J-S68029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

CHRISTOPHER LEE HARRIS

Appellant No. 211 WDA 2016

Appeal from the PCRA Order dated January 21, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0008631-2011

BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.: FILED DECEMBER 15, 2016

Appellant, Christopher Lee Harris, appeals from the order dismissing 

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541-9546. Appellant asserts that his trial counsel was ineffective 

for recommending a sentence to the court which was longer than the 

minimum sentence recommended by the guidelines. Upon review, we affirm.

This Court laid out the underlying facts of the case when we affirmed

Appellant’s judgment of sentence:

[Appellant] lived with the victim, Alison Studvant, on the 

1500 block of Marlboro Avenue in Wilkinsburg. On July 1, 2011, 

[Appellant], his girlfriend, the victim, and the victim’s boyfriend, 

were drinking. After the victim’s boyfriend departed, the victim 

solicited [Appellant] and his girlfriend for a group sexual 

encounter, and allegedly attempted to kiss [Appellant]’s 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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girlfriend. [Appellant], angered by the victim’s interaction with 

his girlfriend, and at the sexual solicitation, began arguing with 

the victim. The victim then left the room, went into the kitchen, 

returned with two knives, and began swinging the knives 

around. [Appellant] then approached the victim and attempted 

to disarm her. In the process of attempting to disarm the victim, 

[Appellant] was cut on the arm, cheek and under his eye. 

[Appellant] and the victim continued arguing, and when the 

victim left the room and went upstairs, [Appellant] leaned out of 

the front door and fired four shots into the air. The victim 

returned downstairs minutes later, and more arguing ensued. 

The victim continued swinging knives and struck [Appellant] in 

the wrist and face. [Appellant] then took several steps 

backwards, and, although aware of his opportunity to leave the 

premises, raised his gun to the victim’s upper torso and fired 

twice, striking her in the left breast. The victim slumped against 

the wall, and when she attempted to regain her footing, 

[Appellant] shot her in the ankle. The victim subsequently died 

from her injuries.

[Appellant] was arrested and charged with one count of 

criminal homicide. [Appellant] filed a pre-trial motion to 

suppress his statements to the police, which the trial court 

subsequently denied. On February 1, 2012, at the conclusion of 

a jury trial, [Appellant] was found guilty of third-degree murder.1

Commonwealth v. Harris, 1395 WDA 2012, at 1-2 (Pa. Super., July 30, 

2013) (“Harris I”) (unpublished memorandum) (citations to the record and 

footnote omitted), appeal denied, 81 A.3d 75 (Pa. 2013). 

At Appellant’s sentencing hearing on April 30, 2012, his trial counsel 

presented three witnesses who spoke on Appellant’s behalf: Appellant’s 

mother, Appellant’s older brother, and a member of Appellant’s church. N.T., 

4/30/12, at 4-9. Appellant’s counsel argued for leniency because Appellant 

____________________________________________

1 18 Pa.C.S. § 2502(c).
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had no prior contact with the criminal justice system and had been lawfully 

carrying a registered firearm at the time of the shooting. Id. at 9-10. 

Appellant’s trial counsel concluded her sentencing argument with the 

following: “For those reasons, Your Honor, his guidelines start at 90 months. 

I would suggest a sentence starting at 120 months.” Id. at 10:18-20. 

Appellant thereafter exercised his right of allocution, saying only “I’m sorry.” 

Id. at 10:22. 

In response, the Commonwealth presented three witnesses: the 

victim’s mother, daughter, and sister. N.T., 4/30/12, at 11-15. The 

Commonwealth did not make argument or recommend a sentence to the 

trial court. 

When sentencing Appellant, the judge stated that he took into 

consideration Appellant’s Behavior Clinic Evaluation and Pre-Sentence 

Investigation Report. N.T., 4/30/12, at 15. The judge also noted that he 

incorporated the testimony from the jury trial into the sentencing hearing,2

and acknowledged that the standard sentence range was 90 to 240 months’ 

minimum incarceration. Id. at 16. Appellant received a sentence of 120 to 

240 months’ incarceration, or ten to twenty years. Id.

Appellant filed a post-sentence motion for a new trial on May 1, 2012, 

in which he challenged the sufficiency and weight of the evidence supporting 

____________________________________________

2 The judge did not indicate any particular portion of the trial testimony that 

aided him in his sentencing.
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his conviction. Post-Sentence Mot., 5/1/12. The trial court denied the motion 

on August 14, 2012. Trial Ct. Order, 8/14/12.

Appellant filed a timely notice of appeal through counsel on September 

12, 2012,3challenging the sufficiency and weight of the evidence. Harris I

at 3. On July 30, 2013, this Court affirmed the judgment of sentence. PCRA 

Ct. Op., 6/3/16, at 2. On December 4, 2013, the Supreme Court of 

Pennsylvania denied Appellant’s petition for allowance of appeal. Id.

On May 6, 2014, Appellant filed a timely pro se PCRA Petition. PCRA 

Ct. Op., 6/3/16, at 2.4In his petition, Appellant alleged that his trial counsel 

was ineffective for suggesting a sentence above the minimum range in the 

Pennsylvania Sentencing Guidelines, 204 Pa. Code §§ 303.1 et seq.:

[Trial counsel] had no reasonable basis for suggesting that 

[Appellant’s] sentence [] start above the standard range on the 

guidelines where prior to making that suggestion, [Appellant’s] 

counsel stated facts of [Appellant’s] no prior criminal history 

[and] no run-in’s with the police leading the court to consider 

the mitigating circumstances for a possible mitigated sentence of 

seventy-eight (78) months. [Counsel’s request for a sentence 

____________________________________________

3 Appellant also filed pro se notices of appeal on August 30, 2012, and 

September 4, 10, and 11, 2012. Notice of Appeal, 8/30/12; Notice of 

Appeal, 9/4/12; Notice of Appeal, 9/10/12; Notice of Appeal, 9/11/12.

4 The petition was filed within one year of December 4, 2013, the date 

Appellant’s judgment of sentence became final. See 42 Pa.C.S. § 9545(b)(1) 

(stating that generally a PCRA petition must be filed within one year of the 

date the petitioner’s judgment of sentence becomes final); 42 Pa.C.S. § 

9545(b)(3) (for purposes of the PCRA, “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”).
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starting at 120 months] displayed incompetence, and did not 

further her client[’s] [] interest. . . . Such an error show[]s that 

[there] is a reasonable probability that but for counsel’s 

unprofessional errors [] the outcome of the hearing would have 

been different.

PCRA Pet., 5/6/14, at ¶¶ 22-23.5

The PCRA court appointed counsel, and on August 5, 2014, counsel 

filed a petition to withdraw and a “no merit” letter pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

PCRA Ct. Op., 6/3/16, at 2. In her Turner/Finley letter, Appellant’s PCRA 

counsel asserted that Appellant was complaining about his trial counsel’s 

failure to raise an excessive-sentence claim in Appellant’s post-sentence 

motion. Commonwealth v. Harris, 1586 WDA 2014, at 10 (Pa. Super., 

June 5, 2015) (“Harris II”) (unpublished memorandum disposing of 

Appellant’s appeal from adverse decision on his 2014 PCRA petition). 

Appellant’s PCRA counsel concluded that Appellant’s trial counsel was not 

ineffective for failing to preserve that issue. Id. The PCRA court granted 

appointed counsel’s petition to withdraw and issued a notice of its intent to 

dismiss the petition without a hearing, pursuant to Rule 907 of the 

Pennsylvania Rules of Criminal Procedure. PCRA Ct. Op., 6/3/16, at 2-3. 

____________________________________________

5 The parties do not dispute the applicable sentencing guidelines. The 

mitigated range began at a minimum of 78 months; the standard range was 

a minimum of 90 to 240 months. The statutory limit was a minimum of 240 

months. PCRA Ct. Op., 6/3/16, at 7.
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Appellant responded to the Rule 907 notice on August 18, 2014, alleging 

PCRA counsel’s ineffectiveness. Id. at 3. On September 17, 2014, the PCRA 

court dismissed the petition without a hearing. Id.

On September 25, 2014, Appellant filed a timely pro se appeal of the 

dismissal of his PCRA petition. PCRA Ct. Op., 6/3/16, at 3. Appellant 

asserted that his trial counsel was ineffective for suggesting a sentence 

above the minimum or mitigated sentence range, that he had a right to an 

evidentiary hearing on trial counsel’s effectiveness, and that his appointed 

PCRA counsel was ineffective for misconstruing his PCRA issue. Harris II at 

6-7. 

On June 5, 2015, this Court issued its Harris II decision disposing of 

Appellant’s appeal. We held that Appellant’s claim was similar to a claim that 

trial counsel was ineffective for failing to object to an erroneously higher 

calculated guideline range, see Commonwealth v. Barnes, 593 A.2d 868, 

871 (Pa. Super. 1991), and that such “a claim of ineffectiveness that trial 

counsel affirmatively recommended that the trial court impose a higher 

sentence than the lower end of the correct standard range . . . has arguable 

merit.” Harris II at 8 (emphasis in original). Because no evidentiary hearing 

was conducted to determine whether trial counsel had a reasonable basis for 

requesting a 120-month sentence, and because the retired trial judge was 

unavailable to speak to whether trial counsel’s remarks caused prejudice to 

Appellant, we were unable to rule on trial counsel’s ineffectiveness. Id. at 8-
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9; see Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (to prevail 

on a claim of ineffective assistance of counsel, a PCRA petitioner must allege 

and prove that the underlying legal claim has arguable merit, that counsel 

had no reasonable strategic basis for his action, and that the petitioner was 

prejudiced by counsel’s action or inaction). 

We also held that PCRA counsel was ineffective for misstating 

Appellant’s PCRA issue. Harris II at 9-12. That mischaracterization, upon 

which the PCRA court relied when dismissing the petition, undeniably 

prejudiced Appellant. Id. at 11-12. We therefore vacated the order 

dismissing the petition, remanded the case for an evidentiary hearing on 

trial counsel’s ineffectiveness, and relinquished jurisdiction. Id. at 12. 

On August 10, 2015, the PCRA court appointed new counsel for 

Appellant. PCRA Ct. Op., 6/3/16, at 3. On August 31, 2015, appointed 

counsel filed an amended PCRA petition that presented the following issue: 

“Was trial counsel ineffective for failing to argue the mitigated sentence or at 

the very least, a minimum sentence?” Amended PCRA Pet., 8/31/15, at 1. 

The PCRA court conducted an evidentiary hearing on October 14, 

2015. At the hearing, Appellant’s trial counsel testified that she did not ask 

for a mitigated (78-month minimum) sentence, because it “wasn’t indicated 

under the facts of the case.” N.T., 10/14/15, at 11. She explained that she 

feared that if she had asked for an unreasonably low sentence, the 

Commonwealth would have argued for a higher sentence, id. at 25, or the 
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judge might have punished her client with a higher sentence. Id. at 19. She 

believed a ten to twenty year sentence was low for what Appellant could 

expect for his conviction, “especially in Allegheny County where twenty to 

forty is almost standard.” Id. at 10. She felt “leaving it to the judge’s 

discretion would have absolutely ended at a twenty to forty [year] sentence, 

whereas asking for a specific sentence, there was a chance he would not be 

sentenced to the top end of the standard range, if you will.” Id.

The PCRA court dismissed Appellant’s amended petition on January 21, 

2016. PCRA Ct. Op., 6/3/16, at 4. In its opinion, the PCRA court noted the 

following from the evidentiary hearing:

1. [Appellant’s trial counsel] testified that she asked for a 

sentence of ten to twenty years, which she believed was 

appropriate under the circumstances, albeit a low sentence for 

someone convicted of third degree murder. According to [trial 

counsel], in Allegheny County, twenty to forty years is almost 

standard for murder in the third degree. She felt that if she left it 

to the judge’s discretion, it would have absolutely ended up at a 

twenty to forty year sentence. She felt that if she asked for a 

specific sentence, there was a chance he would not be sentenced 

to the top end of the standard range. She further testified, based 

on her years of legal experience, a mitigated range sentence was 

not indicated under the facts of the case.

2. Her decision to ask for ten to twenty years instead of 78 

months (the mitigated range) or 90 months (the low end of the 

standard range) was based upon what she believed was 

appropriate under the circumstances. 

3. [Appellant’s trial counsel] feared if she asked for a mitigatedrange sentence, the Commonwealth would argue for the higher 

sentence of twenty to forty years.

4. The Court asked [trial counsel] if one of the reasons she 

asked for a specific range was to try and remove or take out of 
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the judge’s consideration the higher range sentence in the 

standard guidelines. Her answer was that was one of the 

reasons, because she did not believe 20-40 years was 

appropriate for [Appellant]. [Trial counsel] emphasized to 

maintain her credibility with the court, she did not argue for 

either a mitigated or low range in the standard range. 

5. The Court next asked her if it was her rationale and strategy 

that if she asked for a lower-range sentence, 90-180 or plus, the 

judge might say a higher sentence is what he’d get, 240-480. 

She answered yes; and

6. The Court then asked her if she took a bold approach and 

asked for something in the middle rather than the low end or 

high end to reduce the likelihood of the higher range. She 

stated, “That’s correct.” 

PCRA Ct. Op., 6/3/16, at 8-9 (citations to the record omitted). The PCRA 

court held that Appellant failed to prove the second prong of the 

ineffectiveness test (that trial counsel lacked a reasonable basis for her 

actions): 

[Appellant’s trial counsel] abundantly explained her trial strategy 

and why she asked for a sentence above the mitigated range 

and lower end of the standard range. Counsel was trying to 

protect her client from receiving a 20-40 year sentence. 

Counsel’s actions were reasonable.

Id. at 9. The PCRA court stated that it dismissed Appellant’s petition solely 

on the basis of the reasonable basis prong, and did not make a finding 

regarding prejudice to Appellant. Id. at 10.

Appellant, through his appointed counsel, timely appealed from the 

order dismissing his amended petition on February 10, 2016, and it is that 

appeal that is now before this Court. Notice of Appeal, 2/10/16. On February 

17, 2016, the PCRA court ordered Appellant to file a Concise Statement of 
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Errors Complained of on Appeal, pursuant to Rule 1925(b) of the 

Pennsylvania Rules of Appellate Procedure. Order, 2/17/16. Appellant filed 

his Concise Statement on February 23, 2016. Statement, 2/23/16. In his 

brief to this Court, Appellant raises the following question:

Did trial counsel render ineffective assistance by failing to fully 

advocate for [Appellant] by weighing what she perceived the 

sentencing court would think over [Appellant’s] own interests 

and then asking the sentencing court to apply a sentence that is 

higher than the bottom of the standard range?

Appellant’s Brief at 2. 

Appellant argues that “All of the evidence [that trial counsel] 

presented on behalf of her client were all good points that called for her to 

ask for a mitigated sentence or at worst, a bottom of the standard range 

sentence.” Id. at 5-6. Appellant claims that in suggesting a 120-month 

minimum sentence rather than a 90-month or 78-month minimum sentence, 

“[t]rial counsel took on a quasi-judicial role by coming up with a number 

that she believed was something that the judge and Commonwealth would 

accept.” Id. at 4. Appellant contends that trial counsel violated Appellant’s 

Sixth Amendment right to effective counsel by (1) failing to engage in the 

adversarial process, citing United States v. Cronic, 466 U.S. 648 (1984), 

and (2) preventing the sentencing court from exercising its discretion in 

Appellant’s favor, citing United States v. Castro, 26 F.3d 557 (5th Cir. 

1994), rehearing denied, 38 F.3d 759 (5th Cir. 1994).
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Our standard of review of the dismissal of a PCRA petition is as 

follows:

We review an order dismissing a petition under the PCRA 

in the light most favorable to the prevailing party at the PCRA 

level. This review is limited to the findings of the PCRA court and 

the evidence of record. We will not disturb a PCRA court’s ruling 

if it is supported by evidence of record and is free of legal error. 

This Court may affirm a PCRA court’s decision on any grounds if 

the record supports it. Further, we grant great deference to the 

factual findings of the PCRA court and will not disturb those 

findings unless they have no support in the record. However, we 

afford no such deference to its legal conclusions. Where the 

petitioner raises questions of law, our standard of review is de 

novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations 

omitted). 

A petitioner claiming ineffective assistance of counsel must establish 

the three prongs of the test from Commonwealth v. Pierce, 527 A.2d 973 

(Pa. 1987): “(1) the underlying claim has arguable merit; (2) no reasonable 

basis existed for counsel’s actions or failure to act; and (3) [petitioner] 

suffered prejudice as a result of counsel’s error.” Fears, 86 A.3d at 804 

(citations omitted). Counsel is presumed effective, and a petitioner bears the 

burden of proving otherwise. Id. If a petitioner fails to prove by a 

preponderance of the evidence any of the Pierce prongs, the court need not 

address the remaining prongs. Commonwealth v. Fitzgerald, 979 A.2d 

908, 911 (Pa. Super. 2009), appeal denied, 990 A.2d 727 (Pa. 2010).

With regard to the second prong, a petitioner must prove that his 

counsel failed to pursue an alternative course of action which “offered a 
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potential for success substantially greater than the course actually pursued.” 

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) (citation omitted). 

However, 

The test is not whether other alternatives were more reasonable, 

employing a hindsight evaluation of the record. Although weigh 

the alternatives we must, the balance tips in favor of a finding of 

effective assistance as soon as it is determined that trial 

counsel’s decision had any reasonable basis.

Pierce, 527 A.2d at 975 (citation omitted). Counsel will not be found 

ineffective “if the decision to follow a particular course of action was 

reasonably based and was not the result of sloth or ignorance of available 

alternatives. Counsel’s approach must be so unreasonable that no 

competent lawyer would have chosen it.” Commonwealth v. Loner, 836 

A.2d 125, 132–33 (Pa. Super. 2003) (internal quotation marks and citations 

omitted), appeal denied, 852 A.2d 311 (Pa. 2004). 

Specifically, the decision of whether to present a particular defense “is 

a tactical one and will not be deemed ineffective stewardship if there is a 

reasonable basis for that position.” Commonwealth v. Blair, 421 A.2d 656, 

660 (Pa. 1980); see, e.g., Commonwealth v. Rainey, 656 A.2d 1326, 

1330-31 (Pa. 1995) (trial counsel’s strategic concession of guilt on seconddegree murder rather than pursuit of acquittal was deemed reasonable), 

cert. denied, 116 S.Ct. 562 (1995); Commonwealth v. Davenport, 431 

A.2d 982, 984 (Pa. 1981) (counsel’s promotion of self-defense theory over 

pursuit of voluntary intoxication defense was reasonable). An appellate 
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court’s evaluation of counsel’s performance and the reasonableness of her 

decisions is highly deferential, Commonwealth v. Rega, 933 A.2d 997, 

1025 (Pa. 2007), cert. denied, 552 U.S. 1316 (2008), and an appellate 

court “will not substitute its determination for that of counsel as to what 

course of action would have been more effective in promoting the client's 

interest.” Commonwealth v. Blair, 421 A.2d 656, 660 (Pa. 1980).

Under Pennsylvania law, a sentencing judge generally has broad 

discretion in fashioning a sentence. Commonwealth v. Hoch, 936 A.2d 

515, 519 (Pa. Super. 2007). While a judge is obligated to consider the 

ranges prescribed by the guidelines of the Pennsylvania Commission on 

Sentencing, the judge may depart from the sentencing guidelines. 42 

Pa.C.S. § 9721(b). If there are mitigating or aggravating circumstances 

present, a judge may select a sentence in the mitigated or aggravated 

range, 204 Pa. Code § 303.13, 42 Pa.C.S. § 9721, but a judge is not 

required to sentence in the mitigated or aggravated range, even when 

presented with mitigating or aggravating circumstances. Commonwealth v. 

Wright, 600 A.2d 1289, 1291-92 (Pa. Super. 1991). The judge must 

consider the gravity of the offense as it relates to the impact on the life of 

the victim and on the community, the need for public protection, and the 

defendant’s need for rehabilitation. 42 Pa.C.S. § 9721(b); Commonwealth 

v. Walls, 926 A.2d 957, 962 (Pa. 2007).
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At the time of sentencing, the judge must afford counsel for both

parties the opportunity to present arguments and information relative to 

sentencing. Pa.R.Crim.P. 704(C)(1) (emphasis added). It follows, therefore, 

that counsel’s role at sentencing is to ensure that the sentencing judge is 

fully equipped to consider all the requisite aspects of sentencing, and that 

counsel’s arguments should be designed to aid the judge in considering the 

appropriate factors and in crafting a sentence in accordance with the law. 

Counsel may be found ineffective, for example, for failing to (1) correct 

erroneously high sentencing guidelines, Barnes, 593 A.2d at 871; (2) 

investigate or present mitigation evidence, Commonwealth v. Martin, 5 

A.3d 177, 204 (Pa. 2010), cert. denied, 563 U.S. 1035 (2011); or (3) 

request a presentence investigation and report, Commonwealth v. 

Johnson, 517 A.2d 1311, 1317 (Pa. 1986). The ultimate discretion, 

however, remains with the sentencing judge, who may completely disregard 

a sentence recommended by counsel if circumstances so require.6

In the instant case, the trial court conducted an evidentiary hearing to 

determine whether Appellant’s trial counsel lacked a reasonable basis for 

____________________________________________

6 A judge may also disregard the sentence recommended by the presentence or psychiatric reports. See Pa.R.Crim.P. 702(A)(1) (a sentencing 

judge has discretion to order a pre-sentence investigation report); 

Commonwealth v. Goggins, 748 A.2d 721, 729 (Pa. Super. 2000) (stating 

one of the essential elements of a presentence investigation report includes 

specific recommendations as to the sentence if the sentencing court has so 

requested).
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suggesting a 120-month minimum sentence. To succeed on his claim, 

Appellant was required to prove that an alternative course of action available 

to his trial attorney — here, requesting a 90-month sentence — offered a 

potential for success substantially greater than requesting a 120-month 

sentence. See Paddy, 15 A.3d at 442. As evidenced by her statements at 

the hearing, counsel’s choice to request a sentence of 120 months was not 

born of sloth or ignorance, Loner, 836 A.2d at 132–33, but of intention, 

experience, and strategy. We note that Appellant’s sentence falls not even at 

the midpoint of the standard range, but twenty percent from the low end.7

Trial counsel’s strategy was successful, and her reasoning was sound.8 We 

hold that the PCRA court did not err in finding that Appellant failed to prove 

the second prong of the ineffectiveness test.9

____________________________________________

7 The standard range is 90 to 240 months; the midpoint would be a sentence 

of a minimum of 165 months; Appellant received a minimum sentence of 

120 months.

8 We are not persuaded that Appellant’s trial counsel was obligated to ask for 

a mitigated sentence, and find this claim to be without legal merit. 

Appellant’s main contention for why he deserved a sentence in the mitigated 

range is based on his lack of a criminal history; however, a judge may not 

deviate below the sentencing guideline ranges based solely on a defendant’s 

clean criminal record, because credit for a clean record is already given 

under the guidelines in the defendant’s prior record score. Commonwealth 

v. Smith, 673 A.2d 893, 895 (Pa. 1996).

9 Because we affirm on this basis, we need not examine whether Appellant 

suffered any prejudice because of counsel’s actions. See Fitzgerald, 979 

A.2d at 911 (stating that if a petitioner fails to prove by a preponderance of 

(Footnote Continued Next Page)
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Appellant’s argument that his trial counsel violated his Sixth 

Amendment right to effective counsel by failing to engage in the adversarial 

process is without merit. Appellant contends that his trial counsel was so 

ineffective that he should be presumed to have been prejudiced and to have 

been the victim of ineffectiveness per se; but an analysis pursuant to United 

States v. Cronic, 466 U.S. 648 (1984), which applies to cases in which the 

denial of counsel is so apparent that prejudice to a defendant is presumed, is 

not appropriate here. See Commonwealth’s Brief at 14-17. Few cases fall 

within the purview of Cronic, such as those in which counsel was prevented 

from cross-examining witnesses, or counsel completely failed to challenge 

the prosecution’s case. Commonwealth v. Williams, 9 A.3d 613, 619 (Pa. 

2010). A Cronic analysis “is limited to situations where counsel's failure is 

complete, i.e., where counsel has entirely failed to function as the client's 

advocate.” Commonwealth v. Mallory, 941 A.2d 686, 700 (Pa. 2008) 

(citation and quotation marks omitted), cert. denied, 555 U.S. 884 (2008). 

A Cronic analysis is not applicable, for example, where an attorney fails to 

adduce mitigating evidence at a capital sentencing, Bell v. Cone, 535 U.S. 

685, 696–98 (2002), or where counsel strategically concedes guilt of a 

lesser charge during a closing statement. Commonwealth v. Cousin, 888 

A.2d 710, 719 (Pa. 2005). Cronic does not apply where, as here, counsel 

(Footnote Continued) _______________________

the evidence any of the Pierce prongs, the court need not address the 

remaining prongs).
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was present and meaningfully participated in Appellant’s sentencing 

proceeding, and strategically conceded to a sentence of imprisonment higher 

than the bare minimum. 10 Thus, Appellant failed to establish counsel’s 

alleged error was so significant it should be deemed per se ineffective 

assistance of counsel.

Appellant’s argument that his trial counsel prevented the sentencing 

court from exercising its discretion in Appellant’s favor also fails. The case 

cited by Appellant, United States v. Castro, 26 F.3d 557 (5th Cir. 1994), is 

factually distinguishable. In that case, the Fifth Circuit held that a failure to 

request Judicial Recommendation Against Deportation (JRAD) from the 

sentencing court could constitute ineffective assistance under an 

ineffectiveness analysis because, without a request for a JRAD, the 

sentencing court was not aware it could grant one. Id. at 562. Moreover, 

with limited exceptions not pertinent here, federal court decisions are not 

binding on this Court. NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 

A.3d 296, 303 (Pa. Super. 2012). Here, Appellant’s trial counsel ensured 

that the sentencing judge was aware of the applicable guidelines range and 

of all sentencing factors that weighed in Appellant’s favor. The trial judge is 

____________________________________________

10 Moreover, Appellant’s brief does not present a meaningful analysis of why 

the Cronic exception to the ineffectiveness test should apply, and to that 

extent that aspect of his claim is waived. See Commonwealth v. Furrer, 

48 A.3d 1279, 1281 n.3 (Pa. Super. 2012) (issues not developed in an 

appellate brief with pertinent authority are waived, citing Pa.R.A.P. 2119(a)), 

appeal denied, 62 A.3d 378 (Pa. 2013).
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not beholden to counsel’s recommended sentence, and there is no reason to 

believe that the court could not or would not have sentenced Appellant to a 

lower sentence than that requested by counsel. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/15/2016