J-S47026-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellee

v.

ELBERT JOHNSON

Appellant No. 2776 EDA 2016

Appeal from the PCRA Order August 8, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0015349-2007

BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.: FILED DECEMBER 07, 2017

Elbert Johnson appeals from the August 8, 2016 order entered in the 

Philadelphia County Court of Common Pleas dismissing his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. 

We affirm.

We set forth the factual and procedural history of this matter in a 

previous memorandum where we reinstated Johnson’s appellate rights nunc 

pro tunc. See Commonwealth v. Johnson, No. 1221 EDA 2012, 

unpublished mem. at 2 (Pa.Super. filed Apr. 23, 2013) (quoting Trial Ct. Op., 

7/18/12, at 1-2, and adopting trial court’s recitation of relevant factual history, 

id. at 2-7). The Pennsylvania Supreme Court denied Johnson’s petition for 

allowance of appeal on September 17, 2013. 
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On December 30, 2013, Johnson filed a pro se PCRA petition. The PCRA 

court appointed counsel, who subsequently filed an amended PCRA petition 

on January 20, 2016. On April 27, 2016, the Commonwealth filed a motion 

to dismiss. On July 6, 2016, the PCRA court sent notice of intent to dismiss 

Johnson’s petition without a hearing pursuant to Pennsylvania Rule of Criminal 

Procedure 907. On August 8, 2016, the PCRA court dismissed the petition. 

Johnson timely filed a notice of appeal.

Johnson raises the following issues on appeal:

I. Whether the court erred in denying [Johnson]’s PCRA 

petition without an evidentiary hearing on the issues 

raised in the amended PCRA petition regarding trial 

counsel’s ineffectiveness.

II. Whether the court erred in not granting relief on the 

PCRA petition alleging counsel was ineffective.

Johnson’s Br. at 8 (answers below omitted).

Our standard of review from the denial of PCRA 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. We will not disturb 

findings that are supported by the record.” Commonwealth v. Ousley, 21 

A.3d 1238, 1242 (Pa.Super. 2011) (internal citation omitted). 

Furthermore, the right to an evidentiary hearing on a PCRA petition is 

not absolute. Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.Super. 

2008). “[I]f the PCRA court can determine from the record that no genuine 

issues of material fact exist, then a hearing is not necessary.” Id. (quoting 

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008)). “A 
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reviewing court must examine the issues raised in the PCRA petition in light 

of the record in order to determine whether the PCRA court erred in concluding 

that there were no genuine issues of material fact and in denying relief without 

an evidentiary hearing.” Id.

Johnson claims that trial counsel was ineffective for failing to file a postsentence motion to reconsider sentence.1

 

We conclude that Johnson has waived this issue. Under section 9544(b) 

of the PCRA, “an issue is waived if the petitioner could have raised it but failed 

to do so before trial, at trial, . . . on appeal or in a prior state postconviction 

proceeding.” 42 Pa.C.S. § 9544(b). We have held that the waiver provision 

of the PCRA applies to improperly raised claims:

We note that the PCRA’s definition of waiver speaks only of 

claims that could have been raised, but were not. See 42 

Pa.C.S.[] § 9544(b). It does not specifically address claims 

that were raised, but raised improperly. Nonetheless, we 

see no reason the definition would not apply to both types 

of waiver; thus, we assume it applies to all claims not 

preserved, whether by omission or imprecision . . . . 

Commonwealth v. Jones, 932 A.2d 179, 182 (Pa.Super. 2007) (emphasis 

in original).

In Johnson’s first amended PCRA petition, filed on October 7, 2011, 

Johnson requested that the PCRA court reinstate his right to file post-sentence 

motions and his direct appeal rights nunc pro tunc. The PCRA court granted 

____________________________________________

1 Johnson filed an untimely pro se “Motion for Reconsideration and/or 

Reduction of Sentence” on June 24, 2009.
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the petition to reinstate his direct appeal rights, but denied his request to 

reinstate his post-sentence motion rights. Johnson then appealed the PCRA 

court’s decision to this Court. We observed that “in his PCRA petition, 

[Johnson] gave no reasons for why his post-sentence motion rights should be 

reinstated.” Johnson, No. 1221 EDA 2012, unpublished mem. at 4. We also 

noted that a PCRA court is free to reinstate a defendant’s right to file postsentence motions nunc pro tunc “[i]f a defendant successfully pleads and 

prove that he was deprived of the right to file and litigate [post-sentence] 

motions as a result of the ineffective assistance of counsel.” Id. (quoting 

Commonwealth v. Liston, 977 A.2d 1089, 1094 n.9 (Pa. 2009)). We agreed 

with the PCRA court that Johnson’s claim was “‘completely unsupported’ 

because [Johnson] failed to plead and prove why post-sentence motion rights 

should be reinstated.” Id. at 4-5. 

Because Johnson did not adequately plead and prove the issue of trial 

counsel’s ineffectiveness for failing to file post-sentence motions when he 

previously could have – that is, when he sought reinstatement of his postsentence motion rights nunc pro tunc in 2011 – we will not permit him to now 

argue the identical issue. Accordingly, we conclude that he has waived this

issue.

2

 Because Johnson has waived this issue, there is no genuine issue of 

____________________________________________

2 Even had Johnson not waived the issue, we would conclude that he is 

not entitled to relief. Our Supreme Court has held that counsel’s failure to file 

a post-sentence motion “does not fall within the limited ambit of situations 
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material fact, and the PCRA court appropriately dismissed the petition without 

an evidentiary hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/7/2017

____________________________________________

where a defendant alleging ineffective assistance of counsel need not prove 

prejudice to obtain relief.” Commonwealth v. Liston, 977 A.2d 1089, 1092 

(Pa. 2009). In Commonwealth v. Reaves, the Court held:

Whether . . . counsel can be deemed ineffective . . . depends 

upon whether appell[ant] has proven that a motion to 

reconsider sentence, if filed . . . , would have led to a 

different and more favorable outcome at . . . sentencing. In 

this context, the only way the proceeding would have been 

more favorable would be if counsel[] . . . secured a reduction 

in the sentence.

923 A.2d 1119, 1131-32 (Pa. 2007). Here, Johnson has failed to prove that 

he would have received a more favorable sentence had trial counsel filed a 

motion for reconsideration of sentence.