J-S56005-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM JACKSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1951 EDA 2018

Appeal from the PCRA Order Entered June 4, 2018

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

No(s): CP-51-CR-0000312-2011

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 16, 2021

Appellant, William Jackson, appeals from the order dismissing, as 

untimely, his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S. §§ 9541-9546. After careful review, we affirm in part, and vacate

in part. 

A full recitation of the underlying facts developed at Appellant’s 2012 

trial is unnecessary to the disposition of this appeal.1 Briefly, on March 29, 

2007, the victim was alone with her infant child when three armed men broke 

into her home. The intruders demanded money, and began searching through 

the residence when the victim told them she had none. Later, one of the men 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The PCRA court provided a detailed summary of the facts adduced at trial in 

its Pa.R.A.P. 1925(a) opinion. See PCRA Court Opinion (“PCO”), 10/11/19, at 

1-5. 
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took the victim to the basement and sexually assaulted her. Eventually, the 

intruders departed with numerous electronic devices and a firearm, and the

victim immediately called the police. While at the police station, she identified 

Johnny Sowell from a photo array as being one of the perpetrators. Nearly 

three years later, the police searched Sowell’s bedroom and discovered 

several items stolen from the victim’s home, as well as a photo of Appellant 

amongst the stolen items. When the photo was shown to the victim, she 

immediately identified Appellant as the man who had sexually assaulted her 

during the home invasion.2 

The Commonwealth charged Appellant with numerous offenses and, on 

July 23, 2012, a jury convicted him of robbery, rape, conspiracy, and 

possession of an instrument of crime (“PIC”).

3

 On January 18, 2013, the 

trial court sentenced Appellant to an aggregate term of 15-30 years’

incarceration.4 He filed a timely post-sentence motion, which was denied by 

operation of law on May 29, 2013. Appellant then filed a timely notice of 

appeal. This Court affirmed his judgment of sentence on July 15, 2014, and 

our Supreme Court denied allowance of appeal on December 26, 2014. 

____________________________________________

2 This was the first time the victim told police about the sexual assault.

3 See 18 Pa.C.S. §§ 3701, 3121, 903, 907, respectively. 

4 The court sentenced Appellant to consecutive terms of 5-10 years’

incarceration each for his robbery, rape, and conspiracy offenses. The court 

also sentenced him to 1-2 years’ incarceration for PIC, which it ordered to run 

concurrently to his sentence for robbery.
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Commonwealth v. Jackson, 105 A.3d 791 (Pa. Super. 2014) (unpublished 

memorandum), appeal denied, 105 A.3d 735 (Pa. 2014).

Appellant filed a pro se PCRA petition on December 2, 2015, and

Appellant’s former PCRA counsel, David Rudenstein, Esq., was appointed in

November of 2016. Through Attorney Rudenstein, Appellant filed an amended 

PCRA petition on July 31, 2017. After the Commonwealth filed a motion to 

dismiss the petition on March 20, 2018, the PCRA court issued, on May 8, 

2018, a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a 

hearing. Appellant did not respond, and the PCRA court ultimately denied the 

petition on June 4, 2018. Appellant filed a timely notice of appeal, and a 

timely, court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued 

its Rule 1925(a) opinion on October 11, 2019. On May 12, 2020, this Court 

remanded to the PCRA court for the appointment of new counsel due to the 

death of Attorney Rudenstein. The PCRA court appointed Daniel Anthony 

Alvarez, Esq., to continue the stewardship of Appellant’s appeal. After 

unsuccessfully seeking remand, Attorney Alvarez filed a brief on Appellant’s 

behalf on June 28, 2020, and the Commonwealth’s brief followed on November 

23, 2020. 

Appellant presents the following questions for our review:

[1.] Did the PCRA [c]ourt err in dismissing as untimely and without 

merit Appellant’s PCRA [p]etition, as Appellant contends that his 

PCRA [p]etition was within one year that the judgment became 

final and otherwise satisfied the time bar exceptions as provided 

under 42 Pa.C.S. § 9545(b)([1])(ii), and that his claim has merit 

as witnesses would testify that Appellant is not one of the doers, 

and at least one witness was unavailable at the time of trial due 
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to their right against self-incrimination, and because his appellate 

counsel failed to raise weight issues on direct appeal?

[2.] Was appellate counsel ineffective for failing to argue that the 

verdicts were against the weight of the evidence, where the 

weight issue was preserved in an oral motion by trial counsel, and 

where the verdict was such to shock one’s conscience?

[3.] Was the sentence of 5 years to 10 years of incarceration 

illegal for PIC, as exceeding the statutory maximum of 5 years?1

1 [N.T.], 1/18/13, [at] 21. The sentencing [o]rder is not in 

the lower court’s record[, nor] in its efile system, and[,] 

therefore, Appellant makes this unwaivable argument based 

on the sentencing notes of testimony. Further, due to ...

COVID-19, access to the physical record is completely 

impractical, and access to the Stout Criminal Justice Center 

is restricted.

Appellant’s Brief at 5. 

This Court’s standard of review regarding an order denying a petition 

under the PCRA is whether the determination of the PCRA court is supported 

by the evidence of record and is free of legal error. Commonwealth v. 

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the 

timeliness of Appellant’s petition, because the PCRA time limitations implicate 

our jurisdiction and may not be altered or disregarded in order to address the 

merits of a petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267 

(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including 

a second or subsequent one, must be filed within one year of the date the 

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).

Here, the PCRA court determined that Appellant’s PCRA petition was 

untimely because Appellant “was sentenced on January 18, 2013, and filed 

his PCRA [petition] on December 2, 2015, which is well over the one year 
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timeliness standard.” PCO at 9. The Commonwealth concedes that the PCRA 

court erred, as Appellant’s PCRA petition was timely. See Commonwealth’s 

Brief at 5 n.2. Indeed, as the PCRA statute dictates, “a judgment becomes 

final at the conclusion of direct review, including discretionary review in the 

Supreme Court of the United States and the Supreme Court of Pennsylvania, 

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

Thus, the one-year time limitation did not begin to run on Appellant’s PCRA 

petition until 90 days after his petition for allowance of appeal to our Supreme 

Court was denied. See Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.

Super. 1998) (holding that under the PCRA, a petitioner’s judgment of 

sentence is deemed final 90 days after the Pennsylvania Supreme Court 

rejected his petition for allowance of appeal since petitioner had ninety days 

to seek further review with the United States Supreme Court). As noted 

above, Appellant’s petition for allowance of appeal was denied by our Supreme 

Court on December 26, 2014. Thus, he had until March 25, 2016, to file a 

timely PCRA petition. Appellant timely filed his pro se PCRA petition on 

December 2, 2015. Accordingly, we agree with Appellant and the 

Commonwealth that the PCRA court erred when it dismissed the petition as 

untimely. Nevertheless, as this Court is not bound by the rationale of the 

PCRA court, and may affirm its decision to dismiss the PCRA petition on any 

legal basis, we will address the merits of Appellant’s claims. See 

Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2012) (holding that 
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this Court is not bound by the rationale of the PCRA court and may affirm on 

any basis).

First, Appellant contends that there is after-discovered evidence that 

warrants a new trial. He claims that his co-defendant, Sowell, is now willing 

to testify that Appellant was not present during the home invasion and, 

therefore, that Appellant was misidentified by the victim with respect to both 

the home invasion and the rape. As Appellant explains:

Appellant proffers that Sowell is available to testify. Appellant 

proffers that Sowell would submit to a statement. That his 

testimony would be that Appellant was not present and certainly 

did not participate in the home invasion robbery and sexual 

assault. This is very important, because the identification (which 

took place three years later), which was very suggestive[] of ...

Appellant, was completely unreliable. N.T., 7/16/12, at 101, 107-

[]12. The [victim], who had very little credibility, never reported 

to the first officer on the scene[] that a sexual assault took place. 

N.T., 7/17/12, at 31-33. Also, the police paperwork, at the time 

of the incident, made no mention of any sexual assault, or that 

the [victim] knew any of the doers. N.T., 7/16/12, at 145-[]48. 

Further, a statement from Sowell is crucial in shedding light on 

this wrongful conviction, as [the victim] lacks credibility, as she 

hid her active addiction issues from her live-in boyfriend[,] was a 

user of crack cocaine, alcohol and [m]arijuana, and did so while 

taking care of her newborn child ... at the very time of the home 

invasion robbery, and had a history of trading sex for drugs. N.T., 

7/13/12, at 103-[]04, 127-[]31. 

With this lack of credibility, combined with the rather suggestive 

identification process present in this case, it is imperative that a 

hearing be held, and Sowell be heard from.

Appellant’s Brief at 17-18 (citations to the record reformatted).

To obtain relief based on after-discovered evidence, [an] appellant 

must demonstrate that the evidence: (1) could not have been 

obtained prior to the conclusion of the trial by the exercise of 

reasonable diligence; (2) is not merely corroborative or 
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cumulative; (3) will not be used solely to impeach the credibility 

of a witness; and (4) would likely result in a different verdict if a 

new trial were granted.

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). Additionally, 

“[w]ith respect to the PCRA court’s decision to deny a request for an 

evidentiary hearing, or to hold a limited evidentiary hearing, such a decision 

is within the discretion of the PCRA court and will not be overturned absent 

an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 

2015). Furthermore, it

is well settled that “[t]here is no absolute right to an evidentiary 

hearing on a PCRA petition, and if the PCRA court can determine 

from the record that no genuine issues of material fact exist, then 

a hearing is not necessary.” Commonwealth v. Jones, 942 A.2d 

903, 906 (Pa. Super. 2008). “[T]o obtain reversal of a PCRA 

court’s decision to dismiss a petition without a hearing, an 

appellant must show that he raised a genuine issue of fact which, 

if resolved in his favor, would have entitled him to relief, or that 

the court otherwise abused its discretion in denying a hearing.” 

Commonwealth v. Hanible, ... 30 A.3d 426, 452 ([Pa.] 2011).

Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019).

The PCRA court’s analysis of the merits of this claim is difficult to discern, 

because the court was primarily, and erroneously, focused on the applicability 

of an exception to PCRA statute’s timeliness requirements, not the underlying 

after-discovered evidence claim. See PCO at 10-15. However, the court did 

provide the following statements with respect to Appellant’s request for an 

evidentiary hearing:

[Appellant] did not file a full evidentiary request with the 

witnesses’ addresses and dates of birth. Furthermore, 

[Appellant’s] counsel did not file an evidentiary hearing request 

with the amended PCRA petition. Additionally, there is nothing on 
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the record, in lieu of [Appellant’s] not filing an adequate 

evidentiary hearing request[,] that ... PCRA counsel provided [the] 

Commonwealth with the addresses and names of the witnesses. 

Therefore, under [42] Pa.C.S. § 9545, “failure to substantially 

comply with the requirements of this paragraph shall render the 

proposed witness’s testimony inadmissible.” [42] Pa.C.S. § 

9545(d)(iii). 

***

It is clear on the record that [the victim] has seen [Appellant] 

before and during the robbery in [her] home. Furthermore, 

[Appellant] lived with his aunt on the same street as [the victim]. 

Additionally, there was no genuine issue of material fact because 

[the victim] identified [Appellant] on multiple occasions. 

Therefore, [Appellant] was not entitled to an evidentiary 

hearing[,] nor a PCRA remand for an evidentiary hearing.

Id. at 14-15. The Commonwealth additionally argues that Appellant “failed 

to meaningfully develop his claim that his co-defendant would have testified

[at an evidentiary hearing]; he did not proffer any testimony from his codefendant in his petition, and there is no indication that his co-defendant 

would have testified[,] or that the testimony would have benefitted” Appellant. 

Commonwealth’s Brief at 12.

When Appellant’s pro se and amended PCRA petitions were filed, the 

prior version of the PCRA statute dictated that:

Where a petitioner requests an evidentiary hearing, the petition 

shall include a signed certification as to each intended witness 

stating the witness’s name, address, date of birth and substance 

of testimony and shall include any documents material to that 

witness’s testimony. Failure to substantially comply with the 

requirements of this paragraph shall render the proposed 

witness’s testimony inadmissible.
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42 Pa.C.S. § 9545(d)(1).5

Here, Appellant identified Sowell as a potential witness in his initial pro 

se petition, under the following statement: “I request an evidentiary hearing. 

I certify, subject to the penalties for unsworn falsification ... that the following 

persons will testify to the matters stated.” Pro Se PCRA Petition, 12/2/15, at 

6. He provided the general nature of the proposed testimony therein, 

indicating that Sowell would testify that Appellant was not present or in any 

way involved in the home invasion, and that Appellant had been misidentified 

by the victim for the actual perpetrator, one Marquis Johnson. Id. Appellant 

signed the petition twice, the latter being his signature on an unsworn 

declaration attesting to the proposition that his statements in the petition were 

true and correct to the best of his knowledge. Id. at 7, 8. However, Appellant 

did not provide Sowell’s date of birth or his address. Nevertheless, we cannot 

ignore that Sowell is not an unknown party in this case. He was Appellant’s 

co-defendant at trial. 

Based on the face of this record, we reject the PCRA court’s conclusion

that Appellant did not “substantially comply” with 42 Pa.C.S. § 9545(d)(1). 

Here, Sowell was prosecuted by the Commonwealth in the very same trial that 

resulted in Appellant’s conviction. It defies reason to believe that the 

Commonwealth was in some way prejudiced by Appellant’s failure to include 

Sowell’s address and date of birth, requirements plainly meant to assist in the 

____________________________________________

5 Section 9545(d) was later amended, effective December 24, 2018, to include 

even more stringent requirements, as we discuss infra. 
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identification of a proposed witness, and the Commonwealth has provided no 

such argument that it was prejudiced by the omission. On these facts, we 

conclude that Appellant substantially complied with the dictates of the prior 

version of 42 Pa.C.S. § 9545(d)(1) in effect when he filed his petition. 

In any event, as this Court has stated with respect to these 

requirements, “it is improper to affirm a PCRA court’s decision on the sole 

basis of inadequate witness certifications where the PCRA court did not provide 

notice of the alleged defect.” Commonwealth v. Pander, 100 A.3d 626, 642 

(Pa. Super. 2014). Here, the PCRA court did not provide Appellant notice of 

any defect in the witness certification in its Rule 907 notice of its intent to 

dismiss his petition, nor can we find any such notice elsewhere in the record. 

We also note that both the Commonwealth and the PCRA court appear 

to have applied or considered the amended version of Section 9545(d)(1), 

which now reads,

(d) Evidentiary hearing.--

(1) The following apply:

(i) Where a petitioner requests an evidentiary hearing, the 

petition shall include a certification signed by each intended 

witness stating the witness’s name, address, date of birth 

and substance of testimony and shall include any documents 

material to that witness’s testimony.

(ii) If a petitioner is unable to obtain the signature of a 

witness under subparagraph (i), the petitioner shall include 

a certification, signed by the petitioner or counsel, stating 

the witness’s name, address, date of birth and substance of 

testimony. In lieu of including the witness’s name and 

address in the certification under this subparagraph, counsel 

may provide the witness’s name and address directly to the 
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Commonwealth. The certification under this subparagraph 

shall include any documents material to the witness’s 

testimony and specify the basis of the petitioner’s 

information regarding the witness and the petitioner’s 

efforts to obtain the witness’s signature. Nothing in this 

subparagraph shall be construed to contravene any 

applicable attorney-client privilege between the petitioner 

and postconviction counsel.

(iii) Failure to substantially comply with the requirements of 

this paragraph shall render the proposed witness’s 

testimony inadmissible.

42 Pa.C.S. § 9545(d).6

Under the new provisions of Section 9545(d)(1), a petitioner must 

provide a certification signed by the proposed witness, 42 Pa.C.S. § 

9545(d)(1)(i), and the amendment established a separate procedure for when 

the proposed witness’s signature cannot be obtained, requiring the petitioner 

to include a statement as to why it could not be obtained, 42 Pa.C.S. § 

9545(d)(ii). In neither version is a petitioner required to provide an affidavit 

from the proposed witness. See Commonwealth v. Brown, 767 A.2d 576, 

583 (Pa. Super. 2001) (holding that the PCRA petitioner “was not required to 

attach sworn affidavits to his PCRA petition in support of his request for an 

evidentiary hearing”). 

As to the PCRA court’s analysis regarding the strength of the victim’s 

identification testimony, we can only conclude that the court has implicitly 

found presumptively incredible Sowell’s proposed testimony without having 

____________________________________________

6

It is apparent that the PCRA court applied the amended statute, as it cited 

to subsection (iii). There was no subsection (iii) in the prior version of 42 

Pa.C.S. § 9545(d)(1).
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heard it. Sowell’s proposed testimony, if found credible, clearly creates a 

genuine issue of material fact at odds with the victim’s identification testimony 

at trial, which can only be resolved by assessing the relative credibility of the 

witnesses. As our Supreme Court has stated:

A PCRA court passes on witness credibility at PCRA hearings, and 

its credibility determinations should be provided great deference 

by reviewing courts. Indeed, one of the primary reasons PCRA 

hearings are held in the first place is so that credibility 

determinations can be made; otherwise, issues of material fact 

could be decided on pleadings and affidavits alone.

Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009) (citations 

omitted).

As a corollary to our Supreme Court’s explanation in Johnson, we owe 

no deference to the PCRA court’s credibility assessment based solely on the 

pleadings. Moreover, our Supreme Court “has made clear that, in cases where 

the PCRA court declined to hold a hearing, and where an assessment of 

witness testimony was essential to a petitioner’s ineffectiveness claims, the 

PCRA court must make specific credibility determinations.” Id. at 540. Here, 

the PCRA court has only implicitly rejected Sowell’s credibility by placing the 

victim’s testimony in a light most favorable to the Commonwealth; it has not 

made any specific credibility determination on the after-discovered evidence 

because it refused to hear Sowell’s testimony.

As to the specific elements of the after-discovered evidence test, we 

observe that Sowell’s proposed testimony, if credible, would be neither 

cumulative, nor merely corroborative, of other evidence produced at trial, nor 
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would it be offered solely for impeachment purposes, as it would constitute 

substantive evidence of Appellant’s innocence that was not presented at trial.7

Nevertheless, Appellant must still establish that he acted with reasonable 

diligence in obtaining this new information from Sowell, and that a new trial 

would result in a different verdict, elements which turn on the PCRA court’s 

assessment of the content of Sowell’s testimony and its credibility. 

Accordingly, we conclude that the PCRA court erred in dismissing Appellant’s 

after-discovered evidence claim without a hearing, and remand for an 

evidentiary hearing to be held where the PCRA court can assess the credibility 

of Sowell’s testimony.

Next, Appellant claims that his counsel on direct appeal was ineffective 

for failing to raise a weight-of-the-evidence claim. We review ineffective 

assistance of counsel (IAC) claims under the following standards:

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

a preponderance of the evidence, that his conviction or sentence 

resulted from the “[i]neffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place.” Generally, counsel’s 

performance is presumed to be constitutionally adequate, and 

counsel will only be deemed ineffective upon a sufficient showing 

by the petitioner. To obtain relief, a petitioner must demonstrate 

that counsel’s performance was deficient and that the deficiency 

prejudiced the petitioner. A petitioner establishes prejudice when 

he demonstrates “that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” ... [A] properly pled claim of 

____________________________________________

7 We note that the PCRA court’s limited analysis did not address these 

elements. 
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ineffectiveness posits that: (1) the underlying legal issue has 

arguable merit; (2) counsel’s actions lacked an objective 

reasonable basis; and (3) actual prejudice befell the petitioner 

from counsel’s act or omission. 

Johnson, 966 A.2d at 532-33 (citations omitted). 

We also apply the following standard of review to a challenge that a 

verdict is against the weight of the evidence:

An appellate court’s standard of review when presented with a 

weight of the evidence claim is distinct from the standard of review 

applied by the trial court:

Appellate review of a weight claim is a review of the exercise 

of discretion, not of the underlying question of whether the 

verdict is against the weight of the evidence. Because the 

trial judge has had the opportunity to hear and see the 

evidence presented, an appellate court will give the gravest 

consideration to the findings and reasons advanced by the 

trial judge when reviewing a trial court’s determination that 

the verdict is against the weight of the evidence. One of the 

least assailable reasons for granting or denying a new trial 

is the lower court’s conviction that the verdict was or was 

not against the weight of the evidence and that a new trial 

should be granted in the interest of justice.

This does not mean that the exercise of discretion by the trial 

court in granting or denying a motion for a new trial based on a 

challenge to the weight of the evidence is unfettered. In 

describing the limits of a trial court’s discretion, we have 

explained:

The term “discretion” imports the exercise of judgment, 

wisdom and skill so as to reach a dispassionate conclusion 

within the framework of the law, and is not exercised for the 

purpose of giving effect to the will of the judge. Discretion 

must be exercised on the foundation of reason, as opposed 

to prejudice, personal motivations, caprice or arbitrary 

actions. Discretion is abused where the course pursued 

represents not merely an error of judgment, but where the 

judgment is manifestly unreasonable or where the law is not 

applied or where the record shows that the action is a result 

of partiality, prejudice, bias or ill-will.
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Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations 

omitted). 

Appellant’s argument hinges on his contention that the victim’s 

identification of him was not credible.

8

 Consequently, he asserts that if 

properly raised by appellate counsel, a weight-of-the-evidence claim would 

have been successful on direct appeal. See Appellant’s Brief at 18-24. The 

PCRA court determined that this issue was meritless, relying on the alternative 

analysis provided in this Court’s decision affirming Appellant’s judgment of 

sentence on direct appeal. See PCO at 10. On that basis, the PCRA court 

determined that Appellant was not prejudiced by appellate counsel’s failure to 

argue a weight-of-the-evidence claim on direct appeal. Id. 

Appellant challenged the sufficiency of the evidence on direct appeal, 

arguing that the victim’s “testimony, wherein she identified him as one of the 

perpetrators, is suspect due to her drug use.” Commonwealth v. Jackson, 

No. 1999 EDA 2013, unpublished memorandum at 4 (Pa. Super. filed July 15, 

2014). This Court held that, “while Appellant entitled his claim of error as one 

involving the sufficiency of the evidence, it is actually a challenge to the weight 

____________________________________________

8 Appellant contends that the victim’s testimony was not credible because: 1) 

she was using drugs and alcohol on the day of the home invasion, Appellant’s 

Brief at 21; 2) three years elapsed between the home invasion and her

identification of Appellant, id. at 22; 3) she did not report the sexual assault 

until she identified Appellant, id.; and 4) because the initial identification was, 

ostensibly, unduly suggestive, id. at 23-24. Appellant also raises various 

minor inconsistencies in the victim’s testimony.
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of the evidence.” Id. We then held that the claim had been waived due to 

Appellant’s failure to raise it in the trial court.9 Id. at 5. In a footnote, this 

Court stated:

Were we to reach the merits of Appellant’s challenge to the weight 

of the evidence, we would affirm Appellant’s judgment of 

sentence. As stated above, the jury was free to credit [the 

v]ictim’s testimony and identification of Appellant as her attacker, 

and nothing in the verdict shocks one’s sense of justice.

Id. at 5 n.1. 

Appellant argues that,

the PCRA court points out that this Court explained in a footnote 

in its Memorandum Opinion[] that[,] had they decided on weight 

of the evidence, it would have [af]firmed [the] judgment of 

sentence. Appellant argues this is not the case, as such weight 

arguments were never fully developed, as only sufficiency was 

argued, even if peppered with [a] weight argument.

Therefore, because there were so many evidentiary issues with 

the identification procedure and the credibility of the [victim], and 

because there is no conceivable reason why weight was not raised 

on direct appeal, appellate counsel was ineffective. Had weight 

been fully argued on direct appeal, this Court would have 

considered full throated arguments as to why the guilty verdicts 

____________________________________________

9 Appellant asserts that this Court erred on direct appeal because he raised a 

weight-of-the-evidence claim orally at sentencing and, therefore, did not 

waive that issue in the trial court. Appellant’s Brief at 19. The PCRA court 

agrees that his weight-of-the-evidence claim was properly preserved at 

sentencing. PCO at 5. Nevertheless, appellate counsel did not frame the issue 

as a weight-of-the-evidence claim on direct appeal and, in any event, he did 

not raise a weight-of-the-evidence claim in Appellant’s Rule 1925(b) 

statement on direct appeal. See Rule 1925(b) statement, 8/15/13, at 1-2. 

Thus, the claim was waived for direct appellate review, even if it was properly 

preserved in the trial court. See Commonwealth v. Lord, 719 A.2d 306, 

309 (Pa. 1998) (“Any issues not raised in a 1925(b) statement will be deemed 

waived.”). 
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were against the weight of the evidence. The result would likely 

have been different, but for this omission.

Appellant’s Brief at 24 (citation omitted). 

The Commonwealth disagrees, arguing that the 

record refutes this claim. The victim observed [Appellant] for 

close to forty-five minutes during the robbery—more than enough

time to get a good look at his appearance and features—and 

indeed testified that she noticed a distinctive scar on his chin. 

N.T., 7/13/12, at 122–23. The victim testified that [Appellant]

forced her to perform oral sex on him for two periods of 

approximately fifteen minutes each. Id. at 88. During these 

periods, she was certainly close enough to [Appellant] to get a 

good look at him. Additionally, the victim positively identified 

[Appellant] from a photograph and became emotional when the 

mere sight of [Appellant] reminded her of the assault. N.T.,

7/16/12, at 103–05. Furthermore, the victim testified that she 

was familiar with [Appellant] from seeing him around the 

neighborhood[,] and had seen him twice prior to the home 

invasion. N.T., 7/13/12, at 226. The victim also testified that she 

was “one hundred percent” sure that [Appellant] was the man who 

took her down to her basement and assaulted her. Id. at 123. 

Law enforcement also found the victim’s belongings in Sowell’s 

house along with a photograph of [Appellant]. N.T., 7/16/12, at 

101.

[Appellant]’s claim that the victim’s testimony was not credible 

does not support a finding that appellate counsel was ineffective 

for failing to argue that the verdict was against the weight of the 

evidence. It was within the exclusive province of the fact-finder 

to weigh each witness’s credibility, motivations, and all other 

supporting evidence. See Commonwealth v. Manchas, 633 

A.2d 618, 624–25 (Pa. Super. 1993) ([holding] that the [fact that 

the] fact[-]finder “apparently disbelieved [d]efendant’s versions 

of events and believed all of one Commonwealth’s witness’s 

testimony ... is not shocking to the Court’s sense of justice”). 

Simply because the jury did not agree with [Appellant]’s credibility 

assessments and weighed the evidence against him does not 

render the verdicts, which flowed logically from the evidence, 

shocking in any way. Commonwealth v. Small, 741 A.2d 666, 

673 (Pa. Super. 1999). The jury heard testimony that the victim 

was a drug user[, and] the victim was forthcoming with this 

information. N.T., 7/13/12, at 127–30. That the jury chose to 
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believe the victim’s testimony despite her drug use did not render 

the verdict shocking. See Commonwealth v. Hudson, 414 A.2d 

1381, 1386 (Pa. 1980) ([stating] that a witness[’s] use[ of] drugs 

is a matter of credibility properly left to the jury’s consideration).

Moreover, trial counsel questioned the victim about the 

identification of [Appellant], her perception of the incident, and 

her communications with law enforcement regarding the incident. 

N.T., 7/13/12, at 177–210. [Appellant] would not have prevailed 

on a weight challenge based on arguments already considered and 

rejected by the factfinder. [] Small, 741 A.2d [at] 673 [] (“All of 

the matters complained of by [the] appellant, however, were 

issues argued by [the] appellant’s counsel during trial and were 

properly weighed and rejected by the jury before it reached its 

verdict.”).

[Appellant]’s claim also fails because he failed to prove that he 

was prejudiced by appellate counsel’s decision not to raise a 

weight claim on appeal. To demonstrate counsel’s ineffectiveness, 

[Appellant] had to prove actual prejudice. In the context of an 

ineffectiveness claim, prejudice means there was a reasonable 

probability that, but for counsel’s alleged errors, the outcome of

the trial would have been different. Commonwealth v. Bond, 

819 A.2d 33, 42 (Pa. 2002). Here, [Appellant] was unable to 

prove prejudice because although appellate counsel did not argue 

that the verdict was against the weight of the evidence, this Court

noted in its opinion rejecting [Appellant]’s challenge to the 

sufficiency of the evidence that, “were we to reach the merits of 

[Appellant’s] challenge to the weight of the evidence, we would 

affirm ... [a]s stated above, the jury was free to credit [the 

v]ictim’s testimony and identification of [Appellant] as her 

attacker, and nothing in the verdict shocks one’s sense of justice.” 

[]Jackson, [No. 1999 EDA 2013, unpublished memorandum at 5 

n.1.] Clearly, had appellate counsel raised a weight claim, this 

Court would have affirmed the trial court’s denial of [Appellant]’s 

post-verdict challenge to the weight of the evidence. See 

Commonwealth v. Robinson, 676 A.2d 249, 251 (Pa. Super. 

1996) (“[I]t is clear that the underlying claim to [the] appellant’s 

ineffectiveness issue lacks merit, as the trial court found that the 

verdict was not against the weight of the evidence. As a result, 

[the] appellant’s ineffectiveness clam must fail.”).

Commonwealth’s Brief at 8-11 (citations to the record reformatted). 
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We agree with the Commonwealth’s analysis. It was the sole province 

of the jury to assess the credibility of the victim’s testimony, and we assess 

no abuse of discretion in the trial court’s denial of Appellant’s weight-of-theevidence claim. As Appellant’s underlying weight-of-the-evidence claim lacks 

merit, his counsel cannot be deemed ineffective for failing to properly raise it 

on direct appeal. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 

2014) (recognizing that a failure to prove any prong of the IAC test defeats 

the claim). 

Next, Appellant avers that he was illegally sentenced to 5-10 years’

incarceration for PIC, where the statutory maximum for that offense is 5 years’

incarceration. See 18 Pa.C.S. § 907(a) (defining PIC as a misdemeanor of 

the first degree); 18 Pa.C.S. § 1104(1) (setting the maximum term of 

incarceration for a misdemeanor of the first degree at 5 years). The 

Commonwealth agrees, but notes that Appellant’s sentence for PIC was set to 

run concurrent to his other offense. Commonwealth’s Brief at 13. As such, 

the Commonwealth contends that a remand for resentencing is unnecessary 

to remedy the error, and that this Court can simply amend Appellant’s 

sentence for PIC to a five-year maximum term of incarceration. Id. We note 

that, although Appellant did not raise this issue prior the filing of his brief, “as 

long as the reviewing court has jurisdiction, a challenge to the legality of the 

sentence is non-waivable and the court can even raise and address it sua 

sponte.” Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013).
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In his statement of the questions presented, Appellant notes that his 

argument is premised solely on his reading of the sentencing transcript. 

Appellant’s Brief at 5 n.1. Our review of the record reveals that the sentencing 

order differs from the oral pronouncement of sentence. The sentencing order 

indicates that Appellant was sentenced to a term of 1-2 years’ incarceration 

for PIC (concurrent to his sentence for rape), not 5-10 years’ incarceration. 

Sentencing Order, 1/18/13, at 1.10 “The courts of Pennsylvania have 

consistently maintained that oral statements made by the judge in passing 

sentence, but not incorporated in the written judgment signed by him, are not 

part of the judgment of sentence.” Commonwealth v. Foster, 324 A.2d 

538, 539 (Pa. Super. 1974) (cleaned up). Thus, the written sentencing order 

controls this claim. Accordingly, as Appellant’s sentence of 1-2 years’

incarceration for PIC was well within the statutory maximum of 5 years’

incarceration for that offense, his sentence was not illegal. No relief is due. 

Finally, Appellant asserts that we should remand because the PCRA 

court failed to rule on his motion for the appointment of an investigator. 

Appellant’s Brief at 17. This issue was not raised in Appellant’s Rule 1925(b) 

statement and, therefore, it is waived. Lord, 719 A.2d at 309 (“Any issues 

not raised in a 1925(b) statement will be deemed waived.”). Although we 

____________________________________________

10 We note that in his post-sentence motion, Appellant acknowledged that this 

was the sentence imposed by the court for his PIC conviction. See PostSentence Motion, 1/25/13, at 3 ¶ 10. 
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deem this issue waived for appellate review at this time, we do so without 

prejudice to Appellant’s ability to seek a ruling on that motion upon remand. 

In sum, we affirm the portion of the PCRA court’s order denying 

Appellant’s IAC claim related to appellate counsel’s failure to preserve a 

weight-of-the-evidence claim on direct appeal. However, we vacate the 

portion of the order denying an evidentiary hearing on Appellant’s afterdiscovered evidence claim. We deem waived Appellant’s claim that the PCRA 

court erred by failing to rule on his motion for the appointment of an 

investigator. Finally, we conclude that Appellant was not illegally sentenced. 

Order affirmed in part, vacated in part. Case remanded for an 

evidentiary hearing. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2021