Opinion
J-S85033-16 No. 3687 EDA 2015
02-13-2017
COMMONWEALTH OF PENNSYLVANIA v. KENNETH A. CHARLES, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 23, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0014400-2007 BEFORE: PANELLA, RANSOM and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Kenneth A. Charles ("Charles") appeals from the Order dismissing his first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
In its Opinion, the PCRA court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 1/15/16, at 1-3.
On appeal, Charles raises the following issues for our review:
1. Whether trial and appellate counsel were ineffective for failing to file post[-]sentence motions in this matter[,] depriving [Charles] of his post-sentence rights?Brief for Appellant at 5 (footnote added).
2. Whether [Charles] also asserts that trial counsel was ineffective for failing to request a jury instruction that the lack of fingerprint evidence supported a finding that [Charles] did not commit a burglary inside the house?
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. 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. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
Charles was represented by the same attorney at trial and on direct appeal.
In his first issue, Charles contends that trial and appellate counsel were ineffective for failing to file post-sentence motions challenging (1) the verdict as against the weight of the evidence (on the basis that Charles lacked the intent to commit burglary because he entered the house upon invitation); and (2) his sentence as excessive. Brief for Appellant at 10-11. Charles asserts that, "with respect to sentencing and weight of the evidence issues on appeal, post[-]sentence motions are a statutory artifice. No other issues on appeal require that the [a]ppellant prove merit - if the [a]ppellant can demonstrate that he asked for an appeal in a timely fashion, it will be restored as a matter of law." Id . at 11-12. Charles nevertheless states that "if the [a]ppellant fails to file post[-]sentence motions with regard to weight of the evidence and sentencing before appeal, even if he cannot prove that he would prevail in the lower court, it will be deemed waived by the appellate courts." Id . at 12. On this basis, Charles argues that the PCRA court erred by dismissing his Petition. Id .
In its Opinion, the PCRA court addressed Charles's first issue, set forth the relevant law, and determined that the issue lacks merit. See PCRA Court Opinion, 1/15/16, at 3-8. We agree with the determination of the PCRA court, which is supported by the evidence of record and free of legal error, and affirm on this basis as to Charles's first issue. See id.
In his second issue, Charles contends that trial counsel was ineffective for failing to request a jury instruction that the lack of fingerprint evidence supported a finding that he did not commit a burglary inside the house. Brief for Appellant at 13. Charles asserts that "there were no fingerprints recovered from the location[,] or any of the items in the house ...." Id . at 14. On this basis, Charles claims that a jury instruction was warranted. Id.
In its Opinion, the PCRA court addressed Charles's second issue, set forth the relevant law, and determined that the issue lacks merit. See PCRA Court Opinion, 1/15/16, at 9-10. We agree with the determination of the PCRA court, which is supported by the evidence of record and free of legal error, and affirm on this basis as to Charles's second issue. See id.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/13/2017
Image materials not available for display.