J-S22013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSHUA BRADSHAW

Appellant No. 1930 MDA 2014

Appeal from the PCRA Order October 10, 2014

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0001525-2006

BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.: FILED JULY 12, 2016

Appellant, Joshua Bradshaw, appeals pro se from the October 10, 

2014 order denying his petition filed pursuant to the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The PCRA court set forth the relevant factual and procedural history as 

follows.

A significant portion of the protracted 

procedural history in the above captioned matter is 

set forth in the opinion of Senior Judge Joseph M. 

Augello issued on October 19, 2010. The [PCRA] 

court there[in] considered a previously filed post 

conviction relief act petition in which [Appellant] 

challenged both the [negotiated] guilty plea and 

sentence imposed by [the trial court following 

Appellant’s guilty plea to third-degree murder, first-

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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degree robbery, and theft by unlawful taking]. 

Judge Augello appointed Jeffrey Yelen, Esq[uire], as 

counsel to [Appellant] and an evidentiary hearing 

was conducted on August 31, 2010, the transcript of 

which consists of 76 pages.

The [PCRA] court subsequently granted in part 

and denied in part the PCRA petition for the reasons 

set forth in the aforementioned October 19, 2010 

opinion. That opinion thoroughly and ably discusses 

the testimony of [Appellant]’s then counsel, assistant

public defenders William Ruzzo, Esq[uire] and John 

R. Sobota, Esq[uire]. Additionally, the opinion 

reviews Pennsylvania jurisprudence concerning guilty 

pleas in general and plea agreements in particular.

Judge Augello rejected [Appellant]’s assertion 

that trial counsel were ineffective. Specifically, he 

determined [Appellant] possessed no expectation or 

understanding that his sentence would be limited to 

20 to 40 years in the aggregate.

Judge Augello, however, also indicated the 

[PCRA] court was “constrained to conclude” that 

[Appellant] was entitled to reinstatement of his 

direct appeal rights nunc pro tunc. In this regard the 

opinion observes that an examination of the guilty 

plea/sentencing transcript clearly reveals the 

sentencing court was in error in advising [Appellant] 

concerning the time frame in which he could appeal 

to [the] Superior Court. [Appellant] was therefore 

granted thirty (30) days in which to file a direct 

appeal nunc pro tunc of the previously filed postsentence motion. ...

On September 13, 2011, [the] Superior Court 

issued a memorandum affirming the judgment of 

sentence. [Commonwealth v. Bradshaw, 34 A.3d 

224 (Pa. Super. 2011) (unpublished memorandum), 

appeal denied, 83 A.3d 413 (Pa. 2013).] [The 

memorandum] additionally recognized the PCRA 

court addressed the merits of the ineffectiveness 

claims. In this regard the memorandum indicates 

“to the extent appellant now purports to appeal from 
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the denial of relief of his ineffectiveness claims, the 

PCRA court’s ‘disposition’ was merely advisory and 

did not result in a separate, appealable order.” 

[The] Superior Court, therefore, denied [Appellant]’s 

ineffectiveness claim without prejudice to his right to 

raise it in a timely filed PCRA petition along with any 

other collateral claims he might pursue.

On December 31, 2013[,] the Pennsylvania 

Supreme Court issued an order denying [Appellant]’s 

petition for allowance of appeal.

On April 7, 2014[,] [Appellant] filed a pro se

petition for Post Conviction Collateral Relief. On April 

9, 2014[,] an order was issued reappointing Jeffrey 

Yelen, Esq[uire], as [Appellant]’s counsel. Attorney 

Yelen previously served as [Appellant]’s counsel 

throughout the above described PCRA process 

conducted before Judge Augello. On July 2, 2014[,] 

Attorney Yelen submitted a brief and supplemental 

petition.

A hearing was conducted on October 1, 

2014[.] Additionally, on that date, the 

Commonwealth submitted a response to 

[Appellant]’s submissions.

On October 10, 2014[,] [the PCRA] court 

issued an order which denied and dismissed the 

PCRA petition. 

PCRA Court Opinion, 1/20/15, at 1-3 (footnotes omitted). On November 10, 

2014, Appellant filed a timely notice of appeal.1 On September 9, 2015, a 

____________________________________________

1 We observe that the 30th day fell on Sunday, November 9, 2014. When 

computing the 30-day filing period “[if] the last day of any such period shall 

fall on Saturday or Sunday ... such day shall be omitted from the 

computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to 

file a timely notice of appeal was on Monday, November 10, 2014. As a 

result, his appeal was timely filed. We also observe that Appellant and the 

(Footnote Continued Next Page)
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Grazier2 hearing was held where Appellant voluntarily, knowingly, and 

intelligently waived his right to counsel and was granted permission to 

proceed pro se. N.T., 9/9/15, at 15.

On appeal, Appellant raises the following issues for our review.

1. Did the PCRA Court abuse it’s [sic] discretion 

or err as a matter of law in failing to grant 

[Appellant]’s request for Post Conviction Relief in the 

nature of granting him leave to withdraw his Plea 

where the evidence established that [Appellant]’s 

plea was involuntary and unknowingly [sic] and 

consisted of an illegal sentence and a pre sen[t]ence 

investigation report never being done as a result of 

the ineffective assistance of counsel in that Trial 

Counsel improperly induced [Appellant] to plead 

guilty?

2. Did the PCRA Court err or abuse its discretion 

as a matter of law in failing to grant [Appellant]’s 

Petition when proceeding with the hearing eventhogh 

[sic] the Commonwealth failed to follow Court Orders 

to file a responsive brief being given ample time to 

do so?

3. Did [t]he PCRA Court err or abuse it’s 

discretion as a matter of law in failing to grant 

[Appellant]’s request for Post Conviction relief in the 

nature of granting [Appellant] leave to withdraw his 

guilty plea when the plea consisted of an illegal 

sentence?

Appellant’s Brief at 6.3

(Footnote Continued) _______________________

PCRA court have complied with Pennsylvania Rule of Appellate Procedure 

1925.

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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We begin by noting our well-settled standard of review. “In reviewing 

the denial of PCRA relief, we examine whether the PCRA court’s 

determination is supported by the record and free of legal error.” 

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation 

marks and citation omitted). “The 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 prevailing party at the trial level.” Commonwealth v. 

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled 

that a PCRA court’s credibility determinations are binding upon an appellate 

court so long as they are supported by the record.” Commonwealth v. 

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this 

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth 

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

In his first issue, Appellant argues counsel was ineffective for allowing 

Appellant to plead to an illegal sentence. Appellant’s Brief at 15; Appellant’s 

(Footnote Continued) _______________________

3 Appellant’s second issue is a one sentence argument with no citations to 

the record or relevant legal authority. Pennsylvania Rule of Appellate 

Procedure 2119(a) requires that the argument section of an appellate brief 

include “citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). 

This Court will not consider an argument where an appellant fails to cite to 

any legal authority or otherwise develop the issue. Commonwealth v. 

Kareem Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied, Kareem 

Johnson v. Pennsylvania, 562 U.S. 906 (2010); see also, e.g., In re 

Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (stating, “[f]ailure 

to cite relevant legal authority constitutes waiver of the claim on appeal[]”) 

(citation omitted), appeal denied, 69 A.3d 603 (Pa. 2013). Therefore, 

Appellant’s second issue is waived for want of development.
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PCRA Petition, 4/7/14 at 6. Appellant further argues counsel was ineffective 

for failing to object to immediate sentencing when counsel knew no presentence investigation (PSI) report was ordered. Id. at 16.4

 In his third 

issue, Appellant argues the PCRA court erred in failing to allow him to 

withdraw his guilty plea when it consisted of an illegal sentence. Id. at 22. 

Appellant claims there is no statutory authorization for his sentence, 

therefore the sentence is illegal and must be vacated. Id. Because 

Appellant’s issues are interrelated, we elect to address them together.

When reviewing a claim of ineffectiveness, we apply the following test, 

first articulated by our Supreme Court in Commonwealth v. Pierce, 527 

A.2d 973 (Pa. 1987). 

[C]ourts presume that counsel was effective, and 

place upon the appellant the burden of proving 

otherwise. Counsel cannot be found ineffective for 

failure to assert a baseless claim. 

To succeed on a claim that counsel was 

ineffective, Appellant must demonstrate that: (1) 

____________________________________________

4 We note Appellant’s argument section intertwines issues that do not allege 

trial counsel was ineffective, but rather assert issues of trial court error. 

Specifically, Appellant asserts he was never “provided with a specific charge 

of Murder,” and that “[t]he [d]efinition that is provided by law for the public 

to see for third degree Murder is vague in nature and is not giving anyone 

fair warning as to what constitute[s] a crime and it causes people to guess 

at it’s [sic] meaning.” Appellant’s Brief at 18-21. Appellant’s claims are 

waived for failing to raise them on direct appeal. See 42 Pa.C.S.A. § 9544 

(“an issue is waived if the petitioner could have raised it but failed to do so 

before trial, at trial, during unitary review, on appeal or in a prior state 

postconviction proceeding[]”).
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the claim is of arguable merit; (2) counsel had no 

reasonable strategic basis for his or her action or 

inaction; and (3) counsel’s ineffectiveness prejudiced 

him.

...

[T]o demonstrate prejudice, appellant must 

show there is a reasonable probability that, but for 

counsel’s error, the outcome of the proceeding would 

have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) 

(citations and internal quotation marks omitted). “Failure to establish any 

prong of the test will defeat an ineffectiveness claim.” Commonwealth v. 

Birdsong, 24 A.3d 319, 329 (Pa. 2011).

Instantly, Appellant’s claims can be summarized as arguing he was 

sentenced to an illegal sentence and that counsel was ineffective for allowing 

him to plead to an illegal sentence, without the benefit of a PSI. 

Accordingly, our review begins with a determination of whether Appellant’s 

sentence is in fact illegal. “Issues concerning the legality of sentence are 

cognizable under the PCRA.” Commonwealth v. Beck, 848 A.2d 987, 989 

(Pa. Super. 2004) (citation omitted). “Issues relating to the legality of a 

sentence are questions of law[.] ... Our standard of review over such 

questions is de novo and our scope of review is plenary.” Commonwealth 

v. Fennell, 105 A.3d 13, 16 (Pa. Super. 2014) (citation omitted), appeal 

denied, 121 A.3d 494 (Pa. 2015). Further, “[i]f no statutory authorization 

exists for a particular sentence, that sentence is illegal and subject to 

correction.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 
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2014) (citation omitted), affirmed, --- A.3d ---, 2016 WL 3388530 (Pa. 

2016). “An illegal sentence must be vacated.” Fennell, supra at 16.

(citation omitted).

Herein, Appellant claims there is no statutory authorization for his 

sentence. Appellant’s Brief at 22. Appellant’s five-page argument is 

rambling and convoluted at times. From what this Court can discern, 

Appellant’s argument appears to be that there is “no statute within the 

sentencing code to conclude the sentence impose[d] which was 20 to 40 

years of imprisonment for 3rd degree murder and 10 to 20 years for 

robbery[.]” Appellant’s Brief at 25. Appellant’s argument is premised on the 

following argument.

When the Act of October 5, 1980, P.L. 693 no.142 

was passed, which repealed 18 Pa.C.S. Chapter 13 –

Authority of Court in Sentencing (The Original 

Sentencing Code) in it’s entirety [sic] and transferred

the entire sentencing code into Title 42 of the 

Pennsylvania Consolidated Statutes at 42 Pa.C.S. 

Chapter 97 – Sentencing.

Appellant’s Brief at 23. Appellant seems to argue if there is no provision in 

Chapter 97 for a sentence, the sentence is illegal.

Contrary to Appellant’s assertion, the sentencing code is the very 

source of the statutory authority for Appellant’s sentence. 

§ 9703. Scope of chapter

Except as otherwise specifically provided in this 

chapter, in all cases the sentence to be imposed

shall be determined by the court as authorized 

by law.
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42 Pa.C.S.A. § 9703 (emphasis added).

The sentencing statutes for third-degree murder and first-degree 

robbery are codified as follows.

§ 1102. Sentence for murder, murder of unborn 

child and murder of law enforcement officer

...

(d) Third degree.--Notwithstanding section 1103, a 

person who has been convicted of murder of the 

third degree or of third degree murder of an unborn 

child shall be sentenced to a term which shall be 

fixed by the court at not more than 40 years[.]

18 Pa.C.S.A. § 1102(d).

§ 1103. Sentence of imprisonment for felony

Except as provided in 42 Pa.C.S. § 9714 (relating to 

sentences for second and subsequent offenses), a 

person who has been convicted of a felony may be 

sentenced to imprisonment as follows:

(1) In the case of a felony of the first degree, 

for a term which shall be fixed by the court at 

not more than 20 years.

Id. § 1103; see also id. § 3701(b)(1) (grading robbery as a first-degree 

felony generally).

As Appellant was sentenced to 20 to 40 years in accordance with 

Section 1102 for third-degree homicide, and to 10 to 20 years for firstdegree robbery in accordance with Section 1103, Appellant’s sentence is “in 

accordance with the law” and therefore legal. Accordingly, Appellant’s claim 

that counsel was ineffective for allowing him to plead to an illegal sentence 
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is without merit. Appellant’s remaining claim of ineffectiveness asserts 

counsel was ineffective for allowing sentencing to proceed immediately

following Appellant’s guilty plea when counsel knew a PSI had not been 

ordered or prepared. Appellant cites Pennsylvania Rule of Criminal 

Procedure 702 which states as follows.

Rule 702. Aids in Imposing Sentence

(A) Pre-sentence Investigation Report

(1) The sentencing judge may, in the judge’s 

discretion, order a pre- sentence investigation 

report in any case.

(2) The sentencing judge shall place on the 

record the reasons for dispensing with the presentence investigation report if the judge fails 

to order a pre-sentence report in any of the 

following instances:

(a) when incarceration for one year or 

more is a possible disposition under the 

applicable sentencing statutes;

(b) when the defendant is less than 21 

years old at the time of conviction or 

entry of a plea of guilty; or

(c) when a defendant is a first offender 

in that he or she has not heretofore been 

sentenced as an adult.

Pa.R.Crim.P. 702(A).

Instantly, Appellant argues all three subsections apply. Appellant’s 

Brief at 17. However, this Court has held “[t]he failure to request a presentence report is not per se ineffective.” Commonwealth v. Howard 
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Johnson, 517 A.2d 1311, 1317 (Pa. Super. 1986), citing Commonwealth 

v. Broadwater, 479 A.2d 526 (Pa. 1984). Counsel will be found ineffective

only “when the contents of the report would have caused the sentencing 

judge to impose a lesser sentence.” Id. A review of the guilty plea and 

sentencing hearing transcript reveals Appellant’s counsel vigorously 

reminded the trial court of Appellant’s age, noting “he’s a young man[,]” and 

“[h]e was 11 years old on the streets selling drugs with a tacit approval of 

his parents.” N.T., 9/25/06, at 15. Further, at the end of the proceeding 

Appellant asked the trial court where he was going and the trial court stated, 

“I imagine ... based on ... your request to be tried as a juvenile, it will 

probably be to a youthful offenders facility at least until your 21st birthday.” 

Id. at 21. Ultimately, the trial court concluded Appellant “committed the 

ultimate violent act. You took the life of another and this act cannot be 

condoned nor can it be tolerated.” Id. at 19. The trial court stated “[t]he 

act of murder must be punished to the maximum extent by law. To do 

otherwise would be a disservice to the victim and his family and a disservice 

to this community.” Id. Appellant has failed to demonstrate how a PSI in 

this matter would have changed the outcome. See Howard Johnson, 

supra. As a result, counsel cannot be ineffective. See Michaud, supra.

Based on the foregoing, we conclude the PCRA court did not err in 

denying Appellant’s PCRA petition. See Fears, supra. Accordingly, we 

affirm the PCRA court’s October 10, 2014 order.
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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/12/2016