J-S62004-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSHUA EVANS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 974 WDA 2018

Appeal from the Judgment of Sentence Entered May 18, 2018

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0016493-2008

BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 19, 2020

Joshua Evans appeals from the judgment of sentence following the 

denial of his nunc pro tunc motion for reconsideration of sentence.1

Specifically, Evans challenges the purported denial of his request for an 

evaluation by a court-appointed psychiatrist or psychologist to support his 

motion for a reduction of his sentence, which he maintains is excessive. We 

affirm.

This case and its related predecessor have a convoluted procedural 

history. See N.T. PCRA Hearing, 5/16/18, at 12, 14. We derive the facts of 

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1 We note that this Court, per curiam, discharged its rule to show cause for 

apparent untimeliness and, in the interest of judicial economy, directed this 

appeal to proceed, after the trial court’s grant of motion to reinstate appellate 

rights nunc pro tunc. See Order, 8/07/18. Accordingly, we deem Evans’ notice 

of appeal to be timely filed. 
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this case, and the case that underlies it, from the trial court opinion and our 

independent review of the record before us.

In the underlying case, Evans was convicted after a bench trial of two 

counts of aggravated assault and related charges for shootings which occurred 

in an attempted robbery.

2 Notably for this appeal, while in prison awaiting trial 

on the original charges, Evans attempted to have members of his gang kill the 

robbery victim, Andre Ripley, and Ebony McWright, the young mother of the 

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2

In the underlying case, on May 24, 2007, around 9:00 p.m., in the 

playground of Ferguson Park, Wilkinsburg, Pennsylvania, (bordering the East 

side of Pittsburgh), Evans shot the adult victim, Andre Ripley, three times, 

because he would not give up his watch. A three month-old infant, asleep in 

her nearby stroller, was also shot three times. See Commonwealth v. 

Evans, No. 671 WDA 2013, 2014 WL 10979714, at *2 (Pa. Super. filed March 

3, 2014) (unpublished memorandum). Both Ripley and the mother of the 

infant victim identified Evans from photo arrays. Evans, born on November 

27, 1989, was seventeen at the time of the original crimes. At trial, Evans 

testified on his own behalf, claiming self-defense

On April 2, 2009, after a non-jury trial, the Honorable Anthony Mariani

convicted Evans of two counts of aggravated assault, two counts of recklessly 

endangering another person (REAP) and possessing a firearm without a 

license (VUFA). On June 22, 2009, the court imposed an aggregate term of 

not less than eleven nor more than twenty-two years of imprisonment in a 

state correctional institution, followed by a consecutive term of fifteen years’ 

probation. See id. at 2. 

This Court affirmed Evans’ judgment of sentence on December 11, 

2011. Our Supreme Court denied his petition for allowance of appeal on May 

23, 2012. See Commonwealth v. Evans, 50 A.3d 125 (Pa. 2012) (per 

curiam). Despite his conviction, Evans continued to maintain that he shot in 

self-defense.
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wounded infant, before they could testify.3 Evans made phone calls from 

prison to his mother, sister, and girlfriend, which he used to contact members 

of his gang, including Duwayne Dixon. Dixon, also known as “Bear,” actually 

shot Ripley, the adult victim. 

The phone calls from prison were recorded. About eighty hours of his

recorded telephone conversations were subpoenaed. Excerpts from the tape

recordings confirmed the conspiracy, sometimes attempting to use coded 

language. Although “Bear” Dixon shot the adult victim (this time in the head), 

Ripley survived.

4 When Evans found out Ripley had not been killed he ordered 

that he be shot again. At the time of this second group of offenses, Evans had 

reached the age of eighteen. 

On October 3, 2011, Evans entered a counseled guilty plea to conspiracy 

to commit homicide, criminal attempt to commit homicide, criminal solicitation 

to commit homicide, intimidation of a witness and retaliation against a 

witness, before the Honorable Joseph K. Williams, III. On December 15, 2011, 

Judge Williams sentenced Evans to three consecutive sentences of not less 

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3 Evans was the leader of the “Jay Town Crew” gang. See N.T. PCRA 

Hearing/Sentencing, 4/9/14 at 81. It bears noting that McWright was a lifelong 

acquaintance of Evans through his brother. 

4 Nevertheless, the record reveals that the victim was unable to work after he 

was shot, and had to be relocated to an undisclosed location outside of the 

Commonwealth for his safety. See N.T. Sentencing, 12/15/11, at 21-24. The 

victim was blinded for at least two to three months. It is not clear from the 

record whether his blindness ended after that or is continuing. 
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than five nor more than ten years of incarceration for an aggregate term of 

not less than fifteen nor more than thirty years’ incarceration. See N.T. 

Sentencing, 12/15/11, at 35. 

Notably, on inquiry by the prosecutor, the trial court confirmed that the 

sentences in this case were not concurrent with the previous sentence:

MR. [RUSSELL K.] BROMAN [Prosecutor]: Just one thing. Is 

the five to ten years consecutive to Judge Mariani’s 11 to 22 

years?

THE COURT: Anything I sentenced today is independent of 

what Judge Mariani did.

MR. BROMAN: Thank you, sir.

Id.

Evans did not timely seek post-sentence relief. Nor did he file a direct 

appeal. However, on October 29, 2012, Evans filed a pro se petition for relief

under the Post Conviction Relief Act, claiming, inter alia, that trial counsel 

promised, but did not file, a post-sentence motion for reconsideration of 

sentence.

5 On October 31, 2012, the PCRA court appointed counsel, who, after 

several extensions, filed an amended PCRA petition. He continues to represent 

Evans. 

In May of 2013, the PCRA court, based on the amended petition,

permitted Evans to file a post-sentence motion nunc pro tunc. Evans filed a 

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5 42 Pa.C.S.A. §§ 9541–9546 (“PCRA”).
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counseled motion for reconsideration of sentence, questioning, in part, 

whether the fifteen to thirty year aggregate sentence was consecutive to, or 

concurrent with, the eleven to twenty-two year sentence imposed in the 

previous case. See Motion for Reconsideration of Sentence. 8/1/13. 

The trial court granted the motion. It scheduled a hearing for 

reconsideration of sentence on April 9, 2014.6 After various delays and 

complications (for reasons not at issue in this appeal), on March 2, 2017, the 

trial court filed an order confirming that the sentences in the instant witness 

assassination case were intended to be consecutive to Judge Mariani’s original 

sentence for the underlying offenses. See Order, 3/2/17. In the same order, 

the trial court, construing Evans’s supplemental memorandum in support of 

mitigation of sentence (asking for a partially concurrent sentence) as a motion 

for reduction of sentence, denied it. See id.

In August of 2017, Evans’s counsel filed a motion to withdraw (as 

requested by Evans), and for a hearing in accordance with Commonwealth 

v. Grazier, 713 A.2d 81 (Pa. 1998), to ensure that Evans’ waiver of counsel

was knowing, voluntary and intelligent. See Motion to Withdraw as Counsel 

and Schedule Grazier Hearing, 8/16/17.

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6 The trial court concedes that the transcript of the sentencing hearing was 

inappropriately captioned as a PCRA hearing. See Trial Court Opinion, 

6/19/19, at 3 n.3. 
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While this motion was pending, and Evans was still represented by 

current appointed counsel, he filed another pro se PCRA petition, on January 

30, 2018, alleging constitutional error, ineffective assistance of counsel, and 

lack of jurisdiction. See PCRA Petition, 1/30/18. 

After a hearing on May 16, 2018, the court reaffirmed its order of March 

2, 2017, (which confirmed that the sentence in this case was consecutive to 

the sentence imposed by Judge Mariani for the original convictions). See

Order 5/18/18. The court designated its decision a “final order” as to the 

consecutive/concurrent issue. Id.7In addition to disposing of the

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7 We note for clarity and completeness that, in an apparent scrivener’s error, 

the order of May 18, 2018, which is the primary subject of this appeal, 

provides that the sentence at issue “was not to run consecutive to any other 

sentence.” Order, 5/18/18 (emphasis added). Viewed in the context of the 

entire record, however, this conclusion is plainly incorrect. As already noted, 

the trial court expressly indicated on the record that the sentence imposed in 

this case was independent and consecutive to the sentence imposed by 

Judge Mariani. See N.T. Sentencing, 12/15/11, at 36; see also Order of 

Sentence, 12/15/11; (“[I]t was this [c]ourt’s intent to make the sentence 

consecutive [to the sentence in the underlying case before Judge Mariani].”). 

Furthermore, despite expressions of doubt not supported by the record, 

all the other references in the record consistently conclude that all sentences 

were intended to be consecutive to each other. See, e.g., Order, 3/02/17 

(“the [trial c]ourt has reviewed the pertinent transcripts to ascertain its intent

about this sentence being consecutive or concurrent to Judge Mariani’s 

sentence. While unspoken at the time, it was [the trial c]ourt’s intent to make 

the sentence consecutive.”). 

Moreover, we note that had the order actually prohibited consecutive 

sentences, an appeal would have been unnecessary, because concurrent 

sentencing was the relief requested. See e.g., “Motion for Reconsideration of 

Sentence,” 8/01/13; Sentencing Memorandum on Behalf of Joshua Evans, 
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concurrent/consecutive sentence issue, and noting a right to appeal within 

thirty days, the order denied Evans’ petition to represent himself.

8

It directed 

appointed (current) counsel to continue representation. The court also 

directed counsel to file an amended PCRA petition or a no-merit letter by July 

30, 201[8].9 Counsel did not file either. Instead, this counseled appeal 

followed. Both Evans and the trial court complied with Pa.R.A.P. 1925.

Evans originally presented four separate issues to the trial court in his 

statement of errors. See Defendant’s Amended Concise Statement of Errors 

Raised on Appeal, 8/03/18. However, on appeal, he has refined his claim in 

the Statement of Question Involved to a single issue. See id. at 1.10

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[treated by the trial court as a motion for reduced sentence], 4/07/11, at 4. 

Appellant and his counsel plainly understood this, and presented their 

arguments against the imposition of consecutive sentences. See e.g., 

Appellant’s Brief, at 2, and id. at n.1. 

8 Among other problems, Evans repeatedly claimed on the record in open court 

to be Jesus Christ. See e.g., N.T. Hearing, 5/16/18, at 23-24. He also claimed 

to have no mental health issues because the angels spoke to him. See id. at 

8. 

9

It appears that there may have been a failure to serve Evans’ counsel with 

the order of May 18. As a result, Evans’ first notice of appeal was filed on July 

6, 2018, approximately eighteen days late. However, consistent with our per 

curiam order we give Evans the benefit of the doubt and deem this appeal as 

timely. See Order, 8/07/18; see also n.1 supra. In any event, Evans filed a 

second “amended” notice of appeal, on August 13, 2018, after the trial court 

filed an additional order.

10 In the argument section of the brief, Evans suggests other issues, including 

mental state, immaturity, remorse, and rehabilitation. See e.g., Appellant’s 
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Evans presents this one question for our review:

Whether the court abused its discretion in not providing a 

court-appointed expert evaluation to aid the court at resentencing? 

Appellant’s Brief, at 1 (unnecessary capitalization omitted). 

Evans also asserts the sentencing court failed to impose a sentence. 

See id. at 10. We disagree. He asks this Court to remand for re-sentencing 

with a directive to the sentencing court to order a psychological evaluation. 

See id. Evans’ claims are waived and would not merit relief. 

Our standard of review, as it relates to the appointment of a defense 

expert in a criminal matter, is well settled:

The provision of public funds to hire experts to assist in the 

defense against criminal charges is a decision vested in the 

sound discretion of the court and a denial thereof will not be 

reversed absent an abuse of that discretion.

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Brief, at 9-10. However, in addition to omitting them from the statement of 

questions involved, he fails to develop an argument for the issues, or to 

support them with anything more than cursory citation to purportedly 

pertinent authority. Notably, Evans’ brief cites to Commonwealth v. Lee, 

206 A.3d 1, 11 (en banc) (Pa. Super. 2019), appeal denied, 218 A.3d 851 (Pa. 

2019) (holding that trial court properly concluded petition was untimely and

declining to extend Miller v. Alabama, 567 U.S. 460, 483 (2012) to nonjuvenile offenders) without acknowledging that it expressly rejected his 

argument. See Appellant’s Brief, at 9-10. “When issues are not properly raised 

and developed in briefs, when the briefs are wholly inadequate to present 

specific issues for review[,] a Court will not consider the merits thereof.” 

Branch Banking and Trust v. Gesiorski, 904 A.2d 939, 942-943 (Pa. 

Super. 2006). Accordingly, we deem all other issues waived. 
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Commonwealth v. Cannon, 954 A.2d 1222, 1226 (Pa. Super. 2008)

(citations omitted). 

At the outset, it is necessary to clarify that Evans’ claim of trial court 

failure to impose a sentence is factually incorrect and materially misleading. 

The court did not fail to sentence Evans. More accurately, the sentencing court 

declined Evans’ request to reduce his sentence on reconsideration. 

As aptly noted by the Commonwealth, we review a sentencing claim 

under an abuse of discretion standard. (See Commonwealth’s Brief, at 20 

(citing Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa. Super. 

2014)).

The Seagraves Court further explained: “When, as here, the trial court 

has the benefit of a pre-sentence report, we presume that the court was aware 

of relevant information regarding the defendant's character and weighed those 

considerations along with any mitigating factors.” Id. (citation omitted). 

For our review, we note that the sentencing court had the benefit of the 

Presentence Investigation Report (PSI) not only for this case, but for the 

preceding case before Judge Mariani as well. See N.T. Sentencing, 12/15/11, 

at 2-3. Judge Mariani’s PSI included psychological evaluations. See id. at 7. 

Moreover, once the trial judge had agreed in principle to grant an order 

for a psychological evaluation, as Judge Williams did here, we have no 

difficulty in finding that it was defense counsel’s duty to follow up. 
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If no order from the court appeared in a reasonable time, both prudence 

and practicality would dictate that defense counsel should have made inquiry

with the Judge or his chambers. Even if the Judge was not inclined to generate 

an order himself, there was nothing to prevent counsel from presenting a draft 

order for the judge to use (as counsel had in fact done repeatedly throughout

this litigation). Evans’ counsel offers no authority to relieve him of this duty 

or to allocate the responsibility to the trial court judge. 

To the contrary, Evans’ counsel claims to have provided an order to the 

trial court for the relief requested. See Appellant’s Brief, at 5, (quoting 

Supplemental Memorandum in Support of Mitigation, 1/17/17, at ¶5). 

However, on independent review, it is apparent that counsel only included a 

proposed order on another issue, specifically, that “this sentence shall run 

concurrent to the sentence imposed at No. CC200708840 [the sentence in 

Judge Mariani’s case].” Id. Counsel added, “In all other respects, the sentence 

shall remain the same.” Id.

Pa.R.A.P. 302(a) provides that “issues not raised in the lower court are 

waived and cannot be raised for the first time on appeal.” Furthermore, 

Rule 2117(c) (statement of place of raising or preservation of 

issues) and Rule 2119(e) (statement of place of raising or 

preservation of issues) require that the brief expressly set forth in 

both the statement of the case and in the argument reference to 

the place in the record where the issue presented for decision on 

appeal has been raised or preserved below.

Id. Note. 
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In this appeal, Evans has failed to comply with Rule 302. The trial court 

explains that the supplemental memorandum mentions an order only in 

passing, and the proposed order for a concurrent sentence omits any request 

for the proposed relief now requested. See Trial Court Opinion, 6/19/19, at 5.

Our independent review of the record confirms the trial court’s analysis. 

Evans offers no authority to support the contention that the trial court had the 

burden to produce an order once it agreed to an evaluation, nor to establish 

that the supposed duty of a trial court to generate a follow-up order on its 

own constitutes an appealable issue. Evans’ issue is waived and would not 

merit relief.

Next, for clarity and completeness, we confirm that none of Evans’ other 

waived issues would merit relief either. 

Despite the repeated claims of ambiguity, the issue of consecutive 

versus concurrent sentencing lacks any support in the record, and is 

accordingly frivolous. As already noted, Judge Williams, notwithstanding

apparent later openness to reassessment, expressly confirmed at the 

original sentencing that his sentence was consecutive to the sentence 

imposed by Judge Mariani. See N.T. Sentencing, 12/15/11, at 36. With the

sole exception previously noted, the trial court’s subsequent rulings on 

consecutive sentences were all consistent as well. 

Additionally, Evans’ complaint that his sentence was excessive when 

added to the sentence received from Judge Mariani is totally without merit. 
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See Appellant’s Brief at 2, n.1. Evans’s conviction for aggravated assault is 

related to, but entirely independent of, his later guilty plea to plotting to 

assassinate his victims before they could testify. Appellant is not entitled to a 

“volume discount.” See Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. 

Super. 2011).

Reconsideration based on Evans’ claim of rehabilitation was solely within 

the trial court’s discretion. See Seagraves, 103 A.3d at 842. Additionally, 

The purpose of a motion for reconsideration or modification of 

sentence is to afford the sentencing court the opportunity to 

correct any errors that may have occurred at sentencing prior to 

appellate review. Commonwealth v. Burtner, 307 Pa. Super. 

230, 453 A.2d 10, 12 (1982); see also Pa.R.Crim.P. 720 

Comment (“As a general rule, the motion to modify sentence . . .

gives the sentencing judge the earliest opportunity to modify the 

sentence.”). A sentencing court has the authority to receive 

additional evidence upon a motion for reconsideration, but the 

court “is not required to afford the defendant a second opportunity 

to present evidence not related to any alleged error occurring at 

a prior proceeding.” Burtner, 453 A.2d at 12. “Where the 

sentencing procedure has been properly conducted, it is within the 

court’s discretion whether to receive additional evidence or rely 

on the sentencing record.” Id.

Commonwealth v. Lekka, 210 A.3d 343, 354 (Pa. Super. 2019). 

In this case, the sentencing court perceived no more than “small gains 

in [Evans’] maturity since his original sentence was imposed.” Trial Court 

Opinion, 6/19/19, at 8. The record supports the court’s evaluation. We discern 

no basis to disturb it. 

Evans’s mere bald assertion that the sentencing court “did not factor 

Appellant’s youth or immaturity into the sentence” is unsupported and lacks 
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merit. Appellant’s Brief, at 6. The trial court expressly confirmed that it 

considered Evans’ age at the time of the events at issue. See Trial Court 

Opinion, 6/19/19, at 8. Furthermore, as already noted, where the sentencing 

court “has the benefit of a pre-sentence report, we presume that the court 

was aware of relevant information regarding the defendant's character and 

weighed those considerations along with any mitigating factors.” Seagraves, 

103 A.3d at 842. Appellant’s claims are waived and would not merit relief. 

The trial court committed no abuse of discretion. Evans’s claims are 

waived. They would not merit relief. 

Judgment of sentence affirmed. 

President Judge Emeritus Ford Elliott joins the memorandum.

Judge Kunselman concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2020