J-S21028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES GRAHAM

Appellant No. 2344 EDA 2014

Appeal from the PCRA Order July 14, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010428-2007

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED APRIL 08, 2015

James Graham appeals from an order dismissing his first petition 

under the Post Conviction Relief Act (“PCRA”). We affirm.

Following a dispute in a pick-up basketball game, Graham shot and 

killed Albert Hughes. Three eye-witnesses identified Graham to police as the 

shooter. A jury convicted him of third-degree murder1and possession of an 

instrument of crime (“PIC”).2 The court sentenced him to consecutive terms 

of 15-40 years’ imprisonment for third degree murder and 21⁄2-5 years’ 

imprisonment for PIC. Graham did not file post-sentence motions 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 2502(c).

2 18 Pa.C.S. § 907.
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challenging the length of his sentence. He did, however, file a timely direct 

appeal. On October 8, 2010, this Court affirmed his judgment of sentence, 

and on March 8, 2011, the Supreme Court denied his petition for allowance 

of appeal. 

On April 4, 2011, Graham filed a pro se PCRA petition. The PCRA court 

appointed counsel to represent him, and counsel filed an amended PCRA 

petition and two supplemental PCRA petitions. In his final supplemental 

petition, PCRA counsel alleged that trial counsel was ineffective for: (1) 

failing to file post-sentence motions challenging the weight of the evidence; 

(2) failing to file post-sentence motions challenging the length of Graham’s 

sentence; and (3) advising Graham to reject three plea offers based on his 

assurance that he could win the case. On July 14, 2014, the PCRA court 

held an evidentiary hearing and dismissed the petition. Graham filed a 

timely notice of appeal, and both Graham and the PCRA court complied with 

Pa.R.A.P. 1925.

In this appeal, Graham raises three issues:

1. Whether the PCRA Court erred in failing to grant 

[Graham]’s motion for implementation of a pre-trial 

offer of 71⁄2 to 15 years’ incarceration when 

[Graham] proceeded to verdict based on the 

unreasonable recommendation of trial counsel that 

he could beat the case and for failing to find that trial 

counsel provided ineffective assistance of counsel for 

making such a representation where counsel’s 

representations violated [Graham]’s constitutional 

rights to legal counsel under the 6th and 14th 

Amendments of the U.S. Constitution, and article I, 

[section] 9 of the Pennsylvania Constitution?
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2. Whether [Graham] was denied his right to counsel 

in violation of the 6th and 14th Amendments of the 

U.S. Constitution, and in violation of [article I, 

section 9 of] the Pennsylvania Constitution where 

[Graham] was abandoned when trial counsel’s 

inaction resulted in the waiver of [Graham]’s post 

sentence rights, i.e., his right to an effective appeal 

which resulted in prejudice to [Graham]?

3. Whether the trial court imposed an illegal 

sentence where [Graham] was sentenced for third 

degree homicide where the statute is vague and 

unconstitutional?

Brief For Appellant, p. 5.

Our standard of review from the grant or denial of post-conviction 

relief is limited to examining whether the PCRA court’s determination is 

supported by the evidence of record and whether it is free of legal error. 

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997). “The PCRA 

court’s factual determinations are entitled to deference, but its legal 

determinations are subject to our plenary review.” Commonwealth v. 

Hawkins, 894 A.2d 716, 722 (Pa.2006); see also Commonwealth v. 

Jones, 912 A.2d 268, 293 (Pa.2006) (“the findings of a post-conviction 

court, which hears evidence and passes on the credibility of witnesses, 

should be given great deference”); Commonwealth v. White, 734 A.2d 

374, 381 (Pa.1999) (appellate court is bound by credibility determinations of 

PCRA court where determinations are supported by record).

Our standard of review for claims of ineffective assistance of counsel is 

well settled. Counsel is presumed to be effective, and the burden of 
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demonstrating ineffectiveness rests on the appellant. Commonwealth v. 

Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010). A petitioner must show (1) 

that the underlying claim has merit; (2) counsel had no reasonable strategic 

basis for his or her action or inaction; and (3) but for counsel’s errors or 

omissions, there is a reasonable probability that the outcome of the 

proceedings would have been different. Id. The failure to prove any one of 

the three prongs results in the failure of the petitioner’s claim. Id.

In his first argument, Graham alleges that trial counsel advised him 

against accepting an offer of 71⁄2-15 years’ imprisonment and assured him 

that he would win the case. The PCRA court held, and we agree, that this 

claim lacks arguable merit. 

During an evidentiary hearing on Graham’s PCRA petition, Beth 

McCaffery, the assistant district attorney who prosecuted Graham, testified 

that she conveyed only one offer to Graham: 221⁄2-45 years’ imprisonment. 

N.T., 7/14/14, p. 25. In support of her testimony, the Commonwealth 

submitted into evidence an email to McCaffery from her supervisor 

approving this offer. Id. at 28. Graham testified that the Commonwealth 

made three offers: the first for 25-50 years’ imprisonment offered before the 

first trial, the second for 121⁄2-25 years’ imprisonment offered at the 

beginning of the second trial, and the third for 71⁄2-15 years’ imprisonment 

offered while the jury was deliberating. Id. at 12-14, 19. Graham claimed 

that trial counsel advised him to reject these offers because he had the case 
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won. Id. Trial counsel testified that it is not his practice to tell clients that 

he had a case won. Id. at 37-38. Trial counsel did not recall any offer of 

71⁄2-15 years’ imprisonment. Id. at 40. 

The PCRA court credited the testimony of McCaffery and trial counsel 

that there was never any offer of 71⁄2-15 years’ imprisonment. Pa.R.A.P. 

1925(a) Opinion, pp. 9-10. The court further observed that Graham’s 

credibility

is undermined by his own pro se filings. In both 

[Graham]’s pro se petition and his affidavit dated 

May 25, 2014, [Graham] asserted that the second 

offer of [121⁄2-25] years was conveyed pre-trial, not 

during trial as he testified. In his June 1, 2012 

supplemental pro se petition, [Graham] avers that 

trial counsel conveyed the offer of [71⁄2-15] years the 

day before the second trial began, not while the jury 

deliberated as he testified. [Graham] has changed 

his version of events every time he has 

communicated with this Court.

Id. at 10. 

As stated above, we will not disturb the PCRA court’s findings of fact 

and credibility determinations that have support in the record. The record 

supports the PCRA court’s determination that the assistant district attorney 

and trial counsel were credible and that Graham was not. The record further 

supports the PCRA court’s determination that there was no offer of 71⁄2-15 

years’ imprisonment, and that the only offer was 221⁄2-45 years. For these 

reasons, we conclude that Graham’s claim that trial counsel was ineffective 
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for advising him to reject an offer of 71⁄2-15 years’ imprisonment lacks 

arguable merit.

In his second argument, Graham alleges that trial counsel was 

ineffective for failing to file a post-sentence motion challenging the length of 

his sentence. According to Graham, counsel should have filed a postsentence motion asserting that his sentence was in excess of the sentencing 

guidelines. We agree with the PCRA court that this claim does not entitle 

Graham to relief.

Graham was sentenced to consecutive terms of 15-40 years’ 

imprisonment for third degree murder and 21⁄2-5 years’ imprisonment for 

PIC. Graham has waived any claim that his PIC sentence is excessive by 

failing to develop any argument relating to PIC in his appellate brief. 

Lackner v. Glosser, 892 A.2d 21, 29–30 (Pa.Super.2006) (“arguments 

which are not appropriately developed are waived”). 

Graham contends that his proper minimum sentence for third degree 

murder under the guidelines is 71⁄2 years’ imprisonment. This, too, is waived

due to the absence of the sentencing hearing transcript from the certified 

record. Commonwealth v. Houck, 102 A.3d 443, 456 (Pa.Super.2014) 

(where appellant has not made transcript of the proceedings at issue a part 

of the certified record, any claims that cannot be resolved in the absence of 

the necessary transcript are waived for purpose of appellate review). Even if 
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Graham had preserved this issue, it is devoid of merit. In our memorandum 

affirming Graham’s judgment of sentence on direct appeal, we wrote: 

[Graham’s] claim [that his sentence is excessive] is 

belied by the record. With a prior record score of 

zero (0), an offense gravity score of fourteen (14), 

and the applicable deadly weapon ‘used’ 

enhancement, the standard range for [Graham’s] 

third degree murder conviction was seven and onehalf (71⁄2) to twenty (20) years. Thus, [Graham’s] 

minimum sentence of fifteen (15) years 

imprisonment actually fell within the standard range 

of the sentencing guidelines.

Commonwealth v. Graham, 2397 EDA 2009, p. 7 (Pa.Super., Oct. 8, 

2010).3

In his final argument, Graham asserts that the provision defining third 

degree murder, 18 Pa.C.S. § 2502(c), is void for vagueness. Graham has 

waived this claim for failure to raise it in his pro se or amended PCRA 

petitions. Commonwealth v. Elliott, 80 A.3d 415, (Pa.2013) (petitioner 

waived claim that trial counsel rendered ineffective assistance by failing to 

meet with him personally prior to trial or otherwise prepare for trial, because 

petitioner failed to include this claim in PCRA petition or obtain permission to 

____________________________________________

3 Graham also claimed in his PCRA petition that trial counsel was ineffective 

for failing to file a post-sentence motion challenging the weight of the 

evidence. The PCRA court explained in its Pa.R.A.P. 1925(a) opinion that 

the weight of the evidence overwhelmingly supported Graham’s convictions. 

Pa.R.A.P. 1925(a) Opinion, pp. 3-6. In this appeal, Graham failed to 

develop any argument relating to the weight of the evidence. Accordingly, 

he has waived this claim. Lackner, 892 A.2d at 29-30. Even if he had 

preserved this argument, we agree with the PCRA court’s cogent analysis of 

this question.
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amend his petition to include the issue); see generally Pa.R.A.P. 302(a) 

(“issues not raised in the lower court are waived and cannot be raised for 

the first time on appeal”). While PCRA counsel made the vague comment 

during the PCRA evidentiary hearing that section 2502(c) is “unconstitutional 

because it doesn’t give anyone notice of the type of sentence that you would 

receive,” N.T., 7/14/14, pp. 56-57, he failed to develop this argument any 

further. His passing remark did not preserve this issue for appeal. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/8/2015
EXHIBIT. A 

On October 26, 20111 PCRA counsel was appointed to represent petitioner. On January 27, 2012, 

On April 4, 2011, petitioner filed a prose Post Conviction Relief Act (PCRA) petition. 

of Pennsylvania denied petitioner's Petition for Allowance of Appeal. 

challenges to the weight of the evidence and his sentence. On March 8, 2011, the Supreme Court 

Superior Court of Pennsylvania affirmed petitioner's judgment of sentence, rejecting petitioner's 

On August 13, 2009, petitioner filed a Notice of Appeal. On October 8, 2010, the 

imprisonment. 

of imprisonment for PIC, for a total sentence of seventeen and a half to forty five years of 

• imprisonment for Third Degree Murder and a consecutive term of two and one-half to five years 

On July 24, 2009, the trial court sentenced petitioner to fifteen to forty years of 

second trial, the jury found petitioner guilty of Third Degree Murder and PIC. 

Temin declared a mistrial after the jury could not return a verdict. On May 11, 2009, after a 

and Possession of an Instrument of Crime (PIC). On June 23, 2008, the Honorable Carolyn Engel 

On March 16, 2007, the petitioner, James Graham, was arrested and charged with Murder 

Procedural History 

Mclrermott, J. August 13, 2014 

OPINION 

FILED 

AUG r-3 2014 

Post Trial Unit 

JAMES GRAHAM 

v. 

COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0010428-2007 

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

CRIMINAL TRIAL DIVISION 

____ J 

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On March 12, 2007, at approximately two o'clock p.m., a 

group of basketball players arrived at Dickinson Square Park, a 

neighborhood park with a basketball court, a recreation center, and 

a playground, surrounded by 3rd Street, 4th Street, Morris Street, 

and Tasker Street. George Ocasio ("Ocasio") and Justin Davis 

("Davis") arrived in Ocasio's white Mercury Sable and parked on 

Morris Street. Mark Wilson ("Wilson'\ David Stokes ("Stokes"), 

Terrell Drummond ("Drummond'\ and Hughes arrived together in 

Wilson's silver Oldsmobile Intrigue. They parked directly behind 

• Ocasio' s car on Morris Street. William Duncan ("Duncan") parked 

his blue Grand Marquis directly behind Wilson's car. 

Duncan, Ocasio, and Davis were from 5th Street and played for 

one team. Stokes, Drummond, and Wilson were from 7th Street and 

played for the other team. Most of the players had known each 

other for years. Each team bet $300 on the game. Markel White 

("White"), Graham, and Graham's brother, Kareem Graham 

("Kareem"), all from 5th Street, sat next to the basketball court and 

watched the game, along with Hughes from 7th Street. There were 

many other people in the park at that time as well-some watching 

the game, others playing on the playground. (Footnote omitted). 

The game went on for approximately twenty minutes until a 

foul call started an argument between the two teams. Stokes and 

Graham were verbally arguing when Stokes asked Hughes to pass 

him his gun. When Hughes passed Stokes a gun, people began to 

leave the basketball court. Stokes, Hughes, and Drummond walked 

back to Wilson's Oldsmobile. Stokes entered the passenger seat, 

30, 2009 Opinion: 

The Honorable Carolyn Engel Temin summarized the facts of this case in her November 

August 12, 2014, petitioner filed a Notice of Appeal. 

2014, this Court held an evidentiary hearing, after which this Court dismissed the petition. On 

another supplemental PCRA petition that included an affidavit by the petitioner. On July 14, 

counsel advised him against taking three plea offers. On June 18, 2014, PCRA counsel filed 

counsel filed a supplemental PCRA petition incorporating petitioner's allegation that trial 

se PCRA petition alleging ineffective assistance of trial counsel. On April 1, 2014, PCRA 

PCRA counsel filed an amended PCRA petition. On June 1, 2012, petitioner filed a second pro 

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3 

place." Commonwealth v. Jones, 912 A.2d 268, 278 (Pa 2006); 42 Pa.C.S. § 9543(a)(2)(ii). 

truth-determining process that no reliable adjudication of guilt or innocence could have taken 

show that such ineffectiveness "in the circumstances of the particular case, so undermined the 

To warrant relief based on a claim of ineffective assistance of counsel, a petitioner must 

assurance that he could win the case. 

petitioner's sentence; and (3) advising petitioner to reject three plea offers based on counsel's 

failing to challenge that the weight of the evidence; (2) failing to challenge the length of 

In her amended petitioner PCRA counsel alleges trial counsel was ineffective for: (1) 

.. 

Commonweath v, Graham, Opinion Sur PA. R.A.P. 1925(a) (filed November 30, 2009) . 

while the other two men sat in the backseat, Hughes behind the 

driver seat, and Drummond behind the passenger seat. 

From approximately 50-55 yards away from the car, on a 

pathway in Dickinson Square Park, Graham pulled out a gun, 

aimed it with two hands at the Oldsmobile and fired twice at the 

car. Two fired cartridge casings were found on the pathway where 

witnesses placed Graham. 

One of the shots went through the glass window of the 

Oldsmobile and hit Hughes in his head. He was taken to the 

hospital and on March 13, 2007, he was pronounced dead as a 

result of this gunshot wound. The Medical Examiner did find 

stipling on Hughes' face which he testified could be a result of a 

close range shot or due to the shattered car window glass. 

On March 13, 2007, March 15, 2007, and March 19, 2007, 

respectively, Duncan, White, and Davis gave statements to 

detectives identifying Graham as the shooter. On March 16, 2007, 

an arrest warrant was issued for Graham and the Fugitive Squad 

went to his house that morning at 6 a.m. When the police saw a 

man fitting Graham's description, he showed them identification 

with the name "Malik Lamore Graham" and claimed that he was 

Graham's brother. However, when police investigated further, this 

man was in fact Graham himself. He was arrested at this time. On 

May 17, 2007, Kareem, Graham's brother, told a social worker at 

his juvenile detention facility that he had witnessed his brother 

murder someone. The social worker called Homicide Headquarters 

and Kareem gave a statement identifying Graham as the shooter on 

March 12. 

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vague and uncertain that the verdict shocks the conscience of the court." Commonwealth v. 

Our Superior Court has explained that the test is whether the evidence is "so tenuous, 

Widmer, 744 A.2d at 752). 

arrived at a different conclusion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)(citing 

because of a mere conflict in the testimony or because the judge on the same facts would have 

Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008). A new trial should not be granted 

believe all, part, or none of the evidence and to determine the credibility of the witnesses. 

Commonwealth v. Dupre, 866 A.2d 1089, 1101 (Pa. Super. 2005). The fact finder is free to 

sound discretion of the trial court. Commonwealth v, Widmer, 744 A.2d 745, 751-752 (Pa. 2000); 

An allegation that the verdict is against the weight of the evidence is addressed to the 

(citing Commonwealth v. Darrick Hall, 701 A.2d 190, 203 (Pa. 1997)). 

will not be deemed ineffective for failing to raise a meritless claim. Jones, 912 A.2d at 278 

Strickland test, the court may proceed to that element first. Bennett, 57 A.3d at 1195-96. Counsel 

Pierce, 527 A.2d 973, 975 (Pa. 1987)). If a claim fails under any necessary element of the 

different. Commonwealth v. Bennett, 57 A.3d 1185, 1195-96 (Pa. 2012)(citing Commonwealth v. 

lapse, i.e., that there is a reasonable probability that the result of the proceeding would have been 

failure to act; and (3) the petitioner has shown that he suffered prejudice as a result of counsel's 

underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or 

Pennsylvania has applied the Strickland test by looking to three elements, whether: (1) the 

test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court of 

To overcome the presumption, the petitioner has to satisfy the performance and prejudice 

767, 783 (Pa. 2013)(citing Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012)). 

Counsel is presumed to have rendered effective assistance. Commonwealth v, Weiss, 81 A.3d 

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after the shooting. Rashida Ingram, a social worker, testified at trial that in May of 2007 

three days after the shooting and petitioner's brother identified the petitioner about two months 

200, 207-211, 269-271, 307-310. Duncan and White identified petitioner as the shooter within 

statements. N.T. 5.5.2009 at 216, 218-220; N.T. 5.6.2009 at 192, 195; N.T. 5.7.2009 at 97-103, 

petitioner's brother, identified the petitioner as the shooter to Homicide detectives in their formal 

the shooting or did not remember the incident. However, three eyewitnesses, including the 

that none of the eyewitnesses identified him as the shooter at trial) claiming that they did not see 

the evidence because the witnesses did not name him as the shooter at trial. Petitioner is correct 

would have denied such a motion. First, petitioner argues the verdict was against the weight of 

evidence. Even if counsel had raised such a challenge, the issue is meritless and the trial court 

In the instant case, trial counsel did not file a motion challenging the weight of the 

supplied)). 

weight of the evidence argument." Id. (citing PCRA Court Opinion, 2/28/11, at 4-5 (emphasis 

evidence as to shock one's sense of justice" and that it "would not have granted a new trial on a 

claim had been raised, it would have found that "the jury's verdict was not so contrary to the 

a highway, where she was subsequently nm over. The PCRA court determined that even if the 

evidence where the petitioner was convicted of Murder after beating a woman and leaving her on 

allegation that trial counsel was ineffective for failing to raise a challenge to the weight of the 

A.3d 414 (Pa. 2013), the Superior Court affirmed the PCRA court's dismissal of appellant's 

In Commonwealth v. Luster, 71 A.3d 1029, 1049 (Pa. Super. 2013) appeal denied, 83 

justice. Id (citing Commonwealth v. Goodwine, 692 A.2d 233, 236 (Pa. Super. 1997)). 

the evidence, the jury's verdict must be so contrary to the evidence as to shock one's sense of 

Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003). For one to prevail on a challenge of the weight of 

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petitioner's brother told her he had seen his brother murder a man named A.J. at a playground. 

N.T. 5.6.2009 at 83. Although the witnesses changed their testimony at trial, their statements 

were competent evidence for the jury to consider. See Commonwealth v. Brady, 507 A.2d 66 

(Pa. 1986)(permitting the admission, as substantive evidence, of prior inconsistent statements by 

a non-party witness); Commonwealth v. Lively, 630 A.2d 7, 8 (Pa. 1992). The fact-finder is free 

to believe all, part, or none of the evidence, and credibility determinations rest solely within the 

purview of the fact-finder. Commonwealth v. Treiber, 874 A.2d 26, 30 (Pa. 2005). It is well 

within the jury's fact finding purview to credit the eyewitnesses' original signed statements 

identifying petitioner as the shooter, which were given, in the case of Duncan and White, within 

days of the murder. The weight of the identification evidence overwhelmingly supported 

conviction of the petitioner. 

The petitioner also alleges that the location of the recovered fired cartridge casings, fifty 

feet away from the decedent, is inconsistent with the assistant medical examiner's testimony that 

there was gunpowder stippling present on victim. Petitioner asserts that this fact requires the 

conclusion that the decedent was shot from close range. Petitioner is mistaken. The firearms 

expert testified that the projectile had been fired through a car window before entering the head 

of the decedent. N.T. 5.7.2009 at 174. The assistant medical examiner offered two possible 

explanations for the stippling present on the victim's face: the stipple could have come from 

either the shattered car window glass or from a close range shot. N.T. 5.7.2009 at 245-251. The 

witness statements buttress the former explanation as they all saw a non-close range shooting. 

The totality of the evidence proved that petitioner shot the victim with a bullet that passed 

through a car window spraying the victim's face with stippling. 

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reasons for departing from the guidelines on the record). 

beyond the ranges recommended by the sentencing guidelines, the trial court must state its 

Commonwealth v. Warren, 84 A.3d 1092, 1097 (Pa. Super. 2014)(when sentencing a defendant 

sentence was within the statutory limit and the trial court stated its reasons for the departure. 

petitioner's sentence for the PIC charge was outside the sentencing guidelines; however, the 

and a half to five years of imprisonment for his PIC conviction. This Court recognizes that the 

standard range of the sentencing guidelines. Petitioner was also sentenced to a consecutive two 

. . 

As noted by the Superior Court, petitioner's sentence for Third Degree Murder was well within 

previously litigated or waived. Even if this issue had not been previously litigated, it is meritless. 

Petitioner has failed to prove, under 42 Pa.C.S. § 9543(a)(3), that the issue has not been 

Moreover, Appellant's claim is belied by the record. With a prior 

record score of zero (0), an offense gravity score of fourteen (14), 

and the applicable deadly weapon "used" enhancement, the 

standard range for ApBellant's third degree murder conviction was 

seven and one-half (7 12) to twenty (20) years. Thus, Appellant's 

minimum sentence of fifteen (15) years imprisonment actually fell 

within the standard range of the sentencing guidelines. 

Commonwealth v. Graham, 2397 EDA 2009 (filed October 8, 2010). 

While the Superior Court found that this claim was waived, it addressed the merits of the issue: 

sentence. The petitioner alleges that his sentence falls in excess of the sentencing guidelines. 

Petitioner claims that counsel was ineffective for failing to challenge the petitioner's 

issue of weight of the evidence must be denied. 

ineffective for failing to raise a meritless claim. Thus, the petitioner's request for relief on the 

of the evidence claim, it would have been rejected as meritless. As stated in Jones, counsel is not 

The jury's verdict was not against the weight of the evidence and, if counsel had raised a weight 

Petitioner's allegations in no way undermine the strength of the evidence against him. 

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Strickland test if he establishes that the outcome of the plea decision would have been different 

61 (Pa. Super. 1988). In the context of plea agreements, petitioner can show prejudice under the 

Korb, 617 A.2d 715, 716 (Pa. Super. 1992)); see Commonwealth v. Copeland. 554 A.2d 54, 60- 

than the term he would have accepted under the plea bargain. Id (citing Commonwealth v. 

be considered ineffectiveness of counsel if the petitioner is sentenced to a longer prison term 

assistance for failing to convey a plea offer to appellant before it expired). Failure to do so may 

Missouri v. Frye, 132 S. Ct. 1399, 1408, 182 L. Ed. 2d 379 (2012)(counsel rendered ineffective 

prosecution to accept a plea on terms and conditions that may be favorable to the accused." 

.. .. 

2001). "As a general rule, defense counsel has the duty to communicate formal offers from the 

and disadvantages of the offer. Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa. Super. 

An attorney has a duty to communicate a plea offer to his client and to explain the advantages 

offers. The petitioner contends that trial counsel advised petitioner that he would win the case. 

Petitioner alleges that trial counsel advised him against accepting a series of three plea 

sentence. This claim is meritless, 

challenge petitioner's sentence where the trial court crafted an individualized and reasonable 

two and a half to forty five years. Id at 56. Trial counsel was not ineffective for failing to 

imprisonment was reasonable and well under the Commonwealth's recommendation of twenty 

behavior. Id. at 58p59. Petitioner's total sentence of seventeen and a half to forty five years of 

supervision for a significant period of time because of his extensive history of aggressive 

this information into consideration, the court found it was necessary to keep the petitioner under 

demonstrated an understanding of the sentencing guidelines. N.T. 7.29.2009 at 8. Taking all of 

and the testimony of multiple Commonwealth and defense witnesses. The trial court 

At sentencing, the trial court had the benefit of a presentence report, mental health report, 

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years, offered while the jury was deliberating. N.T. 7.14.2014 at 12-14, 19. Specifically) 

five years offered at the beginning of the second trial, and the third for seven and a half to fifteen 

twenty five to fifty years offered before the first trial) the second for twelve and a half to twentypetitioner testified that trial counsel advised him against accepting three plea offers: the first for 

Petitioner's assertions to the contrary are not credible. At the evidentiary hearing 

was supported by an email from her supervisor approving this offer. Id at 28. 

twenty two and a half to forty five years of incarceration. N.T. 7.14.2014 at 25. Her testimony 

testimony of the Assistant District Attorney that she conveyed only one offer to the petitioner: 

No other offers were made to the petitioner at any point during either trial. This Court accepts the 

forty five years. This offer was conveyed by trial counsel to the petitioner prior to the first trial. 

finds that the only offer ever conveyed to petitioner was an offer of twenty two and a half to 

standard of reasonableness; nor can he demonstrate prejudice. As a matter of fact, this Court 

Here, petitioner cannot show that trial counsel's representation fell below an objective 

severe sentence." Id. at 1386. 

may be prejudiced from either a conviction on more serious counts or the imposition of a more 

The Court explained that a "petitioner who goes to trial instead of taking a more favorable plea 

a sentence three and a halftimes greater than the sentence offered in the plea deal. Id at 1391. 

Court found that the respondent demonstrated prejudice as he was convicted at trial and received 

a plea offer on the grounds that the respondent could not be convicted at trial. The Supreme 

objective standard of reasonableness when respondent's counsel advised the respondent to reject 

In Lafler v. Cooper. both parties conceded that counsel's representation fell below the 

Missouri v. Frye, 132 S. Ct. 1399, 1388~1389). 

with competent advice from counsel. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012)(citing 

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petitioner claims trial counsel advised him that he had the case won. Trial counsel credibly 

testified that it is not his practice to tell clients that he had a case won. N.T. 7.14.2014 at 37-38. 

Petitioner's credibility is undermined by his own prose filings. In both petitioner's prose 

petition and his affidavit dated May 25, 2014, petitioner asserted that the second offer of twelve 

and a half to twenty five years was conveyed pre-trial, not during trial as he testified. In his June 

l, 2012 supplemental pro se petition, petitioner avers that trial counsel conveyed the offer of 

seven and a half to fifteen years the day before the second trial began, not while the jury 

deliberated as he testified. Petitioner has changed his version of events every time he has 

communicated with this Court. 

This Court finds that trial counsel properly conveyed the sole plea offer of twenty two 

and a half to forty five years to the petitioner and did not advise petitioner against accepting the 

offer on the grounds that he would not be convicted at trial. Petitioner, of his own voluntary free 

will, declined said offer. Petitioner has not demonstrated that trial counsel's representation fell 

below an objective standard ofreasonableness by way of giving unsound advice to persuade the 

petitioner to reject his sole plea offer., 

Petitioner has also failed to establish prejudice. Petitioner was offered a sentence of 

twenty two and a half to forty years in exchange for pleading guilty to Third Degree Murder and 

PIC. By rejecting this offer and going to trial, petitioner was convicted to Third Degree Murder 

and PIC. Petitioner was subsequently sentenced to seventeen and a half to forty years of 

imprisonment. Clearly, petitioner's rejection of the plea offer resulted in a more lenient sentence 

on the same charges. The petitioner's third issue is without merit. 

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11 

Barbara A. McDermott, J. 

BY THE COURT, 

reasons, the decision of this Court should be affirmed. 

and does not merit substantive relief under the Post-Conviction Relief Act. For the foregoing 

The petition does not meet the requirements of an ineffective assistance of counsel claim 

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Law Clerk to the 

Honorable Barbara A. McDermott 

Dated: August 13, 2014 

~ 

Type of Service: First-Class Mail 

James Graham 

JE2934 

SCI Coal Township 

1 Kelley Drive 

Coal Township, PA 17866-1020 

Type of Service: First-Class Mail 

Sandjai Weaver, Esquire 

1315 Walnut Street, Suite 1624 

Philadelphia, PA 19107 

Type of Service: Hand Delivery 

Philadelphia District Attorney's Office 

Three South Penn Square 

Philadelphia, PA 19107 

Attn: Robin Godfrey, Esquire 

I hereby certify that I am this day serving the foregoing filing upon the person/s), and in the 

manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114: 

PROOF OF SERVICE 

Commonwealth v, James Graham 

CP-5 l-CR-0010428-2007 

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