J-S69026-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

YUSEF WHITEHEAD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2820 EDA 2018

Appeal from the Judgment of Sentence Entered August 28, 2018,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0501681-1997.

BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 03, 2020

Yusef Whitehead appeals from the judgment of sentence imposed upon 

resentencing for his conviction of murder of the first degree, rape, robbery, 

carjacking, kidnapping and conspiracy to commit murder.

1

 We affirm. 

The trial court summarized the relevant facts underlying this appeal as 

follows: 

On March 19, 1997, . . . Whitehead, then aged 15 years and 11 

months old, and his co-defendant, 18[-]year[-]old Timothy Rose, 

abducted and robbed the decedent, nurse Calma Calida, as she 

was about to begin her shift at the Philadelphia Geriatric Hospital.

After spotting the decedent, [Whitehead and Rose] forced her 

back into her car and drove her to Tacony Creek, where they 

stripped her and [Whitehead] repeatedly raped her. After the 

rape, [Whitehead and Rose] attempted to drown the decedent in 

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* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S.A. §§ 2502, 3121, 3701, 3702, 2901, 903.
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the creek. When they failed to do so, [Whitehead] grabbed either 

a brick or a stone and beat the decedent to death with it.

Trial Court Opinion, 11/9/18, at 2-3.

In 1998, Whitehead was convicted of the above offenses. The trial court 

sentenced him to life imprisonment without the possibility of parole (“LWOP”) 

on the murder conviction, and imposed concurrent sentences on the remaining 

convictions.

2

 Whitehead did not file a direct appeal. In 2010, Whitehead filed

a petition pursuant to the Post Conviction Relief Act (“PCRA”). In 2016, he 

filed an amendment to his PCRA petition challenging his LWOP sentence in 

light of Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v.

Louisiana, 136 S. Ct. 718 (2016).

3

 On appeal of the denial of his amended 

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2 The trial court imposed concurrent sentences of five to ten years of 

imprisonment each for rape, robbery, carjacking, and kidnapping, and a four 

to five year term of imprisonment for conspiracy to commit murder. Each of 

Whitehead’s sentences was to be served consecutively to any other sentence 

previously imposed upon Whitehead. Notably, Whitehead had received prison 

sentences of seven and one-half to fifteen years for aggravated assault in CP51-CR-0708691-1997, and ten to twenty years for the gunpoint anal rape of 

a ten-year-old child in CP-51-CR-0211571-1998 (hereinafter “the two 

unrelated cases”). 

3

In Miller, the High Court held that a sentencing scheme that mandates the 

imposition of a LWOP sentence for a juvenile violates the Eighth Amendment 

to the United States Constitution. While it did not foreclose the possibility that 

a child could be sentenced to life imprisonment without parole in a homicide 

case, it concluded that sentencing for juveniles must be individualized, and 

that this requires consideration of the defendant’s age at the time of the 

offense, as well as the hallmark features of youth. Miller, 567 U.S. at 474-

7. In Montgomery, the United States Supreme Court held that Miller

announced a substantive rule that is retroactive in cases on collateral review. 

Montgomery, 136 S. Ct. at 732.
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PCRA petition, this Court granted PCRA relief, and vacated Whitehead’s 

judgment of sentence. 

On remand, the trial court resentenced Whitehead on August 28, 2018, 

as follows: fifty years to life imprisonment for first-degree murder; and 

concurrent five to ten year prison sentences for rape, robbery, carjacking, 

kidnapping, and conspiracy to commit murder; all to be served concurrently 

to Whitehead’s sentences in the two unrelated cases. At sentencing, the trial 

court notified Whitehead that he had ten days in which to file a post-sentence 

motion. However, Whitehead, who was represented by counsel, did not file a 

post-sentence motion challenging his sentence.4 Whitehead did file a timely 

pro se notice of appeal.5 Both Whitehead and the trial court complied with 

Pa.R.A.P. 1925. 

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4 At the time of sentencing, and throughout the period in which to file a postsentence motion and a notice of appeal, Whitehead was represented by 

Jonathan Krinick, Esquire. Attorney Krinick was granted leave to withdraw as 

counsel on October 3, 2018. Replacement counsel was appointed on October 

11, 2018.

5 Our courts have made clear that a defendant who is represented by counsel 

may not engage in hybrid representation by filing pro se documents. See

Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010). However, while there 

is no right to hybrid representation, there is a right to appeal pursuant to 

Article 5, § 9 of the Pennsylvania Constitution. See Commonwealth v. Ellis, 

626 A.2d 1137, 1138 (Pa. 1993). Because a notice of appeal protects a 

constitutional right, it is distinguishable from other filings that require counsel

to provide legal knowledge and strategy in creating a motion, petition, or brief. 

See Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super. 2016). 

The trial court therefore properly docketed the pro se notice of appeal and 

forwarded it to this Court pursuant to Pa.R.A.P. 902 (note).
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While this appeal was pending, Whitehead filed a petition asserting the 

ineffectiveness of sentencing counsel for failing to file a post-sentence motion, 

and seeking an order from this Court remanding the matter back to the trial 

court for resentencing or, in the alternative, for the filing of a post-trial motion

nunc pro tunc. As the appeal had not yet been assigned, this Court entered 

an order denying the petition without prejudice to re-raise the issue before 

this panel. 

Whitehead accordingly raises the following issues for our review: 

1. Did the trial/sentencing court err in structuring of the 

resentencing of [Whitehead]?

2. Did the Superior Court err in not granting a petition for remand, 

even though [Whitehead] pled that he was victimized by 

ineffective assistance of sentencing counsel who failed to file a 

post[-]sentence motion for reconsideration of sentence so that 

[Whitehead] could raise abuse of discretion on appeal?

Whitehead’s Brief at 3 (some capitalization omitted).

As Whitehead’s issues are related, and his counsel presents them as a 

single issue in the argument section of his brief,

6 we will address them 

together. Whitehead contends that the only potentially meritorious issue that 

he could raise on appeal is a challenge to the discretionary aspects of his 

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6 Pursuant to our Rules of Appellate Procedure, Whitehead was required to 

structure his appellate brief so that the argument section of the brief was 

“divided into as many parts as there are questions to be argued; and shall 

have at the head of each part--in distinctive type or in type distinctively 

displayed--the particular point treated therein, followed by such discussion 

and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). 

Whitehead failed to comply with this requirement.
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sentence. However, Whitehead acknowledges that he failed to preserve the

issue for our review, since he did not file a post-sentence motion challenging 

his sentence before the trial court. Whitehead argues that his sentencing 

counsel rendered ineffective assistance by failing to file a post-sentence 

motion challenging his sentence. He asserts that, in the interests of justice, 

this Court should remand the matter to the trial court for resentencing, so that 

Whitehead may thereafter file a timely post-sentence motion.7

As we have explained, “[c]hallenges to the discretionary aspects of 

sentencing do not entitle an appellant to review as of right.” Commonwealth 

v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits 

of a discretionary sentencing issue, this Court conducts a four-part analysis to 

determine:

(1) whether appellant has filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and modify

sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief 

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7 Whitehead does not contend that his sentence, as reflected in the sentencing 

order, is illegal. However, as an additional basis for remand, Whitehead 

alludes to inaccuracies in the sentence status summary prepared by the 

Department of Corrections (“DOC”). He claims that the summary does not 

accurately reflect the sentence imposed by the trial court in its sentencing 

order. Whitehead’s Brief at 9. This is not a matter which falls within this 

Court’s jurisdiction. Rather, a claim of an erroneous calculation by the DOC 

should be filed directly with the DOC or in an original action before the 

Pennsylvania Commonwealth Court. See e.g., Commonwealth v. Parella, 

834 A.2d 1253, 1254 (Pa. Cmwlth. 2003) (noting that a claim against the DOC 

falls within the exclusive original jurisdiction of the Commonwealth Court 

under 42 Pa.C.S.A § 761(a)); see also Commonwealth v. Jackson, 858 

A.2d 627 (Pa. Super. 2004); Commonwealth v. Danysh, 833 A.2d 151 (Pa. 

Super. 2003).
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has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether there 

is a substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, [see] 42 Pa.C.S.A. 

§ 9781(b). 

Id. (citation omitted). 

In the instant case, Whitehead filed a timely notice of appeal. However, 

he did not preserve his sentencing claim at sentencing or in a timely postsentence motion to reconsider and modify sentence. See Commonwealth

v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004) (holding that an objection

to the discretionary aspects of a sentence is waived when not raised in a postsentence motion or during the sentencing proceedings). Thus, due to this

deficiency, we are precluded from reviewing the merits of Whitehead’s

discretionary sentencing claim. As a result, we affirm the judgment of

sentence, without prejudice to Whitehead’s right to raise his ineffectiveness

claims in a timely PCRA petition.

8

Judgment of sentence affirmed. 

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8 While Whitehead’s sentencing counsel may have been ineffective for failing 

to file a post-sentence motion, we may not address that issue. First, it was 

not presented to or addressed by the trial court. See Pa.R.A.P. 302(a) 

(providing that issues not raised in the lower court are waived and cannot be 

raised for the first time on appeal). Second, and more importantly, litigation 

of ineffectiveness claims is not generally a proper component of a defendant’s 

direct appeal, and is presumptively deferred for collateral attack under the 

PCRA. See Commonwealth v. Holmes, 79 A.3d 562, 578 (Pa. 2013). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/3/20