J-S11010-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DESEAN KINGWOOD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 987 EDA 2018

Appeal from the PCRA Order March 8, 2018

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

No(s): CP-51-CR-0012048-2008

BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 14, 2019

Appellant, Desean Kingwood, appeals from the order denying his 

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

§§ 9541-9546. We affirm.

The PCRA court summarized the procedural history of this case as 

follows:

On August 8, 2008, [Appellant] was arrested and charged 

with Attempt[ed] Murder and related offenses. On April 22, 2013, 

[Appellant] appeared before this [c]ourt and elected to be tried by 

a jury. On April 26, 2013, a jury convicted [Appellant] of

Attempt[ed] Murder, Aggravated Assault, Firearms Not to be 

Carried Without a License (“VUFA 6106”) and Recklessly 

Endangering Another Person (“REAP”). On December 11, 2013, 

this [c]ourt imposed a sentence of fifteen to thirty years of 

incarceration on Attempt[ed] Murder, and concurrent sentences 

of five to ten years of incarceration on Aggravated Assault and 

one to two years of incarceration on VUFA 6106 and REAP, for a 

total sentence of fifteen to thirty years of incarceration.
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On January 6, 2014, [Appellant] filed a timely appeal to the 

Superior Court arguing that a pre-trial ruling regarding the 

admission of prior bad acts was in error.1 On July 21, 2014[, 

Appellant] entered into a negotiated guilty plea in two unrelated 

cases, CP-51-CR-0005759-2013 and CP-51-CR-0005760-2013, to 

Third-Degree Murder, Attempt[ed] Murder, and VUFA 6106 for a 

cumulative term of twenty to forty years of incarceration.2 On 

August 5, 2015, the Superior Court ruled that the motion court 

abused its discretion in regards to the 404(b) evidence and 

remanded this case for a new trial.

1 On January 11, 2013, the Honorable Earl Trent heard 

the pre[-]trial motions and ruled that evidence 

regarding another robbery was admissible, finding 

that its probative value outweighed its prejudicial 

impact.

2 [Appellant] was sentenced in CP-51-CR-0005759-

2013 to twenty to forty years of incarceration for 

Third-Degree Murder and a concurrent period of one 

to five years of incarceration on VUFA 6106. 

[Appellant] was sentenced concurrently in CP-51-CR0005760-2013 to nineteen to forty years of 

incarceration on Attempt[ed] Murder. That [c]ourt 

ordered the sentence served under CP-51-CR0005759-2013 to be served consecutively to the 

fifteen to thirty year sentence imposed by this [c]ourt 

for a cumulative sentence of thirty five to seventy 

years of incarceration.

On June 23, 2016, [Appellant] entered into an open guilty 

plea before this [c]ourt on Attempt[ed] Murder, Aggravated 

Assault, VUFA 6106, and REAP[1]. On September 7, 2016, the 

[c]ourt imposed a sentence of ten to twenty years on Attempt[ed]

Murder and two to four years of incarceration on VUFA 6106,3for 

a cumulative sentence of ten to twenty years of incarceration, to 

be served consecutive[ly] to the unrelated sentences on CP-51-

CR-0005759-2013 and CP-51-CR-0005760-2013. [Appellant] did 

not file a direct appeal.

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1 18 Pa.C.S. §§ 2502(a), 2702(a), 6106(a)(2), and 2705, respectively.
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3 This [c]ourt imposed no further penalty on 

Aggravated Assault and REAP.

On October 2, 2017, [Appellant] filed a timely pro se PostConviction Relief Act (“PCRA”) petition. On January 24, 2018, 

appointed PCRA counsel filed an amended petition. On January 

25, 2018, after finding [Appellant’s] claims meritless, this [c]ourt 

issued a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907. 

On February 13, 2018, [Appellant] filed a response to the 907 

Notice.4

4 Though [Appellant] asserts in his response that he 

believes the [c]ourt mistakenly imposed a consecutive 

sentence, he offers no new claims.

PCRA Court Opinion, 3/8/18, at 1-2.

On March 8, 2018, the PCRA court dismissed Appellant’s PCRA petition. 

On March 17, 2018, Appellant filed a motion to reconsider the PCRA court’s 

March 8, 2018 order, which the PCRA court denied on March 20, 2018. 

Appellant filed a notice of appeal on March 29, 2018, followed by a Pa.R.A.P. 

1925(b) statement. The docket entries reflect that the Pa.R.A.P. 1925(a) 

opinion filed was the same opinion that was filed March 8, 2018.

Appellant presents the following issues for our review:

1. Did the [PCRA] court judge commit error or abuse its discretion 

by denying the Appellant’s request to file a direct appeal, nunc pro 

tunc, from the judgment of sentence that was imposed upon 

[Appellant] in this matter on September 7, 2016 where his trial 

attorney in this matter failed to file such a direct appeal from that 

sentence of ten (10) to twenty (20) years, consecutive to 

[Appellant’s] previously imposed negotiated sentence of twenty 

(20) to forty (40) years in CP-51-CR-0005759-2013 and CP-51-

CR-0005760-2013.
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2. Did the [PCRA] court[2] commit error or an abuse of discretion 

by refusing to conduct an evidentiary hearing on the Appellant’s 

Motion for Reconsideration of the lower court’s Order of March 8, 

2018, where the [PCRA] court could have heard testimony at such 

a hearing which would have been helpful to it in more fairly and 

justly adjudicating [Appellant’s] sentence, including the following:

a. Testimony from prior defense counsel as to 

[Appellant’s] limited intelligence and why [Appellant] 

misunderstood the terms of his open guilty plea and 

expected greater leniency from the trial court judge 

than what he ultimately received at sentencing;

b. Testimony from a mental health expert, or his 

mental health report, who could testify as to what 

abilities and disabilities would be characteristic of an 

individual with an IQ level of 63, such as [Appellant], 

who was classified as either “mentally retarded” or 

“mentally disabled,” a phrase that was used later in 

the field of psychoanalytics.

c. Testimony from the Appellant himself as to what he 

claims to have understood from his conversations with 

prior defense counsel, both before and at the time of 

his open guilty plea hearing on June 23, 2016 and his 

sentencing hearing on September 7, 2016.

Appellant’s Brief at 3-4. 

When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) 

(en banc)). This Court is limited to determining whether the evidence of 

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2

 Appellant incorrectly refers to the lower court as the trial court. As 

illustrated, however, Appellant is challenging the PCRA court’s action following 

the entry of the order denying his PCRA petition. 
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record supports the conclusions of the PCRA court and whether the ruling is 

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. 

Super. 2012). We grant great deference to the PCRA court’s findings that are 

supported in the record and will not disturb them unless they have no support 

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. 

Super. 2014).

In his first issue as listed in his brief’s statement of questions involved, 

Appellant asserts that the PCRA court erred by denying his request to file a 

direct appeal, nunc pro tunc, from his judgment of sentence, where his 

attorney failed to file a direct appeal. Appellant’s Brief at 3. Further, in the 

summary of the argument section of his brief, Appellant maintains that the 

PCRA court erred in denying his request to file an appeal, nunc pro tunc, where 

Appellant had a discussion with his attorney prior to and after his plea of guilty 

that would lead Appellant to believe that a direct appeal would be filed for 

him. Id. at 10. Appellant’s Pa.R.A.P. 1925(b) statement also lists as his first 

issue counsel’s ineffectiveness for failure to file a direct appeal following 

Appellant’s request that he file an appeal. Pa.R.A.P. 1925(b) Statement, 

4/5/18, at 1. Thus, it appears that Appellant is making an argument that 

counsel was ineffective for failing to file a direct appeal when Appellant had 

requested that he do so.

In the argument section of his brief, however, Appellant varies his 

argument and asserts that the PCRA court erred in denying his request to file 
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a direct appeal nunc pro tunc because he did not voluntarily and intelligently 

enter his plea. Appellant’s Brief at 11-14. Appellant did not assert in his 

Pa.R.A.P. 1925(b) statement, however, that he should be permitted to file a 

direct appeal nunc pro tunc based on an unknowing and unintelligent entry of 

a guilty plea. Pa.R.A.P. 1925(b) Statement. Because Appellant did not raise 

this claim in his Pa.R.A.P. 1925(b) statement, it is waived. See 

Commonwealth v. Hill, 16 A.3d 484, 491 (Pa. 2011) (quoting 

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)) (“Any issues not 

raised in a Pa.R.A.P. 1925(b) statement will be deemed waived.”). Thus, only 

Appellant’s claim that counsel was ineffective for failing to file a direct appeal

pursuant to Appellant’s request has been preserved for our review. 

Furthermore, despite preserving and raising the issue regarding 

counsel’s ineffectiveness for failure to file a direct appeal per his request,

Appellant has failed to develop it. As a result, such claim is waived. See 

Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009) (finding claims 

waived “for failure to develop them in any meaningful fashion capable of 

review”); Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 

2017) (“It is well-established that [w]hen issues are not properly raised and 

developed in briefs, when the briefs are wholly inadequate to present specific 

issues for review, a court will not consider the merits thereof.”).

Assuming arguendo that the issue was not waived for failure to develop 

it, we would conclude that Appellant’s claim is meritless. Our Supreme Court 
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has explained the following in addressing an ineffective assistance of counsel 

claim:

To prevail in a claim of ineffective assistance of counsel, a 

petitioner must overcome the presumption that counsel is 

effective by establishing all of the following three elements, as set 

forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 

975–76 (1987): (1) the underlying legal claim has arguable 

merit; (2) counsel had no reasonable basis for his or her action or 

inaction; and (3) the petitioner suffered prejudice because of 

counsel’s ineffectiveness.

 

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). “In order to meet 

the prejudice prong of the ineffectiveness standard, a defendant must show 

that there is a ‘reasonable probability that but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.’” 

Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). An allegation

of ineffective assistance of counsel will fail if the petitioner does not meet any 

of the three prongs. Commonwealth v. Williams, 863 A.2d 505, 513 (Pa. 

2004). “The burden of proving ineffectiveness rests with Appellant.” 

Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

Appellant’s cursory averment that he asked trial counsel to file a direct 

appeal on his behalf, and counsel failed to do so, is insufficient to satisfy 

Appellant’s burden. “[B]efore a court will find ineffectiveness of trial counsel 

for failing to file a direct appeal, Appellant must prove that he requested an 

appeal and that counsel disregarded this request.” Commonwealth v. 

Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999). “A mere allegation will not 

suffice to prove that counsel ignored a petitioner’s request to file an appeal.” 
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Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006) (citing 

Harmon, 738 A.2d at 1024.). Appellant presents no evidence supporting his 

claim that he directed counsel to file a direct appeal. Thus, this claim lacks 

merit.

Moreover, to the extent that Appellant may aver that even in the 

absence of a request by a defendant, counsel may still be ineffective for failing 

to file a direct appeal, his claim lacks merit. This Court in Commonwealth 

v. Touw, 781 A.2d 1250 (Pa. Super. 2001) summarized the United States 

Supreme Court case of Roe v. Flores-Ortega, 528 U.S. 470 (2000), as 

follows:

If counsel has not consulted with the defendant, the 

court must in turn ask a second, and subsidiary, 

question: whether counsel’s failure to consult with the 

defendant itself constitutes deficient performance. 

That question lies at the heart of this case: Under 

what circumstances does counsel have an obligation 

to consult with the defendant about an appeal?

The Court answered this question by holding:

[C]ounsel has a constitutionally-imposed duty to 

consult with the defendant about an appeal when 

there is reason to think either (1) that a rational 

defendant would want to appeal (for example, 

because there are nonfrivolous grounds for appeal), 

or (2) that this particular defendant reasonably 

demonstrated to counsel that he was interested in 

appealing. In making this determination, courts must 

take into account all the information counsel knew or 

should have known.

A deficient failure on the part of counsel to consult with the 

defendant does not automatically entitle the defendant to 

reinstatement of his or her appellate rights; the defendant must 
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show prejudice. The Court held that “to show prejudice in these 

circumstances, a defendant must demonstrate that there is a 

reasonable probability that, but for counsel’s deficient failure to 

consult with him about an appeal, he would have timely 

appealed.”

Touw, 781 A.2d at 1254 (quoting Roe, 528 U.S. at 480).

Where no request has been made, an appellant must 

establish that a duty to consult was owed. Under Roe and Touw, 

an appellant may establish a duty to consult by indicating issues 

that had any potential merit for further review.

Commonwealth v. Bath, 907 A.2d 619, 623 (Pa. Super. 2006).

Appellant does not assert that counsel failed to consult with him about 

an appeal. Additionally, Appellant has failed to establish that a consultation 

was owed. Appellant has failed to indicate any issues that had potential merit 

for further review. Bath, 907 A.2d at 623. Therefore, we conclude that 

Appellant has not met his burden of establishing prejudice by counsel’s failure 

to consult with him regarding a direct appeal. In the absence of prejudice, we 

cannot find that counsel was ineffective.3 Thus, even if Appellant’s claim is 

not deemed waived, he would not be entitled to relief.

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3 We are cognizant of the holding in Commonwealth v. Liebel, 825 A.2d 630 

(Pa. 2003), and its progeny, which eliminated the requirement of proof of 

prejudice in an ineffective assistance of counsel claim regarding a failure to 

file a direct appeal. Liebel applies only where the appellant has requested 

the filing of a petition for allowance of appeal and counsel has failed to comply. 

Bath, 907 A.2d at 623 (Pa. Super. 2006). Because this analysis is conducted 

on the basis of Appellant’s claim that counsel was required to file a direct 

appeal, absent Appellant’s request, it is inapplicable.
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In the second issue presented in his brief, Appellant argues that the 

PCRA court erred or abused its discretion by refusing to conduct an evidentiary 

hearing on his motion for reconsideration of the PCRA court’s denial of his 

PCRA petition. Appellant’s Brief at 3. Appellant maintains that if an 

evidentiary hearing had been held, the PCRA court would have heard 

testimony that would have been helpful to it “in more fairly and justly 

adjudicating [Appellant’s] sentence.” Id. Specifically, Appellant maintains 

that there would have been testimony regarding Appellant’s limited 

intelligence, Appellant’s IQ and Appellant’s testimony as to “what he claims to 

have understood from his conversations with prior defense counsel, both 

before and at the time of his open guilty plea hearing on June 23, 2016[,] and 

his sentencing hearing on September 7, 2016.” Id. at 3-4. 

Review of Appellant’s pro se PCRA petition and amended PCRA petition, 

however, reflects the absence of any assertion of the PCRA court’s error for 

failing to hold an evidentiary hearing on Appellant’s motion for reconsideration 

in order to hear testimony related to Appellant’s limited intelligence or any 

intellectual disability. Pro Se PCRA Petition, 10/2/17, at 1-3; Amended PCRA 

Petition, 1/24/18, at 1-10. Further, Appellant’s Pa.R.A.P. 1925(b) statement 

includes a claim that the trial court erred in denying Appellant’s motion for 

reconsideration without holding an evidentiary hearing to hear testimony from 

Appellant’s trial attorney regarding Appellant’s expectations related to 

sentencing. Pa.R.A.P. 1925(b) Statement, 4/5/18, at 1-3. No assertion was 
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made therein that the PCRA court erred in failing to hold an evidentiary 

hearing in order to gather evidence regarding an alleged intellectual disability. 

Id. Thus, to the extent that Appellant argues on appeal that the PCRA court 

erred in dismissing Appellant’s motion for reconsideration without holding an 

evidentiary hearing regarding Appellant’s intellectual disability, such claim is 

waived. See Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 

2007) (claim raised for first time on motion for reconsideration of PCRA court’s 

dismissal of PCRA petition is waived); Hill, 16 A.3d at 491.

Furthermore, had such claim not been waived, we would conclude that 

the PCRA court did not err in failing to hold an evidentiary hearing on the 

motion for reconsideration of the denial of the PCRA petition. We first note 

that there is no right to an evidentiary hearing on a PCRA petition. See

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (“There is 

no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA 

court can determine from the record that no genuine issues of material fact 

exist, then a hearing is not necessary.”) (citation omitted); Pa.R.Crim.P. 

907(2). Here, Appellant has failed to demonstrate that any of the claims 

presented to the PCRA court raised a genuine issue concerning any material 

fact. 

Moreover, there is no requirement that a PCRA court hold an evidentiary 

hearing prior to denying a motion for reconsideration of an order denying a 

PCRA petition. “A motion for reconsideration is not a post-trial motion. A 
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motion for reconsideration is addressed to the sound discretion of the trial 

court and may be filed within thirty days of the date of the order upon which 

reconsideration is sought.” Ellenbogen v. PNC Bank, N.A., 731 A.2d 175 n. 

7 (Pa. Super. 1999) (emphasis added) (quoting Moore v. Moore, 634 A.2d 

163, 166 (Pa. 1993). A court is not required to act upon a motion for 

reconsideration. Pa.R.A.P. 1701(b)(3). As this Court has explained in 

addressing motions for reconsideration:

the filing of [a motion for reconsideration] does not toll the time 

period for the filing of an appeal. Rather, preserving the trial 

court’s discretion in this regard merely protects the trial court’s 

prerogative to review its own decision within thirty days after its 

issuance.

Vietri ex rel. Vietri v. Delaware Valley High School, 63 A.3d 1281, 1286 

n. 3 (Pa. Super. 2013). Moreover, the comment to Pa.R.A.P. 1701(b)(3) 

provides: “If the [motion for reconsideration] lacks merit the trial court ... 

may deny [it] by the entry of an order to that effect or by inaction.” Pa.R.A.P. 

1701(b)(3) cmt. (emphasis added). See also Commonwealth v. Moir, 766 

A.2d 1253, 1254 (Pa. Super. 2000) (discussing Pa.R.A.P. 1701 and the 

requirement that a motion for reconsideration must be expressly granted in 

order to toll the appeal period).

Thus, it is clear that the PCRA court did not err in declining to grant 

Appellant an evidentiary hearing on the motion to reconsider the denial of his 

PCRA petition. There is no requirement that the PCRA court act on a motion 

to reconsider; thus, it has no obligation to hold an evidentiary hearing on it. 
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Moreover, the information and report regarding Appellant’s asserted 

intellectual disability was presented to the trial court at the time of sentencing. 

N.T. (Sentencing), 9/7/16, at 6-7, 18-20. The trial court at that time offered 

sound reasons for the sentence it imposed. Id. at 25-28. Therefore, the 

PCRA court committed no abuse of discretion in declining to give Appellant an 

opportunity for a repeat performance. 

Furthermore, assuming arguendo that Appellant had not waived his 

claim that he expected a more lenient sentence, his claim would not warrant 

relief. Appellant’s challenge to the alleged excessive harshness of his 

sentence constitutes a challenge to the discretionary aspects of his sentence.4

“Challenges to the discretionary aspects of sentencing are not cognizable 

under the PCRA.” Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 

2007) (citing 42 Pa.C.S. § 9543(a)(2)(vii)). As such, we would be precluded

from reviewing Appellant’s discretionary aspects of sentencing claims. 

Order affirmed.

Judge Murray joins the Memorandum.

P.J.E. Ford Elliott concurs in the result.

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4 “Upon entry of a guilty plea, a defendant generally waives all defects and 

defenses except those concerning the validity of the plea, the jurisdiction of 

the trial court, and the legality of the sentence imposed. However, when the 

plea agreement is open, containing no bargain for a specific or stated term of 

sentence, the defendant will not be precluded from appealing the discretionary 

aspects of his sentence.” Commonwealth v. Boyd, 835 A.2d 812, 816 (Pa. 

Super. 2003). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/14/19