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

v.

ROGER WILLIAMSON

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

PENNSYLVANIA

No. 116 WDA 2019 Appeal from the PCRA Order Entered December 19, 2018 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP

- 25

- CR

- 0002932

- 2007 COMMONWEALTH OF PENNSYLVANIA

v.

ROGER CHARLES WILLIAMSON

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

PENNSYLVANIA

No. 118 WDA 2019 Appeal from the PCRA Order Entered December 19, 2018 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP

- 25

- CR

- 0000155

- 2016

BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J. * MEMORANDUM BY MURRAY, J.: FILED O CTOBER 1, 2019 Roger Charles Williamson (Appellant) appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541

- 9546. Upon review, we remand with instructions. A prior panel of this Court summarized the facts of this case as follows:

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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. . . On November 24, 2015, emergency first responders received a call that an individual needed assistance. When the responders arrived at the scene, they found Appellant lying on the ground. Appellant reeked of alcohol; his spee ch was slurred; and, he was having difficulty sitting up. Appellant refused medical attention and attempted to stagger away. Shortly after, the police arrived and arrested Appellant for public intoxication. Appellant became resistant at the police stati on, so the officers placed Appellant in control holds and escorted him to his cell where Appellant forcefully resisted entering it. The officers pinned Appellant to the ground; Officer Gabriel Carducci’s arm was locked around Appellant’s head, near his mo uth; and, Appellant bit Officer Carducci’s arm repeatedly, causing an open wound. That day, the Commonwealth charged Appellant with aggravated assault, resisting arrest or other law enforcement, and public drunkenness and similar misconduct. A jury trial ensued on June 7, 2016, and the jury convicted Appellant of the above

- mentioned charges on June 9, 2016. With the benefit of a pre

- sentence investigation (“PSI”) report, the court conducted Appellant’s sentencing hearing on July 12, 2016. At the conclus ion of the hearing, the court sentenced Appellant to twenty

- seven (27) to fifty

- four (54) months’ imprisonment for aggravated assault and nine (9) to eighteen (18) months’ imprisonment for resisting arrest or other law enforcement. The court imposed no fu rther penalty for public drunkenness and similar misconduct. The court also revoked Appellant’s probation, at docket number 2932 of 2007, and sentenced him to one (1) to two (2) years’ imprisonment for the theft conviction related to that docket number. The court ordered Appellant to serve all of the sentences consecutively; thus, Appellant received an aggregate sentence of four (4) to eight (8) years’ imprisonment. Appellant filed a post

- sentence motion for sentence reconsideration on July 18, 2016, cla iming the court failed to fashion a sentence that properly took into account Appellant’s need for mental health treatment. The court denied relief the following day. Appellant timely filed a notice of appeal on July 22, 2016, and an amended notice of app eal on July 25, 2016. Commonwealth v. Williamson , 1081 WDA 2016, at *1

- 3 (Pa. Super. Mar

. 3, 2017) (unpublished memorandum). On March 3, 2017, this Court affirmedJ

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Appellant’s judgment of sentence. Appellant filed a petition for allowance of appeal, which was denied by the Pennsylvania Supreme Court on October 4,
2017. On July 16, 2018, Appellant filed the underlying PCRA petition. The PCRA court appointed c ounsel, who filed a no

- merit letter asse rting that the petition was untimely. On November 27, 2018, PCRA counsel filed a supplemental PCRA, advising the court that Appellant’s PCRA petition was, in fact, timely. In the supp lemental petition, c ounsel raised additional claims of prosecutorial mi sconduct. The PCRA court held a hearing on Appellant’s petition on December 18, 2018. At the conclusion of the hearing, the PCRA court put its findings of fact and legal conclusions on the record. On December 19, 2018, the PCRA court issued an order dis missing Appellant’s petition based on the reasons set forth in the record at the hearing. This timely appeal followed. On appeal, Appellant presents the following issues for review:
A. Whether the PCRA Court erred in failing to find that the content and qu ality of the videotape provided by the Commonwealth was suspect either for nefarious reasons or unwittingly and under either circumstance, the Court erred in failing to grant a new trial predicated on a finding of prosecutorial misconduct or bad faith?
B. Wh ether the sentence imposed upon the appellant was illegal in that he was sentenced at a level 4 for aggravated assault and at level 3 for resisting arrest with a consecutive sentence imposed, which sentence was outside of the standard range of the sentenci ng guidelines without legal basis and constituting an excessive sentence?J

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Appellant’s Brief at 2. We review the denial of PCRA relief by “examining whether the PCRA court’s findings of fact are supported by the record, and whether its conclusions of law a re free from legal error.” Commonwealth v. Busanet , 54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the party who prevailed in the PCRA court p roceeding.” Id. Appellant ’s first issue concerns the admission of evidence at trial; specifically, Appellant challenges the admission of a videotape depicting Appellant’s interactions with police

. Appellant’s argument on this issue is as follows: [Appellant] now argues that the videotape furnished to the defense was incomplete or there was missing footage or that the videotape was tampered with. [Appellant] argues misconduct on the part of the Commonwealth in the nature of the police failing to co mply with the discovery order in good faith by withholding or suppressing the videotape footage. [Appellant] makes further averments that the police purposely tampered with the videotape or suppressed a damaging portion thereof and thereby obstructed just ice and deprived him or exculpa tory evidence and a fair trial. Appellant’s Brief at 4

- 5.
D eficiencies in Appellant’s argument preclude relief. Notably , Appellant incorrectly frames his issue as trial court error in admitting the videotape. The PCRA, how ever, procedurally bars claims of trial court error, by requiring a petitioner to show the allegation or error is not previously litigated or waived. 42 Pa.C.S.A. §§ 9543(a)(3), 9544. At the PCRA stage, claims of trial courtJ

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error are either previously l itigated (if raised on direct appeal) or waived (if not). See Commonwealth v. Spotz , 18 A.3d 244, 260

- 01, 270 (Pa. 2011) (rejecting claims of trial court error as either previously litigated where raised on direct appeal or waived where not raised on dire ct appeal). Trial court error may constitute the arguable merit prong of a n ineffective assistance of counsel claim, but the issue must be framed properly for a petitioner to be
entitled to relief. See Commonwealth v. Paddy , 15 A.3d 431, 449 n.11 (Pa. 20 11) ( citing the three

- prong test for ineffectiveness stated in
Commonwealth v. Pierce , 527 A.2d 973, 975

– 76 (Pa. 1987), and admonishing against conflating claims of ineffective assistance of counsel with claims of trial court error). As our Supreme Court has stated, “[w]hen an appellant fails to meaningfully discuss each of the three i neffectiveness prongs, he is not entitled to relief . . . .” Commonwealth v. Fears , 86 A.3d 795, 804 (Pa. 2014). Here, Appellant has not discussed the reasonable basis
or p rejudice prongs of the Pierce test. Accordingly, this claim is waived.
In his second claim , Appellant challenges the legality of his sentence. Although a challenge to the discretionary aspects of sentencing is subject to waiver, the legality of a sentenc e cannot be waived. Commonwealth v.
Schutzues , 54 A.3d 86, 91 (Pa. Super. 2012). Moreover, issues concerning the legality of sentence are cognizable under the PCRA. See Commonwealth v. Hockenberry , 689 A.2d 283, 288 (Pa. Super. 1997). Whether Appellant ’s challenge implicates the legality of his sentence presents a pure question ofJ

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law. Commonwealth v. Foster , 17 A.3d 332, 340 n.13 (Pa. 2011). Our standard of review is de novo and o ur scope of review is plenary. Appellant’s second issue, in its entirety, reads: The sentence imposed upon [Appellant] was illegal in that he was sentenced at a level 4 for aggravated assault and at level 3 for resisting arrest with a consecutive sentence imposed, which sentence was outside of the standard range of the sentencing guidelines without legal basis and constituting an excessive sentence. Appellant’s Brief at 6. Ignoring the obvious deficiencies in Appellant’s argument, it appears that Appellant is asserting that his sentence is excessive because the trial

co urt imposed a sentence outside of the standard range of the sentencing guidelines. This contention does not implicate the legality of Appellant’s sentence. Instead, it is a challenge to the discretionary aspect of his sentence. Commonwealth v. Ahmad , 96 1 A.2d 884, 886 (Pa. Super. 2008) (“A challenge to an alleged excessive sentence is a challenge to the discretionary aspects of a sentence.”). This claim is waived for two reasons. First, requests for relief with respect to the discretionary aspects of s entence are not cognizable in PCRA proceedings. Commonwealth v. Fowler , 930 A.2d 586, 593 (Pa. Super. 2007) (“Challenges to the discretionary aspects of sentencing are not cognizable under the PCRA.”); see also Commonwealth v. Jordan , 772 A.2d 1011, 1016 (Pa. Super. 2001) (observing that “[t]his Court’s case law has stated that a challenge to the discretionary aspects of sentencing is aJ

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matter that must be reviewed in the context of a direct appeal and cannot be reviewed in the context of a PCRA.”); see al so 42 Pa.C.S.A. § 9543(a)(2). Second, Appellant’s argument on this issue fails to include citations to legal authority and record citations. See Pa.R.A.P. 2119(a) (requiring that an appellant develop an argument with citation to and analysis of relevant legal authority).
Because all of Appellant’s issues have been waived for purposes of our review, pursuant to Commonwealth v. Rosado , 150 A.3d 425 (Pa. 2016), we are constrained to hold that Appellant’s counsel, William J. Hathaway, Esquire (Counsel), was per se ineffective by filing a wholly defective appellate brief. Our Supreme Court in Rosado explained: The Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to have th e Assistance of Counsel for his defence.” U.S. Const. amend. VI. The right to counsel is not a mere hollow formality satisfied by trial alongside a person who happens to be a lawyer, but, instead, is the right to the effective assistance of counsel. Generally, an accused asserting that he has been denied his constitutional right to effective assistance of counsel must demonstrate that counsel engaged in errors which caused him prejudice

— i.e., that there is a reasonable probability that, but for counse l’s errors, the result of the proceeding would have been different . . . However, in certain limited circumstances, including the actual or constructive denial of counsel, prejudice may be so plain that the cost of litigating the issue of prejudice is unju stified, and a finding of ineffective assistance of counsel per se is warranted.

* * * [T]his Court has . . . held that errors which completely foreclose appellate review amount to a constructive denialJ

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of counsel and thus ineffective assistance of coun sel per se , whereas those which only partially foreclose such review are subject to the ordinary [ Strickland v. Washington , 104 S. Ct. 2052 (U.S. 1984)]/[ Commonwealth v. Pierce , 527 A.2d 973 (Pa. 1987)] framework. Rosado , 150 A.3d at 431

- 32, 438

- 39 (some citations and footnotes omitted, emphasis added). The argument section of Appellant’s brief is so inadequate that it has resulted in waive r of all claims on appeal, and therefore, “[C]ounsel has forfeited all meaningful appellate review.” Rosado , 150 A.3d at 440; see also Johnson , 889 A.2d at 623. As evidenced by c ounsel’s waiver of both of Appellant’s questions presented, Appellant was denied the assistance of counsel. Thus, c ounsel was per se ineffective, and we rem and the matter to the trial court for the appointment of new counsel to represent Appellant on appeal. For the foregoing reasons, we remand Appellant’s case to the trial court. Upon remand, we direct the trial court to withhold compensation from c ounse l for his appointment and representation in this matter. The trial court is directed to appoint competent appellate counsel within fifteen days of the date of this memorandum. Following his or her appointment, new counsel shall undertake all appropriate measures, including, if deemed necessary, the filing of a cogent appellate brief on behalf of Appellant. Case remanded with instructions. Panel jurisdiction retained.