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

COMMONWEALTH OF PENNSYLVANIA

v.

YUSEF WHITEHEAD

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2820 EDA 2018

Appeal from the Judgment of Sentence Entered August 28, 2018 , i n 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 0 3 , 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 h er car and drove her to Tacony C ree k, where they stripped her and [Whitehead ] repeatedly raped her. After the rape, [Whitehead and Rose] attempted to drown the decedent in

_________________ __________ ______ ____ _______

* 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 wi th 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 file d
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

_________________ __________ ______ ____ _______

2 The trial court imposed concurrent sentences of five to ten years of imprisonment each for r ape, r obbery, c arjacking, and k idnapping, and a f our to five year term of imprisonment for c onspiracy to c ommit m urder . Ea ch 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 CP

51

- 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 b e 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 su bstantive rule that is retroactive in cases on collateral review. Montgomery , 136 S. Ct. at 732.J

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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 post

sentence 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 r epresentation 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 Common wealth 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. S ee 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).J

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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 remand ing 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, t his Court entered
an order denying the petition without prejudice to re

- raise the issue before

this p anel.

Whitehead accordingly raises the following issues for our review:

1. Did the trial/senten cing 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 po st[

- ]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 aspect s of his

_________________ __________ ______ ____ _______

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.J

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sentence. However, Whitehead acknowledg es that he failed to preserve th e issue for our review, since he did not file a post

- sentence motion challenging

his sentenc e before the trial court. Whitehead argues that his sentencing
counsel rendered ineffective assistance by failing to file a post

- se ntence 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, a s an additional basis for remand, Whitehead alludes to inaccuracies in the sentence status summary prepared by the Department of Corrections (“DOC”) . He clai ms 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 th e 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 orig inal 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).J

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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 omit ted).
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 post

sentence 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 aspect s of a sentence is waived when not raised in a post

sentence 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.

_________________ __________ ______ ____ _______
8 While Whitehead’s sentencing counsel may have been ineffec tive 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, l itigation 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. Holm es , 79 A.3d 562, 578 (Pa. 2013)

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/3/20