J-S02022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SHAIKEY COPPER :
:
Appellant : No. 328 EDA 2021
Appeal from the Judgment of Sentence Entered March 4, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004747-2017
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KING, J.: FILED MAY 4, 2022
Appellant, Shaikey Copper, appeals nunc pro tunc from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas, following
his jury trial convictions for conspiracy, trafficking in minors, involuntary
servitude, statutory sexual assault, unlawful contact with minor, and sexual
exploitation of children.1 We affirm.
The trial court opinion set forth the relevant facts of this appeal as
follows:
Complainant M.D. testified that on April 23, 2017, she was
14 years old and living with her mother when an argument
between her and her mother prompted her to leave her
mother’s home. Complainant contacted Appellant on
Facebook and made arrangements to meet him at his home.
Complainant was introduced to Appellant by a mutual friend
____________________________________________
1 18 Pa.C.S.A. §§ 903, 3011(b), 3012, 3122.1(a)(1), 6318(a)(1), and 6320,
respectively.
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and had known him for about a year. When Complainant
arrived at Appellant’s house they discussed her
disagreement with her mother. Appellant assured
Complainant that he would take care of her and she would
not have to worry about her problems with her mom.
Appellant led Complainant into his house and told her to
take her clothes off so he could wash them. Appellant then
laid in bed with Complainant, talked some more and
proceeded to have sex with her.[2] After the sexual assault,
Appellant called an Uber to take Complainant to his sister’s
house. Appellant told Complainant that she would be
dancing with his sister. Appellant told Complainant to tell
people that she was eighteen.
Complainant was told Appellant’s sister went by the
nickname “Bullet.”[3] Complainant had never met Bullet
before April 23, 2017. When Complainant arrived at Bullet’s
house she told Bullet she was 14 years old, which seemed
to shock Bullet. Complainant started talking to Bullet and
Bullet explained that they would not be dancing, but instead
would be having “in-calls” and “out-calls.” Bullet explained
that “in-calls” and “out-calls” refer to having sex with men
for money. Complainant told Bullet she did not want to be
a part of this and Bullet told Complainant that this was her
only option if she wanted to get away from her home
situation.
A short while later co-defendant Reggie Fields, known to
Complainant as “Jamal,” Bullet’s boyfriend, came to the
house. Fields and Bullet had a conversation and Bullet
called Complainant into the room where they were talking.
Bullet asked Complainant to perform oral sex on Fields,
Complainant left the room without responding, went to the
living room and sat on the couch. Fields followed
____________________________________________
2 Appellant was born in May 1998, and he was eighteen (18) years old at the
time of his encounter with Complainant. (See N.T. Trial, 9/27/18, at 59).
3 “Bullet” is a nickname utilized by Fantasia Gale, who was also charged with
certain offenses in this case. (See N.T. Trial, 10/2/18, at 6). Ultimately, Ms.
Gale entered a guilty plea and opted to testify against Appellant at trial. (Id.
at 6-7). At trial, Ms. Gale explained that Appellant is her “God brother.” (Id.
at 7).
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Complainant into the living room and asked her to perform
oral sex on him. Complainant told Fields “no” and then,
feeling she had no other choice, did perform oral sex on him.
Complainant slept on Bullet’s couch that night.
The following day, another man, Shizz, came to the house.
That day, Bullet and Complainant each took an “in-call” at
the house. After Complainant’s “in-call” she received money
and was told to give that money to Bullet. Complainant then
was forced to have sexual intercourse with Shizz. Later that
day, Complainant, Fields, Bullet, and Shizz relocated to
Fields’ mother’s house. Shizz raped Complainant two more
times at Fields’ mother’s house. While in Fields’ car,
Complainant encountered co-defendant Angelo Romero,
known to her then as “Bum.” Fields and Bullet made
Complainant get out of Fields’ car and into Romero’s car.
Shizz and two other men joined Complainant in Romero’s
car and Complainant was forced to perform oral sex on
Romero while Shizz attempted to rape her.
Fields, Romero, and other men organized several “out-calls”
for Complainant and the money she received she gave to
whoever drove her to the call. On one occasion, while on
the way to an “out-call,” Romero again forced Complainant
to perform oral sex on him. From the time Complainant left
her mother’s house she had nothing to eat or drink except
for a glass of orange juice. At some point, Fields and Shizz
taunted Complainant by pouring cereal into a dog bowl on
the floor and chanting names at her. Complainant
eventually left Fields’ mother’s house, telling Shizz she was
going to the corner store. Shizz followed Complainant but
she reached the store and borrowed a phone to call for help.
Complainant’s mother, father and foster mother did not
answer her calls but someone in the corner store, seeing her
distress, gave Complainant a bus token and she went to the
hospital.
Officer Michael Poekert testified that he responded to a radio
call for a report of a rape around 4:30 p.m. on April 25,
2017. Officer Poekert went to Temple Hospital and moved
Complainant to St. Christopher’s Hospital to be examined
and interviewed. Complainant was given a rape kit and full
physical examination.
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(Trial Court Opinion, filed May 10, 2021, at 2-4) (internal citations to the
record and footnote omitted).
On June 16, 2017, the Commonwealth filed a criminal information
charging Appellant with multiple offenses related to the abuse of Complainant.
The Commonwealth subsequently provided notice of its intent to consolidate
the cases against Appellant and his co-defendants for trial. Appellant and his
co-defendants proceeded to a jury trial on September 25, 2018. On October
5, 2018, the jury convicted Appellant of the aforementioned offenses. On
March 4, 2019, the court sentenced Appellant to an aggregate term of
fourteen (14) to twenty-eight (28) years’ imprisonment, followed by ten (10)
years of probation. Appellant did not file post-sentence motions or a notice
of appeal.
On March 30, 2020, Appellant timely filed a pro se petition pursuant to
the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. § 9541-9546. The
court appointed counsel, who filed an amended petition on July 25, 2020. On
January 14, 2021, the court reinstated Appellant’s direct appeal rights nunc
pro tunc.4
Appellant timely filed a notice of appeal nunc pro tunc on January 30,
2021. On February 9, 2021, the court ordered Appellant to file a Pa.R.A.P.
____________________________________________
4 Appellant’s amended PCRA petition did not include a separate request for
the reinstatement of his right to file a post-sentence motion nunc pro tunc,
and the court did not grant such relief.
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1925(b) concise statement of errors complained of on appeal. Appellant
timely filed his Rule 1925(b) statement on February 22, 2021.
Appellant now raises the following issues for our review:
Whether the evidence presented at trial was sufficient to
establish each and every element of the crimes for which
Appellant was convicted.
Whether the jury verdict was against the weight of the
evidence.
Whether the introduction of knowingly false testimony and
fabricated evidence constituted prosecutorial misconduct.
Whether the sentencing court abused its discretion by
imposing a sentence that was not based upon the gravity of
the violation, the extent of Appellant’s record, his prospect
of rehabilitation, nor an assessment of the mitigating and
aggravating factors as noted in 42 Pa.C.S.[A. §] 9721 of the
Sentencing Code.
Whether the sentencing court abused its discretion by
entering a manifestly excessive sentence to such a degree
that it establishes evidence of the court’s bias or animus
toward Appellant.
(Appellant’s Brief at 8).
In his first issue, Appellant contends Complainant’s testimony
established that she initially reached out to Appellant. Thereafter, Appellant
did not arrange for her to work as an escort. Rather, Appellant attempted to
find work for Complainant as an exotic dancer. Appellant asserts that exotic
dancing does not amount to sexual exploitation, and the Commonwealth did
not present evidence to the contrary. Further, Appellant maintains that he
“had no knowledge of Ms. Gale or the other co-defendant’s intention to engage
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M.D. in escort work[.]” (Id. at 16). Appellant insists that his conspiracy
conviction rested solely on the “self-serving testimony” of Ms. Gale, and there
was no other evidence that Appellant made any sort of agreement to engage
in criminal activity. (Id. at 15). Appellant emphasizes that “Ms. Gale testified
falsely at trial to implicate Appellant and minimize her own involvement in the
criminal acts of the other co-defendants.” (Id. at 16). Appellant concludes
that the Commonwealth presented insufficient evidence to support his
convictions. We disagree.
Our standard of review for sufficiency claims is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder 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. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016), appeal
denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v.
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Hansley, 24 A.3d 410, 416 (Pa.Super. 2011)).
The Crimes Code defines the offense of criminal conspiracy as follows:
§ 903. Criminal conspiracy
(a) Definition of conspiracy.―A person is guilty of
conspiracy with another person or persons to commit a
crime if with the intent of promoting or facilitating its
commission he:
(1) agrees with such other person or persons
that they or one or more of them will engage in conduct
which constitutes such crime or an attempt or solicitation
to commit such crime; or
(2) agrees to aid such other person or persons in
the planning or commission of such crime or of an
attempt or solicitation to commit such crime.
18 Pa.C.S.A. § 903(a).
“To sustain a conviction for criminal conspiracy, the Commonwealth
must establish that the defendant (1) entered into an agreement to commit
or aid in an unlawful act with another person or persons, (2) with a shared
criminal intent and (3) an overt act was done in furtherance of the conspiracy.”
Commonwealth v. Melvin, 103 A.3d 1, 42 (Pa.Super. 2014) (citation
omitted).
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a
particular criminal objective be accomplished. Therefore, a
conviction for conspiracy requires proof of the existence of
a shared criminal intent. An explicit or formal agreement to
commit crimes can seldom, if ever, be proved and it need
not be, for proof of a criminal partnership is almost
invariably extracted from the circumstances that attend its
activities. Thus, a conspiracy may be inferred where it is
demonstrated that the relation, conduct, or circumstances
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of the parties, and the overt acts of the co-conspirators
sufficiently prove the formation of a criminal confederation.
The conduct of the parties and the circumstances
surrounding their conduct may create a web of evidence
linking the accused to the alleged conspiracy beyond a
reasonable doubt.
Id. at 42-43. “Once the trier of fact finds that there was an agreement and
the defendant intentionally entered into the agreement, that defendant may
be liable for the overt acts committed in furtherance of the conspiracy
regardless of which co-conspirator committed the act.” Commonwealth v.
Barnes, 871 A.2d 812, 820 (Pa.Super. 2005).
The Crimes Code defines the offense of trafficking in minors as follows:
§ 3011. Trafficking in individuals
(a) Offense defined.—A person commits a felony of
the second degree if the person:
(1) recruits, entices, solicits, harbors,
transports, provides, obtains or maintains an individual if
the person knows or recklessly disregards that the
individual will be subject to involuntary servitude; or
(2) knowingly benefits financially or receives
anything of value from any act that facilitates any activity
described in paragraph (1).
(b) Trafficking in minors.—A person commits a
felony of the first degree if the person engages in any
activity listed in subsection (a) that results in a minor’s
being subjected to sexual servitude.
18 Pa.C.S.A. § 3011(b).5
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5Our legislature amended this statute in 2020, after Appellant’s trial. See
Act of Feb. 5, 2020, P.L. 1, No. 1, § 1.
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The Crimes Code defines involuntary servitude as follows:
§ 3012. Involuntary servitude
(a) Offense defined.—A person commits a felony of
the first degree if the person knowingly, through any of the
means described in subsection (b), subjects an individual to
labor servitude or sexual servitude, except where the
conduct is permissible under Federal or State law other than
this chapter.
(b) Means of subjecting an individual to
involuntary servitude.—A person may subject an
individual to involuntary servitude through any of the
following means:
* * *
(8) Fraud.
18 Pa.C.S.A. § 3012(a), (b)(8).
The Crimes Code defines statutory sexual assault as follows:
§ 3122.1. Statutory sexual assault
(a) Felony of the second degree.—Except as
provided in section 3121 (relating to rape), a person
commits a felony of the second degree when that person
engages in sexual intercourse with a complainant to whom
the person is not married who is under the age of 16 years
and that person is either:
(1) four years older but less than eight years
older than the complainant; or
(2) eight years older but less than 11 years older
than the complainant.
18 Pa.C.S.A. § 3122.1(a). The Crimes Code defines “sexual intercourse” as
follows: “In addition to its ordinary meaning, includes intercourse per os or
per anus, with some penetration however slight; emission is not required.”
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18 Pa.C.S.A. § 3101.
The Crimes Code defines unlawful contact with a minor as follows:
§ 6318. Unlawful contact with minor
(a) Offense defined.—A person commits an offense if
he is intentionally in contact with a minor, or a law
enforcement officer acting in the performance of his duties
who has assumed the identity of a minor, for the purpose of
engaging in an activity prohibited under any of the following,
and either the person initiating the contact or the person
being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter
31 (relating to sexual offenses).
18 Pa.C.S.A. § 6318(a)(1).
The Crimes Code defines sexual exploitation of children as follows:
§ 6320. Sexual exploitation of children
(a) Offense defined.—A person commits the offense
of sexual exploitation of children if he procures for another
person a child under 18 years of age for the purpose of
sexual exploitation.
* * *
(c) Definitions.—As used in this section, the following
words and phrases shall have the meanings given to them
in this subsection:
“Procure.” To obtain or make available for sexual
exploitation.
“Sexual exploitation.” Actual or simulated sexual activity
or nudity arranged for the purpose of sexual stimulation or
gratification of any person.
18 Pa.C.S.A. § 6320.
Instantly, Complainant was born in April 2003. (See Criminal
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Complaint, dated 4/26/17, at 1). At trial, Complainant testified that she had
a fight with her mother on April 23, 2017, when she was fourteen (14) years
old. (See N.T. Trial, 9/28/18, at 22). After the fight, Complainant reached
out to Appellant through Facebook. (Id. at 24). Appellant told Complainant
“he would be there” for her. (Id. at 25). Appellant also called for an Uber to
take Complainant to his residence. (Id.)
Upon arriving at Appellant’s residence, Complainant sat and talked with
Appellant on his porch. (Id. at 28). Appellant told Complainant she “was
going to be fine,” and “he would take care” of her. (Id.) Appellant took
Complainant inside the residence, and he told her to take off her clothes so
he could wash them. (Id. at 29). Thereafter, Appellant and Complainant had
vaginal intercourse. (Id. at 30).
Here, Complainant’s testimony established that she had sexual
intercourse with Appellant when she was fourteen years old, and he was
eighteen years old. This evidence was sufficient to establish that Appellant
committed the offense of statutory sexual assault. See 18 Pa.C.S.A. § 3101;
18 Pa.C.S.A. § 3122.1(a). Further, when viewed in the light most favorable
to the Commonwealth as verdict winner, Appellant’s conversations with
Complainant amounted to contacts with a minor for the purpose of committing
the sexual offense of statutory sexual assault. See 18 Pa.C.S.A. § 6318(a)(1).
See also Commonwealth v. Velez, 51 A.3d 260 (Pa.Super. 2012) (holding
sufficient evidence demonstrated that defendant had unlawful contact with
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victim; victim’s mother testified that she saw Appellant touching victim’s
vagina; victim had her pants removed and her knees up; victim would not
have been in that position absent contact by defendant, either verbal or
physical). Thus, sufficient evidence also supports Appellant’s conviction for
unlawful contact with a minor.
After having sex with Complainant, Appellant called Ms. Gale. (See N.T.
Trial, 9/28/18, at 31). After the phone call, Appellant informed Complainant
that he was calling for an Uber to take Complainant to Ms. Gale’s residence.
(Id.) Appellant also told Complainant that she would be “dancing” with Ms.
Gale. (Id.) Although Appellant told Complainant she would be dancing, Ms.
Gale indicated that Appellant said something else during their phone call.
Significantly, Ms. Gale testified: “[Appellant] called me and said he had some
way for me to make fast money and it was from [Complainant].” (See N.T.
Trial, 10/2/18, at 10). Appellant also told Ms. Gale that Complainant “was a
girl and she just wanted to escort.” (Id.) Appellant indicated that “[h]e just
wanted half” of the proceeds that Ms. Gale would make from using
Complainant as an escort. (Id. at 11). After the phone call, Appellant sent
Complainant to Ms. Gale’s residence in a ride-share vehicle.6 (See N.T. Trial,
9/28/18, at 32-33; N.T. Trial, 10/2/18, at 12).
Here, Ms. Gale’s testimony established that she and Appellant entered
____________________________________________
6Complainant testified that Appellant called for an Uber vehicle, whereas Ms.
Gale testified that Appellant called for a Lyft vehicle.
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into an agreement to use Complainant as a sex worker. See Melvin, supra.
Appellant committed an overt act in furtherance of this conspiracy by sending
Complainant to Ms. Gale’s residence in the ride-share vehicle. Id. Thus,
sufficient evidence supported Appellant’s conspiracy conviction. See 18
Pa.C.S.A. § 903. Regarding the remaining offenses, Appellant lured
Complainant into prostitution by lying and telling her that she would be
working as a dancer. Thus, Appellant utilized “fraud” to subject Complainant
to involuntary servitude, and the evidence supported his conviction under
Section 3012. Appellant also “transported” Complainant to Ms. Gale, via a
ride-share service, for the purpose of subjecting Complainant to involuntary
servitude. This evidence supported his conviction for trafficking in minors.
See 18 Pa.C.S.A. § 3011(b). Finally, Appellant procured Complainant, a
minor, to engage in sexual activity at the direction of Ms. Gale and others.
This evidence supported Appellant’s conviction for sexual exploitation of
children. See 18 Pa.C.S.A. § 6320. Consequently, Appellant is not entitled
to relief for his sufficiency challenge.
In his second issue, Appellant argues that his convictions were against
the weight of the evidence. Appellant, however, failed to raise any objection
to the weight of the evidence in the trial court. Therefore, Appellant’s claim
is waived. See Pa.R.Crim.P. 607(A) (stating that defendant must raise weight
claim with trial judge in first instance). See also Commonwealth v. Cox,
231 A.3d 1011, 1018 (Pa.Super. 2020) (stating weight challenge must be
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preserved either in post-sentence motion, written motion before sentencing,
or orally prior to sentencing; appellant’s failure to avail himself of any of
prescribed methods for presenting weight issue to trial court constitutes
waiver of that claim).
In his third issue, Appellant argues that the Commonwealth committed
misconduct through “[t]he prosecutor’s knowing and intentional use of
perjured testimony from [Ms.] Gale[.]” (Appellant’s Brief at 18). Again,
Appellant failed to raise any objection to the purportedly perjured testimony
at the time of trial. (See N.T. Trial, 10/2/18, at 5-94).7 Thus, this issue is
also waived. See Commonwealth v. Sasse, 921 A.2d 1229, 1238
(Pa.Super. 2007), appeal denied, 595 Pa. 706, 938 A.2d 1052 (2007)
(reiterating, “In order to preserve a claim of prosecutorial misconduct for
appeal, a defendant must make an objection and move for a mistrial”).
In his final two issues, Appellant argues that the court imposed
unreasonable sentences without considering all relevant factors enumerated
in the Sentencing Code. Appellant also argues that the court’s “imposition of
a manifestly excessive sentence, combined with its disapproval of Appellant’s
____________________________________________
7 During his cross-examination of Ms. Gale, counsel for Mr. Fields played a
video of Ms. Gale’s prior interview with police. (See N.T. Trial, 10/2/18 at 64-
74). Counsel questioned Ms. Gale about statements she made during the
interview that were inconsistent with portions of her trial testimony. (Id.)
Thereafter, Appellant’s attorney continued to question Ms. Gale about
inconsistencies between her prior statements and trial testimony. (Id. at 79-
87). Despite this questioning, neither Appellant nor his co-defendants made
any objection based on prosecutorial misconduct.
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statement at the sentencing hearing, establishes the court’s bias and animus
toward Appellant.” (Appellant’s Brief at 21). As presented, Appellant’s
challenges implicate the discretionary aspects of sentencing. See
Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa.Super. 2008)
(explaining, “A challenge to an alleged excessive sentence is a challenge to
the discretionary aspects of a sentence”).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e conduct a four part analysis to 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, 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, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
“[I]ssues challenging the discretionary aspects of a sentence must be raised
in a post-sentence motion or by presenting the claim to the trial court during
the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.” Commonwealth v. Cartrette,
83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc).
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Instantly, Appellant did not raise his claims at the sentencing hearing or
file a post-sentence motion preserving the issues in the trial court.8 Thus,
Appellant’s final two issues are waived. See Cartrette, supra; Evans,
supra. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/04/2022
____________________________________________
8 In his brief, Appellant claims that he preserved his issues in a post-sentence
motion. (See Appellant’s Brief at 19). This assertion, however, directly
contradicts a claim made in Appellant’s amended PCRA petition, where he
conceded that “[t]rial counsel failed to file post-sentence motions….”
(Amended PCRA Petition, filed 7/25/20, at ¶4). Likewise, this Court’s review
of the entire certified record confirms that post-sentence motions were not
filed after sentencing or otherwise submitted nunc pro tunc. We repeat that
Appellant did not request to file post-sentence motions nunc pro tunc in his
amended PCRA petition.
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