J-S58042-16

_____________________________

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

STEPHEN BERNARD BLACKSTONE

Appellant No. 1327 MDA 2015

Appeal from the PCRA Order July 2, 2015

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0003472-2001

BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 22, 2016

Appellant, Stephen Bernard Blackstone, appeals pro se from the order 

entered in the Dauphin County Court of Common Pleas, which denied his 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We 

affirm. 

The relevant facts and procedural history of this case are as follows. 

On May 24, 2001, Appellant entered a home and robbed and terrorized 

multiple victims at gunpoint. A jury convicted Appellant of three counts of 

robbery and one count each of burglary and persons not to possess firearms. 

The trial court sentenced Appellant on July 24, 2002, to an aggregate term 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. 
J-S58042-16

- 2 -

of fifty (50) to one hundred (100) years’ incarceration. This Court affirmed 

the judgment of sentence on November 17, 2003, and our Supreme Court 

denied allowance of appeal on August 12, 2004. See Commonwealth v. 

Blackstone, 841 A.2d 570 (Pa.Super. 2003) (unpublished memorandum), 

appeal denied, 579 Pa. 687, 856 A.2d 831 (2004). Appellant timely filed a 

pro se PCRA petition on June 16, 2005. The PCRA court appointed Attorney 

Engle to represent Appellant. Attorney Engle filed a Turner/Finley2 nomerit letter and petition to withdraw on October 21, 2005. Appellant filed a 

pro se response, arguing Attorney Engle failed to address several 

meritorious issues Appellant had raised in his pro se PCRA petition. On June 

29, 2006, the PCRA court granted Attorney Engle’s petition to withdraw and 

issued notice of its intent to dismiss Appellant’s PCRA petition, pursuant to 

Pa.R.Crim.P. 907. Appellant filed a pro se response to the court’s Rule 907 

notice. The court dismissed the PCRA petition on December 20, 2006. 

Appellant appealed and challenged the adequacy of Attorney Engle’s 

no-merit letter. On March 17, 2008, this Court decided Attorney Engle had 

been improperly permitted to withdraw, vacated the PCRA court’s order, and 

remanded for Attorney Engle or new counsel to file an amended PCRA 

petition or supplemental no-merit letter addressing Appellant’s five 

remaining issues. See Commonwealth v. Blackstone, 953 A.2d 594 

____________________________________________

2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
J-S58042-16

- 3 -

(Pa.Super. 2008) (unpublished memorandum). 

On remand, the PCRA court appointed Attorney Shreve to represent 

Appellant. On June 12, 2008, Appellant filed a pro se “motion to correct an 

illegal sentence,” in which he argued the trial court had illegally sentenced 

him as a “third strike” offender under 42 Pa.C.S.A. § 9714. Attorney Shreve 

filed a petition to withdraw and no-merit letter on September 8, 2008. 

Appellant filed a pro se response on September 25, 2008, arguing only that 

his sentencing issue had merit. The court did not allow Attorney Shreve to 

withdraw. On March 2, 2009, the court granted PCRA relief with respect to 

Appellant’s sentencing issue only. The court resentenced Appellant on April 

8, 2009, to an aggregate term of forty (40) to eighty (80) years’ 

incarceration, which included a “second strike” mandatory minimum term of 

ten (10) to twenty (20) years’ incarceration for one robbery count, pursuant 

to Section 9714. While still represented by Attorney Shreve, Appellant filed 

a direct appeal challenging his new sentence as excessive. This Court 

affirmed the new judgment of sentence on June 11, 2010, and our Supreme 

Court denied allowance of appeal on December 7, 2010. See 

Commonwealth v. Blackstone, 4 A.3d 683 (Pa.Super. 2010) (unpublished 

memorandum), appeal denied, 608 Pa. 659, 13 A.3d 473 (2010). 

Appellant filed the current pro se PCRA petition on March 28, 2011. 

The PCRA court issued Rule 907 notice on July 20, 2011. On August 4, 

2011, the court dismissed the petition. On appeal, this Court vacated the 
J-S58042-16

- 4 -

PCRA court’s order for failure to treat the PCRA petition as a “first” petition 

from Appellant’s new judgment of sentence (although historically it was 

Appellant’s second petition) and remanded for appointment of counsel. See 

Commonwealth v. Blackstone, 60 A.3d 560 (Pa.Super. 2012) 

(unpublished memorandum). On remand, the PCRA court appointed 

Attorney Tobias, who filed an amended PCRA petition on January 14, 2013. 

On April 11, 2013, Appellant filed a pro se motion for waiver of counsel. 

Following a Grazier3 hearing, the court granted Appellant’s request to 

proceed pro se. Appellant pro se filed a motion to submit an amended PCRA 

petition and a motion to obtain his pre-sentence investigation (“PSI”) report 

and juvenile record. The court granted both motions. Appellant filed a pro 

se amended PCRA petition on July 8, 2013. On July 23, 2014, Appellant filed 

a “motion to file an amended PCRA petition and/or for the court to take 

judicial notice of typo.” The court denied the motion and issued Rule 907 

notice on June 8, 2015. Appellant filed a response to the Rule 907 notice on 

June 24, 2015. On July 2, 2015, the court denied PCRA relief. Appellant 

timely filed a pro se notice of appeal on Monday, August 3, 2015. The court 

ordered Appellant to file a concise statement of errors complained of on 

appeal per Pa.R.A.P. 1925(b), and Appellant timely complied. 

Appellant raises the following issues on appeal, which we have 

____________________________________________

3 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
J-S58042-16

- 5 -

reordered for ease of disposition:

(1) WHETHER THE HONORABLE COURT ERRED IN 

TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE 

BEING INEFFECTIVE FOR FAILING TO 

AMEND/SUPPLEMENT APPELLANT’S INITIAL PCRA AND 

CHALLENGE TRIAL COUNSEL’S INEFFECTIVENESS FOR 

FAILING TO ASSURE APPELLANT’S CONSTITUTIONAL 

RIGHT TO A FAIR TRIAL BY REQUESTING FOR APPELLANT 

TO HAVE A “SEVERANCE” ON THE FORMER CONVICT NOT 

TO OWN A FIREARM CHARGE. WHICH AXIOMATIC 

REQUIRES EVIDENCE THAT APPELLANT WAS PREVIOUSLY 

CONVICTED OF A CRIME AND INSTEAD WRONGLY 

ADVISED APPELLANT NOT TO SEVER THE CHARGE, AS 

BEING MERITLESS, WITHOUT CONDUCTING AN 

EVIDENTIARY HEARING TO DETERMINE IF TRIAL COUNSEL 

AND THE TRIAL COURT’S WRONG[] ADVICE UNDERMINED 

APPELLANT’S ABILITY TO MAKE A KNOWING AND 

INTELLIGENT DECISION NOT TO PROCEED WITH A 

“SEVERANCE.”

(2) WHETHER THE HONORABLE COURT ERRED IN 

FAILING TO ADDRESS APPELLANT’S CLAIM OF ATTORNEY 

SHREVE BEING INEFFECTIVE FOR FAILING TO 

AMEND/SUPPLEMENT APPELLANT’S INITIAL PCRA AND 

CHALLENGE THE TRIAL COURT ERRING AND ABUSING ITS 

DISCRETION BY PROCEEDING IN A TRIBUNAL WITHOUT 

JURISDICTION ON THE 3RD COUNT OF ROBBERY.

(3) WHETHER THE HONORABLE COURT ERRED IN 

TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE 

BEING INEFFECTIVE FOR FAILING TO 

AMEND/SUPPLEMENT APPELLANT’S INITIAL PCRA 

CHALLENGING TRIAL COUNSEL’S INEFFECTIVENESS FOR 

FAILING TO FILE A MOTION TO HAVE THE TRIAL COURT 

REFLECT ON WHICH CHARGES WERE BOUND OVER FOR 

COURT. BECAUSE THE 3RD COUNT OF ROBBERY WAS 

DISMISSED AT A PRELIMINARY HEARING AND WAS NEVER 

REFILED AND THE TRIAL COURT HAD APPELLANT STAND 

TRIAL ON THE 3RD COUNT OF ROBBERY, AS BEING 

MERITLESS. WHEN SUCH ERROR IN LAW VIOLATED 

APPELLANT’S STATE AND FEDERAL 6[TH] AND 14TH

AMENDMENT CONSTITUTIONAL RIGHTS TO EFFECTIVE 

ASSISTANCE OF COUNSEL AND DUE PROCESS. 
J-S58042-16

- 6 -

(4) WHETHER THE HONORABLE COURT ERRED IN 

TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE 

BEING INEFFECTIVE FOR FAILING TO OBJECT TO THE 

TRIAL COURT ERRING IN “MISCALCULATING HIS PRIOR 

RECORD SCORE” ON THE SECOND AND THIRD COUNT OF 

ROBBERY, BURGLARY AND FORMER CONVICT NOT TO 

OWN A FIREARM CHARGE, AS BEING PREVIOUSLY 

LITIGATED. WHEN INEFFECTIVENESS CLAIMS ARE 

DISTINCT FROM NON-INEFFECTIVENESS CLAIMS OF 

ERROR RAISED ON DIRECT APPEAL AND 

PCRA/RESENTENCING COUNSEL SHREVE NEVER RAISED 

OR CHALLENGED THIS DISCRETIONARY ASPECT OF 

APPELLANT’S SENTENCE ON DIRECT APPEAL. AND 

PURSUANT TO THE PA. SENTENCING CODE § 303.7(A), 

WHICH USED TO BE § 303.6(A), AFTER THE TRIAL COURT 

SENTENCED APPELLANT ON THE OFFENSE WITH THE 

HIGHEST GRAVITY SCORE IN SUCH TRANSACTION 

APPELLANT’S PRIOR RECORD SCORE SHOULD [HAVE] 

WENT BACK TO “ZERO FOR THE REMAINING OFFENSES.”

(5) WHETHER THE HONORABLE COURT ERRED IN 

DENYING APPELLANT’S MOTION TO FILE AN AMENDED 

PCRA-PETITION AND/OR FOR THE COURT TO TAKE 

JUDICIAL NOTICE OF TYPO-SENTENCING CODE ERROR.

(6) WHETHER THE HONORABLE COURT ERRED IN 

TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE 

BEING INEFFECTIVE FOR FAILING TO OBJECT AND 

PRESERVE THE CLAIM THAT THE TRIAL COURT ERRED IN 

“DOUBLE COUNTING” APPELLANT’S (PRIOR RECORD/LACK 

OF [AMENABILITY] TO REHABILITATION), WHICH WAS A 

FACTOR ALREADY INCLUDED IN THE MANDATORY 

MINIMUM SENTENCE UNDER 42 PA.C.S.A. § 9714 AND 

THE SENTENCING GUIDELINES, AS BEING PREVIOUSLY 

LITIGATED. WHEN INEFFECTIVENESS CLAIMS ARE 

DISTINCT FROM NON-INEFFECTIVENESS CLAIMS OF 

ERROR RAISED ON DIRECT APPEAL. AND 

PCRA/RESENTENCING COUNSEL SHREVE NEVER RAISED 

OR CHALLENGED THIS DISCRETIONARY ASPECT OF 

APPELLANT’S SENTENCE ON DIRECT APPEAL.

(7) WHETHER THE HONORABLE COURT ERRED IN 

TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE 
J-S58042-16

- 7 -

BEING INEFFECTIVE FOR FAILING TO OBJECT AND 

PRESERVE THE CLAIM THAT APPELLANT RAISED BEFORE 

THE TRIAL COURT CHALLENGING THE 

CONSTITUTIONALITY AND LEGISLATIVE INTENT OF 42 

PA.C.S.A. § 9714(A)(1) AND THAT IF THE COURT 

IMPOSE[D] A SENTENCE WHICH WAS NOT INTENDED BY 

THE LEGISLATORS THEN THE SENTENCE IMPOSED IS 

ILLEGAL, AS BEING PREVIOUSLY LITIGATED. WHEN 

INEFFECTIVENESS CLAIMS ARE DISTINCT FROM NONINEFFECTIVENESS CLAIMS OF ERROR RAISED ON DIRECT 

APPEAL. AND PCRA/RESENTENCING COUNSEL SHREVE 

NEVER RAISED OR CHALLENGED THE “LEGALITY OF 

APPELLANT’S NEW SENTENCE ON DIRECT APPEAL.” 

(8) WHETHER THE HONORABLE COURT ERRED IN 

TREATING APPELLANT’S CLAIM OF ATTORNEY SHREVE 

BEING INEFFECTIVE FOR FAILING TO OBJECT AND/OR 

FILE A MOTION TO CORRECT AN ERRONEOUS (P.S.I.-

REPORT) AND ALSO PRECLUDE THE TRIAL COURT FROM 

RELYING ON UNCONSTITUTIONAL PRIOR JUVENILE 

OFFENSES AND/OR FILE A MOTION FOR THE TRIAL COURT 

TO ORDER A (NEW P.S.I.-REPORT) PRIOR TO APPELLANT 

BEING RESENTENCED, AS BEING WAIVED AND/OR 

MERITLESS. WHEN THE EXHIBITS ATTACHED TO 

APPELLANT’S PCRA-PETITION CLEARLY ESTABLISHED 

FACTS IN DISPUTE THAT WARRANT AN EVIDENTIARY 

HEARING. AND SUCH ERROR IN LAW IS A CONTINUATION

AND VIOLATION OF APPELLANT’S STATE AND FEDERAL 

6[TH] AND 14TH AMENDMENT CONSTITUTIONAL RIGHTS TO 

EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS, 

AND CONSTITUTES AN ILLEGAL SENTENCE.

(Appellant’s Brief at 10−11a-11b).4 

In issues one through three, Appellant raises layered claims of 

ineffective assistance of counsel against Attorney Shreve ultimately relating 

to trial issues. Appellant argues that after Attorney Shreve was appointed to 

____________________________________________

4 Appellant has two pages of his brief numbered as “11.” 
J-S58042-16

- 8 -

replace Attorney Engle on Appellant’s first PCRA petition, Attorney Shreve 

should have amended the petition to allege (1) trial counsel was ineffective 

for giving Appellant erroneous advice on whether to request a severance of 

the firearms charge; and (2) the trial court lacked jurisdiction over the third 

robbery count because that count had previously been dismissed at 

Appellant’s preliminary hearing, and trial counsel was ineffective for failing to 

file a motion “to have the trial court reflect on which charges were bound 

over for court.” (Appellant’s Brief at 62). Appellant concludes this Court 

should vacate the robbery conviction and remand for an evidentiary hearing 

on the severance issue. We cannot agree. 

As a preliminary matter, the timeliness of a PCRA petition is a 

jurisdictional requisite, which this Court may address sua sponte. 

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008); 

Commonwealth v. Gandy, 38 A.3d 889 (Pa.Super. 2012), appeal denied, 

616 Pa. 651, 49 A.3d 442 (2012). A PCRA petition must be filed within one 

year of the date the underlying judgment becomes final. 42 Pa.C.S.A. § 

9545(b)(1). A judgment is deemed final at the conclusion of direct review or 

at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3). 

The three statutory exceptions to the PCRA’s timeliness provisions allow for 

very limited circumstances under which the late filing of a petition will be 

excused. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner asserting a 

timeliness exception must file a petition within sixty days of the date the 
J-S58042-16

- 9 -

claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). 

Additionally, the PCRA petitioner must plead and prove his allegation 

of error has not been previously litigated or waived. 42 Pa.C.S.A. § 

9543(a)(3). “[A]n 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.” 42 Pa.C.S.A. § 9544(b). Where 

PCRA counsel seeks to withdraw from representation, the petitioner must 

preserve any challenge to counsel’s ineffectiveness in a response to 

counsel’s no-merit letter or, if applicable, the court’s Rule 907 notice. See 

Commonwealth v. Pitts, 603 Pa. 1, 9 n.4, 981 A.2d 875, 880 n.4 (2009). 

Instantly, the trial court originally sentenced Appellant on July 24, 

2002. This Court affirmed the judgment of sentence on November 17, 2003, 

and the Pennsylvania Supreme Court denied allowance of appeal on August 

12, 2004. Thus, Appellant’s original judgment of sentence became final on 

November 10, 2004, upon expiration of the time to file a petition for writ of 

certiorari with the United States Supreme Court. See U.S.Sup.Ct.R. 13; 42 

Pa.C.S.A. § 9545(b)(3). On June 16, 2005, Appellant timely filed his first 

pro se PCRA petition from his original judgment of sentence. The PCRA 

court appointed Attorney Engle, who filed a no-merit letter and petition to 

withdraw. The court dismissed the petition and granted Attorney Engle 

leave to withdraw. On appeal, this Court vacated the PCRA court’s order and

remanded the matter based on Attorney Engle’s deficient no-merit letter. 
J-S58042-16

- 10 -

On remand, the PCRA court appointed Attorney Shreve to replace Attorney 

Engle. While represented by Attorney Shreve, Appellant filed a pro se

motion, asserting he was unlawfully sentenced as a “third strike” offender 

under Section 9714. Attorney Shreve subsequently filed a petition to 

withdraw and no-merit letter with respect to the other issues on remand. 

Appellant filed a pro se response in which he addressed the illegal sentence 

issue only. The PCRA court granted relief limited to that issue. Appellant 

did not appeal the PCRA’s court order. The court resentenced Appellant 

without application of the “third strike” provision on April 8, 2009, and 

Appellant filed a direct appeal from his new judgment of sentence. Following 

conclusion of that direct appeal process, Appellant filed the current PCRA 

petition pro se on March 28, 2011. After the PCRA court dismissed the 

petition, this Court determined on appeal that Appellant was entitled to 

counsel because it was Appellant’s first petition filed after imposition of his 

new judgment of sentence. See Pa.R.Crim.P. 904(C) (stating PCRA court 

shall appoint counsel to represent indigent defendant for first PCRA petition). 

On remand, the court appointed Attorney Tobias, who filed an amended 

petition. 

The relief granted on Appellant’s initial PCRA petition, which was 

limited to resentencing, did not reset the clock for purposes of calculating 

the date Appellant’s judgment of sentence became final with respect to 

claims unrelated to the resentencing, i.e., Appellant’s claims concerning 
J-S58042-16

- 11 -

Attorney Shreve’s representation during Appellant’s initial PCRA petition. 

See Commonwealth v. Dehart, 730 A.2d 991, 993 n.2 (Pa.Super. 1999), 

appeal denied, 560 Pa. 719, 745 A.2d 1218 (1999) (stating successful PCRA 

petition does not affect calculation of finality of judgment of sentence where 

relief granted neither restored petitioner’s direct appeal rights nunc pro tunc

nor disturbed conviction, but affected petitioner’s sentence only). 

Specifically, Appellant now challenges Attorney Shreve’s effectiveness for 

failing to raise claims of ineffective assistance against trial counsel. 

Appellant’s petition is a “serial” petition with respect to those claims. Their 

timeliness must be measured against the date Appellant’s original judgment 

of sentence became final: November 10, 2004. Appellant filed the current 

PCRA petition on March 28, 2011. Therefore, Appellant’s petition is patently 

untimely with respect to the allegations of layered ineffective assistance in 

connection with Appellant’s initial PCRA petition; and Appellant failed to 

plead and prove any exception to the PCRA time bar. See 42 Pa.C.S.A. § 

9545(b)(1). Consequently, the PCRA court lacked jurisdiction over those 

specific claims. See Hackett, supra. Moreover, Appellant had the 

opportunity to bring those claims during the proceedings on the initial PCRA 

petition. When Attorney Shreve sought to withdraw, Appellant could have 

raised his allegations of layered ineffective assistance of counsel in a 

response to the withdrawal petition. See Pitts, supra. Instead, Appellant 

filed a pro se response in which he argued only that his original sentence 
J-S58042-16

- 12 -

was unlawful. Thus, Appellant’s layered claims of ineffectiveness would be 

waived in any event. See id. 

Appellant’s remaining five issues relate to his resentencing on April 8, 

2009. Dehart arguably forecloses review of those claims as well. See 

Dehart, supra at 993 n.2 (stating: “[T]he relief granted in the first PCRA 

action did not affect the adjudication of guilt, but merely the sentence 

imposed. Because the purpose of the PCRA is to prevent a fundamentally 

unfair conviction...and the issue of appellant’s conviction was not disturbed 

on the prior PCRA action, we find that this petition constitutes appellant’s 

second attempt at collateral relief”). Nevertheless, in Dehart, this Court did 

not have the benefit of the petitioner’s second PCRA petition in the certified 

record to confirm the nature of his claims and whether they related to the 

petitioner’s new sentence. Additionally, the Dehart Court considered only 

one purpose of the PCRA—to prevent a fundamentally unfair conviction. The 

statute, however, expressly provides a remedy for defendants serving illegal 

sentences too. See 42 Pa.C.S.A. § 9542 (stating: “This subchapter provides 

for an action by which persons convicted of crimes they did not commit and 

persons serving illegal sentences may obtain collateral relief”) (emphasis 

added). Therefore, we consider Appellant’s current petition his “first” with 

respect to claims arising out of the new sentence imposed on April 8, 2009. 

That judgment of sentence became final on March 7, 2011, after expiration 

of the ninety-day period to file a petition for writ of certiorari with the United 
J-S58042-16

- 13 -

States Supreme Court. See U.S.Sup.Ct.R. 13. Thus, the current PCRA 

petition, filed on March 28, 2011, is timely with respect to Appellant’s claims 

relating to his new sentence. See 42 Pa.C.S.A. § 9545(b)(1). 

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the record evidence supports the court’s determination 

and whether the court’s decision is free of legal error. Commonwealth v. 

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 

A.2d 319 (2008). This Court grants great deference to the findings of the 

PCRA court if the record contains any support for those findings. 

Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). A petitioner is 

not entitled to a PCRA hearing as a matter of right; the PCRA court can 

decline to hold a hearing if there is no genuine issue concerning any material 

fact, the petitioner is not entitled to PCRA relief, and no purpose would be 

served by any further proceedings. Commonwealth v. Hardcastle, 549 

Pa. 450, 701 A.2d 541 (1997). 

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When 

asserting a claim of ineffective assistance of counsel, a petitioner is required 

to make the following showing: (1) the underlying claim is of arguable merit; 

(2) counsel had no reasonable strategic basis for his action or inaction; and, 

(3) but for the errors and omissions of counsel, there is a reasonable 

probability that the outcome of the proceedings would have been different. 
J-S58042-16

- 14 -

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). 

The failure to satisfy any prong of the test for ineffectiveness will cause the 

claim to fail. Williams, supra.

“The threshold inquiry in ineffectiveness claims is whether the 

issue/argument/tactic which counsel has foregone and which forms the basis 

for the assertion of ineffectiveness is of arguable merit...” Commonwealth 

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot 

be found ineffective for failing to pursue a baseless or meritless claim.” 

Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal 

denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v. 

Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)).

Once this threshold is met we apply the “reasonable basis” 

test to determine whether counsel’s chosen course was 

designed to effectuate his client’s interests. If we conclude 

that the particular course chosen by counsel had some 

reasonable basis, our inquiry ceases and counsel’s 

assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

Prejudice is established when [a defendant] demonstrates

that counsel’s chosen course of action had an adverse

effect on the outcome of the proceedings. The 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. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome. In [Kimball, supra], we held 

that a “criminal defendant alleging prejudice must show 

that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 
J-S58042-16

- 15 -

(2002) (some internal citations and quotation marks omitted). 

In issues four and five, Appellant argues the court improperly applied 

his prior record score (“PRS”) of six to each offense during resentencing 

(except for the sole robbery count subject to a mandatory minimum term). 

Appellant contends all offenses stemmed from the same transaction, so 

under the Sentencing Guidelines the court should have applied Appellant’s 

PRS to the remaining robbery convictions only, since robbery was the 

highest-graded offense. Appellant claims the court should have applied a 

PRS of zero to the remaining offenses. Appellant asserts Attorney Shreve 

was ineffective for failing to object to the way the court applied the 

sentencing guidelines during resentencing. Relatedly, Appellant argues the 

PCRA court improperly denied his “motion to file an amended PCRA petition 

and/or for the court to take judicial notice of typo,” in which Appellant 

sought to clarify that he accidentally cited to the wrong section of the 

Sentencing Guidelines in his amended pro se PCRA petition. Appellant 

concludes he is entitled to resentencing. We disagree. 

Instantly, Appellant committed the offenses in question in 2001. The 

5

th Edition of the Sentencing Guidelines was in effect from June 13, 1997, to 

June 3, 2005. Therefore, that edition of the Sentencing Guidelines was 

applicable when the court resentenced Appellant. See Commonwealth v. 

Maneval, 688 A.2d 1198 (Pa.Super. 1997) (stating applicable sentencing 

guidelines are those in effect at time offense was committed). Appellant’s 
J-S58042-16

- 16 -

argument relies on prior editions of the Sentencing Guidelines, which 

directed the trial court to apply a defendant’s PRS to the offense with the 

highest offense gravity score only, when imposing sentences for convictions 

arising out of the same transaction. See 204 Pa.Code 303.7(a) (4th

Edition); 204 Pa.Code 303.6(a) (revised 3rd edition). That language, 

however, is absent from the 5th Edition of the Sentencing Guidelines, which 

was the version in effect at the time Appellant committed the offenses at 

issue. Therefore, Appellant’s claim that Attorney Shreve should have 

objected to the resentencing court’s across-the-board application of 

Appellant’s PRS, based on outdated law, lacks arguable merit.5 See Pierce, 

supra. 

In his sixth issue, Appellant argues the resentencing court improperly 

“double counted” his prior record when it factored Appellant’s criminal 

history and lack of amenability to rehabilitation into its sentencing decision. 

Appellant contends the General Assembly already considered prior 

convictions and rehabilitative potential in formulating the mandatory 

____________________________________________

5 Appellant’s “typo” in his PCRA petition was his citation to 204 Pa.Code 

303.6(a), which formerly contained the relevant language later moved to 

Section 303.7(a). Appellant wished to clarify that he meant to cite to 

Section 303.7. Nevertheless, the language relied on by Appellant had been 

completely removed from Section 303.7 and the entire Sentencing 

Guidelines by the time Appellant committed the offenses. Therefore, 

Appellant’s “typo” was inconsequential, and he incurred no prejudice from 

the court’s denial of his motion to correct the typo or have the court take 

“judicial notice” of it. 
J-S58042-16

- 17 -

minimum statute and the applicable sentencing guidelines. Appellant 

concludes Attorney Shreve was ineffective for failing to raise the issue at 

resentencing and on direct appeal. We disagree. 

“It is impermissible for a court to consider factors already included 

within the sentencing guidelines as the sole reason for increasing or 

decreasing a sentence to the aggravated or mitigated range.” 

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006). The 

sentencing court, however, is allowed to use prior conviction history and 

other factors already included in the guidelines to supplement other 

sentencing information. Id. 

Section 9714 of the Sentencing Code provides in relevant part as 

follows:

Any person who is convicted in any court of this 

Commonwealth of a crime of violence shall, if at the time 

of the commission of the current offense the person had 

previously been convicted of a crime of violence, be 

sentenced to a minimum sentence of at least ten years of 

total confinement, notwithstanding any other provision of 

this title or other statute to the contrary.

42 Pa.C.S.A. § 9714(a)(1). 

Instantly, upon resentencing Appellant on April 8, 2009, the court 

stated the following reasons for the sentence:

So in terms of the relevance for sentencing, that PSI, we 

considered and even referred to in the sentencing 

transcript from July of 2002. So that the reasons we gave 

for our resentencing at that time are no less applicable 

then as they are now in terms of the background and the 

facts and circumstances concerning the sentence we 
J-S58042-16

- 18 -

imposed at that time.

I would note that we have—just in terms of [Appellant], 

what [you have] done while you’ve been incarcerated, 

we’ll note that favorably.

In addition to that, [Appellant], you do appear for the brief 

time you’ve been here far different than you were back in 

2001-2002. So I do want to at least note in terms of your 

presentation here was far different than it was before. 

I will also note that prior to this, in your words you were 

out of—since the age of 13, you weren’t out of prison for 

more than 5 months at one time. Those were your words 

in the presentence report. 

In addition to that, you at the time throughout the 

proceedings have maintained you were innocent. This is 

the first time I’ve heard you accept any responsibility. 

Quite frankly, that undermines your acceptance of 

responsibility when at the time you could have. When it 

was in your benefit not to do that, you chose to maintain 

your innocence, still do that. 

So when you come here today and say, oh, I accept 

responsibility, it is not as persuasive to the [c]ourt as if 

you would have done it back then, because it was in your 

best interest, it was to your benefit to maintain your 

innocence. That to me, when you now accept it, just is 

undermined. So we’ve considered that.

In addition, we’ve considered again in imposing sentence 

that the short—the opportunities you did have for 

vocational training, educational training afforded you in the 

state correctional institute, that didn’t produce any results 

from previous state sentences, that within a short time of 

your release and indeed in this case within a matter of, oh, 

I think it was less than 2 months, it was quickly, just being 

released on the homicide charge, that you committed this 

offense.

So I’m not looking at your prior record. I’m looking at 

the opportunities that were afforded you in the past to be 

successful vocationally, educationally and probably more 
J-S58042-16

- 19 -

significant in controlling your violence and anger that’s 

manifested in the robberies, those types of offenses that 

you were engaged in. That hasn’t changed.

(N.T. Resentencing, 4/8/09, at 22-24) (emphasis added). The court’s 

remarks made clear it did not sentence Appellant in the aggravated range 

for any of his convictions based solely on his prior record. Further, the 

single mandatory minimum sentence imposed, based on a prior conviction, 

was no higher than the ten-year minimum term prescribed by Section 9714. 

See 42 Pa.C.S.A. § 9714(a)(1). At the time, the court had no discretion to 

impose a lower sentence on that robbery count. Therefore, Appellant’s claim 

that the court engaged in impermissible “double counting” lacks arguable 

merit, and Attorney Shreve was not ineffective for failing to raise that 

specific claim in his challenge to the discretionary aspects of Appellant’s 

sentence. See Pierce, supra; Shugars, supra. 

In his seventh issue, Appellant argues his sentence was contrary to 

the legislative intent behind Section 9714. Appellant asserts the court 

acknowledged its mistake in initially sentencing Appellant as a third-strike 

offender under that statute, but it still imposed a harsh sentence appropriate 

for third-strike offenders upon resentencing. Appellant contends the 

sentence did not afford him the opportunity for rehabilitation intended for 

second-strike offenders. Appellant claims Section 9714 did not authorize the 

court to impose a sentence beyond the ten-year mandatory minimum. 

Appellant submits Attorney Shreve was ineffective for failing to challenge 
J-S58042-16

- 20 -

Appellant’s new sentence based on the legislative intent and constitutionality 

of Section 9714. Appellant concludes he is entitled to resentencing. We 

disagree. 

Instantly, Appellant conflates his single mandatory minimum sentence 

with his aggregate sentence of forty (40) to eighty (80) years. The court’s 

application of Section 9714 related to only one of Appellant’s robbery 

convictions. For that conviction, the court imposed a mandatory minimum 

term of ten (10) years’ incarceration, consistent with the requirements of 

Section 9714. See 42 Pa.C.S.A. § 9714(a)(1). Section 9714 in no way 

prohibited the court from exercising its discretion to link that sentence 

consecutively with Appellant’s other individual sentences. Therefore, 

Appellant’s claim that his sentence was inconsistent with Section 9714 lacks 

arguable merit, and Attorney Shreve was not ineffective for declining to 

pursue it.6 See Pierce, supra. 

____________________________________________

6 To the extent Appellant suggests his new aggregate sentence was 

excessive, Attorney Shreve raised that claim in a post-sentence motion and 

this Court disposed of it on direct appeal. Therefore, that particular claim 

has been previously litigated. See 42 Pa.C.S.A. § 9543(a)(3) (stating 

petitioner must prove allegation of error has not been previously litigated or 

waived to be eligible for PCRA relief). Moreover, direct challenges to the 

discretionary aspects of sentencing are not cognizable under the PCRA. See 

Commonwealth v. Wrecks, 934 A.2d 1287 (Pa.Super. 2007). 

Additionally, Appellant failed to develop any argument regarding the 

“constitutionality” of Section 9714. Therefore, that aspect of Appellant’s 

issue is waived. See Commonwealth v. Beshore, 916 A.2d 1128 

(Pa.Super. 2007), appeal denied, 603 Pa. 679, 982 A.2d 509 (2007) (en 

(Footnote Continued Next Page)
J-S58042-16

- 21 -

In his eighth issue, Appellant argues his presentence investigation 

(“PSI”) report contained numerous factual inaccuracies relied on by the 

resentencing court. Appellant contends he had no opportunity before 

resentencing to review or discuss with Attorney Shreve any information 

contained in the PSI report. Appellant further asserts the court improperly 

considered prior juvenile offenses where Appellant was not represented by 

counsel. Appellant claims Attorney Shreve was ineffective for failing to 

object to inaccuracies in the PSI report and to the court’s reliance on 

Appellant’s prior juvenile offenses. Appellant concludes this Court should 

vacate the judgment of sentence and remand for resentencing. We 

disagree. 

This Court has stated the following with respect to allegations of errors 

in PSI reports:

Where...the accuracy of the presentence report has been 

challenged at the sentencing hearing, the sentencing court 

cannot solely rely on the presentence report to satisfy the 

record requirements of its sentencing function. Thus, 

whenever the information contained in the pre-sentence 

report is challenged by the defendant at sentencing, it is 

incumbent upon the court to engage in a fact finding 

function to determine the truth or falsity of the statements 

contained in the report. The reliance sentencing courts 

enjoy regarding pre-sentence reports in the sentencing 

process presumes their accuracy. When it is alleged that 

the reports contain untruths, it is imperative that the 

sentencing court make the appropriate determination on 

(Footnote Continued) _______________________

anc) (stating failure to develop adequate argument in appellate brief may 

result in waiver of claim).
J-S58042-16

- 22 -

the record of the factual basis for the sentence imposed.

Commonwealth v. Kerstetter, 580 A.2d 1134, 1136 (Pa.Super. 1990). 

Instantly, the resentencing court incorporated the same PSI report and 

juvenile record used at Appellant’s initial sentencing in 2002. Appellant had 

previous opportunities to object to those documents. Further, the PCRA 

court addressed Appellant’s allegations of factual inaccuracies in his PSI 

report as follows:

No inaccuracies existed in the [PSI report], which caused 

prejudice to [Appellant] at resentencing. The court relied 

upon no erroneous information as to [Appellant’s] juvenile 

history, background or criminal record, which required 

correction by resentencing counsel and therefore no 

ineffectiveness occurred.

We address each of the alleged inaccuracies asserted in 

the January 14, 2013 Counseled Petition, Claims 1-7, as 

presented:

1. [Appellant] had a high school diploma prior to 

sentencing on July 24, 2002.

[Appellant] fails to demonstrate how he suffered prejudice 

by the court’s order on July 24, 2002 that he obtain a 

GED, alleging that he already possessed a high school 

diploma. The court imposed that condition as 

rehabilitative not punitive.

No need existed to correct or to inform the court of 

[Appellant’s] high school diploma at resentencing in 2009, 

because [Appellant] did so himself, stating to the court[:]

[W]hen you sentenced me last time you ordered me 

to go upstate and to get a high school diploma and 

enroll in some other programs. But I already had a 

high school diploma which I got in [19]99. 

[N.T. Resentencing, 4/7/09, at 15]. 
J-S58042-16

- 23 -

Accordingly, no ineffectiveness occurred.

2. [Appellant] worked at temp agencies and participated in 

preaching at the Boys & Girls Club prior to his 2001 arrest.

No ineffectiveness occurred in relation to the alleged 

omission of such information from the PSI where 

[Appellant] provided such information to the court on the 

record [at] resentencing. [Appellant] stated:

Even prior to when I found myself getting back into 

the streets, I had completed a drug program, 

Conewago in Wernersville. Also, the monitors there 

really took a liking to how I carried myself. They 

wanted me to stay out of trouble for two years so I 

could come back and work in their facility. I also 

while I was there was [t]eaching at the Boys and 

Girls Club.

* * *

[Id. at 14].

3. [Appellant] could not enroll in vocational classes during 

his previous sentence because he was 17 years old and did 

not have a high school diploma.

[Appellant] fails to present argument as to how this 

alleged omission or inaccuracy created prejudice and is 

therefore waived. Further, the court did not recite that 

factor in sentencing or resentencing.

4. [Appellant] had only 1 previous adult conviction, 

serving a 2-10 year sentence; [p]rior, he served 2 juvenile 

terms for 6-9 months in 1993 and 9-12 months in 1995; 

[n]ever arrested for an assault at age 8 nor did he have a 

conviction for robbery in June or August of 1993.

The court properly relied upon and referred to the certified 

record of the Clerk of Courts as to [Appellant’s] history of 

criminal offenses. 

[Appellant’s] claim that the court improperly relied upon 
J-S58042-16

- 24 -

an “arrest for assault at age 8” lacks merit. The court 

properly noted [Appellant’s] juvenile offenses at both the 

initial sentencing and resentencing, namely, that 

[Appellant] served 2 juvenile terms for 6-9 months in 1993 

and 9-12 months in 1995.

* * *

The court did not state, as [Appellant] argues, that he was 

“arrested” [at age 8]. Rather the court stated[:]

Those certainly have been afforded you over—really 

since age 13, and you even have at age 8 an 

aggravated assault contact with the juvenile 

probation office. That was warned and closed.

[N.T. Sentencing, 7/24/02, at 12].

5. [Appellant] had no robbery conviction in June or August 

of 1993.

The court did not refer to a [1993] robbery conviction. Id. 

6. [Appellant] had no weapon conviction in 1996 or 

robbery conviction in 1996[.]

The [c]ourt properly relied upon the certified dockets 

which reflect prior convictions.

7. [Appellant] was at Loysville in Jan[uary] 1995 not 

Paradise School[.]

The court correctly referred to “Loysville” as set forth in 

the PSI. (“It looks like you went to Loysville for a period of 

time”)[.] [Id. at 11].

8. The court was not aware of [Appellant’s] age.

The statements of the court and the testimony of a family 

member reflect the court’s awareness of Appellant’s age. 

It is insignificant that the court later referred to 

[Appellant’s] age as...22[.]

At resentencing, a family member testified, “[Appellant is] 
J-S58042-16

- 25 -

28 years old and stands before you as a man that has a 

total different outlook on life[,] has concerns for others as 

well as himself.” [N.T. Resentencing, 4/7/09, at 20].

(PCRA Court Opinion and Order, filed June 8, 2015, at 11-15) (some internal 

citations to the record omitted) (emphasis in original). The record supports 

the court’s analysis. Appellant’s pro se amended PCRA petition raised 

additional allegations of inaccuracies in the PSI report. All of Appellant’s 

allegations are unsupported, belied by the record, and/or involve minor 

discrepancies or factors not relied on by the resentencing court. The 

resentencing court stated its reasons on the record for the new sentence 

imposed, including Appellant’s prior convictions for third-degree murder and 

robbery, and other evidence of Appellant’s lack of amenability to 

rehabilitation. Appellant fails to demonstrate that but for Attorney Shreve’s 

failure to raise Appellant’s allegations regarding the PSI report, the outcome 

of the resentencing proceedings would have been different. See 

Chambers, supra. Appellant also fails to provide any support for his bald 

assertion that he was unrepresented by counsel during his prior juvenile 

adjudications, or that Attorney Shreve was aware of Appellant’s purported 

lack of representation. Therefore, Appellant’s final challenge to Attorney 

Shreve’s effectiveness merits no relief. See Kimball, supra. Based on the 

foregoing, the court properly denied Appellant’s PCRA petition. Accordingly, 

we affirm. 
J-S58042-16

- 26 -

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016