J-S06012-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYREEK MCNEIL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1586 EDA 2018

Appeal from the Order Entered May 3, 2018 

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0008634-2014

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED JUNE 06, 2019

Tyreek McNeil appeals pro se from the May 3, 2018 order dismissing his 

PCRA petition.1 We affirm. 

The PCRA court summarized the facts underlying Appellant’s conviction 

as adduced at the guilty plea hearing:

On September 26, 2013, the Appellant robbed two men as 

they exited a bakery on the corner of 8th and Watkins Street in 

the City of Philadelphia. The Appellant approached both men on 

a bike, held the two men at gunpoint, and demanded money. The 

Appellant took money and a cell phone from the first victim, and 

then demanded that the second victim hand over his backpack. 

The second victim and the Appellant then struggled over the 

backpack. During the struggle, the Appellant shot the victim, 

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1

 Appellant maintained that he was appealing from his January 19, 2017 

judgment of sentence. If we were to treat it as such, we would quash his 

appeal as untimely. However, since Appellant filed the instant appeal within 

thirty days of the May 3, 2018 order denying PCRA relief, and stated on the 

cover of his brief that he was appealing from the order denying post-conviction 

relief, we will treat it as a timely appeal from that order. 
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Josegabino Aparicio-Jeranimo, three times in the torso. Then the 

Appellant fled the area with the backpack, money, and cell phone. 

The victim died as a result of the gunshot wounds. 

PCRA Court Opinion, 8/3/18, at unnumbered 2-3 (citations omitted

Appellant was charged by criminal information with fifteen counts, 

including murder. On May 27, 2015, he entered a negotiated guilty plea to 

third-degree murder, two counts of first-degree felony robbery, and three 

firearms offenses, and the Commonwealth nolle prossed the remaining nine 

charges. Sentencing was deferred to permit a presentence investigation. On 

January 19, 2017, Appellant was sentenced as negotiated and agreed upon to 

an aggregate term of fifteen to thirty years of imprisonment.2

Appellant did not seek to withdraw his plea or file a direct appeal. 

Instead, he filed a timely pro se PCRA petition in which he checked the boxes 

alleging ineffective assistance of counsel and imposition of a sentence greater 

than the lawful maximum. He also represented therein that his sentence 

exceeded the guidelines since he had a prior record score of one and no prior 

violent offenses. 

Counsel was appointed, and he filed a motion to withdraw and a Finley3

no-merit letter. In his no-merit letter, counsel explained that Appellant 

misunderstood the sentencing guidelines and that the sentence imposed was 

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2

 The negotiated sentence was fifteen to thirty years of imprisonment at Count 

1 (third-degree murder); five to ten years of incarceration on each of the 

robbery counts, Counts 2 and 9; three to six years at Count 3 (possession of 

firearm prohibited-F2). No further penalty was imposed at Counts 4 and 7, 

and all sentences were to run concurrently. 

3 Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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a guideline sentence and did not exceed the statutory maximum. Moreover, 

counsel pointed out that it was a negotiated sentence and that counsel had 

performed ably in handling the negotiations. After conducting an independent 

review of the record, counsel concluded that the issues raised in Appellant’s 

pro se petition had no arguable merit and that there were no other potentially 

meritorious issues to advance on Appellant’s behalf. Counsel represented that 

he sent Appellant a copy of the no-merit letter/brief, a copy of his motion to 

withdraw, and that he advised Appellant of his right to proceed pro se or to 

obtain new counsel. 

The PCRA court issued a Rule 907 notice of its intent to dismiss the 

petition on April 3, 2018, and Appellant did not file a response. Accordingly, 

the court dismissed the petition on May 3, 2018 and granted counsel’s request 

to withdraw. 

Appellant timely filed the within appeal, and both Appellant and the 

PCRA court complied with Pa.R.A.P. 1925. Appellant raises one issue for our 

review:

A) Whether the lower court abused it’s [sic] discretion when it 

impermissibly relied on the aggregated [sic] circumstances and 

or factors, and failed to consider mitigating factors and 

imposed an aggregate sentence of 15 to 30 years which was 

manifestly excessive under the circumstances.

Appellant’s brief at 4.

When reviewing the propriety of an order granting or denying PCRA 

relief, we consider the record “in the light most favorable to the prevailing 

party at the PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 
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(Pa.Super. 2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 

(Pa.Super. 2014) (en banc)). We are limited to determining whether the 

evidence of record supports the conclusions of the PCRA court and whether 

the ruling is free of legal error. Id. 

Appellant alleges that the trial court abused its discretion when it failed 

to consider mitigating factors and imposed a manifestly excessive sentence.4 

As the PCRA court correctly noted, however, since Appellant received a 

negotiated sentence, he is precluded from challenging the discretionary 

aspects of his sentence. PCRA Court Opinion, 8/3/18, at 8 (citing 

Commonwealth v. Baney, 860 A.2d 127, 131 (Pa.Super. 2004)); see also 

Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa.Super. 2009) (holding 

that “where a defendant pleads guilty pursuant to a plea agreement specifying 

particular penalties, the defendant may not seek a discretionary appeal related 

to those agreed upon penalties”). This claim fails. 

In his pro se PCRA petition, Appellant alleged that his sentence was 

excessive because it was a departure from the sentencing guidelines. 

Although he does not argue illegality of sentence on appeal, we may address 

it sua sponte in a timely PCRA petition. See Commonwealth v. Ballance, 

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4 We note that the trial court deferred sentencing to allow time for a presentence investigation report. As we held in Commonwealth v. Ventura, 

975 A.2d 1128, 1135 (Pa.Super. 2009), “where the sentencing judge had the 

benefit of a presentence investigation report, it will be presumed that he or 

she was aware of the relevant information regarding the defendant’s character 

and weighed those considerations along with mitigating statutory factors.” 
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203 A.3d 1027 (Pa.Super. 2019) (recognizing that legality of sentence is 

always subject to review within the PCRA providing the court has jurisdiction, 

which is tied to the filing of a timely petition). 

We find that Appellant did not receive an illegal sentence. In the classic 

sense, an illegal sentence is one that exceeds the statutory maximum. 

Although the agreed-upon sentence for third-degree murder was in the 

aggravated range, it did not exceed the statutory maximum. The individual 

sentences imposed on the two robbery counts and the firearms violation also 

did not exceed the statutory maximum, and, moreover, the negotiated guilty 

plea provided that those sentences would run concurrent to the sentence 

imposed on the count of third-degree murder. As the PCRA court noted at the 

guilty plea hearing, and again in its opinion, Appellant faced a maximum 

aggregate penalty of fifty-one to 102 years of imprisonment. PCRA Court 

Opinion, 8/3/18, at 7. Pursuant to the negotiated guilty plea, he was 

sentenced in the aggregate to fifteen to thirty years imprisonment, well below 

the statutory maximum.5 

Finally, Appellant alleges for the first time on appeal that counsel 

induced him to enter an involuntary guilty plea by providing incorrect advice 

about the potential sentence he could receive if he went to trial and was found 

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5 Additionally, as the Commonwealth correctly points out, Appellant’s sentence 

was not based on an unconstitutional sentencing statute, and thus, it was not 

illegal on that basis. 
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guilty. In addition, he avers that counsel failed to file a motion to withdraw 

the plea. These ineffectiveness claims are waived as Appellant did not present

them in his PCRA petition, nor seek leave to amend his petition to assert them. 

See Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (holding 

that a claim not raised in a PCRA petition cannot be raised for the first time 

on appeal). No relief is due.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/6/19