J-S45044-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ELIJAH JACKSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 994 EDA 2019

Appeal from the PCRA Order Entered March 22, 2019

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

No(s): CP-51-CR-0005328-2011

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 10, 2020

Elijah Jackson (Appellant) appeals from the order dismissing his petition 

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

The PCRA court detailed the procedural history that preceded this appeal

as follows:

On July 22, 2013, [Appellant] was found guilty following a jury 

trial of two (2) counts of aggravated assault. Appellant was 

convicted of assaulting a Philadelphia police officer who was in the 

process of assisting [A]ppellant in retrieving his vehicle which had 

been towed and impounded. At trial, testimony revealed that 

[A]ppellant, who was upset that his vehicle had been towed, 

engaged in an altercation with the responding officers, striking 

one police officer with his closed fist and pushing another violently 

to the ground. One of the responding officers [(Officer Ciarlante)]

sustained a serious injury during the altercation with [A]ppellant, 

resulting in permanent hearing loss.

Prior to sentencing, th[e trial court] permitted [A]ppellant’s 

trial counsel . . . to withdraw and appointed [Appellate Counsel]

to represent appellant for purposes of sentencing and appeal. On 
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February 27, 2014, [A]ppellant was sentenced by th[e trial court] 

to an aggregate term of incarceration of seven (7) to twenty (20) 

years. Appellant filed a timely direct appeal to our Superior Court. 

[Appellate Counsel] then filed a Notice of Intent to file an 

Anders/McClendon[1] [brief] in lieu of a Statement of Errors 

averring that he had reviewed the entire record and found that 

there were no meritorious, non-frivolous issues to raise on appeal. 

On September 2, 2014, th[e trial court] filed a 1925(a) opinion 

concurring with counsel’s determination that no meritorious issues 

were present for purposes of direct appeal.

Thereafter, our Superior Court remanded this matter to this 

trial court to for purposes of conducting a Grazier[2] hearing. Th[e 

trial court], following a Grazier hearing, permitted [A]ppellant to

proceed on appeal pro se. On March 16, 2016[,] our Superior 

Court affirmed [A]ppellant’s judgment of sentence[e] and in so 

doing, rejected [A]ppellant’s pro se claims of prosecutorial 

misconduct during the trial. Appellant did not seek further review 

by our Supreme Court.

On February 15, 2017, [A]ppellant filed a pro se petition 

seeking relief under the [PCRA.] In his timely PCRA petition,

[A]ppellant contended that [Appellate Counsel] was ineffective for

failing to file a Motion for Reconsideration of Sentence. Appellant 

further claimed that by failing to file this motion regarding the 

discretionary aspect of his sentencing, [Appellate Counsel] thus 

failed to preserve this claim for review on direct appeal. . . .

On March 7, 2017, [PCRA Counsel] was appointed by th[e PCRA 

court] to represent [Appellant] for purposes of this PCRA matter. 

On June 1[8], 2017, PCRA [C]ounsel filed with th[e PCRA court] a 

“no[-]merit” Finley letter pursuant to Commonwealth v. 

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v Finley, 

550 A.2d 213 (Pa. Super. 1988). In PCRA [C]ounsel’s Finley

letter[,] he opined that all of [A]ppellant’s claims of 

ineffectiveness against [Appellate Counsel] lacked merit. Further, 

PCRA [C]ounsel opined that there were no other meritorious 

claims which could be raised by [A]ppellant.

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1

 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. 

McClendon, 434 A.2d 1185 (Pa. 1981).

2

 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Thereafter, on July 27, 2017, th[e PCRA court], after carefully 

reviewing [A]ppellant’s petition, PCRA [C]ounsel’s Finley letter, 

and independently reviewing the entire record, determined that

[A]ppellant’s petition was without merit and therefore issued a 

twenty (20) day Notice of Dismissal pursuant to Pa.R.Crim.P. 907. 

On August 3, 2017, [A]ppellant filed a response to PCRA 

[C]ounsel’s Finley letter. Thereafter, th[e PCRA court] held 

several hearings with [A]ppellant present via video. Thereafter, 

after reviewing and considering all of the arguments and issues 

raised in [A]ppellant’s petition, as well as counsel’s Finley letter 

and [A]ppellant’s response thereto, th[e PCRA court], by Order

dated March 22, 2019, dismissed [A]ppellant’s PCRA petition as 

without merit.

On March 26, th[e PCRA court] granted PCRA [Counsel’s]

Motion for Leave to Withdraw and appointed [PCRA Appellate 

Counsel] to represent [A]ppellant for purposes of collateral 

appeal.

On April 2, 2019, [A]ppellant filed with our Superior Court a 

timely Notice of Appeal. On April 23, 2019 [A]ppellant filed his 

1925(b) Statement of Matters Complained of on Appeal.

PCRA Court Opinion, 1/23/20, at 1-3 (some footnotes omitted).

On appeal, Appellant presents the following issue for our review:

Did the PCRA [c]ourt err and/or abuse its discretion when it denied 

and dismissed, without a hearing, [Appellant]’s petition under the 

PCRA where court appointed PCRA [C]ounsel provided patently 

deficient representation by relying, in his Turner/Finley Letter, 

upon decisional authority which is no longer valid or controlling, 

and where Pennsylvania law entitles an indigent defendant to the 

appointment of counsel to assist with his initial PCRA petition and 

that right includes the concomitant right to effective assistance of 

counsel?

Appellant’s Brief at 4 (footnote omitted).

We begin by “examining whether the PCRA court’s findings of fact are 

supported by the record, and whether its conclusions of law are free from legal 
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error.” Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012). “Our scope 

of review is limited to the findings of the PCRA court and the evidence of 

record, viewed in the light most favorable to the party who prevailed in the 

PCRA court proceeding.” Id.

Here, Appellant argues that Appellate Counsel was ineffective because 

he failed to file a post-sentence motion challenging the discretionary aspects 

of his sentence, thus precluding Appellant from raising the issue on direct 

appeal. Appellant contends that the trial court abused its discretion because 

the court imposed an aggravated-range sentence without stating on the 

record the specific reasons for the sentence. Appellant further contends that 

PCRA Counsel was ineffective for failing to pursue an ineffectiveness claim 

against Appellate Counsel on collateral review.

3

Appellant presents a layered ineffective assistance of counsel claim. 

With respect to ineffectiveness claims, our Supreme Court has stated:

It is well-settled that counsel is presumed to have been 

effective and that the petitioner bears the burden of proving 

counsel’s alleged ineffectiveness. Commonwealth v. Cooper, 

941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, a 

petitioner must establish that: (1) the underlying substantive 

claim has arguable merit; (2) counsel did not have a reasonable 

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3

 In his no-merit letter, PCRA Counsel averred that discretionary aspects of 

sentencing claims are not cognizable under the PCRA. No-Merit Letter, 

6/18/17, at 2. As this Court has explained, however, claims implicating the 

discretionary aspects of sentencing raised in the context of an ineffectiveness 

claim are cognizable under the PCRA. See Commonwealth v. Watson, 835 

A.2d 786, 801 (Pa. Super. 2003) (“[A] claim regarding the discretionary 

aspects of [the defendant’s] sentence, raised in the context of an 

ineffectiveness claim, would be cognizable under the PCRA[.]”).
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basis for his or her act or omission; and (3) the petitioner suffered 

prejudice as a result of counsel’s deficient performance, “that is, 

a reasonable probability that but for counsel’s act or omission, the 

outcome of the proceeding would have been different.” Id. A 

PCRA petitioner must address each of these prongs on appeal. 

See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 

2007) (explaining that “appellants continue to bear the burden of 

pleading and proving each of the Pierce elements on appeal to 

this Court”). A petitioner’s failure to satisfy any prong of this test 

is fatal to the claim. Cooper, 941 A.2d at 664.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations 

modified).

Where a PCRA petitioner asserts a layered ineffectiveness claim, he or 

she must argue each prong of the three-prong ineffectiveness test for each 

separate attorney. Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 

2011). We have explained:

Layered claims of ineffectiveness are not wholly distinct from 

the underlying claims, because proof of the underlying claim is an 

essential element of the derivative ineffectiveness claim. In 

determining a layered claim of ineffectiveness, the critical 

inquiry is whether the first attorney that the defendant 

asserts was ineffective did, in fact, render ineffective 

assistance of counsel. If that attorney was effective, then 

subsequent counsel cannot be deemed ineffective for 

failing to raise the underlying issue.

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (citations 

omitted, emphasis added.

As noted, Appellant’s layered ineffective assistance of counsel claim 

relates to the discretionary aspects of his sentence. On direct appeal, “[t]he 

right to appellate review of the discretionary aspects of a sentence is not 

absolute, and must be considered a petition for permission to appeal.” 
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Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). 

“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction 

when challenging the discretionary aspects of a sentence.” Id. We conduct 

this four-part test to determine whether:

(1) the appellant preserved the issue either by raising it at the 

time of sentencing or in a post[-]sentence motion; (2) the 

appellant filed a timely notice of appeal; (3) the appellant set forth 

a concise statement of reasons relied upon for the allowance of 

his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant 

raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation 

omitted). “A defendant presents a substantial question when he sets forth a 

plausible argument that the sentence violates a provision of the sentencing 

code or is contrary to the fundamental norms of the sentencing process.” 

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations 

omitted).

It is well-settled that a discretionary aspects of sentencing claim must 

be preserved either at sentencing or in a post-sentence motion before the trial 

court. Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) 

(citation omitted). With respect to a claim of ineffective assistance of counsel 

regarding the failure to file post-sentence motions, our Supreme Court has 

stated:

[There is a] distinction between errors which completely foreclose 

merits review and those which merely “narrow its ambit.” Thus, 

[the Court] [has] held an attorney’s failure to file a post-sentence 

motion preserving a particular sentencing claim “did not operate 

to entirely foreclose appellate review,” but merely “waive[d] those 
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claims subject to issue preservation requirements which were not 

otherwise properly preserved.”

Commonwealth v. Rosado, 150 A.3d 425, 432 (Pa. 2016) (citation 

omitted). “[C]ounsel’s failure to file post-sentence motions [does] not fall 

within the narrow ambit of ineffectiveness claims requiring no finding of 

prejudice.” Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011). 

Thus, to obtain relief on his ineffectiveness claim, Appellant must demonstrate 

that his sentence was excessive, such that counsel was ineffective in failing to 

file a post-sentence motion. Id.

Appellant argues that the trial court abused its sentencing discretion 

because it imposed an aggravated-range sentence without stating specific 

reasons on the record; this claim raises a substantial question. See 

Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008) (“[A]n 

allegation that the court failed to state adequate reasons on the record for 

imposing an aggravated-range sentence . . . raises a substantial question for 

our review.”). Accordingly, we turn to the merits of Appellant’s claim.

We note our standard of review:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.
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Commonwealth v. Horning, 193 A.3d 411, 418 (Pa. Super. 2018) (citation 

omitted), appeal denied, 204 A.3d 370 (Pa. 2019).

Section 9721(b) of the Sentencing Code sets forth general sentencing 

standards, and provides:

(b) General standards.—. . . the court shall follow the general 

principle that the sentence imposed should call for confinement 

that is consistent with the protection of the public, the gravity of 

the offense as it relates to the impact on the life of the victim and 

on the community, and the rehabilitative needs of the defendant. 

. . . In every case in which the court imposes a sentence for a 

felony or misdemeanor, modifies a sentence, resentences an 

offender following revocation of probation, county intermediate 

punishment or State intermediate punishment or resentences 

following remand, the court shall make as a part of the record, 

and disclose in open court at the time of sentencing, a statement 

of the reason or reasons for the sentence imposed.

42 Pa.C.S.A. § 9721(b). Importantly, “[w]hen the court imposes an 

aggravated or mitigated sentence, it shall state the reasons on the record[.]” 

204 Pa.Code § 303.13(c).

In this case, the record belies Appellant’s claim. The trial court 

articulated its reasons for Appellant’s aggravated-range sentence on the

record as follows:

THE COURT: Thank you. I’ve considered the presentence, the 

mental health, the prior record score, and the facts and 

circumstances of this case.

This is another case that never needed to happen because, as 

I understand it, if I’m recalling this correctly, this happened at the 

impound lot and trying to get help for [Appellant] whose car had 

been towed as abandoned.

* * *
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THE COURT: And Officer Ciarlante actually, from the testimony I 

remember, was sort of going out of his way to try and see if he 

could help [Appellant] who was very frustrated by what happened, 

which is understandable when people’s cars are towed.

But what happened to Officer Ciarlante, the fact that I believe 

he’s still hearing loud constant ringing in his ears, he’s not sure 

when that’s going to ever go away. It could be a year, five 

years[.] He has two hearing aids, and he continues to have 

problems. He put it like sounds like a whisper of air coming in like 

out of a balloon as a result of his ear injuries.

And he had volunteered in the National Guard and also with the 

Lithuanian military, if I recall, in Afghanistan, but he will not be 

able to do any military work anymore. And hearing [his] has been 

lost from his left ear, and he’s trying to use some kind of chips

[sic] or something to adapt.

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THE COURT: Okay. The damage that was done to him is -- you 

know, there’s an aggravated assault where somebody gets hurt 

very badly, but they fully recover. And then there’s an aggravated 

assault where they get hurt very badly, and they don’t fully

recover. They get shot and they’re paralyzed or, in this case, the 

injuries to his ears. And the damage to this officer for really no 

reason is not just that day and not just for a month or two but is 

unfortunately permanently, and I think that’s what makes this an 

aggravated assault of a certain type versus another type where 

people fully recover or their injuries are minimal.

I think, [Appellant], you have, you know, you did have the 

aggravated assault a long time ago, and you lived otherwise, I 

think, arrest-free. You walked off your parole. So you do know 

how to conform and act.

I don’t know what happened that day, and it may have been 

that you were having a bad day. But your bad day caused the 

officer to have very serious permanent injuries, and that has to 

be taken into account at sentencing.

* * *
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There’s nothing that I can say because the whole thing is a 

tragedy, but the tragedy is that we now have another person who 

was just trying to do their job and, as a result of doing their job, 

sustained a very serious permanent injury that prevents them 

from doing their job again and, frankly, functioning like they would 

want to function, or any of us would, without hearing problems, 

without noise coming through our ears, and all the other 

problems. And that’s the basis of the sentence along with the fact 

that you do know how to conform your conduct, and it’s a second 

aggravated assault causing you to go to state prison.

N.T., 2/27/14, at 9-13.

The record contradicts Appellant’s claim that the trial court did not place 

the reasons for Appellant’s aggravated-range sentence on the record. To the 

contrary, the court clearly conveyed the reasons for Appellant’s sentence. As 

Appellant’s discretionary aspects of sentencing claim lacks merit, we likewise 

conclude that Appellate Counsel was not ineffective for failing to file a postsentence motion preserving the claim. See Wholaver, 177 A.3d at 144. 

Further, because Appellate Counsel was not ineffective, PCRA Counsel was not 

ineffective for failing to raise Appellate Counsel’s ineffectiveness on collateral 

review. See Rykard, 55 A.3d at 1190. Accordingly, the PCRA court did not 

err in dismissing Appellant’s PCRA petition.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/10/2020