be considered
[Appellant’s] first PCRA [petition].

On February 1, 2017, after numerous extensions of time, counsel
filed a Motion to Withdraw which was granted on February 2,
2017. New counsel, Christopher Wilson, Esq., was simultaneously
appointed. After numerous extensions of time, Attorney Wilson’s
Motion to Withdraw was filed on January 1, 2018. [The PCRA
court] granted [counsel’s motion on January 22, 2018.
Subsequently, the court issued its Notice of Intent to Dismiss
pursuant to Pa.R.Crim.P. 907. Roughly two weeks later, on June
13, 2018, Appellant filed a pro se Answer opposing the court’s
notice of dismissal. On June 27, 2018, after considering

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Appellant’s pro se Answer, the PCRA court dismissed Appellant’s
petition. This timely appeal followed].

PCRA Court Opinion, 10/30/18, at 1-4.

Appellant presents the following ten questions for our review:4

1. Whether trial counsel was ineffective for failing to seek identity
of informant and failing to file Motion to Suppress physical
evidence?

2. Whether appellate counsel was insufficient for failing to raise
insufficient evidence claim, weight of evidence claim, the claim
the court shifted burden, discretionary aspect of sentence
claim, consecutive sentence claim, error in imposing
mandatory sentence, and manipulated sentence?

3. Whether the trial court abused its discretion when it illegally
modified Appellant’s sentence without jurisdiction?

4. Whether the trial court abused its discretion when it granted
PCRA counsel’s motion to withdraw without appointing new
counsel?

Appellant’s brief, at 3.

“On appeal from denial of PCRA relief, our standard and scope of review

is limited to determining whether the PCRA court’s findings are supported by

the record and without legal error.” Commonwealth v. Edmiston, 65 A.3d

339, 345 (Pa. 2013) (citation omitted). On questions of law, our scope of

review is de novo. See id.

____________________________________________

4 Appellant couches seven distinct issues within his second enumerated
question.

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In Appellant’s first issue, he contends trial counsel ineffectively

represented him during the suppression hearing by failing to seek disclosure

of the confidential informant’s identity. The record belies this claim.

To establish a claim of ineffective assistance of counsel, a defendant

“must show, by a preponderance of the evidence, ineffective assistance 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.” Commonwealth v. Turetsky, 925 A.2d 876, 880

(Pa. Super. 2007) (citation omitted).

The burden is on the defendant to prove all three of the following

prongs: “(1) the underlying claim is of arguable merit; (2) that counsel had

no reasonable strategic basis for his or her action or inaction; and (3) but for

the errors and omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different.” Id. (citation

omitted); see also Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (“A failure to satisfy any prong of the ineffectiveness test requires

rejection of the claim of ineffectiveness.” (citation omitted)). “Counsel cannot

be deemed ineffective for failing to pursue a meritless claim.”

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

Moreover, a PCRA petitioner is not automatically entitled to an

evidentiary hearing on his petition. See Commonwealth v. Smith, 121 A.3d

1049, 1052 (Pa. Super. 2015). “[T]he PCRA court can decline to hold a

hearing if there is no genuine issue concerning any material fact and the

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petitioner is not entitled to postconviction collateral relief, and no purpose

would be served by any further proceedings.” Id. On appeal, we “examine

each of the issues raised in the PCRA petition in light of the record in order to

determine whether the PCRA court erred in concluding that there were no

genuine issues of material fact and in denying relief without an evidentiary

hearing.” Id. (citation omitted).

Appellant filed a counseled omnibus pre-trial motion that included a

motion to suppress all incriminating evidence as the product of what he

termed as an unlawful warrantless arrest. On September 20, 2011, the trial

court conducted a suppression hearing at which Detective Jason Paul of the

Harrisburg Police Department testified that probable cause for the arrest

stemmed from a September 16, 2010, controlled buy. N.T. 9/20/11 at 35-

39. According to Detective Paul, the buy occurred under the supervision of

Detective Cory Dickerson of the Dauphin County Drug Task Force, who was

present with a confidential informant (“CI”) and witnessed a hand-to-hand

exchange of narcotics for money between the CI and Appellant. N.T. at 38.

Paul explained that Detective Dickerson supplied him with official

paperwork memorializing Dickerson’s observations, which prompted Paul to

launch an investigation into Appellant’s ongoing activities. The department,

therefore, deferred arresting Appellant for the September controlled buy until

October 19, 2010, when it received word that Appellant would be in possession

of a large quantity of narcotics intended for sale later that day. N.T. at 35-

47; 49-53.

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Toward the end of the suppression hearing, defense counsel asked the

court “to consider directing [the Commonwealth] to disclose that information

[the identity of the confidential informant . . . as it] goes to potential

credibility. I’ve raised the credibility of the confidential informant.” N.T. at

70-71. The court declined, noting defense counsel’s argument that the validity

of the arrest turned on the confidential informant’s credibility ignored pivotal

evidence demonstrating that Officer Dickerson’s report, based as it was on the

detective’s first-hand observation of the controlled buy, formed a sufficient

basis for the arrest. N.T. at 71-75.

Appellant now contends trial counsel ineffectively failed to move for

disclosure of the CI’s identity. As discussed, the record proves false the

premise of Appellant’s claim, as trial counsel clearly sought such disclosure.

Moreover, even if trial counsel had not sought disclosure, no prejudice would

have resulted, for the evidence established that Detective Dickerson’s

personal observation of Appellant’s September 16, 2010, sale of narcotics to

the CI supplied probable cause to arrest Appellant. See Commonwealth v.

Charleston, 16 A.3d 505, 515-16 (Pa.Super. 2011) (although arresting

officer did not have probable cause to arrest, detective who ordered

defendant’s arrest possessed sufficient information giving rise to probable

cause) (citations omitted); Commonwealth v. Eicher, 605 A.2d 337, 346

n.12 (Pa.Super. 1992) (defendant’s warrantless arrest was lawful where police

officers who effectuated arrest were informed by another officer of his criminal

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conduct) (citation omitted). Hence, Appellant’s first claim of ineffectiveness

fails.

Next, Appellant raises numerous claims of appellate counsel’s alleged

ineffectiveness, which assert failures to challenge: the sufficiency of the

evidence; the weight of the evidence; the court’s alleged misallocation of the

burden of proof; the discretionary aspects of Appellant’s sentence; and, the

imposition of a sentence greater than the statutory maximum. We discern no

merit to any of the claims.

We first examine Appellant’s ineffective assistance claim premised on

appellate counsel’s failure to assail the sufficiency of the evidence.

Specifically, with respect to his conviction for the September 16, 2010,

delivery of crack cocaine, Appellant contends no witness positively identified

him as the seller or claimed to have seen the seller possess the baggie of crack

cocaine turned over by the CI to Detective Dickerson.

Our standard of review for a challenge to the sufficiency of the evidence

is to determine whether, when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the trier of fact to find that each element of the crimes charged

is established beyond a reasonable doubt. See Commonwealth v. Dale,

836 A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its

burden of proving every element of the crime beyond a reasonable doubt by

means of wholly circumstantial evidence.” Commonwealth v. Bruce, 916

A.2d 657, 661 (Pa. Super. 2007) (citation omitted).

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“[T]he facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Id. (citation omitted). Any doubt

raised as to the accused's guilt is to be resolved by the fact-finder. See id.

“As an appellate court, we do not assess credibility nor do we assign weight

to any of the testimony of record.” Commonwealth v. Kinney, 863 A.2d

581, 584 (Pa. Super. 2004). Therefore, we will not disturb the verdict “unless

the evidence is so weak and inconclusive that as a matter of law no probability

of fact may be drawn from the combined circumstances.” Bruce, 916 A.2d at

661 (citation omitted).

At trial, Detective Dickerson testified that he prepared for the controlled

buy by searching the CI prior to entering the Paxton Street Pub, and he found

no money or contraband on him. N.T. at 14. Dickerson also positively

identified Appellant as the seller with whom the CI and he met on September

16, 2010, as he was already familiar with Appellant from previous undercover

work. N.T. at 22.

Detective Dickerson then described the exchange he witnessed.

Specifically, he testified that Appellant, the CI, and he were sitting at the bar

when Appellant went to the bathroom. Dickerson handed the CI $170 pre-

recorded buy money during this time, and when Appellant returned to his seat

Dickerson watched him hand a baggie to the CI in exchange for the $170.

N.T. 5/7/12, at 16-18. The CI never pocketed the baggie but kept it in his

hand until Appellant left the pub just two minutes later, Dickerson testified, at

which time the CI immediately handed the baggie to Dickerson. N.T. 17, 34-

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35. Dickerson later field tested the contents of the baggie, which tested

positive for crack cocaine.

When reviewing this testimony by taking all reasonable inferences in

favor of the verdict winner, as we must, we conclude it was sufficient to

support the jury's conclusion that Dickerson identified Appellant as the seller

who delivered the baggie of crack cocaine to the CI at the time in question.

See Commonwealth v. Baker, 615 A.2d 23, 25–26 (Pa. 1992) (finding facts

sufficient to establish probable cause where informant's information

implicating defendant as seller was corroborated by police officer's first-hand

observations when he gave informant money to purchase cocaine and saw

informant enter residence and return from residence with cocaine”). Thus,

we may not deem appellate counsel ineffective for failing to raise a meritless

sufficiency claim on direct appeal.

Appellant also contends appellate counsel ineffectively failed to

challenge trial counsel’s failure to raise a weight of the evidence claim on the

delivery charge, as his denial of involvement in the September 16, 2010 sale

undermined Detective Dickerson’s testimony to the degree that the conviction

in this matter shocks the conscience. Notably, Appellant references no specific

testimony or evidence that trial counsel should have raised for the trial court’s

post-trial consideration.

An appellate court reviews the denial of a motion for a new trial based

on a claim that the verdict is against the weight of the evidence for an abuse

of discretion. Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013).

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“Because the trial judge has had the opportunity to hear and see the evidence

presented, an appellate court will give the gravest consideration to the

findings and reasons advanced by the trial judge when reviewing a trial court’s

determination that the verdict is against the weight of the evidence.” Id. at

1055 (quoting Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)).

A trial court should not grant a new trial “because of a mere conflict in

the testimony.” Id. Rather, to grant a new trial, the trial court must

“determine that notwithstanding all the facts, certain facts are so clearly of

greater weight that to ignore them or to give them equal weight with all the

facts is to deny justice.” Id. (quoting Widmer, 744 A.2d at 752). Stated

differently, a trial court should not award a new trial unless the verdict “is so

contrary to the evidence as to shock one’s sense of justice and the award of

a new trial is imperative so that right may be given another opportunity to

prevail.” Id. (quoting Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa.

1994)).

Our review of the trial transcript reveals that Appellant testified he

seldom went to the Paxton Street Pub and, therefore, could state with

certainty that he was not there on September 16, 2010. He also denied ever

wearing a “peach fuzz” beard as Detective Dickerson said he did on the day

of the controlled buy, and he introduced pictures of himself attending an

August 19, 2010, wedding and a mid-September function, respectively, where

he appears clean-shaven. N.T. at 153-55, 163-64. Finally, Appellant

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altogether denied having ever been in Detective Dickerson’s company. N.T.

at 164-65.

Here, faced with conflicting testimony between regarding the September

2010 controlled buy, the jury clearly credited Detective Dickerson’s testimony

identifying Appellant as the individual who sold a baggie of crack cocaine to

the CI while in Dickerson’s immediate presence in the Paxton Street Pub. “It

is within the province of the fact-finder to determine the weight to be accorded

to each witness's testimony and to believe all, part, or none of the evidence.”

Commonwealth v. Williams, 176 A.3d 298, 306 (Pa.Super. 2017).

Recognizing the jury’s province in this regard, and guided further by the

precept stated in Widmer, supra, that a mere conflict in testimony shall not

serve as the basis for a new trial, we discern no merit to the weight of the

evidence claim underlying Appellant’s ineffectiveness claim. It follows,

therefore, that prior counsel may not be deemed ineffective for failing to

pursue a meritless weight of the evidence claim.

Next, Appellant posits that prior counsel ineffectively failed to pursue a

claim that the trial court impermissibly shifted the burden upon Appellant to

prove his innocence. This alleged occurrence, Appellant summarily maintains,

was the product of both the trial court’s refusal to suppress evidence obtained

from the search incident to his arrest and its allowance of Detective Dickerson

to offer what Appellant terms as “hearsay testimony” regarding what only the

CI could have observed during the September 16, 2010, controlled buy.

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We have already concluded, however, that the trial court properly

denied Appellant’s motion to suppress evidence obtained from a lawful search

incident to his arrest, and that Detective Dickerson limited his testimony to a

description of his own personal observations of the controlled buy. Appellant’s

undeveloped ineffective assistance of counsel claim predicated on an

unsubstantiated allegation that the court misallocated the burden of proof,

therefore, is utterly meritless.

Appellant’s next ineffective assistance of counsel claim centers on prior

counsels’ respective failures to challenge the court’s imposition of consecutive

sentences, which Appellant maintains represented an alleged abuse of its

sentencing discretion. Initially, we note:

[o]ur court has held that claims implicating the discretionary
aspects of sentencing raised in the context of an ineffectiveness
claim are cognizable under the PCRA. Commonwealth v.
Whitmore, 860 A.2d 1032, 1036 (Pa.Super. 2004), reversed in
part on other grounds, 912 A.2d 827 (Pa. 2006) (“[A] claim that
counsel was ineffective for failing to perfect a challenge to the
discretionary aspects of sentencing is cognizable under the PCRA.”
(citations omitted)); Commonwealth v. Watson, 835 A.2d 786,
801 (Pa.Super. 2003) (“[A] claim regarding the discretionary
aspects of [the defendant's] sentence, raised in the context of an
ineffectiveness claim, would be cognizable under the PCRA”)
(discussing Commonwealth ex rel. Dadario v. Goldberg, 773
A.2d 126 (Pa. 2001)) (footnote omitted).

Commonwealth v. Sarvey, --- A.3d ----, 2018 PA Super 307 at *10 (filed

Nov. 16, 2018).

The standard of review in an appeal from the discretionary aspects of a

sentence is well settled.

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[S]entencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless the record
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Paul, 925 A.2d 825, 829 (Pa.Super. 2007) (citation

omitted).

Prior to reaching the merits of a discretionary sentencing issue, this

Court must determine:

(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief
has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there
is a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, [see] 42 Pa.C.S.A. §
9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation

omitted).

Our initial impression of this issue is that Appellant does not present it

within a Pa.R.A.P. 2119(f) concise statement of his reasons relied upon for the

allowance of an appeal from the discretionary aspects. Such a statement

appears nowhere in his brief, neither on its own page as Rule 2119(f) requires

nor anywhere within the Argument section. Indeed, Appellant asserts to the

contrary in his argument that he has the “absolute right to appeal” his

sentence. See Appellant’s brief, at 24.

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An appeal of this type is not of right, however, as an appellant must,

instead, seek this Court’s allowance of such an appeal through a Rule 2119(f)

statement. See Sarvey, supra at n. 11 (noting that the PCRA appellant

complied with Rule 2119(f) by including a concise statement seeking

allowance of appeal in her brief). Nevertheless, we decline to find waiver on

such a basis, because the Commonwealth has not specifically objected to this

omission. See Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa.Super.

2003) (holding waiver required where Commonwealth specifically objects to

absence of rule 2119(f) statement).

A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009) (citation omitted). Here, Appellant’s sole

discretionary aspects contention is that the court unreasonably decided to run

his standard range sentences consecutively to form what he claims is a

manifestly excessive aggregate sentence of nine to 18 years’ incarceration.

Long standing precedent of this Court recognizes that 42
Pa.C.S.A. [§] 9721 affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences already
imposed. Commonwealth v. Graham, 541 Pa. 173, 184, 661
A.2d 1367, 1373 (1995); see also Commonwealth v. Perry,
883 A.2d 599, 2005 Pa.Super. Lexis 2892 (Pa. Super. August 10,
2005), and the cases cited therein. Any challenge to the exercise
of this discretion ordinarily does not raise a substantial question.
Commonwealth v. Johnson, 873 A.2d 704, 709 n. 2 (Pa. Super.

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2005); see also Commonwealth v. Hoag, 445 Pa. Super. 455,
665 A.2d 1212, 1214 (1995) (explaining that a defendant is not
entitled to a “volume discount” for his or her crimes).

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005). A limited

exception to this rule was recognized in Commonwealth v. Dodge, 957 A.2d

1198 (Pa. Super. 2008), appeal denied, 980 A.2d 605 (Pa. 2009), where a

panel of this Court concluded the defendant's aggregate sentence of 58½ to

128 years' imprisonment was excessive and clearly unreasonable, when the

trial court imposed 37 consecutive, standard range sentences for receiving

stolen property, much of which consisted of costume jewelry. See id. at

1199-1201.

The facts in the present case are not similar to those in Dodge. The

Appellant was convicted of drug crimes that represent a significant threat to

the community, and his ten to eighteen year aggregate sentence was hardly

tantamount to a virtual life sentence, as was imposed in Dodge. Under the

circumstances, therefore, we find Appellant has failed to establish that his

consecutive sentencing scheme is among the exceptional cases that raise a

substantial question for this Court’s review.

Even assuming, arguendo, that Appellant presents a substantial

question, we find the record does not support his position.

“Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its

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judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.

Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa.Super. 2015).

Additionally, our review of the discretionary aspects of a sentence must

align with the statutory mandates of 42 Pa.C.S. §§ 9781(c) and (d).

Subsection 9781(c) provides:

The appellate court shall vacate the sentence and remand the case
to the sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.

In all other cases[,] the appellate court shall affirm the sentence
imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c). When we review the record, we consider the offense,

the characteristics of the defendant, the trial court's opportunity to observe

the defendant, the pre-sentence report, the sentencing guidelines and the

basis for the sentence imposed. 42 Pa .C.S. § 9781(d).

As noted, Appellant contends that running his sentences consecutively,

particularly the Delivery and PWID sentences, which together represent the

lion’s share of the nine to 18 year aggregate sentence imposed upon

Appellant, resulted in a manifestly excessive sentence. However, the trial

court considered Appellant’s long history of recidivism (spanning 23 years,

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during which his longest time without violating parole was four months), his

current refusal to accept responsibility for his actions, and the pre-sentence

investigation report’s determination that he presents an above-average risk

of re-offending. N.T. 7/25/12, at 3-7. Moreover, we note that both the

Delivery sentence and PWID sentence, respectively, fell within the standard

guideline range for Appellant given his prior record score. N.T. 7/25/12, at 5.

This record dispels any concern that the trial court “ignored or

misapplied the law, exercised its judgment for reasons of partiality, prejudice,

bias or ill will, or arrived at a manifestly unreasonable decision[]” in exercising

its sentencing discretion to run Appellant’s sentences consecutively.

Commonwealth v. DiSalvo, 70 A.3d 900, 903 (Pa.Super. 2013). The

sentences fell within the standard range of the guidelines, and the court

settled on consecutive sentences only after giving due consideration to the

seriousness of Appellant’s crimes, his lack of remorse, and the high likelihood

he would repeat such an offense. Accordingly, we conclude that Appellant’s

aggregate sentence is neither excessive nor unreasonable. See

Commonwealth v. Bowen, 55 A.3d 1254, 1265 (Pa.Super. 2012) (holding

it is within trial court’s sound discretion whether a sentence should run

consecutive to or concurrent with another sentence being imposed).

Appellant raises a second claim implicating the discretionary aspects of

his sentence when he charges counsel with ineffectively failing to raise a

sentencing entrapment, or manipulation, claim. This argument posits that

police engaged in sentencing manipulation when it deferred his arrest for

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weeks until a moment when it learned he would be in possession of a larger

quantity of narcotics.

As we did with the previous issue, we decline to find waiver for the

Pa.R.A.P. 2119(f) inadequacies of Appellant’s brief, as the Commonwealth has

not lodged a corresponding objection. Moreover, our Court has previously

held a claim of sentencing manipulation creates a substantial question for our

review, see Commonwealth v. Kittrell, 19 A.3d 532 (Pa.Super. 2011), thus,

we will address the substantive argument here.

Sentencing manipulation occurs when “a defendant,
although predisposed to commit a minor or lesser offense, is
entrapped in committing a greater offense subject to greater
punishment.” It often is asserted in narcotics matters, typically
reverse sting cases, in which government agents determine the
amount of drugs a target will purchase. Sentencing entrapment
or manipulation is similar to traditional notions of entrapment in
that it requires extraordinary misconduct by the government.
However, it differs from classic entrapment in that it is not a
complete defense to criminal charges and, therefore, cannot serve
as a basis for acquittal. Instead, it provides a convicted defendant
the opportunity for a reduced sentence, typically in the form of a
downward departure from the sentencing guidelines. It also can
be used to exclude one of several criminal transactions included
in a sentencing scheme. It may even provide relief from a
mandatory sentence.

Commonwealth v. Paul, 925 A.2d 825, 830 (Pa.Super. 2007) (internal

citations omitted).

This Court has held:

With our acceptance of the premise underlying sentencing
entrapment and manipulation, we adopt the standard typically
applied in such cases, namely, the existence of “outrageous
government conduct” or “extraordinary government misconduct”
which is designed to and results in an increased sentence for the

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convicted defendant. This standard presents a heavy burden for
the defendant seeking a sentence reduction. Simply put,
sentencing entrapment/manipulation is difficult to prove; it is not
established “simply by showing that the idea originated with the
government or that the conduct was encouraged by it, ... or that
the crime was prolonged beyond the first criminal act ... or
exceeded in degree or kind what the defendant had done before.”

Commonwealth v. Petzold, 701 A.2d 1363, 1366–67 (Pa.Super. 1997)

(citation omitted).

The extent of Appellant’s sentencing entrapment/manipulation claim is

that police observed him commit two drug deliveries after September 16,

2010, without arresting him, before they decided to arrest him on October 19,

2010 only after receiving a call from a CI stating Appellant possessed a large

quantity of narcotics and a gun. In response, the Commonwealth points to

testimony explaining that police intended to arrest Appellant immediately after

witnessing his second drug sale but lost sight of him, and they did nothing to

manipulate the quantity of narcotics in Appellant’s possession on the day of

his arrest.

By failing to establish that police manipulated him into committing a

greater offense than that which he was predisposed to commit, Appellant has

not carried his heavy burden of showing outrageous government behavior

leading up to his arrest. At most, Appellant’s crime on October 19, 2010,

merely exceeded in degree or kind that which he was observed to have

committed on three other occasions in the prior month. Under our

jurisprudence discussed supra, such an occurrence does not amount to

sentencing entrapment or manipulation.

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Next, we address Appellant’s claim that his sentence is illegal under

Alleyne (holding any fact, other than fact of a prior conviction, increasing the

penalty for a crime beyond the prescribed statutory minimum must be

submitted to jury and proven beyond a reasonable doubt). See id., 131 S.Ct.

at 2160–61. Although Appellant did not raise an Alleyne-based illegality of

sentence claim in either his Pa.R.A.P. 1925(b) statement or in his statement

of questions presented, he has preserved it by raising it in the argument

section of his brief. See Commonwealth v. Robinson, 931 A.2d 15, 19-20

(Pa.Super. 2007) (“a challenge to the legality of the sentence may be raised

as a matter of right, is non-waivable, and may be entertained so long as the

reviewing court has jurisdiction.”).5
____________________________________________

5 In its Pa.R.A.P. 1925(a) opinion, the PCRA court dismisses Appellant’s
Alleyne claim as being part of what it considers a meritless ineffective
assistance of direct appeal counsel claim. In this regard, the court reasons
that it cannot deem direct appeal counsel ineffective for failing to predict the
Alleyne decision handed down in the following year. We question the premise
of this rationale, however, as it ignores the fact that Appellant was awarded a
subsequent direct appeal nunc pro tunc after Alleyne was decided, which
gave appointed counsel the opportunity to raise an Alleyne-based attack on
Appellant’s sentence at such time.

Binding decisional law of this Commonwealth has held an Alleyne claim
constitutes a non-waivable challenge to the legality of a sentence and may be
raised for the first time in a timely-filed PCRA petition where the petitioner’s
judgment of sentence was not final when Alleyne was decided. See
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016); see also
Commonwealth v. Ruiz, 131 A.3d 54 (Pa.Super. 2015). Appellant meets
this condition, as he filed this timely PCRA petition after his judgment of
sentence became final in 2016, three years after the Alleyne decision.
Accordingly, we address Appellant’s Alleyne claim as a properly raised
challenge to the legality of his sentence.

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A careful review of the record requires us to conclude that Appellant’s

sentence is illegal under Alleyne, as the trial court applied weight-based,

mandatory minimum sentences provided in 18 Pa.C.S. § 75086 in fashioning

the sentence. See N.T. 7/25/12, at 5, 10-11 (court specifically acknowledges

Commonwealth’s citation to applicable mandatories and immediately

conforms minimum sentences thereto). This Court has applied Alleyne to

find Section 7508 mandatory minimum sentences unconstitutional. See

Cardwell, 105 A.3d at 752-55. Accordingly, we vacate Appellant’s sentence

and remand to the trial court for resentencing consistent with this aspect of

our decision.7
____________________________________________

6 Section 7508(a)(3)(i) provided for a three-year mandatory minimum
sentence for, inter alia, Delivery of 2.0 grams or more of cocaine if, at the
time of sentencing, the defendant has been convicted of another drug
trafficking offense. Section 7508(a)(3)(ii) provided for a five-year mandatory
minimum sentence for, inter alia, PWID 10.0 or more grams of cocaine if, at
the time of sentencing, the defendant has been convicted of another drug
trafficking offense. See 18 Pa.C.S. § 7508.

7 We need not review Appellant’s other legality of sentence claim, which
asserted the court was without jurisdiction to enter its order of March 27,
2018, clarifying that the instant sentencing order was to run consecutively to
other sentences involving different offenses that were in effect at the time.
See Commonwealth v. Pfeiffer, 579 A.2d 897 (Pa.Super. 1990) (claim
challenging court’s failure to indicate whether state sentence was to run
concurrent to or consecutive with a unrelated county sentence currently being
served implicated legality of sentence; hence, untimely motion for
reconsideration of sentence did not bar claim). Pfeiffer, however, clarifies
that, “absent any written indication to the contrary, it is presumed that the
sentences are to run consecutively.” Id. at 900. Therefore, to the extent
Appellant contends his sentence for the above-captioned matter implicitly runs

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Finally, Appellant submits that the PCRA court abused its discretion

when it granted PCRA counsel’s motion to withdraw without appointing new

counsel. On December 29, 2017, Attorney Wilson filed a no-merit letter under

Turner/Finley in which he set forth a legal analysis explaining why each of

Appellant’s pro se issues lacked merit. On January 22, 2018, the court

determined Attorney Wilson had fulfilled his obligations under Turner/Finley

and, thus, granted his petition to withdraw.

Subsequently, on May 31, 2018, the court issued its Notice of Intent to

Dismiss pursuant to Pa.R.Crim.P. 907. On June 13, 2018, Appellant filed a

pro se Answer opposing the court’s notice of dismissal. Specifically, Appellant

contended PCRA counsel’s failure to amend the pro se petition constituted

ineffective assistance as a matter of law, and he requested an evidentiary

hearing where he would testify to, inter alia, counsel’s failure to participate

meaningfully in his PCRA appeal. On June 27, 2018, after considering

Appellant’s pro se Answer, the PCRA court dismissed Appellant’s petition.

Now, it is Appellant’s contention that PCRA counsel’s failure to amend

his pro se petition leads inexorably to the conclusion that counsel deprived

him of the right to have appointed counsel “advance his position in acceptable

____________________________________________

concurrently to other sentences imposed by other courts for different matters,
he is mistaken. Moreover, given our decision to vacate the present sentence
and remand for resentencing in a manner consistent with Alleyne and its
progeny, the trial court will have the opportunity to specify whether the new
sentence shall run concurrent to or consecutively with other sentences.

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legal terms.” Appellant’s brief, at 32 (quoting Commonwealth v. Sangricco,

415 A.2d 65, 133 (Pa. 1980)). We disagree.

This court has stated “when appointed counsel fails to amend an

inarticulately drafted pro se [post-conviction] petition, or fails otherwise to

participate meaningfully, this court will conclude that the proceedings were,

for all practical purposes, uncounseled and in violation of the representation

requirement.” Commonwealth v. Hampton, 718 A.2d 1250, 1253

(Pa.Super. 1998) (quoting Commonwealth v. Ollie, 450 A.2d 1026

(Pa.Super. 1982), and Sangricco, 415 A.2d at 133). While it is true that

PCRA counsel never amended Appellant’s pro se petition, we cannot

reasonably conclude that Appellant effectively went uncounseled.

Here, the record shows counsel properly filed a Turner/Finley letter in

which he undertook an extensive review of Appellant’s case and provided a

thorough legal analysis in support of his conclusion that there was no

meritorious claim to make on collateral appeal. While we obviously disagree

with counsel’s conclusion to the extent it failed to address and acknowledge

the effect of Alleyne and its progeny on the legality of Appellant’s mandatory

minimum sentences, we otherwise infer no abandonment of professional

responsibility from counsel’s otherwise cogent no-merit letter on the

remaining claims. Accordingly, the PCRA court committed no error of law or

abuse of discretion in accepting counsel’s no-merit letter as to these other

claims.

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For the foregoing reasons, we discern no error or abuse of discretion

with the PCRA court’s order to the extent it dismisses as meritless all issues

raised by Appellant other than his challenge to the imposition of mandatory

minimum sentences. Under Alleyne and Cardwell, however, we are

constrained to reverse the PCRA order with respect to Appellant’s legality of

sentence claim, vacate judgment of sentence, and remand for resentencing,

where Appellant will be entitled to the appointment of counsel.

Order reversed only with respect to the legality of Appellant’s sentence.

Judgment of sentence vacated. Case remanded for proceedings consistent

with this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/19/2019

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