J-S17020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DARNELL STEPHENS,

Appellant No. 717 WDA 2014

Appeal from the PCRA Order Entered April 23, 2014,

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0009749-2005, CP-02-CR-0009825-

2005, CP-02-CR-0009962-2005, CP-02-CR-0010464-2005

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 10, 2015

Appellant, Darnell Stephens, appeals from the order denying his 

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S. §§ 9541-9546. We affirm.

On direct appeal, a panel of this Court provided the following summary 

of this case:

Between March 8, 2005 and May 20, 2005, Appellant and two 

co-defendants committed several armed robberies of various 

retail establishments in West Mifflin, McKeesport, Braddock, and 

Forest Hills, Pennsylvania. Shortly after the May 20th robbery, 

Tammy Kandar, Appellant’s girlfriend, contacted Captain Bryan 

Washowich of the McKeesport Police Department and revealed 

her suspicions of Appellant’s involvement in the robberies. 

During this timeframe, the police also arrested one of Appellant’s 

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*

 Former Justice specially assigned to the Superior Court.
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co-defendants in connection with the robberies and learned of 

Appellant’s involvement. As a result of the information provided 

to him by Tammy Kandar, Captain Washowich procured a search 

warrant for Appellant’s residence. The search yielded several 

items that implicated Appellant, including masks, gloves, a black 

leather jacket, a roll of duct tape, a safe containing $1,000 in 

U.S. currency, a banking deposit ledger showing a $3,000 

deposit, a police scanner, numerous Budget rental car receipts, 

and a .40 caliber semiautomatic pistol.

Appellant was subsequently arrested on May 31, 2005 and 

provided Captain Washowich with a written statement detailing 

his involvement in the robberies of three McKeesport 

businesses— Family Dollar, Foodland, and Coney Island Dog. 

Later that evening, Appellant also spoke to Detective David 

McCue of the West Mifflin Police Department and confessed in 

writing to his involvement in the robberies of two Dollar General 

stores in that borough. Additionally, Appellant also admitted in 

writing to Allegheny County Police Detective William Newman 

that he participated in the armed robberies of the Family Dollar 

in Braddock Hills and the Domino’s Pizza in Forest Hills. 

On August 17, 2005, Appellant was charged with 15 counts 

of robbery and 7 counts of criminal conspiracy. On October 5, 

2005, the Commonwealth filed a motion for joinder, and the trial 

court granted said motion on October 27, 2005. Following 

numerous postponements, trial was scheduled to begin on 

October 16, 2006. Prior to the commencement of trial, the trial 

court conducted a hearing on Appellant’s motion to suppress the 

statements he made to police. Following the hearing, the trial 

court denied Appellant’s suppression motion, and a jury trial

immediately followed. Thereafter, on October 18, 2006, 

Appellant was found guilty of all counts and sentencing was 

scheduled for December 18, 2006. On November 14, 2006, 

Appellant filed a pro se “Motion for New Trial and In Arrest of 

Judgment”. Appellant also made references to this motion on 

the record during the sentencing hearing. At all relevant times 

during this matter Appellant was represented by counsel from 

the Allegheny County Office of the Public Defender. The trial 

court declined to rule on Appellant’s pro se motion, and 

Appellant was subsequently sentenced to 30 to 60 years’ 

imprisonment on December 18, 2006. Appellant, through 

counsel, filed a timely notice of appeal on January 17, 2007.
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Commonwealth v. Stephens, 168 WDA 2007, 959 A.2d 974 (Pa. Super. 

filed June 30, 2008) (unpublished memorandum at 1-3) (internal citations 

and footnote omitted). This Court affirmed Appellant’s judgment of sentence 

on June 30, 2008. Id.

On August 4, 2008, Appellant filed a pro se PCRA petition. Counsel 

was appointed. On September 20, 2013, following many defense requests 

for extensions of time, appointed counsel filed an amended petition asserting 

that prior counsel was ineffective for failing to challenge the sentence 

imposed. On April 7, 2014, the PCRA court issued a notice of intent to 

dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907. Appellant filed a 

counseled response. The PCRA court dismissed Appellant’s petition on April 

23, 2014, as lacking merit. Appellant filed a timely notice of appeal. Both 

Appellant and the PCRA court complied with Pa.R.A.P. 1925. 

Appellant presents the following issue, which we set forth verbatim, for 

our review:

Whether the sentencing court abused its discretion by imposing 

an excessive and unreasonable sentence of thirty to sixty years’ 

incarceration, where the court exclusively focused upon the 

seriousness of the offense and protection of the public and failed 

to consider rehabilitative needs, in violation of the sentencing 

code. And whether the court violated fundamental sentencing 

norms by failing to consider relevant mitigating circumstances or 

to impose an individualized sentence. And whether prior counsel 

were ineffective in failing to recognize, assert and preserve this 

sentencing challenge.

Appellant’s Brief at 5 (full capitalization omitted). 
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Our standard of review of an order denying PCRA relief is whether the 

record supports the PCRA court’s determination and whether the PCRA 

court’s determination is free of legal error. Commonwealth v. Phillips, 31 

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 

A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be 

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

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 

2001)).

Although Appellant purports to present this Court with a single issue 

for review, a careful reading of this statement belies this assertion. We 

discern two separate claims in this single statement and will address each 

individually.

Appellant first argues that the sentencing court erred in imposing an 

“unnecessarily harsh, excessive and unreasonable sentence of 30 to 60 

years” of incarceration. Appellant’s Brief at 21. Appellant maintains that, in 

imposing this sentence, the trial court “erred in focusing exclusively on the 

seriousness of the offense and the retributive aspect of punishment, to the 

exclusion of rehabilitative needs and mitigating circumstances.” Appellant’s 

Brief at 19. 

This issue implicates the discretionary aspect of Appellant’s sentence. 

See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) 

(citation omitted) (“If a sentencing court considers improper factors in 
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imposing sentence upon a defendant, although the sentence thereby 

imposed is not rendered illegal, the court has committed an abuse of 

discretion.”). This question, however, does not raise a cognizable challenge 

under the PCRA, which provides only for challenges to sentences that have 

been imposed in excess of the lawful maximum. 42 Pa.C.S. § 

9543(a)(2)(vii); see also Commonwealth v. Wrecks, 934 A.2d 1287, 

1289 (Pa. Super. 2007) (citation omitted) (“Requests for relief with respect 

to the discretionary aspects of sentence are not cognizable in PCRA 

proceedings.”). Here, Appellant’s sentence was within the lawful maximum,1

which Appellant does not dispute. Accordingly, this claim fails.2

We next address Appellant’s contention that previous counsel was 

ineffective for failing to challenge the discretionary aspects of his sentence. 

We first note that, while we have determined that a claim challenging the 

discretionary aspect of a sentence is not cognizable under the PCRA, 

Wrecks, 934 A.2d at 1289, we have held that a claim regarding the 

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1 18 Pa.C.S. § 1103(1) (a person who has been convicted of a felony of the 

first degree may be sentenced to imprisonment for a term which shall be 

fixed by the court at not more than 20 years.).

2 We further note that counsel did not object to this sentence either at 

sentencing or in post-sentence motions. Thus, this claim is also waived. 

Commonwealth v. Anderson, 830 A.2d 1013, 1016 (Pa. Super. 2003) 

(citing Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003)) 

(“[O]bjections to the discretionary aspects of sentence are waived if they are 

not raised at the sentencing hearing or in a motion to modify the sentence 

imposed at that hearing.”). 
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discretionary aspects of a sentence raised in the context of an 

ineffectiveness claim is cognizable under the PCRA. Commonwealth v. 

Watson, 835 A.2d 786, 801 (Pa. Super. 2003).

As outlined previously, Appellant argues that his aggregate sentence of 

imprisonment of thirty to sixty years was manifestly excessive and 

unreasonable because the sentencing court erred in focusing exclusively on 

the seriousness of the offense and the retributive aspect of punishment, to 

the exclusion of his rehabilitative needs and mitigating circumstances. 

Appellant’s Brief at 19. Appellant maintains that counsel was ineffective for 

failing to challenge the sentence and for failing to file appropriate postsentencing motions or otherwise pursuing and preserving the challenges on 

appeal. Id. at 22. 

When considering an allegation of ineffective assistance of counsel 

(“IAC”), counsel is presumed to have provided effective representation 

unless the PCRA petitioner pleads and proves that: (1) the underlying claim 

is of arguable merit; (2) counsel had no reasonable basis for his or her 

conduct; and (3) Appellant was prejudiced by counsel’s action or omission. 

Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). “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). 
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A claim 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). 

Counsel cannot be found ineffective for failing to raise a meritless claim. 

Commonwealth v. Messmer, 863 A.2d 567, 572 (Pa. Super. 2004).

Following trial, which included charges from four criminal informations, 

Appellant was convicted of fifteen counts of robbery and seven counts of 

criminal conspiracy. Appellant was sentenced as follows:

CC No. 200509825: a term of ten to twenty years of 

imprisonment at Count 1 (robbery), and a concurrent ten to 

twenty year term at Count 5 (robbery); there were no further 

penalties imposed at Counts 2 (robbery), 3 (robbery), 4 

(criminal conspiracy), 6 (robbery) and 7 (criminal conspiracy). 

CC No. 200509749: a term of ten to twenty years of 

imprisonment at Count 1 (robbery), to be served consecutively 

to the sentence imposed at No. CC 200509825; there were no 

further penalties at Counts 2 (robbery) and 5 (criminal 

conspiracy). Counts 3 and 4 were withdrawn.

CC No. 200510464: a term of ten to twenty years of 

imprisonment at Count 1 (robbery), to be served consecutively 

to the sentence imposed at No. CC 200509749; there were no 

further penalties imposed at Counts 2 (robbery) and 3 (criminal 

conspiracy).

CC No. 200509962: a term of ten to twenty years of 

imprisonment at Count 1 (robbery), to be served concurrently to 

the sentence imposed at No. CC 200509825; a term of ten to 

twenty years of imprisonment at Count 4 (robbery), to be served 

concurrently to the sentence imposed at No. CC 200509749; and 

a term of ten to twenty years of imprisonment at Count 8 

(robbery), to be served concurrently to the sentence imposed at 

No. CC 200510464; there were no further penalties imposed at 
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Counts 2 (robbery), 3 (criminal conspiracy), 5 (robbery), 6 

(robbery), 7 (criminal conspiracy) and 9 (criminal conspiracy). 

N.T., 12/18/06, at 7-10; Criminal Information No. 200509825, 8/30/05; 

Criminal Information No. 200509749, 8/17/05; Criminal Information No. 

200510464, 9/2/05; Criminal Information No. 20059962, 9/1/15.. Thus, the 

cumulative sentence to be served was thirty to sixty years. N.T., 12/18/06, 

at 10. 

The robbery convictions were graded as first degree felonies. An 

individual convicted of a felony of the first degree may be sentenced to a 

term of imprisonment of not more than twenty years. 18 Pa.C.S. § 1103(1). 

We note that Appellant had a penalty imposed for only seven of the robbery 

convictions. At the robbery convictions for which the trial court imposed a 

penalty, each sentence was for ten to twenty years of imprisonment. Only 

three of these first degree felony sentences were to be served consecutively. 

The remaining sentences for the robberies were to be served concurrently. 

N.T., 12/18/06, at 7-10. 

In sentencing Appellant, the trial court noted that it had received and 

reviewed a pre-sentence report. N.T., 12/18/06, at 3, 7. Additionally, the 

trial court had documentation reflecting that Appellant was a repeat felony 

offender and had an offense gravity score of ten. Id. at 3. The trial court 

provided the following explanation in support of its sentencing order at the 

sentencing hearing: 
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I don’t think any less of a sentence would have been appropriate 

given the totality of the circumstances and they could have 

easily all been consecutive.

This behavior is just not acceptable. I think that the best 

thing for society is to have you be in for this length of time and 

based on the ten year mandatory that goes with your prior 

record and these crimes I think that is appropriate.

N.T., 12/18/06, at 10. Additionally, the PCRA court provided the following 

explanation in its Pa.R.A.P. 1925(a) opinion:

At the time of the sentencing, [Appellant] was a RFEL, a 

repeat felony offender. He had an extensive and violent criminal 

record consisting of robbery and firearm charges. [The trial 

court] clearly did not abuse its discretion in sentencing 

[Appellant] in the manner that it did. 

PCRA Court Opinion, 8/19/14, at 3. 

Based on this record, we conclude that the sentencing court was aware 

of and gave due consideration to any mitigating factors and rehabilitative 

needs and did not abuse its discretion in formulating its sentence of 

confinement. Moreover, the sentencing court received and reviewed a presentence report. “[W]here the trial court is informed by a pre-sentence 

report, it is presumed that the court is aware of all appropriate sentencing 

factors and considerations, and that where the court has been so informed, 

its discretion should not be disturbed.” Commonwealth v. Ventura, 975 

A.2d 1128, 1135 (Pa. Super. 2009) (citing Commonwealth v. Devers, 546 

A.2d 12, 18–19 (Pa. 1988)). 

Accordingly, the sentence was neither manifestly excessive nor too 

severe a punishment under the circumstances of this case, and no abuse of 
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discretion attended its imposition. Thus, counsel was not ineffective for 

failing to raise the meritless discretionary challenges alleged herein. See 

Messmer, 863 A.2d at 572 (holding that counsel cannot be found ineffective 

for failing to raise a meritless claim). As a result, the PCRA court properly 

dismissed Appellant’s PCRA petition.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015