J-S69037-19 & J-S69038-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BAIHEEM GRESHAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 328 EDA 2019

Appeal from the PCRA Order Entered January 14, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0002458-2012

COMMONWEALTH OF PENNSYLVANIA

v.

BAIHEEM GRESHAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 331 EDA 2019

Appeal from the PCRA Order Entered January 14, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0008824-2014

BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JULY 31, 2020

Appellant, Baiheem Greshan, appeals from orders of the Court of 

Common Pleas of Philadelphia County (trial court) in two criminal proceedings

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* Retired Senior Judge assigned to the Superior Court.
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that dismissed his petitions for relief pursuant to the Post Conviction Relief Act 

(PCRA)1 without a hearing. After careful review, we reverse.

The PCRA petitions here sought relief from revocation of probation 

sentences imposed in two separate criminal cases, CP-51-CR-0002458-2012

(CR-2458-2012) and CP-51-CR-0008824-2014 (CR-8824-2014). In CR2458-2012, Appellant entered a negotiated guilty plea on June 26, 2012 to 

one count of manufacture, delivery or possession with intent to deliver a 

controlled substance2 and was sentenced to 111/2 months to 23 months of 

incarceration and 3 years of probation. In CR-8824-2014, Appellant entered 

a negotiated guilty plea on March 31, 2015 to aggravated assault and 

possession of an instrument of crime,

3 and was sentenced to 111/2 months to 

23 months of incarceration followed by 4 years of probation for aggravated 

assault and 4 years of probation for possession of an instrument of crime

consecutive to the imprisonment sentence and concurrent with the period of 

probation for the aggravated assault. 

Appellant had completed serving the 111/2-to-23 month incarceration 

portion of his sentence and was serving the 3-year probation sentence in CR2458-2012 at the time he committed the aggravated assault and possession 

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1 42 Pa.C.S. §§ 9541–9546.

2 35 P.S. § 780-113(a)(30).

3 18 Pa.C.S. § 2702(a) and 18 Pa.C.S. §907(a), respectively.
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of an instrument of crime in June 2014. See CR-2458-2012 Gagnon II4

Summary, 8/13/14. The trial court on March 31, 2015 revoked Appellant’s 

probation in CR-2458-2012 and sentenced Appellant to 5 years’ probation. 

CR-2458-2012 Probation Revocation Order, 3/31/15. 

On November 2, 2015, the trial court found Appellant to be in violation 

of his probation in CR-2458-2012 and revoked his probation and sentenced 

him to 111/2 months to 23 months of incarceration followed by 5 years of 

probation. CR-2458-2012 Probation Revocation Order, 11/2/15. The trial 

court also entered an order in CR-8824-2014 revoking Appellant’s probation 

and sentencing him to 111/2 months to 23 months of incarceration followed 

by 5 years of probation for aggravated assault and 4 years of probation for 

possession of an instrument of crime.

5

 CR-8824-2014 Probation Revocation 

Order, 11/2/15. In both cases, Appellant was paroled from his incarceration 

sentences and the maximum date of his incarceration sentences was 

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4 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

5 Appellant was still on parole in CR-8824-2014 and had not yet begun serving 

the probation portion of his sentence at this time. That fact, however, did not 

affect the trial court’s power to revoke his probation and impose a new

sentence in lieu of the probation portions of his sentence. Commonwealth 

v. Ware, 737 A.2d 251, 253-54 (Pa. Super. 1999) (court may revoke the 

probation portion of a split sentence and impose a new sentence based on 

conduct that occurs while defendant is still on parole from the incarceration 

portion of the sentence). 
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September 20, 2017. CR-2458-2012 Gagnon II Summary, 5/6/16; CR8824-2014 Gagnon II Summary, 5/6/16.

On October 12, 2017, Appellant entered a negotiated guilty plea in a 

third case, CP-51-CR-0000389-2017 (CR-389-2017), to charges of 

intimidating a witness, retaliating against a witness, and terroristic threats, 

and was sentenced to 111/2 months to 23 months of incarceration followed by 

4 years of probation for intimidating a witness and retaliating against a witness 

and 4 years of probation for terroristic threats.6 N.T., 10/12/17, at 4-10. 

Based on Appellant’s guilty plea in CR-389-2017, the trial court on October 

12, 2017 entered orders revoking Appellant’s probation in CR-2458-2012 and 

CR-8824-2014. In CR-2458-2012, the trial sentenced Appellant to 5 to 10 

years of incarceration followed by 5 years of probation. CR-2458-2012

Probation Revocation Order, 10/12/17; N.T., 10/12/17, at 11. In CR-8824-

2014, the trial court imposed consecutive sentences of incarceration of 3 to 6 

years for aggravated assault and 21/2 to 5 years for possession of an 

instrument of crime. CR-8824-2014 Probation Revocation Order, 10/12/17; 

N.T., 10/12/17, at 11. The trial court ordered that the sentences in CR-8824-

2014 run consecutive to the incarceration sentence in CR-2458-2012, 

resulting in an aggregate sentence in CR-2458-2012 and CR-8824-2014 of 

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6 At the time that he committed those offenses, Appellant was still on parole 

from the incarceration portions of his November 2015 violation of probation 

sentences. See footnote 5, supra. 
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101/2 to 21 years of incarceration and 5 years of probation. CR-8824-2014

Probation Revocation Order, 10/12/17; N.T., 10/12/17, at 11. At the hearing, 

the trial court based these sentences on the maximum legally permissible 

sentences and articulated no reason for imposing sentences of that length. 

N.T., 10/12/17, at 8-11. 

On October 18, 2017, trial counsel for Appellant filed timely motions in 

both cases for reconsideration of these revocation of probation sentences. The 

trial court did not rule on the motions for reconsideration of sentence or grant 

an extension of time for decision, and the motions for reconsideration of 

sentence were denied by operation of law on March 27, 2018. CR-2458-2012

Docket Entries; CR-8824-2014 Docket Entries. Appellant did not file a direct 

appeal in either case. 

 On April 2, 2018, Appellant filed counseled PCRA petitions in both CR2458-2012 and CR-8824-2014 alleging ineffective assistance of counsel. In 

both petitions, Appellant alleged that trial counsel was ineffective for failing to 

submit an order to vacate the sentence with the motion for reconsideration of 

sentence and failing to request a hearing on the motion and alleged that this 

caused the denial of the motions for reconsideration without consideration of 

the merits. CR-2458-2012 PCRA Petition Procedural History ¶11, Argument 

¶¶10-11; CR-8824-2014 PCRA Petition Procedural History ¶11, Argument 

¶¶10-11. 
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On December 10, 2018, the trial court held an argument on the PCRA 

petitions at which Appellant’s PCRA counsel explained that the relief sought 

was the restoration of Appellant’s right to seek reconsideration of the 

sentences. N.T., 12/10/18, at 4-5. The trial court acknowledged that trial 

counsel’s failure to file rules to show cause to obtain hearings could be found 

to have caused the denial of the motions for reconsideration of sentence by 

operation of law, and the Commonwealth argued that the PCRA petitions 

should be denied solely on the ground that Appellant did not show prejudice. 

Id. at 5-6. On December 10, 2018, following the argument, the trial court 

issued notices in both cases pursuant to Pa.R.Crim.P. 907 of its intent to 

dismiss Appellant’s PCRA petitions without a hearing on the ground that they 

were without merit. Appellant did not file a response to the trial court’s Rule 

907 order in either case. On January 14, 2019, the trial court entered orders 

dismissing the PCRA petitions. Appellant, represented by counsel, filed timely 

appeals from both orders. 

Appellant argues that the trial court erred in dismissing his PCRA 

petitions for failure to show that trial counsel’s conduct prejudiced him, the 

sole ground on which it based its decision.

7 We agree.

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7 Appellant’s counsel initially filed a petition to withdraw and a brief under 

Anders v. California, 386 U.S. 738 (1967). On April 8, 2020, we denied 

counsel’s petition to withdraw and ordered counsel to submit an advocate’s 

brief or a new no-merit letter. On May 7, 2020, Appellant’s counsel filed a 

brief on the merits arguing this issue. On June 1, 2020, the Commonwealth 
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We review the denial of a PCRA petition to determine whether the record 

supports the PCRA court’s findings and whether its decision is free of legal 

error. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015);

Commonwealth v. Reaves, 923 A.2d 1119, 1124 (Pa. 2007); 

Commonwealth v. Sarvey, 199 A.3d 436, 445 (Pa. Super. 2018). To be 

entitled to relief under the PCRA on a claim of ineffective assistance of counsel, 

the convicted defendant must prove: (1) that the underlying legal claim is of 

arguable merit; (2) that counsel’s action or inaction had no reasonable basis; 

and (3) that he suffered prejudice as a result of counsel’s action or inaction. 

Mason, 130 A.3d at 618; Sarvey, 199 A.3d at 452; Commonwealth v. 

Presley, 193 A.3d 436, 442 (Pa. Super. 2018); Commonwealth v. Stewart, 

84 A.3d 701, 706 (Pa. Super. 2013) (en banc). The defendant must satisfy all 

three elements of this test to obtain relief under the PCRA. Mason, 130 A.3d 

at 618; Sarvey, 199 A.3d at 452; Stewart, 84 A.3d at 706. Because the trial 

court did not hold that Appellant failed to satisfy the first two of these elements

and the Commonwealth does not contend that Appellant failed to satisfy those 

elements, our analysis is properly limited to the issue of prejudice. 

To satisfy the prejudice element of an ineffective assistance of counsel 

claim, the convicted defendant must show that there is a reasonable 

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filed a brief arguing that the trial court’s dismissals of the PCRA petitions

should be affirmed. 
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probability that, but for counsel’s error, the result of the proceeding would 

have been different. Mason, 130 A.3d at 618; Reaves, 923 A.2d at 1127;

Stewart, 84 A.3d at 707. Where, as here, trial counsel’s error is a failure to 

properly file a motion with respect to the defendant’s sentence, the prejudice

element requires that the defendant show a reasonable probability that the

motion would have resulted in a more favorable sentence. Reaves, 923 A.2d 

at 1131-32; Presley, 193 A.3d at 444-45.

In Reaves and Presley, our Supreme Court and this Court held that 

the defendant had failed to show a reasonable probability that the motion that 

counsel failed to file would have resulted in a reduced violation of probation 

sentence and therefore failed to show prejudice. In Reaves and Presley, 

however, the record contained facts that made it unlikely that the sentencing 

court would have imposed a lesser sentence.

In Reaves, the Supreme Court held that the defendant had not shown 

prejudice from counsel’s failure to object to the sentencing court’s 

noncompliance with Pa.Crim.P. 708’s requirement that the court state the 

reasons for its violation of probation sentence at the time of the sentencing.

In holding that the defendant did not show prejudice, the Court in Reaves

specifically noted that the court in denying the PCRA petition gave an 

explanation for the length of the sentence. 923 A.2d at 1132. In addition, 

the revocation of probation sentence that was imposed in Reaves, an 

aggregate sentence of four to eight years’ imprisonment, was far below the 
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maximum sentence for the offenses as to which probation was revoked, which 

included three first-degree burglary convictions, each of which carried a 20-

year maximum sentence. Id. at 1121-22 & n.5, 1132 n.13. Indeed, the Court 

specifically noted that because the sentence was far below the maximum 

sentence, it was “highly unlikely” that counsel’s failure had any effect on the 

defendant’s sentence. Id. at 1132 n.13. 

In Presley, this Court held that the defendant did not show prejudice 

from counsel’s failure to file a post-sentence motion. Although the revocation 

of probation sentence of 12 to 24 years was the maximum sentence that could 

be imposed, the defendant’s counsel had previously filed a post-sentence 

motion for reconsideration, which the sentencing court had granted, and the 

sentencing court had re-imposed the same sentence after reconsideration and 

a new sentencing hearing. 193 A.3d at 439, 444-45. This Court concluded 

that there was no reasonable likelihood that a second motion would result in 

a more favorable sentence because the sentencing court had already 

reconsidered the sentence and re-imposed the same sentence, noting that 

‘[e]xpecting the same action to yield different results is the very definition of 

irrational.” Id. at 444-45. 

Here, the facts that made a lesser sentence unlikely in Reaves and 

Presley are not present. Unlike the situation in Presley, the trial court has 

not reconsidered Appellant’s revocation of probation sentences and reimposed those sentences after evaluation of whether they are appropriate 
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sentences. Rather, the trial court denied counsel’s post-trial motion by 

operation of law without any consideration of the merits. Unlike Reaves, the 

sentences in CR-8824-2014 are consecutive maximum sentences and the 

sentence in CR-2458-2012 is close to the maximum sentence, although 5 of 

the 15 years of that sentence are probation. Moreover, the trial court also 

imposed the sentences in the two cases to run consecutively. 

In addition, unlike Reaves, the trial court has never articulated any 

reason for the length of the sentences that it imposed from which this Court 

can conclude that reconsideration would have no effect on Appellant’s 

revocation of probation sentences. The record shows that at the hearing at 

which it revoked probation and imposed the sentences, the only fact that the

trial court referenced was how long of a sentence it could impose in each case. 

N.T., 10/12/17, at 8-11. While the trial court in its opinion explaining its 

reasons for dismissing Appellant’s PCRA petitions stated that it would have 

denied the motions for reconsideration of the sentences even if they had been

properly filed, the trial court stated no reason in its opinion or at oral argument 

of the PCRA petitions for the sentences that it imposed or the imposition of 

consecutive sentences and did not even express a view that it considered the 

sentences appropriate for Appellant’s conduct. Trial Court Opinion at 6; N.T., 

12/10/18, at 5-7.

The requirement of reasonable probability does not mandate proof that 

it is more likely than not that the outcome would in fact have changed. 
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Commonwealth v. Jones, 210 A.3d 1014, 1018-19 (Pa. 2019); 

Commonwealth v. Johnson, 966 A.2d 523, 541 (Pa. 2009); Stewart, 84 

A.3d at 707, 714-15 & n.5. Rather, a reasonable probability of a different 

result sufficient to show prejudice is a probability sufficient to undermine 

confidence in the outcome. Jones, 210 A.3d at 1019; Commonwealth v. 

Postie, 200 A.3d 1015, 1023 (Pa. Super. 2018) (en banc); Sarvey, 199 A.3d 

at 452; Stewart, 84 A.3d at 707. 

Measured against this standard, we conclude that Appellant made a 

sufficient showing of prejudice. Given how close the sentences were to the 

maximums and the imposition of consecutive sentences, coupled with the

absence of any prior reconsideration of the sentences or explanation by the 

trial court showing that it had already fully considered the appropriateness of 

such lengthy sentences, there is a sufficient probability that a properly filed 

reconsideration motion would have had some favorable effect on the 

sentences to undermine confidence in the outcome. Cf. Sarvey, 199 A.3d at

456-57 (defendant showed prejudice sufficient to prove ineffective assistance 

of counsel where consecutive sentences that counsel had failed to challenge 

resulted in an excessive sentence).8 The mere fact that the trial court stated 

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8 We do not suggest that the sentences here are necessarily excessive. 

Rather, it is their length in combination with the absence of any articulated 

reasons for their length or prior reconsideration that makes this case different 

from Reaves and Presley and creates a sufficient probability of effect on 

Appellant’s aggregate sentence to satisfy the element of prejudice. 
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that it would not have changed the sentences, without any articulation of 

reasons for the sentences or even a brief statement of why it felt that they 

were appropriate, does not give confidence that a properly filed 

reconsideration motion would have had no effect. 

Because the trial court dismissed Appellants’ PCRA petitions solely on 

the ground that Appellant had not shown prejudice from counsel’s failure to 

properly file motions for reconsideration of his revocation of probation 

sentences and that legal conclusion is in error, the dismissal of the PCRA 

petitions must be reversed. We therefore reverse the trial court’s order and 

remand this case for proceedings consistent with this Memorandum.

Order reversed. Case remanded. Jurisdiction relinquished.

Judge Kunselman joins the Memorandum.

Judge Shogan files a Dissenting Memorandum. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/31/20