J-S37041-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDWARD FRANCIS GOSNER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 625 EDA 2023

Appeal from the PCRA Order Entered February 7, 2023

In the Court of Common Pleas of Bucks County

Criminal Division at CP-09-CR-0000187-2020

BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY MURRAY, J.: FILED DECEMBER 5, 2023

Edward Francis Gosner (Appellant) appeals from the order denying his 

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546. We affirm.

On July 14, 2021, after a [non-jury] trial, [the trial] court 

found Appellant guilty of aggravated assault, assault by prisoner, 

simple assault, and harassment. Appellant was represented by

Daniel Schatz, Esquire (hereinafter “Trial Counsel”).

The facts underlying Appellant’s convictions stem from an 

attack that occurred on October 13, 2019[,] at the Bucks County 

Correctional Facility (hereinafter “BCCF”). Appellant was in the

restricted housing unit of BCCF when he assaulted another 

inmate, Michael Dozon (hereinafter “Victim”), after Appellant took 

issue with Victim’s sexuality. N.T., 7/14/21, p. 69. Appellant

threatened to “fuck [Victim] up,” told him that “faggots shouldn’t 

live” and “it’s not right to be gay,” and called [Victim] homophobic 

slurs. Id. at 70-72. Appellant followed Victim as he retreated

into a closet, forcing Victim to spray Appellant with a water hose 

so he could escape. Id. at 70. As Victim fled to the unit’s exit, 

Appellant attacked him from behind. Id. at 74, 24. As Victim laid

curled up in a ball on the floor, Appellant punched and kneed 
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Victim fifteen times and kicked him in the head. Id. at 25. Victim 

never returned the attack on Appellant. Over five correctional

officers had to respond to the assault. Id. at 26. Correctional 

officers attempted to obtain medical treatment for Victim, but he 

refused. Id. at 79. However, Victim testified that his cheek was

swollen, he had bruises all over his body, and the pain in his head, 

chest, and back areas was so severe that he had to take pain 

medication “all of the time.” Id.

Shortly after the attack, Appellant discovered that charges 

were filed against him for the assault. He threatened Victim to 

“drop the charges ... or [Appellant] would make [Victim’s] life a 

living hell.” N.T., 7/14/21, p. 83. Victim received so many threats 

that he became suicidal. Ultimately, Appellant asked Victim to 

write a letter on Appellant’s behalf that Appellant’s girlfriend could

bring to the district court[,] to have the charges dismissed. Id.

at 89. Victim complied, had his cellmate write the letter with 

Appellant’s requested false statements, and then Victim signed 

the letter. Id. at 92-95. On November 8, 2019, Appellant wrote 

a letter to his girlfriend with Victim’s letter attached. At the 

preliminary hearing, Appellant also told Victim “please make the 

right decision,” implying Victim should lie on the stand so that the 

case would be dismissed. Id. at 97, 96.

After this court found Appellant guilty of the charges, it 

deferred sentencing for 60 days. On September 10, 2021, this 

court imposed sentence of no less than seven years to no more

than fifteen years of incarceration in a state correctional facility 

on count 1, aggravated assault[. The court imposed] a sentence 

of no less than five years to no more than ten years in a state

correctional facility on [Appellant’s conviction of] ... assault by 

prisoner, to run concurrently to the sentence imposed on count 1.

[With respect to Appellant’s remaining convictions, the trial court 

imposed no further punishment.] This court also ordered 

Appellant to pay the costs of prosecution as well as to undergo

mental hea[l]th and drug and alcohol treatment and complete an 

anger management program.

PCRA Court Opinion, 4/18/23, at 1-3 (footnotes omitted, some capitalization

and citations modified).
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On September 20, 2021, Trial Counsel filed a post-sentence motion 

(PSM) on Appellant’s behalf. Appellant claimed the trial court abused its 

discretion in imposing an excessive sentence. PSM, 9/20/21, ¶¶ 6, 7 

(asserting the sentence was “well beyond the top of the aggravated range” 

and “greater than necessary to meet the rehabilitative needs of [Appellant,] 

as well as the need to protect the public.”). Pertinently, Appellant requested

the appointment of new counsel to file a PCRA petition raising Trial Counsel’s 

ineffectiveness. Id. ¶¶ 8-11. The trial court denied Appellant’s PSM without 

a hearing on September 29, 2021. Appellant did not appeal.

On July 11, 2022, Appellant timely filed a pro se PCRA petition. 

Appellant claimed, inter alia, that Trial Counsel rendered ineffective assistance 

when he ignored Appellant’s repeated requests to file an appeal. PCRA 

Petition, 7/11/22, at 4. The PCRA court appointed Eric Alcon, Esquire (PCRA 

Counsel) to represent Appellant.

1

 PCRA Counsel filed an amended PCRA

petition on December 7, 2022. In the amended petition, Appellant raised 

several claims of Trial Counsel’s ineffectiveness. See Amended PCRA Petition, 

12/7/22, ¶¶ 5, 10-28. Relevant to this appeal, Appellant claimed Trial Counsel 

“failed to properly preserve in [the PSM, Appellant’s] challenge to the 

discretionary aspects of the sentence.” Id. ¶ 10(b). Appellant further argued

Trial Counsel

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1 PCRA Counsel continues to represent Appellant on appeal.
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failed to properly preserve, and to file, [a direct] appeal to the 

Superior Court, challenging the discretionary aspects of the 

sentence and the sufficiency of the evidence with respect to the 

charge of [a]ggravated [a]ssault.

Id. ¶ 10(c). In addition, Appellant asked the PCRA court to schedule an 

evidentiary hearing to develop the record.

2

 Id. ¶¶ 29-30.

On January 10, 2023, the Commonwealth filed an answer asserting that 

each of Appellant’s claims of Trial Counsel’s ineffectiveness lacked merit. See

Answer, 1/10/23, at 4-18. Seven days later, the PCRA court issued 

Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s PCRA petition without

a hearing. The PCRA court stated it “is satisfied that the claims raised in [the

petition] are without merit and do not warrant an evidentiary hearing.” Notice 

of Intent to Dismiss, 1/17/23. Appellant did not respond.

The PCRA court denied Appellant’s PCRA petition on February 7, 2023. 

This timely appeal followed. Appellant and the PCRA court have complied with 

Pa.R.A.P. 1925.

Appellant presents three issues for review:

I. Did [the] lower court err in denying []Appellant’s claim, without 

a hearing, that Trial Counsel was ineffective in that he failed to 

properly preserve in a post-sentence motion [Appellant’s] 

challenge to the discretionary aspects of the sentence[?]

II. Did the lower court err in denying []Appellant’s claim, without 

a hearing, that Trial Counsel failed to properly preserve, and to 

file an appeal to the Superior Court, challenging the 

discretionary aspects of the sentence[?]

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2 Appellant did not attach any affidavits to either his pro se PCRA petition or 

amended petition.
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III. Did the lower court err in denying []Appellant’s claim, without 

a hearing, that Trial Counsel failed to properly preserve, and to 

file an appeal to the Superior Court, challenging the sufficiency 

of the evidence with respect to the charge of aggravated 

assault-attempt to cause serious bodily injury[?]

Appellant’s Brief at vi (some capitalization modified).

Preliminarily, we discuss a defect in Appellant’s brief. In compliance 

with our Rules of Appellate Procedure, Appellant sets forth separate

arguments for each of the issues presented in his statement of questions 

involved. See id. at 15-21; see also Pa.R.A.P. 2119 (argument section of

appellate briefs). However, Appellant also argues an issue that does not 

correspond with his statement. See Appellant’s Brief at 9-14 (claiming the 

PCRA court erred in denying relief without an evidentiary hearing and 

determining Appellant’s PCRA petition was defective for failure to include an 

affidavit from Trial Counsel).

“This Court will address only those issues properly presented and 

developed in an appellant’s brief as required by our Rules of Appellate 

Procedure, Pa.R.A.P. 2101-2119.” Commonwealth v. Phillips, 141 A.3d 

512, 522 (Pa. Super. 2016). Issues not presented in the statement of

questions involved are generally deemed waived. Commonwealth v.

Garland, 63 A.3d 339, 342 (Pa. Super. 2013) (finding waiver of appellant’s

issue) (citing Pa.R.A.P. 2116(a) (“No questions will be considered unless they 

are stated in the statement of questions involved or are fairly suggested 

thereby.”)). Accordingly, Appellant waived this issue. Id.; see also
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Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011) (“The briefing 

requirements scrupulously delineated in our appellate rules are not mere 

trifling matters of stylistic preference; rather, they represent a studied 

determination by [the Supreme] Court and its rules committee of the most 

efficacious manner by which appellate review may be conducted”). We thus 

proceed to the merits of Appellant’s preserved issues.

Our standard of review of a PCRA court’s denial of relief is “limited to 

whether the court’s findings of fact are supported by the record, and whether 

its conclusions of law are free from legal error.” Commonwealth v. Small, 

238 A.3d 1267, 1280 (Pa. 2020). The scope of our review is limited to the

findings of the PCRA court and the evidence of record, which we view in the

light most favorable to the party who prevailed in the PCRA court. 

Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa. 2011).

With respect to evidentiary hearings, this Court has explained:

A PCRA petitioner is not automatically entitled to an evidentiary 

hearing. We review the PCRA court’s decision dismissing a 

petition without a hearing for an abuse of discretion. The right to 

an evidentiary hearing on a post-conviction petition is not 

absolute. 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 ... to

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. Williams, 244 A.3d 1281, 1287 (Pa. Super. 2021) 

(citations, brackets, and paragraph break omitted).
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All of Appellant’s issues assail the effectiveness of Trial Counsel. 

Notably, counsel is presumed to be effective; a PCRA petitioner bears the

burden of proving otherwise. Commonwealth v. Brown, 196 A.3d 130, 150

(Pa. 2018); see also Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011) 

(“When evaluating ineffectiveness claims, judicial scrutiny of counsel’s 

performance must be highly deferential.” (citation and quotation marks 

omitted)).

[A] PCRA petitioner will be granted relief only when he proves, by 

a preponderance of the evidence, that his conviction or sentence 

resulted from[, inter alia,] the “ineffective assistance of counsel 

which, in the circumstances of the particular case, so undermined 

the truth-determining process that no reliable adjudication of guilt 

or innocence could have taken place.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting 42 

Pa.C.S.A. § 9543(a)(2)(ii)).

To establish a claim of ineffectiveness, a PCRA petitioner must plead and 

prove:

(1) the underlying claim has arguable merit; (2) no reasonable

basis existed for counsel’s action or failure to act; and (3) he

suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability the result

of the proceeding would have been different. Commonwealth v.

Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective

assistance of counsel test from Commonwealth v. Pierce, 527

A.2d 973, 975-76 (Pa. 1987)). ... Additionally, counsel cannot be

deemed ineffective for failing to raise a meritless claim. Finally,

because a PCRA petitioner must establish all the Pierce prongs to

be entitled to relief, we are not required to analyze the elements

of an ineffectiveness claim in any specific order; thus, if a claim

fails under any required element, we may dismiss the claim on

that basis.
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Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citations 

modified).

In his first issue, Appellant claims the PCRA court erred in denying relief

without an evidentiary hearing because Trial Counsel “was ineffective in that 

he failed to properly preserve in a [PSM, Appellant’s] challenge to the 

discretionary aspects of the sentence.” Appellant’s Brief at 15 (capitalization 

modified); see also Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa. 

Super. 2009) (“Issues challenging the discretionary aspects of a sentence 

must be raised in a post-sentence motion or by presenting the claim to the 

trial court during the sentencing proceedings. Absent such efforts, an 

objection to a discretionary aspect of a sentence is waived.”).

Appellant concedes Trial Counsel “did ask for a reconsideration of 

sentence” in the PSM. Appellant’s Brief at 15; see also PSM, 9/20/21, ¶¶ 6, 

7 (claiming Appellant’s sentence was “well beyond the top of the aggravated 

range” and “greater than necessary to meet the rehabilitative needs of 

[Appellant,] as well as the need to protect the public.”). Nonetheless, 

Appellant asserts that the discretionary sentencing claim in the PSM

does not raise a colorable argument that the sentencing judge’s 

actions were either: (1) inconsistent with a specific provision of 

the Sentencing Code; or (2) contrary to the fundamental norms 

which underlie the sentencing process. As such, even had [a 

direct] appeal been filed, as Appellant requested, [the Superior] 

Court would have likely found the [PSM] insufficient and 

determined that Appellant had waived his right to challenge the 

discretionary aspects of the sentence by failing to properly 

preserve same in the post-sentence motion.
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Appellant’s Brief at 16.

The Commonwealth counters that the PCRA court properly rejected this 

claim because the PSM preserved Appellant’s discretionary sentencing 

challenge:

The [PSM] argued Appellant was sentenced beyond the 

aggravated range of the sentencing guidelines and that he 

believed his sentence to be “excessive and greater than necessary 

to meet the rehabilitative needs of Appellant as well as the need 

to protect the community.” [PSM, 9/20/21,] ¶¶ 6-7. Absent 

Appellant identifying some additional discretionary aspects of 

sentencing claim that he believed trial counsel should have raised 

in his post-sentence motion, trial counsel surely did preserve a 

reviewable sentencing claim for purposes of direct appeal, and the 

underlying claim here has no arguable merit. 

Commonwealth Brief at 13 (italics in original; some capitalization modified).

The PCRA court also opined that Appellant’s discretionary sentencing 

claim was “properly preserved” in the PSM. PCRA Court Opinion, 4/18/23, at

8. We agree. As there is no arguable merit to Appellant’s underlying claim of 

Trial Counsel’s ineffectiveness, the PCRA court did not err in denying relief. 

In the alternative, the PCRA court stated 

even if Trial Counsel’s [PSM] was insufficient, Appellant has not 

established all three required prongs of the Pierce test for 

ineffective assistance of counsel. Specifically, Appellant has not, 

and cannot, establish prejudice because there is no reason to 

believe that a challenge to the discretionary aspects of sentence 

would have had merit on appeal.

PCRA Court Opinion, 4/18/23, at 8.3 Again, we agree. 

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3 The PCRA court also cited law applicable to discretionary aspects of 

sentencing claims. See PCRA Court Opinion, 4/18/23, at 8-10.
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The PCRA court, which also presided at Appellant’s sentencing, 

explained:

[T]his court set forth its reasons for the sentence on the 

record. First, this court considered Appellant’s prior criminal 

history and noted he had six prior convictions for assault-related 

behavior. N.T. 9/10/2021, p. 11. Second, this court considered 

the facts of the case—that Appellant began his attack from behind, 

leaving Victim unable to defend himself; that Appellant kneed and 

kicked Victim over a dozen times in the head despite Victim never 

attempting to fight back—and determined that it was a “very 

violent and unprovoked and vicious assault.” Id. at 12. Third, 

this court considered Appellant’s lack of remorse and failure to 

accept responsibility for his actions. At sentencing, Appellant 

claimed to feel apologetic for his actions, yet interrupted this court 

in the middle of the imposition of sentence to blame Victim for the 

assault and to again lie and state a debunked assertion that the 

hose Victim used [in self-defense] was filled with anything other 

than water. Id. at 12[]; N.T. 7/14/2021, p. 41.

Fourth, this court considered Appellant’s inability to abide to

authority as shown by his numerous misconducts in the [BCCF] 

and his violations of this court’s orders to not contact victims. N.T. 

9/10/2021, p. 13. Fifth, this court considered the need to protect

the community and noted that Appellant has repeatedly 

demonstrated that he cannot control his anger and that he has 

even acknowledged this himself at times. Id. at 14. Lastly, this 

court considered Appellant’s need for rehabilitation. Although 

Appellant completed a few classes on anger management and 

decision-making, this court found that those classes did not meet

Appellant’s needs. Id. Appellant, time after time, chose not to 

take advantage of and follow the programs and treatment 

available to him in the community, in the county correctional 

facility, or in the state correctional facility. For these reasons, this 

court found that anything other than total confinement was 

inappropriate. Id.

As such, it is clear that this court did not err when imposing 

sentence and properly exercised its discretion and, as such, any 

challenge on direct appeal would be meritless. Appellant’s claim 

to the contrary is wholly without merit and Appellant’s claim that 

Trial Counsel was ineffective must fail.
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PCRA Court Opinion, 4/18/23, at 10-11 (some capitalization modified). For 

the above reasons, Appellant’s first issue lacks merit.

In his second and third issues, Appellant presents related claims. 

Appellant asserts the PCRA court erred in rejecting his contention that Trial 

Counsel was ineffective for failing to file a requested direct appeal challenging 

the sufficiency of the evidence and the discretionary aspects of his sentence. 

See Appellant’s Brief at 16-18, 19-21. According to Appellant, he

pled in both the pro se [PCRA] petition and the amended petition 

that he directed Trial Counsel to pursue an appeal challenging the 

sentence. There is nothing in the record that belies this claim.

Trial Counsel contends, through the Commonwealth’s answer 

[to Appellant’s amended PCRA petition], that [Trial Counsel] was 

not told to pursue an appeal of the sentence. Without a[n 

evidentiary hearing,] it is impossible for the PCRA court to make 

any determination as to whether Appellant’s claim, or Trial

Counsel’s response, is credible. 

Id. at 17 (some capitalization modified).

The Commonwealth counters that Appellant failed to meet his burden of 

proving he asked Trial Counsel to file a direct appeal. See Commonwealth 

Brief at 14-18. The Commonwealth argues: 

Appellant makes passing references to alleged verbal and written

directives to [Trial Counsel to] file an appeal on [Appellant’s]

behalf. However, ... [Appellant] failed to attach any exhibits to his 

petition demonstrating such written instructions. Moreover, 

before [the Commonwealth filed] its answer [to the amended 

PCRA petition, PCRA Counsel] spoke with [T]rial [C]ounsel[,] who 

contested that Appellant ever instructed him to file a direct appeal.

The Commonwealth relayed the same in its answer.
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Id. at 16; but see also id. at 18 (Commonwealth acknowledging “the 

averments in its answer ... did not constitute ‘testimony’ or ‘evidence.’”).

According to the Commonwealth, the

record – even absent any additional testimony at [a PCRA 

evidentiary] hearing – undermines any claim that Appellant asked 

[T]rial [C]ounsel to file and represent him on direct appeal while 

simultaneously expressing [Appellant’s] steadfast desire to 

immediately pursue PCRA claims alleging [Trial Counsel’s] 

ineffectiveness.

Id. at 17. Upon review, we agree.

The Pennsylvania Supreme Court has held that where there is an 

“unjustified failure to file a requested direct appeal,” counsel is per se

ineffective. Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) 

(footnote omitted). However, while “counsel may be ineffective for failing to

file a direct appeal on his client’s behalf, a PCRA petitioner must prove that he

asked counsel to file an appeal in order to be entitled to

relief.” Commonwealth v. Maynard, 900 A.2d 395, 397-98 (Pa. Super.

2006) (citation omitted). “Mere allegations will not suffice.” Commonwealth

v. Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999). Where a petitioner has 

met his burden of proving he asked for a direct appeal, “no discussion of the 

potential merit of any claims is necessary or warranted.” Commonwealth v.

Markowitz, 32 A.3d 706, 715 (Pa. Super. 2011) (citing Lantzy, 736 A.2d at 

572). 

Instantly, at the beginning of Appellant’s sentencing hearing, Trial 

Counsel stated that Appellant had presented “one issue I think ought to be 
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addressed prior to any argument.” N.T., 9/10/21, at 3. Trial Counsel then 

questioned Appellant as follows:

[TRIAL COUNSEL]: I received a letter [from Appellant] ... written 

by [Appellant] by way of the Public Defender’s Office[,] expressing 

your desire to pursue certain matters on PCRA; is that correct?

[APPELLANT]: Yes, sir, it is.

[TRIAL COUNSEL]: I’m nonetheless prepared to move forward 

with sentencing today. Would you like to move forward for 

sentencing today with my representation?

[APPELLANT]: Yes, I would.

Id. at 3-4. 

After the trial court sentenced Appellant, Trial Counsel asked the trial 

court: “Would you be inclined to vacate my appointment [as Appellant’s 

counsel] at this time so [Appellant] can pursue other relief?” Id. at 16. The 

trial court responded:

THE COURT: I think what I’m inclined to do is, if [Appellant] 

wishes to appeal, [the trial court will] have [Trial Counsel] 

file the notice of appeal so that [Appellant’s] rights are 

protected. Then I will permit [Trial Counsel’s] withdrawal since 

[Appellant has] raised post conviction issues or ineffective [sic]

issues.

Id. (emphasis added). The trial court advised Appellant he had “30 days to 

file an appeal” from the date of his sentence. Id. at 15. The trial court further 

informed Appellant: “If you can’t afford an attorney for that purpose, we’ll 

appoint one for you free of charge....” Id. at 15-16.

As discussed, Trial Counsel averred in the PSM that Appellant sought 

appointment of new counsel to file a PCRA petition claiming Trial Counsel’s 
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ineffectiveness. PSM, 9/20/21, ¶¶ 10-11; id. ¶ 8 (stating Appellant “has 

indicated, through a July 27, 2021 letter to the Public Defender’s Office, that 

he wishes to file for [PCRA] relief”); accord Lesko, 15 A.3d at 359

(recognizing an attorney cannot raise a claim of his own ineffectiveness). 

Thus, the record belies Appellant’s unsupported claim that he asked Trial

Counsel to file a direct appeal. Harmon, 738 A.2d at 1024 (a PCRA

petitioner’s “[m]ere allegations” that petitioner asked counsel to file an appeal 

“will not suffice” to satisfy petitioner’s burden of proving the claim). 

Appellant’s second and third issues fail because there is no arguable merit to 

his claim of Trial Counsel’s ineffectiveness.

Our review reveals no abuse of discretion by the PCRA court in

determining that Appellant raised no genuine issues of material fact and

denying Appellant’s PCRA petition without an evidentiary hearing. 

Order affirmed.

Date: 12/5/2023