Com. v. Newsuan, D.

J-S38007-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DEXTER L. NEWSUAN : : Appellant : No. 2523 EDA 2016 Appeal from the Judgment of Sentence December 16, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009215-2008, CP-51-CR-0009230-2008 BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.* MEMORANDUM BY GANTMAN, P.J.: FILED JULY 11, 2017 Appellant, Dexter L. Newsuan, appeals nunc pro tunc from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his bench trial convictions for two counts of first-degree murder and one count each of firearms not to be carried without a license, carrying firearms on public streets or public property in Philadelphia, and possessing instruments of crime (“PIC”).1 We affirm. In its opinion, the trial court accurately set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. ____________________________________________ 1 18 Pa.C.S.A. §§ 2502(a); 6106(a); 6108; 907, respectively. ___________________________ *Former Justice specially assigned to the Superior Court. J-S38007-17 Appellant raises two issues for our review: WAS THE EVIDENCE SUFFICIENT TO ESTABLISH BEYOND A REASONABLE DOUBT THAT [APPELLANT] COMMITTED THE HOMICIDES IN THIS CASE? DID THE TRIAL COURT ERR IN DENYING [APPELLANT] THE RIGHT TO FILE POST-SENTENCE MOTIONS NUNC PRO TUNC FROM THE JUDGMENT OF SENTENCE BECAUSE THIS DENIAL PREVENTED [APPELLANT] FROM ASSERTING THAT THE VERDICTS OF GUILTY FIRST DEGREE MURDER WERE AGAINST THE WEIGHT OF THE EVIDENCE? (Appellant’s Brief at 2). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Jeffrey P. Minehart, we conclude Appellant’s first issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of that issue. (See Trial Court Opinion, filed September 9, 2016, at 4-7) (finding: Commonwealth presented evidence that Appellant told two people he had killed Victims; according to witness Mr. Bucci, Appellant stated he killed Victims because they had burglarized his residence and were planning to do it again; Appellant also told Mr. Bucci that Appellant was having problems with people regarding sale of drugs, and Appellant borrowed nine millimeter weapon from Mr. Bucci, just before murders; Appellant also told Mr. Koufie he shot Victims; ballistic evidence showed Victims were killed by nine millimeter weapon and were shot in vital parts of their bodies; circumstantial evidence along with testimony about Appellant’s admissions was sufficient to sustain Appellant’s first-degree murder convictions). Therefore, with respect -2- J-S38007-17 to Appellant’s first issue, we affirm on the basis of the trial court’s opinion. In his second issue, Appellant argues the court denied him the opportunity to challenge the weight of the evidence on appeal by rejecting Appellant’s request for reinstatement of his post-sentence motion rights nunc pro tunc. Appellant asserts the Commonwealth’s case against him hinged on the testimony of two witnesses who claimed Appellant had confessed the murders to them. Appellant insists one of those witnesses was a “corrupt and polluted source” with a lengthy criminal record, who manipulated the system to escape prosecution for his own crimes by blaming others. Appellant contends the other witness recanted at trial his earlier testimony inculpating Appellant, and had an open assault charge against him. Given the credibility issues surrounding these witnesses, Appellant maintains he wanted to attack the weight of the evidence on appeal. Appellant concludes he suffered prejudice where he was deprived of the opportunity to litigate a weight-of-the-evidence claim on appeal, and this Court should remand the matter so Appellant can file a post-sentence motion nunc pro tunc challenging the weight of the evidence. We disagree. Where the court reinstates direct appeal rights nunc pro tunc, the appellant is not automatically entitled to reinstatement of his post-sentence rights nunc pro tunc as well. Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a defendant’s post-sentence rights nunc pro tunc if the defendant successfully pleads and -3- J-S38007-17 proves he was deprived of the right to file and litigate post-sentence motions as a result of ineffective assistance of counsel. Id. at 20 n.9, 977 A.2d at 1095 n.9. Compare Commonwealth v. Fransen, 986 A.2d 154 (Pa.Super. 2009) (holding PCRA petitioner who obtains reinstatement of direct appeal rights nunc pro tunc is not entitled to reinstatement of post- sentence rights nunc pro tunc if he did not request that relief with PCRA court; appellant’s claim that he was entitled to file post-sentence motions and to have benefit of evidentiary hearing warranted no relief where appellant did not plead or prove in PCRA petition that he was deprived of right to file post-sentence motions). Instantly, the court convicted Appellant on December 16, 2011, of two counts of first-degree murder and one count each of firearms not to be carried without a license, carrying firearms on public streets or public property in Philadelphia, and PIC. The court sentenced Appellant that day to consecutive life sentences for the murder convictions and imposed other concurrent sentences for the remaining crimes. Appellant did not file post- sentence motions. Instead, Appellant filed a timely direct appeal on December 19, 2011. On January 14, 2013, this Court affirmed Appellant’s judgment of sentence, deeming the sole issue waived for review. Notwithstanding Appellant’s phrasing of the question presented on appeal as challenging the sufficiency of the evidence, this Court decided Appellant’s argument was actually an attack on the weight of the evidence, which -4- J-S38007-17 Appellant had not preserved before the trial court. The Supreme Court denied allowance of appeal on June 13, 2013. See Commonwealth v. Newsuan, 64 A.3d 277 (Pa.Super. 2013), appeal denied, 620 Pa. 714, 69 A.3d 243 (2013). Appellant filed a timely pro se PCRA petition on August 14, 2014. The court appointed counsel, who filed an amended PCRA petition on February 26, 2016, along with a supporting memorandum of law. In his amended PCRA petition and supporting memorandum, Appellant claimed appellate counsel was ineffective for failing to raise any reviewable issues on appeal, which effectively denied Appellant a chance to appeal his judgment of sentence. Appellant maintained appellate counsel had no rational basis for failing to present reviewable issues on appeal, and that Pennsylvania case law favors restoration of a defendant’s direct appeal rights nunc pro tunc in similar circumstances. In the “WHEREFORE” clauses of the amended petition and supporting memorandum of law, Appellant requested reinstatement of his post-sentence motion and direct appeal rights nunc pro tunc. The Commonwealth filed a response on May 26, 2016, opposing only Appellant’s request for reinstatement of his post-sentence motion rights nunc pro tunc. The Commonwealth insisted Appellant had made no argument whatsoever under the traditional ineffective assistance of counsel test to warrant reinstatement of his post-sentence motion rights nunc pro -5- J-S38007-17 tunc. The Commonwealth highlighted that Appellant did not even mention what he planned to challenge in a post-sentence motion nunc pro tunc. On July 14, 2016, the court granted Appellant’s request to file a direct appeal nunc pro tunc but denied his request to file post-sentence motions nunc pro tunc. In its Rule 1925(a) opinion, the court explained its rationale as follows: A review of [Appellant’s] filing indicated that [Appellant] did not present any argument in support of a claim that he should be granted the right to file post-sentence motions. Consequently it is suggested that [Appellant] be deemed to have failed to meet his burden with respect to this claim and it be dismissed. (Trial Court Opinion at 9). We agree with the court’s decision. Consistent with Liston and Fransen, Appellant needed to plead in his PCRA petition that appellate counsel deprived him of the opportunity to litigate a post-sentence motion. Significantly, Appellant attacked only appellate counsel’s failure to raise any reviewable issues on appeal. Appellant mentioned nothing about his right to litigate a post-sentence motion until the “WHEREFORE” clause of his petition, in which he simply requested the right to file post-sentence motions nunc pro tunc. Absent proper pleading in his PCRA petition, that appellate counsel was ineffective for depriving Appellant of a chance to litigate post-sentence motions, the court correctly denied Appellant’s request for relief. Accordingly, we affirm. Judgment of sentence affirmed. -6- J-S38007-17 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/11/2017 -7- Circulated 06/16/2017 09:39 AM