J-S67037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RANDY JENRETTE

                            Appellant                No. 3694 EDA 2015


                  Appeal from the PCRA Order October 26, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012552-2008


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                  FILED SEPTEMBER 13, 2016

        Appellant Randy Jenrette appeals the order entered in the Court of

Common Pleas of Philadelphia County on October 26, 2015, dismissing his

first petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1

Following a careful review, we affirm.

        A panel of this Court previously set forth the facts and procedural

history herein as follows:


              [O]n July 2, 2007, Tyrone Griffin arrived at Einstein
        Hospital after having suffered multiple gunshot wounds in his leg
        and ankle.      The hospital notified the Philadelphia Police
        Department, and Officer John Gallagher proceeded to the
        hospital to talk with Griffin.     While Griffin initially denied

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-46.


*Former Justice specially assigned to the Superior Court.
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     knowledge of who shot him, he later provided police with a
     formal statement in which he identified Appellant as his attacker.
            Specifically, Griffin told police that on the day he was shot,
     he went to a store to purchase food and saw Appellant standing
     outside. When Griffin exited the store and began to walk away,
     he heard Appellant say, “Yo.” Griffin turned around to find
     Appellant pointing a gun at him. Appellant told Griffin to, “Put
     your shit down,” which prompted Griffin to flee. As Griffin ran
     away from Appellant, he heard five or six gunshots and was
     struck in the calf of his right leg and the ankle of his left leg.
     After giving this statement to police, Griffin drew a map
     depicting the area where he and Appellant were standing when
     the shooting occurred. In addition, Griffin participated in a
     photographic identification session, pointing out Appellant’s
     picture as the man who shot him. Based on Griffin’s statement,
     and identification of Appellant, a warrant was issued for
     Appellant’s arrest.       On February 9, 2008, a car in which
     Appellant was a passenger was stopped and Appellant was asked
     to identify himself. Appellant gave police five different aliases
     before they were able to ascertain his true name and take him
     into custody pursuant to the warrant. Appellant was charged
     with multiple crimes, including attempted murder.
            At Appellant’s non-jury trial, the Commonwealth called
     Griffin to the stand. Despite implicating Appellant as the shooter
     in his statement to police, Griffin testified that he could not recall
     many details of the shooting, including who had shot him. When
     the Commonwealth confronted him with what he had told police,
     Griffin claimed that he made up that story because the police
     coerced him into believing that they would help him in an
     unrelated drug case pending against him. Griffin also testified
     that the police had forced him to select Appellant’s photograph
     during the identification session.
            After Griffin’s testimony, the Commonwealth called
     Detective William Knecht as a witness. Detective Knecht was
     one of the officers that interviewed Griffin and recorded his
     formal statement. Detective Knecht testified that during Griffin’s
     interview, no officer even mentioned Griffin’s open drug case or
     promised to assist him in any way. The detective further stated
     that Griffin was never threatened or coerced but, instead, that
     he spoke freely about the shooting and had no problem recalling
     the details of that incident. When asked why he had not told
     police Appellant was the shooter when he was initially
     interviewed at the hospital, Griffin replied that he was scared of
     Appellant and “his people.” N.T. Trial, 1/5/10. At 86. Griffin

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     also told the detective that he had seen Appellant since the
     shooting, and that Appellant had stated that he and Griffin would
     “handle it on the street.” Id. at 85.
            In addition to these witnesses, the Commonwealth also
     introduced into evidence letters that Appellant wrote to another
     inmate while awaiting his trial.       In those letters, Appellant
     discussed the shooting and made veiled threats against Griffin,
     who[m] he called a “rat.” See Trial Court Opinion (T.C.O.),
     1/6/11, at 4 (citing N.T. Trial, 1/5/10, at 116-118).
            At the close of Appellant’s trial, the court found him guilty
     of attempted murder, aggravated assault, robbery, recklessly
     endangering another person (REAP), terroristic threats, carrying
     a firearm without a license, carrying a firearm on a public street,
     possessing a firearm when prohibited, and possessing an
     instrument of crime (PIC). On March 30, 2010, Appellant was
     sentenced to an aggregate term of 15 to 30 years’
     imprisonment. He filed a timely notice of appeal, as well as a
     timely concise statement of matters complained of on appeal
     pursuant to Pa.R.A.P. 1925(b).

Commonwealth          v.   Jenrette,    No.     890   EDA    2010,     unpublished

memorandum at 1-4 (Pa.Super. filed July 7, 2011). Appellant filed a petition

for allowance of appeal with the Pennsylvania Supreme Court which was

denied on January 18, 2012.         Commonwealth v. Jenrette, 32 A.3d 259

(Pa. 2012) (Table).

     Appellant timely filed the instant PCRA petition, pro se, on October 1,

2012. Counsel was appointed and filed an amended petition on April 4,

2014. Appellant retained private counsel whom the PCRA court later

removed in an order filed on February 6, 2015. Also in that order, the PCRA

court reappointed first PCRA counsel who ultimately filed a motion to

withdraw   as   counsel     along    with   a   “no-merit”   letter   pursuant   to

Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (Pa. 1988) and


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

March 17, 2015.2       Prior to that time, Appellant retained another attorney,

current PCRA counsel, who entered her appearance on March 10, 2015, and

disputed former PCRA counsel’s conclusions that Appellant’s appeal lacked

merit. Current PCRA counsel filed a second amended PCRA Petition on April

16, 2015.

       On August 20, 2014, the Commonwealth filed a Motion to Dismiss, and

Appellant responded thereto on September 24, 2015, wherein he raised an

additional    claim     that    our     Supreme   Court’s   recent   decision   in

Commonwealth v. Hopkins, ___ Pa. ____, 117 A.3d 247 (2015) declared

unconstitutional sentences under a weapons enhancement; thus, he posited

____________________________________________


2
  These cases establish the procedure for withdrawal of court-appointed
counsel in collateral attacks on criminal convictions. Independent review of
the record by competent counsel is required before withdrawal is permitted,
and such independent review requires proof of:

       1) A “no-merit” letter by PC[R]A counsel detailing the nature and
       extent of his review;
       2) The “no-merit” letter by PC[R]A counsel listing each issue the
       petitioner wished to have reviewed;
       3) The PC[R]A counsel's “explanation”, in the “no-merit” letter,
       of why the petitioner's issues were meritless;
       4) The PC[R]A court conducting its own independent review of
       the record; and
       5) The PC[R]A court agreeing with counsel that the petition was
       meritless.

Finley, 550 A.2d at 215.




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                                                                                 3
his sentence was illegal in light of this “newly stated constitutional right.”

Following its consideration of this and the aforementioned submissions, the

PCRA court denied Appellant’s PCRA petition without a hearing on October

26, 2015. Appellant timely appealed and filed his concise statement

pursuant to Pa.R.A.P. 1925(b) on December 15, 2015. The trial court issued

its Rule 1925(a) opinion on March 1, 2016.

        In his brief, Appellant sets forth the following Statement of Questions

Presented:

        1.    Whether the [c]ourt erred as a matter of law, in that
        [Appellant] should have been given a hearing on the merits of
        his PCRA, because it contained genuine issues of fact:


____________________________________________



3
    In Hopkins, our Supreme Court emphasized that:

        when a factual determination is necessary for the imposition of a
        mandatory minimum sentence, the facts must be considered an
        element of a new, distinct aggravated offense. Moreover, as an
        element of the offense, the factual determination must be
        specifically alleged in the charging document, and the defendant
        has a right to have that fact determined by a jury beyond a
        reasonable doubt.

Commonwealth v. Hopkins, ___Pa.___, 117 A.3d 247, 256-57 (2015)
(citing Alleyne v. United States, ___U.S.___, 133 S.Ct. 2152, 2161-63
(2013)). The Court held that 18 Pa.C.S.A. § 6317 which imposed a
mandatory minimum sentence for a drug sale or PWID within 1,000 feet of a
school was unconstitutional in its entirety, as certain provisions of the
statute did not adhere to Alleyne and were not severable from the
remaining portions of the statute. Hopkins, ___ Pa. at ____, 117 A.3d at
262.




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              a. [W]hether trial counsel was ineffective for the failure to
                 contact an available potential alibi witness?
              b. Whether his attorney was ineffective for his broad
                 stipulations at trial, including to incriminating evidence,
                 where the stipulations are so close to an admission of
                 guilt that the constitutional safeguards of a guilty plea
                 should have been in place at trial?
              c. Whether other failures of trial counsel raise a material
                 fact prejudicing [Appellant], including the failure to
                 properly cross[-]examine the sole witness to the
                 events, and the failure to inform [Appellant] of his own
                 right to testify?[4]

       2. Whether it was incorrect as a matter of law for this [c]ourt to
          review court-appointed attorney Gary Server’s Finley no-
          merit letter and apparently credit it when this attorney had
          entered her appearance and had refuted the no-merit brief
          through an amended PCRA?

       3. Whether the [t]rial [c]ourt erred in denying Appellant’s PCRA
          petition due to the change in the law as announced by
          Com[monwealth] v. Hopkins [___Pa. ____, 117 A.3d 247
          (2015)] regarding the unconstitutional nature of certain
          sentencing schemes, and if that rule must be retroactively
          applied?

       4. Whether the Federal Court’s actions in similar cases have
          created a precedent that State Courts must follow, allowing
          retroactive application of this type of sentencing issue?

       5. Because Hopkins is retroactive, did the trial court make a
          legal error when it declined to grant Appellant’s PCRA?


____________________________________________


4
  Appellant does not develop a specific challenge to trial counsel’s cross-
examination of a witness in his appellate brief. Therefore, he has waived
this claim. Pa.R.A.P. 2119(a),(b) (requiring a properly developed argument
for each question presented including a discussion of and citation to
authorities in appellate brief); Commonwealth v. Buterbaugh, 91 A.3d
1247, 1262 (Pa.Super. 2014) (en banc) (failure to conform to the Rules of
Appellate Procedure results in waiver of the underlying issue).



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Brief for Appellant at 10-11.5

       Our standard of review of a PCRA court's dismissal of a PCRA petition

is limited to examining whether the PCRA court's determination is supported

by the record evidence and free of legal error. Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa.Super. 2003) (en banc). In addition, it is well settled

that a PCRA petitioner is not automatically entitled to an evidentiary hearing,

and this Court will review the PCRA court’s decision to dismiss a petition

without a hearing for an abuse of discretion.        Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014). The PCRA court may decline to hold a

hearing if a petitioner's claim is patently frivolous and unsupported either by

the record or other evidence.          A reviewing court will examine each issue

raised in a PCRA petition in light of the record certified before it to determine

if the PCRA court erred in finding that there were no genuine issues of

material fact in controversy and in denying relief without conducting an

evidentiary hearing. Commonwealth v. Peeples, 2016 WL 2348453, at

*4–5 (Pa. Super. May 4, 2016).

       Appellant initially contends the PCRA court erred as a matter of law in

denying his PCRA petition without holding an evidentiary hearing on his

ineffective assistance of counsel claims in that they raised genuine issues of
____________________________________________


5
  In a Per Curiam Order entered on May 12, 2016, this Court granted the
Commonwealth’s request for an extension of time to file a brief. Despite
being given until July 12, 2016, in which to file the same, the
Commonwealth failed to do so.



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fact that could not have been resolved without a hearing. To succeed on a

claim of ineffective assistance of counsel, a petitioner must rebut the

presumption that counsel rendered effective assistance and prove, by a

preponderance of the evidence, that the claim has arguable merit, counsel's

action or inaction was not based upon a reasonable trial strategy and he

suffered prejudice because of counsel's act or omission.        The failure to

satisfy any one of these three prongs requires rejection of the petitioner's

claim. Commonwealth v. Williams, 2016 WL 3908180, at *8 (Pa. July 19,

2016).

      Appellant maintains trial counsel had been ineffective for failing to call

an alibi witness, Ms. Tiffany McBride-Smith, Appellant’s counselor at JFK

Behavioral Center (JFK) located on Broad Street in Philadelphia. To obtain

relief on this claim, Appellant must establish that:

      the existence of and the availability of the witnesses, counsel's
      actual awareness, or duty to know, of the witnesses, the
      willingness and ability of the witnesses to cooperate and appear
      on the defendant's behalf and the necessity for the proposed
      testimony in order to avoid prejudice. Moreover, [the a]ppellant
      must show how the uncalled witnesses' testimony would have
      been beneficial under the circumstances of the case.


Commonwealth v. Gibson, 597 Pa. 402, 441, 951 A.2d 1110, 1133-34

(2008) (internal citations and quotation marks omitted).

      Despite Appellant’s statements to the contrary, it is apparent from the

record that, although the PCRA court did not hold an evidentiary hearing, it

carefully and thoroughly examined Appellant's ineffectiveness claim for

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failure to call Ms. McBride-Smith as an alibi witness and concluded that it

lacked merit. See PCRA Court Opinion, filed 3/1/16, at 7-10. 6 Specifically,

the PCRA court noted Appellant did not garner a signed certification from Ms.

McBride-Smith or otherwise establish that she was available and willing to

testify for the defense and that the absence of her testimony was prejudicial

to him.    PCRA Court Opinion, filed 3/1/16, at 8. The PCRA court reasoned

that even had Appellant done so, Appellant’s recitation of what her

testimony would have established consisted of speculative, self-serving

assumptions which could not establish that he was unable to commit the

crimes for which he had been committed. Id. at 9.7

       The PCRA court also stressed that former PCRA counsel obtained

treatment center logs from JFK along with other records and provided the

PCRA court with them for review.               While that documentation revealed

Appellant did have an appointment with Ms. McBride-Smith at JFK on

December 13, 2007, the treatment record she signed indicated his

appointment began at 12:00 p.m. and ended at 1:00 p.m., and his entry to




____________________________________________


6
  Appellant has failed to attach a copy of the PCRA court’s opinion to his
appellate brief as is required by Pa.R.A.P. 2111(b).
7
  Indeed, Appellant acknowledges the speculative nature of Ms. McBride-
Smith’s testimony in his brief by admitting that while she informed PCRA
counsel she would have been willing to testify, she “was not sure how much
information she could actually recall.” Brief for Appellant at 25.



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the facility was documented at 11:40 a.m. Id. at 10 n. 12.8 The evidence

adduced at trial established the shooting occurred sometime between 10:00

a.m. and 10:34 a.m.         N.T., 1/5/10 at 14, 82-83.        Indeed, in his second

Amended PCRA Petition filed on April 16, 2015, Appellant asserts “[t]he

alleged incident took place at about 10:34 in the morning on December 13,

2007, at 5621 Devon Street in Philadelphia.” See Amended Petition for Post

Conviction Relief, filed 4/16/15, at ¶4.           As such, we agree with the PCRA

court’s determination there was no verifiable evidence to establish Ms.

McBride-Smith would have provided a viable alibi.             Because we conclude

Appellant has not established prejudice arising out of the absence of Ms.

McBride-Smith’s testimony or that this evidence would have been beneficial

to his defense, we find no error in the PCRA court's decision to dismiss this

claim. Gibson, 597 Pa. at 441, 951 A.2d at 1133–34.

       When examining Appellant’s assertion a genuine issue of fact existed

concerning whether trial counsel had been ineffective for stipulating to

Appellant’s authorship of certain letters discovered in a fellow inmate’s cell,

the PCRA court found that:

       [w]hile these letters were incriminating, [ ] Appellant has never
       denied authorship of these letters nor did he proffer expert
       testimony casting doubt upon whether they were written by [ ]
       Appellant. Moreover, given that the letters reflected a level of
       intimate familiarity with both Griffin and the case against
____________________________________________


8
  Copies of these documents appear in the certified record as attachments to
first PCRA counsel’s motion to withdraw.



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      Appellant, and that at least one letter contained a statement
      identifying the author as Appellant himself, trial counsel certainly
      could not be faulted for agreeing to the stipulation, thereby
      lessening the amount of time spent at trial actively discussing
      the letters’ damaging substance. See N.T. 1/5/10 at 114-18.

Trial Court Opinion, filed 3/1/16, at 11 (emphasis in original).     Other than

generally claiming trial counsel had no reasonable basis for failing to

“investigate the letters” to determine whether “they were obtained through

reasonable means[,]” Brief for Appellant at 28, Appellant has not otherwise

shown he was prejudiced by counsel’s trial strategy.          To the contrary,

Appellant acknowledged he authored the letters at his sentencing hearing

and argued that the words therein were non-threatening “rap lyrics” and

“music lyrics.” N.T., 3/30/10, at 34. This claim merits no relief.

      Finally, Appellant maintains he is entitled to a new trial because he

never had been informed of his right to testify in his own defense and

reasons that “without any evidence on the record of [his] decision whether

or not to testify, then there was effectively no decision and he was denied

his right to testify.” Brief for Appellant at 31 n. 1. Appellant posits a review

of the record reveals he was neither colloquied as to his desire to testify nor

provided with an opportunity to do so.

      Initially, we note that the trial court was not required to colloquy

Appellant concerning his right to testify.    Commonwealth v. Todd, 820

A.2d 707 (Pa.Super. 2003). Moreover, the record belies Appellant’s

assertions, for after the Commonwealth rested, the trial court asked defense


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counsel whether he would be “putting on evidence” to which counsel

responded in the negative.         N.T., 1/5/10, at 120.     At this juncture in his

non-jury trial, Appellant had the option to inform the trial court he wished to

testify in his own defense, although he did not do so. In addition, as the

PCRA court notes, even had trial counsel failed to inform Appellant of his

right to testify in his own defense, Appellant’s prior convictions and

adjudications revealed at the sentencing hearing provided trial counsel with

a reasonable trial strategy basis for declining to put Appellant on the witness

stand.    See N.T., 3/30/10, at 20-25.9            Thus, after reviewing Appellant's

ineffective assistance of counsel claims in light of the certified record, we

discern no abuse of discretion in the PCRA court's decision to decline to hold

a hearing thereon. See Miller, 102 A.3d at 992. Therefore, Appellant’s first

issue does not merit relief.10

       Next, Appellant posits the PCRA court erroneously reviewed and

“apparently credited” prior PCRA counsel’s Turner/Finley letter in denying
____________________________________________


9
   At that time, it was revealed that Appellant, who was twenty-one years
old, had been actively involved in felonies for ten years, commencing with
his adjudication of a felony of the second degree, robbery with a firearm, at
age eleven.
10
    To the extent Appellant states simply that he “layered the claim to his
appellate attorney as well,” we find his has waived any challenge to
Appellate     counsel’s stewardship for           lack of development.        See
Commonwealth v. Williams, 2016 WL 3908180, at *22 (Pa. July 19,
2016) (reaffirming that “an assessment of appellate counsel's ineffectiveness
for failing to raise a claim of trial counsel's ineffectiveness involves the same
type of proof required for any claim of ineffective assistance of counsel[]”).




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his PCRA petition because current PCRA counsel previously had entered her

appearance.    Appellant provides no citation to the record to support his

claim and baldy contends the trial court “merely cited to that document as

the evidence for denial of the PCRA.” Without referencing the PCRA court’s

Opinion filed on March 1, 2016, Appellant further maintains that current

counsel’s efforts to “discount the Finley letter in the Amended PCRA” have

“never been acknowledged by the [PCRA] [c]ourt in any opinion.” Brief for

Appellant at 32-33. To the contrary, the PCRA court considered Appellant’s

second Amended PCRA Petition, analyzed each issue Appellant presented in

his statement of matters complained of on appeal and indicated in its Rule

1925(a) Opinion that it had found Appellant’s second Amended PCRA Petition

lacked merit for the multitude of reasons it discussed therein “and not

because of any conclusions reached by his former counsel.” PCRA Opinion,

filed 3/1/16, at 13.   Accordingly, we find Appellant’s second claim lacks

merit.

      As Appellant’s final three issues are interrelated, we will consider them

together. Essentially, Appellant asserts he received an unconstitutional

mandatory minimum sentence under our Supreme Court’s recent decision in

Commonwealth v. Hopkins, ___ Pa. ____, 117 A.3d 247 (2015) because

that case established that sentencing enhancements are unconstitutional.

Appellant urges that this “newly stated constitutional right,” should be

applied retroactively herein. Brief for Appellant at 41, 44.   Such a challenge


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implicates    the   legality   of   Appellant’s    sentence.    Commonwealth       v.

Lawrence, 99 A.3d 116, 123 (Pa.Super. 2014).                   Issues relating to the

legality of a sentence constitute questions of law, and our standard of review

over such questions is de novo and our scope of review is plenary.

Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.Super. 2014).

       Appellant avers he was sentenced under 42 Pa.C.S.A. § 9712(a). Brief

for Appellant at 34; however, a review of the record reveals the sentencing

court applied a sentencing enhancement to Appellant’s sentence in light of

his use of a firearm during the commission of the crimes for which he had

been convicted.       In relying upon Alleyne and Hopkins, Appellant has

conflated mandatory minimum sentences with sentence enhancements; this

Court has determined the latter are not affected by the parameters of

Alleyne which are limited to the imposition of mandatory minimum

sentences.     See Commowealth v. Ali, 112 A.3d 1210, 1226 (Pa.Super.

2015).11 Therein we found that:

       Alleyne has no application to the sentencing enhancements at
       issue in this case. The parameters of Alleyne are limited to the
       imposition of mandatory minimum sentences, i.e., where a
       legislature has prescribed a mandatory baseline sentence that a
       trial court must apply if certain conditions are met. The
       sentencing enhancements at issue impose no such floor. Rather,
____________________________________________


11
   Our Supreme Court has granted the appellant’s petition for allowance of
appeal in part to address the following question: “Does a sentencing judge
have discretion to consider victim impact evidence where the offense is not a
‘crime against a person’?” Commonwealth v. Ali, 127 A.3d 1286 (Pa.
2015).



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      the enhancements only direct a sentencing court to consider a
      different range of potential minimum sentences, while
      preserving a trial court's discretion to fashion an individual
      sentence. By their very character, sentencing enhancements do
      not share the attributes of a mandatory minimum sentence that
      the Supreme Court held to be elements of the offense that must
      be submitted to a jury. The enhancements do not bind a trial
      court to any particular sentencing floor, nor do they compel a
      trial court in any given case to impose a sentence higher than
      the court believes is warranted. They require only that a court
      consider a higher range of possible minimum sentences. Even
      then, the trial court need not sentence within that range; the
      court only must consider it. Thus, even though the triggering
      facts must be found by the judge and not the jury—which is one
      of the elements of an Apprendi or Alleyne analysis—the
      enhancements that the trial court applied in this case are not
      unconstitutional under Alleyne.

Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa.Super. 2015) (emphasis

in original), reargument denied (May 8, 2015), appeal granted in part, 127

A.3d 1286 (Pa. 2015).

      Herein, after pleading guilty to possessing a controlled substance with

intent to deliver and criminal conspiracy in an unrelated case, Appellant

received an aggregate term of fifteen years to thirty years in prison. N.T.,

3/30/10, at 50. Specifically, Appellant was sentenced to ten years to twenty

years in prison on the attempted murder conviction, 18 Pa.C.S.A. § 901(a)

and a consecutive term of five to ten years for his conviction of Persons not

to possess, use, manufacture, control, sell       or transfer firearms.    18

Pa.C.S.A. § 6105.       On his Robbery conviction, 18 Pa.C.S.A. § 3701,

Appellant received a concurrent sentence of five years to ten years in prison

and three years to six years’ incarceration for his conviction of Firearms not


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to be carried without a license under 18 Pa.C.S.A. § 6106(a)(1).              He

received no further penalty on the convictions for Carrying firearms on public

streets or public property in Philadelphia, 18 Pa.C.S.A. § 6108, Possession of

an instrument of crime, 18 Pa.C.S.A. § 907(a), and Recklessly endangering

another person, 18 Pa.C.S.A. § 2705. N.T., 3/30/10, at 48-49.

        The sentencing court informed Appellant the offense gravity score on

the attempted murder conviction was a thirteen, and with the deadly

weapons used enhancement, the sentencing guidelines provided for eighty-

four months to one hundred two months, plus or minus twelve.            See 204

Pa.Code § 303.16; N.T., 3/30/10, at 20. Prior to rendering its sentence, the

sentencing court had the benefit of a PSI report, heard extensive argument

from both the Commonwealth and defense counsel and permitted Appellant

to exercise his right to allocution. N.T., 3/30/10, at 20-46. The sentencing

court proceeded to recite on the record its concerns regarding Appellant’s

long criminal record which included a history of violent offenses, expressed

its belief Appellant posed a threat to the public and was likely to reoffend,

and highlighted the fact that Appellant shot repeatedly at another person on

the city streets in broad daylight which placed the safety of many others at

risk.   N.T.,   3/10/10,   at   48.    Ultimately,   the   court   accepted   the

recommendation of the Commonwealth and rendered the aforementioned

sentence. Id. at 48-49. As such, we find the PCRA court did not err in its




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holding the application of the deadly weapon enhancement did not result in

Appellant’s being given an unconstitutional sentence.

     In light of the foregoing, we affirm the PCRA court's order dismissing

Appellant's PCRA petition without a hearing.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2016




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