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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RASHEED WITTS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 860 EDA 2019

Appeal from the PCRA Order Entered March 4, 2019

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

No(s): CP-51-CR-0311351-2004, 

CP-51-CR-0700421-2005

COMMONWEALTH OF PENNSYLVANIA

v.

RASHEED WITTS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 861 EDA 2019

Appeal from the PCRA Order Entered March 4, 2019

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

No(s): CP-51-CR-0311351-2004, 

CP-51-CR-0700421-2005

BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 07, 2020

Rasheed Witts appeals from the order, entered in the Court of Common 

Pleas of Philadelphia County, dismissing his petition filed pursuant to the PostConviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful 

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* Retired Senior Judge assigned to the Superior Court.
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review, we vacate, remand, and reinstate Witts’ direct appeal rights nunc pro 

tunc.

On August 26, 2005, Witts entered a negotiated guilty plea, under two 

separate docket numbers, to one count each of possession with intent to 

deliver a controlled substance (PWID)1 and criminal conspiracy2 (CP-51-CR0311351-2004) and one count of PWID (CP-51-CR-0700421-2005). Witts 

was sentenced to 111⁄2 to 23 months of incarceration, with immediate 

concurrent parole on each count, plus one year of reporting probation. 

On October 19, 2005, and December 28, 2005, Witts was arrested and 

charged with PWID. On July 7, 2006, and July 17, 2006, Witts pled guilty to 

both charges, respectively, and received an Intermediate Punishment (IP) 

Program sentence.3 On November 22, 2006, the court found Witts directly

violated his probation, terminated his parole, revoked his probation and 

sentenced him to 111⁄2 to 23 months’ imprisonment, plus three years of 

reporting probation with immediate parole to house arrest. The probation 

violation sentence was ordered to run concurrent on all counts and also 

concurrent with his July 2006 sentence. On May 1, 2007, Witts was arrested 

again for PWID. Although he was ultimately found not guilty of the charge, 

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1 35 P.S. § 780-113(a)(30).

2 18 Pa.C.S.A. § 903.

3 See 42 Pa.C.S. § 9721(a)(6) (listing county IP as sentencing alternative); 

see also id. at § 9763(a) (general rules for imposing county IP sentence); 

id. at § 9804(a) (describing county IP program options).
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Witts continued to test positive for various drugs while on probation. On May 

8, 2008, the court held a second parole/probation violation hearing and 

determined that Witts had technically violated his probation. The court

revoked Witts’ parole and ordered him to serve back time, followed by three 

years of reporting probation, with immediate parole to house arrest with 

electronic monitoring. The court reminded Witts that he faced a maximum 

aggregate term of thirty years’ imprisonment, and warned him that if he 

violated probation again, his sentence would be made consecutive to any 

sentence he received for a new conviction.

On November 2, 2009, Witts was arrested for and charged again with 

PWID. On January 21, 2010, Witts was arrested and charged with possession 

of a controlled substance.4 After finding him guilty of the possession charge, 

the court sentenced Witts, on September 28, 2010, to 18 months of probation. 

On March 9, 2011, Witts was found guilty of PWID and sentenced to 3 to 6 

years’ incarceration, with credit for time served.

On February 6, 2012, the court found that Witts had directly violated his 

probation—for the third time. The court terminated Witts’ parole, revoked his 

probation, and sentenced him to consecutive terms of 5 to 10 years of state 

incarceration on each docket number for PWID; the sentence was also ordered 

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4 On May 25, 2010, Witts was arrested and subsequently convicted of false 

identification to law enforcement; however, Witts was sentenced to no further 

penalty. 
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to run consecutive to his March 2011 sentence of 3 to 6 years’ imprisonment. 

On the conspiracy charge,

5 Witts was sentenced to 10 years of reporting 

probation, to run consecutively to his parole. Witts asked the court to 

reconsider his sentence, informing the court that he had been unable to 

contact his attorney. On February 21, 2012, Witts filed a pro se petition to 

vacate and reconsider his sentence. On March 7, 2012, Witts asked the public 

defender to file an appeal. The public defender was removed from the case 

and new counsel was appointed to represent Witts. Witts filed a notice of 

appeal and his appellate rights were reinstated nunc pro tunc. On appeal, 

Witts raised two issues: (1) whether the sentence imposed was illegal where 

it was not based upon the gravity of the offense, the extent of Witts’ prior 

record, the prospect of rehabilitation, and an assessment of mitigating and 

aggravating factors; and (2) whether the court abused its discretion by 

imposing a manifestly excessive sentence that because of its consecutive 

nature is evidence of the court’s bias against Witts. 

On appeal, our Court found that Witts’ revocation probation sentence of 

two consecutive 5-10 year terms of imprisonment was “within the statutory 

confines and[,] thus[,] legal.” Commonwealth v. Witts, 1321 EDA 2012 at 

*2-*3 (Pa. Super. filed June 28, 2013) (unpublished memorandum decision). 

The Court determined that Witts’ remaining claims implicated the 

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5 The court’s violation of parole order notes that the conspiracy charge is 

“[n]on-offense related.” Violation of Parole Order—Case Assessment 

Summary, 2/6/12, at 4.
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discretionary aspects of his sentence. Id. at *2. However, because Witts 

failed to include a Pa.R.A.P. 2119(f) statement in his appellate brief and the 

Commonwealth objected to its omission, our Court found his sentencing claims 

waived on appeal. Id. at *4. In a footnote, our Court alternatively noted that 

“[e]ven if Witts had properly preserved his sentencing challenge, we would 

determine that it lacks merit for the reasons set forth by the trial court in its 

well-reasoned [o]pinion. See Trial Court Opinion, 11/2/12, at 8-9.” Id. at *4 

n.1. Witts did not file a petition for allowance of appeal.

On October 10, 2013, Witts filed a timely pro se PCRA petition. On July 

15, 2016, Peter A. Levin, Esquire, was appointed to represent Witts. On 

January 20, 2017, Attorney Levin filed an amended PCRA petition seeking, 

among other things, that Witts be granted the right to file a petition for 

allowance of appeal nunc pro tunc, alleging that “[t]rial counsel was ineffective 

for failing to advise [Witts] that his Superior Court appeal was denied and that 

he could file an Allocatur Petition to the Supreme Court of Pennsylvania.” 

Amended PCRA Petition, 1/20/17, at 4-5. On May 18, 2017, the trial court 

reinstated Witts’ appellate rights nunc pro tunc. On June 6, 2017, Witts filed 

a nunc pro tunc petition for allowance of appeal, which the Supreme Court 

denied on September 11, 2017. 

Witts filed the instant PCRA petition pro se on January 2, 2018. On 

January 11, 2018, PCRA counsel was appointed; counsel filed an amended 

petition on November 7, 2018. On January 18, 2019, the court issued Witts 

Pa.R.Crim.P. 907 notice of its intent to dismiss his petition without a hearing; 
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Witts did not file a response. On March 15, 2019, the court dismissed Witts’ 

petition without a hearing. Witts filed a timely notice of appeal and courtordered Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal.

On appeal, Witts raises the following issues for our consideration:

(1) Whether the PCRA court erred by dismissing the PCRA 

petition when evidence was presented that appellate 

counsel was ineffective for failing to preserve all 

discretionary sentencing claims by filing a Rule 2119(f) 

statement.

(2) Whether the PCRA court erred by failing to grant an 

evidentiary hearing.

Appellant’s Brief, at 8.

Instantly, the March 4, 2019 order denying Witts’ PCRA petition lists 

both underlying trial court docket numbers (Nos. 0311351-2004 & 0700421-

2005). On March 15, 2019, Witts filed identical notices of appeal for each 

appeal (860 EDA 2019 & 861 EDA 2019); the notice lists both trial court docket 

numbers. On April 29, 2019, our Court issued a rule to show cause why Witts’ 

“appeal should not be quashed in light of [Commonwealth v. ]Walker[, 185 

A.3d 969 (Pa. 2018)].” Per Curiam Order, 4/29/19.6 

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6

In May 2019, our Prothonotary was directed to forward copies of pro se

filings by Witts to Samuel A. DiMatteo, Jr., Esquire, as the record did not 

indicate that the trial court had granted counsel permission to withdraw. On 

August 5, 2019, our Court remanded the matter to the trial court for a 

determination as to whether counsel had abandoned Witts and to determine 

Witts’ eligibility for court-appointed counsel. After a hearing, the trial court 

determined that counsel did not, in fact, abandon Witts and that Attorney 
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On September 11, 2019, this Court directed counsel to show cause why 

the appeal should not be quashed pursuant to Walker. On September 17, 

2019, counsel filed a response to the rule to show cause, stating “Counsel has 

made corrections to its Case Management system, to assure to . . . make 

adjustments to account for [t]he Rules of Appellate Procedure and 

[s]pecifically Com[.] v. Walker[.]” Response to Order to Show Cause, 

9/17/19, at ¶ 32.7 However, on December 9, 2019, in consideration of Witts’ 

response, our Court referred the Walker issue to the panel assigned to decide 

the merits of the appeal. Per Curiam Order, 12/9/19.

Thus, before addressing Witts’ claims on appeal, we must first resolve 

the procedural issue presented in the case. In Walker, our Supreme Court 

found that Pa.R.A.P. 341 and its Official Comment, stating that “[w]here . . . 

one or more orders resolves issues arising on more than one docket or relating 

to more than one judgment, separate notices of appeal must be filed,” 

constituted “a bright-line mandatory instruction to practitioners to file 

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DiMatteo would remain counsel of record. When Attorney DiMatteo failed to 

respond to our Court’s rule to show cause issued on April 29, 2019, our Court 

directed counsel to show cause why the appeal should not be quashed 

pursuant to Walker.

7

In November 2019, counsel failed to file a brief for Witts, so the appeal was 

remanded for a determination as to whether counsel abandoned Witts on 

appeal. On December 16, 2019, the trial court issued an order finding that 

counsel did abandon Witts on appeal, withdrew Attorney DiMatteo from the 

matter, and appointed appellate counsel, Lawrence J. O’Connor, Jr., Esquire,

to represent Witts in both cases below.
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separate notices of appeal.” Walker, 185 A.3d at 976-77. The failure to do 

so requires the appellate court to quash the appeal. Id. at 977.

Recently, our full Court revisited the Walker holding in 

Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc)8

and Commonwealth v. Larkin, 235 A.3d 350 (Pa. Super. 2020) (en banc). 

In those cases, our Court concluded that “in so far as Creese[9] stated ‘a notice 

of appeal may contain only one docket number[,]’ . . . that pronouncement 

is overruled.” See Johnson, supra at 1148 (emphasis in original); see also 

Larkin, supra at 352 (recognizing that Johnson “expressly overruled Creese

to the extent that Creese interpreted Walker as requiring the Superior Court 

to quash appeals when an appellant, who is appealing from multiple docket 

numbers, files notices of appeal with all of the docket numbers listed on each 

notice of appeal.”). 

Similar to the defendant in Larkin, Witts filed identical notices of appeal 

for his two cases below that listed both trial court docket numbers. Since it 

“is of no consequence” that Witts’ notices of appeal contained more than one 

docket number, Johnson, supra at 1158; Larkin, supra at 352, and because 

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8 On November 18, 2020, the Pennsylvania Supreme Court denied Johnson’s 

petitions for allowance of appeal in Nos. 269, 270, 271 & 272 EAL 2020. See

Order, 11/18/20 at 2.

9 See Commonwealth v. Creese, 216 A.3d 1142, 1144 (Pa. Super. 2019) 

(construing mandates of Walker to mean that “we may not accept a notice 

of appeal listing multiple docket numbers, even if those notices are included 

in the records of each case.”).
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Witts complied with Walker by “fil[ing] separate appeals from an order that 

resolves issues arising on more than one docket,” id. at 977 (emphasis 

added), we decline to quash the appeal for violating Walker and its attendant 

requirements. Therefore, we shall proceed to address the issues Witts raises 

on appeal.10

Witts claims that the PCRA court improperly dismissed his petition, 

without a hearing, where counsel was ineffective for failing to include a Rule 

2119(f) statement in his appellate brief, thus waiving his discretionary aspects

of sentencing claims.

This Court’s standard of review regarding an order dismissing a PCRA 

petition is whether the determination of the PCRA court is supported by the 

evidence of record and is free of legal error. Commonwealth v. Walls, 993 

A.2d 289, 294 (Pa. Super. 2010). The PCRA court’s findings will not be 

disturbed unless there is no support for the findings in the certified record. 

Id. at 294-95. Moreover, “the right to an evidentiary hearing on a [PCRA] 

petition is not absolute.” Commonwealth v. Jordon, 772 A.2d 1011, 1014 

(Pa. Super. 2001). 

It is within the PCRA court’s discretion to decline to hold a hearing 

if the petitioner’s claim is patently frivolous and has no support 

either in the record or other evidence. It is the responsibility of 

the reviewing court on appeal to examine each issue raised in the 

PCRA petition in light of the record certified before it in order to 

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10 The Commonwealth notes in its brief that it “does not seek quashal based 

on non-compliance with Walker,” Appellee’s Brief, at 11 n.4, where “the 

concerns addressed by the Walker decision are not at issue here.” Id. at 12 

n.4.
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determine if the PCRA court erred in its determination that there 

were no genuine issues of material fact in controversy and in 

denying relief without conducting an evidentiary hearing. 

Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004) 

(citations omitted).

In order to succeed on an ineffectiveness claim, an appellant must prove 

that: (1) the underlying legal claim has arguable merit; (2) counsel had no 

reasonable basis for his or her inaction; and (3) the appellant suffered 

prejudice because of counsel’s ineffectiveness. Commonwealth v. Pierce, 

527 A.2d 972, 975-76 (Pa. 1987). To establish prejudice, the appellant must 

show that there is a reasonable probability that the outcome of the 

proceedings would have been different but for counsel’s action or inaction. 

Commonwealth v. Davido, 106 A.3d 611, 621 (Pa. 2014). 

In limited circumstances prejudice is presumed where counsel’s actions 

amounted to the functional equivalent of having no representation at all. 

Commonwealth v. Brown, 18 A.3d 1147, 1156 (Pa. Super. 2011). “[T]he 

decision [of] whether to presume prejudice or require an appellant to 

demonstrate actual prejudice ‘turns on the magnitude of the deprivation of 

the right to effective assistance of counsel.’” Commonwealth v. Halley, 870 

A.2d 795, 801 (Pa. 2005). “The difference in degree between failures that 

completely foreclose appellate review, and those which may result in 

narrowing its ambit, justifies application of the presumption in the more 

extreme instance.” Id. 
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Here, we conclude that counsel’s failure to include a Rule 2119(f) 

statement in Witts’ appellate brief resulted in total deprivation of his appellate 

rights where the issues he raised on direct appeal solely concerned the 

discretionary aspects of his sentence. 

On direct appeal, Witts raised the following issues in his Rule 1925(b) 

statement:

(1) Whether the sentence imposed by the trial court after a 

probation violation hearing was an illegal sentence where 

the sentence was not based upon the gravity of the 

violation, the extent of [Witts’] record, prospect of 

rehabilitation, and an assessment of both [Witts’] mitigating 

and aggravating factors as noted in 42 Pa.C.S. § 9721[,] et 

seq[.]

(2) Whether the trial court abused its discretion by entering a 

manifestly excessive sentence to such a degree that the 

consecutive sentences is evidence of the court’s bias against 

or animus toward [Witts].

Pa.R.A.P. 1925(b) Statement, 7/3/12, at 1-2. Although Witts, in his first 

issue, posits that the sentencing court imposed an illegal sentence, he 

supports the claim by stating that the court did not consider factors found in 

section 9721 of the Sentencing Code. Such a question raises an issue with 

regard to the discretionary aspects of his sentence, not its legality.11 See 

Commonwealth v. Lucky, 229 A.3d 657 (Pa. Super. 2020); 

Commonwealth v. Derry, 150 A.3d 987 (Pa. Super. 2016). Moreover, in 

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11 In Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007), our Court 

set forth examples of the narrow class of cases that constitute an illegal 

sentence: those that fall outside the parameters prescribed by a statute; 

double jeopardy claims; Apprendi issues; and lack of authority or jurisdiction 

of court to impose sentence of particular length or type. Id. at 21.
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his second issue, Witts claims that his sentence was excessive due to its 

consecutive nature, and that such a sentence demonstrates the court’s bias 

against him. Again, this raises a challenge to the discretionary aspects of his 

sentence, not the legality of it. Commonwealth v. Caldwell, 117 A.3d 763 

(Pa. Super. 2015); Commonwealth v. Williams, 69 A.3d 735 (Pa. Super. 

2013); Robinson, supra. In fact, on direct appeal, our Court acknowledged 

that while “Witts purports to raise a challenge to the legality of his sentence[, 

. . . his] claims are, in fact, a challenge to the discretionary aspects of the 

sentence, and we will address them as such.” Witts, supra at *2. Thus, we 

conclude that counsel’s failure to include a Rule 2119(f) statement in Witts’ 

appellate brief, coupled with the Commonwealth’s objection to its omission, 

effectively waived all of Witts’ issues on appeal.

To the extent that the Commonwealth claims that our Court alternatively 

reviewed, on the merits, Witts’ discretionary sentencing claims in a footnote,

we recognize that such a discussion was merely dicta and did not constitute 

the “independent legal review of his case that he was entitled to.” See 

Commonwealth v. Johnson, 889 A.2d 620, 624 (Pa. Super. 2005), citing 

Commonwealth v. Franklin, 823 A.2d 906, 910 (Pa. Super. 2003). 

Moreover, pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 

1987), if an appellant fails to include a Rule 2119(f) statement in his or her

brief where it is required and the Commonwealth objects, our Court may not

consider the merits of the discretionary sentencing claim. See id. at 19. 

Thus, Witts was effectively denied representation on appeal, where all of his 
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claims were considered waived as a result of counsel’s failure to file a Rule 

2119(f) statement. Johnson, supra at 623 (“[C]ounsel’s failure to include a 

Pa.R.A.P. 2119(f) statement in the brief compromised appellant’s direct 

appeal rights.”). See Commonwealth v. Anderson, 830 A.2d 1013, 1017 

(Pa. Super. 2003) (in order to invoke appellate court’s jurisdiction over 

discretionary aspects of sentence, appellant must include Rule 2119(f) 

statement in brief); see also Commonwealth v. Montgomery, 861 A.2d

304, 308 (Pa. Super. 2004) (same). 

Accordingly, we are constrained to find that appellate counsel was per 

se ineffective for failing to include a Rule 2119(f) statement in Witts’ appellate 

brief. See Commonwealth v. Rosado, 150 A.3d 425, 433 (Pa. 2016)

(“[E]rrors which completely foreclose appellate review amount to a 

constructive denial of counsel and[,] thus[,] ineffective assistance of counsel 

per se, whereas those which only partially foreclose such review are subject 

to the ordinary [Pierce] framework.”); see also Commonwealth v. 

Hernandez, 755 A.2d 1, 11-12 (Pa. Super. 2000), aff’d in part by 817 A.2d

479 (Pa. 2003) (first two prongs of ineffectiveness test clearly met where 

counsel fails to follow procedural rules to ensure requested appellate review 

of criminal defendant’s claims). Therefore, we vacate, remand and reinstate 

Witts’ direct appeal rights nunc pro tunc. Johnson, supra.

Order vacated. Case remanded for reinstatement of Witts’ right to file 

direct appeal nunc pro tunc. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/7/20