Com. v. Metz, C., Com. v. Metz, C. No. 3094 EDA 2015

Metz broke into his estranged wife’s home and stole about $6,585 in property; he pleaded guilty to burglary on September 8, 2010.
Court sentenced Metz to 1–2 years’ imprisonment plus a consecutive 4 years’ probation; Metz did not file a direct appeal.
Metz was found in technical violation of probation (failed to report, moved without notice) and, after revocation, was re-sentenced on August 29, 2013 to 5–10 years’ imprisonment.
Metz filed a timely pro se PCRA petition (Sept. 16, 2014); counsel was appointed, then filed a Turner/Finley no-merit letter and motion to withdraw; Metz responded but did not respond to the court’s Rule 907 notice.
The PCRA court dismissed the petition and permitted counsel to withdraw; Metz filed a Rule 1925(b) statement nunc pro tunc raising for the first time claims that PCRA counsel was ineffective for not seeking reinstatement of direct appeal rights nunc pro tunc and that the sentence was excessive based on reliance on prison recordings.
The Superior Court affirmed, finding the ineffectiveness claim waived under Pitts for failure to raise it in response to the Turner/Finley letter or Rule 907 notice, and concluding sentencing claims were waived or meritless.

Issue	Metz’s Argument	Commonwealth’s Argument	Held
Whether Metz may raise PCRA counsel ineffectiveness for failure to seek reinstatement of direct appeal rights when raised first on appeal	PCRA counsel was ineffective for not requesting reinstatement nunc pro tunc to challenge discretionary sentencing	Claim is waived because Metz failed to raise it in response to counsel’s no-merit letter or the Rule 907 notice	Waived under Pitts and Ousley; not reviewable
Whether the sentence was manifestly excessive / discretionary aspects of sentence	Sentence was excessive and court overemphasized public protection based on prison tapes, ignoring rehabilitation	Sentencing claims are waived because not raised at sentencing or in post-sentence motions; sentence within lawful range	Waived; alternatively, meritless — sentence lawful and within statutory maximum
Whether reliance on prison recordings at sentencing was improper	Court unduly relied on recorded statements to justify harsher sentence	Recorded statements are party admissions admissible under Pa.R.E. 803(25); their use was proper	Use of recordings was permissible; claim waived when first raised on appeal
Whether Alleyne requires relief (mandatory minimum issue)	Alleyne challenge to sentencing	No mandatory minimum was imposed; Alleyne inapplicable	Alleyne claim fails; no mandatory minimum affected sentence

Commonwealth v. Smith, 121 A.3d 1049 (Pa. Super. 2015) (discusses waiver of claims not raised after Rule 907 notice)
Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009) (claim of PCRA counsel ineffectiveness must be preserved in response to no-merit letter or Rule 907 notice)
Commonwealth v. Ousley, 21 A.3d 1238 (Pa. Super. 2011) (Pitts bars review of ineffectiveness claims first raised on appeal)
Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011) (standard of review for PCRA disposition)
Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 2007) (deference to PCRA court factual findings)
Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011) (de novo review of legal conclusions in PCRA cases)
Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super. 2002) (discretionary aspects of sentencing are challenged as manifestly excessive)
Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003) (discusses waiver for failure to raise sentencing objections at sentencing or in post-sentence motion)
Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007) (challenges to discretionary aspects of sentence not cognizable under the PCRA if not preserved)
Commonwealth v. Johnson, 985 A.2d 915 (Pa. 2009) (issues waived on appeal when undeveloped or unsupported by legal authority)
Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (addresses mandatory minimum sentences; not implicated here)