Full Opinion

J-S37006-26 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KHALIL NELSON : : Appellant : No. 2896 EDA 2025 Appeal from the Order Entered October 30, 2025 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001174-2022 BEFORE: OLSON, J., STABILE, J., and KUNSELMAN, J. MEMORANDUM BY OLSON, J.: FILED OCTOBER 27, 2026 Appellant, Khalil Nelson, appeals from the order entered on October 30, 2025, which denied his petition filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We affirm. As previously explained: In January 2022, Police Officer Duane Wright (“Officer Wright”) was conducting surveillance in the area when he saw [Appellant] exit an apartment complex and cross to the south side of the street. [Appellant] reached into the front of his waistband, stooped down, and placed a gun curbside near the tire of an unoccupied minivan. Afterwards, [Appellant] continued walking westbound. Officer Wright radioed for back-up officers to stop [Appellant,] and he was arrested. The firearm was retrieved from the location by Officer Ryan Wong and subsequently determined to be a loaded Glock 22 with a laser on the bottom of the barrel. J-S37006-26 Commonwealth v. Nelson, 321 A.3d 968 (Pa. Super. 2024) (non-precedential decision) (corrections omitted), quoting Trial Court Opinion, 11/30/23, at 2. Following a bench trial, Appellant was convicted of persons not to possess a firearm, carrying a firearm without a license, and carrying a firearm on a public street in Philadelphia.1 On December 20, 2022, the trial court sentenced Appellant to serve an aggregate term of six to 12 years in prison for his convictions. We affirmed his judgment of sentence on May 20, 2024 and the Pennsylvania Supreme Court denied his petition for allowance of appeal on September 24, 2024. Commonwealth v. Nelson, 321 A.3d 968 (Pa. Super. 2024) (non-precedential decision), appeal denied, 326 A.3d 814 (Pa. 2024). On January 13, 2025, Appellant filed a timely, pro se PCRA petition and the PCRA court later appointed counsel to represent Appellant during the proceedings. Within the amended petition, Appellant claimed: [1.] Trial counsel was ineffective for failing to appeal the denial of the post-sentence motion that the verdict was against the weight of the evidence. [2.] Trial counsel was ineffective for failing to properly advise [Appellant] on his right to testify. [3.] Trial counsel was ineffective for failing to adequately advise [Appellant] on waiving his right to a jury trial. ____________________________________________ 1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively. -2- J-S37006-26 [4.] Trial counsel was ineffective for failing to request DNA taken from the recovered gun that would prove that [Appellant] never possessed the firearm. Amended PCRA Petition, 5/8/25, at 3. The PCRA court held a hearing on Appellant’s claims and, at the conclusion of the hearing, the PCRA court denied Appellant post-conviction collateral relief. See N.T. PCRA Hearing, 10/30/25, at 60. Appellant filed a timely notice of appeal. He raises the following claims on appeal: 1. Trial counsel was ineffective for failing to appeal the denial of post-sentence motion that the verdict was against the weight of the evidence. 2. Trial counsel was ineffective for failing to properly advise Appellant on his right to testify. 3. Trial counsel was ineffective for failing to adequately advise Appellant on waiving his right to a jury trial. 4. Trial counsel was ineffective for failing to request DNA taken from the recovered gun that would prove that [Appellant] never possessed the firearm. Appellant’s Brief at 9. We have reviewed the briefs of the parties, the relevant law, the certified record, and the opinion of the able PCRA court judge, the Honorable Roxanne E. Covington. We conclude that Appellant is not entitled to relief in this case, for the reasons expressed in Judge Covington’s well-reasoned, December 18, 2025 opinion. Therefore, we affirm on the basis of Judge Covington’s able opinion and adopt it as our own. In any future filing with this or any other court addressing this ruling, the filing party shall attach a copy of Judge Covington’s December 18, 2025 opinion. -3- J-S37006-26 Order affirmed. Jurisdiction relinquished. Date: 10/27/2026 -4- Circulated 10/06/2026 Circulated 04:10 10/06/2026 PMPM 04:10 ININ THECOURT THE COURT OFOF COMMON COMMON PLEAS PLEAS FIRST FIRST JUDICIAL JUDICIAL DISTRICT DISTRICT OF OF PENNSYLVANIA- PENNSYLVANIA PHILADELPHIA - PHILADELPHIA TRIAL TRIAL DIVISION DIVISION -- CRIMINAL CRIMINAL SECTION SECTION COMMONWEALTHOF COMMONWEALTH OFPENNSYLVANIA PENNSYLVANIA SUPERIOR SUPERIORCOURT COURTDOCKET DOCKET 2896 2896EDA EDA2025 2025 v. COURT COURTOF OFCOMMON COMMONPLEAS PLEAS KHALILNELSON KHALIL NELSON CP-51-CR-0001174-2022 CP-51-CR-0001174-2022 I. I. PROCEDURALHISTORY PROCEDURAL HISTORY KhalilNelson Khalil Nelson(hereinafter (hereinafter"Appellant") wasarrested "Appellant")was arrestedononJanuary 27,2022, January27, 2022,and andcharged charged withthe with thefollowing: following:Possession PossessionofofFirearm FirearmProhibited Prohibited(Fl), (Fl),Firearms FirearmsNot NottotobebeCarried CarriedWithout Withouta a License(F3), License andCarrying (F3),and FirearmsononPublic CarryingFirearms PublicStreets StreetsininPhiladelphia Philadelphia(MI). (MI).' Appellant proceeded 1Appellant proceeded totoa awaiver waivertrial trialononOctober October18, I 8,2022, 2022,and andwas wasfound foundguilty guiltyofofallallcharges. OnDecember charges.On December20, 20,2022, 2022, Appellant was Appellant was sentenced sentenced toto 66 toto 1212 years state incarceration. years state incarceration. Appellant Appellant's Motion for s Motion for Reconsiderationfiled Reconsideration filedon onDecember December29, 29,2022, 2022,was wasDenied Deniedby byOperation ofLaw Operationof Lawon onMay May3,3,2023. 2023. Appellant filedhis Appellantfiled hisfirst firstNotice Noticeof ofAppeal onMay Appealon May22, 22,2023, 2023,and andthe theSuperior SuperiorCourt Courtaffirmed affirmedthe the trial court's sentence on May 20, 2024. trial court’s sentence on May 20, 2024. , On January On January 13, 13, 2025, 2025, Appellant Appellant filed filed aaprose Post-Conviction Relief pro-se Post-Conviction ReliefAct ACt ("PCRA") ("PCRA") Petition, later Petition, later amended amended on on May May 8,8, 2025. 2025. Following Following an anevidentiary evidentiary hearing on October hearing on October 30, 30, 2025, 2025, thecourt the courtdismissed dismissed Appellant’s claims. This Appellant's claims. ThisNotice Notice of ofAppeal followed. Appealfollowed. Instantly, Appellant Instantly, raisesthe Appellant raises the following following issue(s) issue(s) on on appeal: appeal: 1.. Trial 1 Trial counsel counsel was was ineffective ineffective for for failing failing to to appeal the denial appeal the denial of ofpost-sentence post-sentence motion motion that that the verdict was against the weight of the evidence. (see amended PCRA the verdict was against the weight of the evidence, (see amended PCRA petition filed petition filed 5/8/25, p.12-13) 5/8/25, At the p.12-13) At the evidentiary evidentiary hearing hearing held held October October 30, 30, 2025, 2025, Mr. Mr. Nelson Nelson testified testified that he that he was was adamant adamant that that he he told told Mr. Mr. Silver Silver he he wanted wanted an an appeal. appeal. ksbb er FIL.ED '18 $6105 $& Al; 18 $ 6106 $$ AI; and 18 $ 6108, respectively. DEC DEC 11 88 2025 2025 1 18 §6105 §§ Al; 18 §6106 §§ Al; and 18 § 6108, respectively. Appeals/Post Appeals/Post Trial Trial Ofic~ of Office of Jutte Ju~cal Recwfe ecord% Trial 2 2.Trial counsel counsel was was ineffective ineffective forfor failing to to failing properly properly advise advise Petitioner Petitioner ononhishis right to to right testify. testify, (see amended PCRA petition filed 5/8/25, (see amended PCRA petition filed 5/8/25, p. 1 p.13-15). At the evidentiary hearing Mr. 3-1 5). At the evidentiary hearing Mr. Nelson Nelson testified truthfully that he was not properly testified truthfully that he was not properly advised advised onon hishis right right to to testify. testify. Trial 3.3.Trial counsel counsel waswas ineffective ineffective forfor failing failing to to adequately adequately advise advise Petitioner Petitioner onon waiving waiving hishis right right to toa jury a jurytrial, trial.(see (seeamended amendedPCRA PCRApetition filed5/8/25, petitionfiled 5/8/25,p.15-17). p.15-17).AtAtthetheevidentiary evidentiary hearing it is clear from Mr. Nelson's testimony that he did not hearing it is clear from Mr. Nelson’s testimony that he did not understand the reasonunderstand the reasonforfor notnothaving a jurytrial. havinga jury trial.HeHealso alsosaid saidhehequestioned questionedHer HerHonor Honorononwhether whetherif ifhehewas was convicted his sentence would be less if he opted to forgo convicted his entence would be less if he opted to forgo a jury trial. a jury trial. Trialcounsel 4. 4. Trial counselwaswasineffective ineffectiveforforfailing to to failing request DNAtaken requestDNA from takenfrom recoveredgun thetherecovered gun that that would provethat wouldprove thatthethePetitioner Petitionernever neverpossessed possessedthethefirearm, firearm.(see (seeamended amendedPCRA PCRApetition petition filed 5/8/25, filed 5/8/25, p. 1p.17) At the evidentiary hearing, Mr. Nelson testified truthfully 7) At the videntiary hearing, Mr. Nelson testified truthfully that he asked that he asked his counsel to get the DNA which would prove that he did his counsel to get the DNA which would prove that he did not touch the gun. not touch the gun. See 1925(b) Statement. See 1925(b) Statement. AsAsdiscussed discussedbelow, below,allallclaims claimsare arewithout withoutmerit. merit.Accordingly, Accordingly,nonorelief reliefisisdue. due. II. FACTS II. FACTS OnJanuary On 26,2022, January26, 2022,atatapproximately 2:45PM, approximately2:45 PM,Police PoliceOfficer OfficerDwayne DwayneWhite White(hereinafter (hereinafter "Officer White") "Officer was conducting White") was surveillance inin the conducting surveillance the area area ofof6000 6000 Landsdowne Landsdowne Avenue, A venue, Philadelphia, PA,when Philadelphia,PA, whenhehesaw sawthe theAppellant exitananapartment Appellantexit apartmentcomplex complexand andcross crosstotothe thesouth south sideofofthe side thestreet. street.Appellant reachedinto Appellantreached intothe thefront frontofofhis hiswaistband, waistband,stooped stoopeddown, down,and andplaced placedaa gun curbsidenear guncurbside nearthe thetire tireof ofan anunoccupied unoccupiedminivan. minivan. Afterwards, Afterwards,Appellant continuedwalking Appellantcontinued walking westboundon westbound onLandsdowne LandsdowneAvenue. Avenue.Officer OfficerWhite Whiteradioed radioedback-up back-upofficers officerstotostop stopAppellant and Appellantand hewas he wasarrested. arrested.Notes Notesof ofTestimony (hereinafter"N.T."), Testimony(hereinafter "N.T."), 10/18/2022, 10/18/2022,atat 13-19. 13-19. The Thefirearm firearmwas was retrievedfrom retrieved from the the location location by Officer Wong by Officer Wong and and subsequently subsequently determined determinedtoto be be aa loaded loaded Glock Glock 22 with 22 with aa laser laser on on the the bottom bottom of ofthe the barrel. Id atat 16-25. barrel. Id. 16-25. The The parties parties stipulated stipulated Appellant Appellant was was ineligible to possess a firearm. Id at 40. ineligible to possess a firearm. Id. at 40. 22 III. DISCUSSION in. DISCUSSION Appellant Appellant alleges alleges hishis trial trial counsel counsel waswas ineffective ineffective hishis forfor failure to:to: failure (1)(1) appeal appeal thethe denial denial of of post-sentence post-sentence motion; motion; (2)(2).advise advise Appellant hishis onon Appellant rights rights to to testify andand testify waive waive a jury a jury trial, trial, (3)(3) andand request request DNA DNA results results from from thethe recovered recovered firearm. firearm. SeeSee 1925(b) 1925(b) Statement. Statement. These These areare claims claims wholly wholly unsupported by the record. unsupported by the record. A. Standard of Review-- Post-Conviction Relief Act A. Standard of Review - Post-Conviction Relief Act "Our “Our standardofof standard review review forforananorder order denying denying post-conviction post-conviction relief relief whether limitedto towhether is islimited thethetrial trialcourt's court'sdetermination determinationis issupported supportedbybyevidence evidenceofof recordand record andwhether whetherit itis isfree freeofof legal legal error.Commonwealth error. v. Commonwealthv. Allen, 732A.2d Allen,732 A.2d582, 582,586 586(Pa. (Pa.1999); 1999);See SeeCommonwealth Commonwealthv. Crumbley, Crumbley, v. 270A.3d 270 A.3d1171, 1171,1179 1179(Pa. (Pa.Super. Super.Ct.Ct.2022). "[TheAppellate] 2022).“[The Court'scope Appellate]Court's scopeofofreview review is islimited limitedtoto thefindings the findingsofofthe thePCRA PCRAcourt... court...viewed viewedininthe thelight lightmost mostfavorable favorabletotothe theprevailing prevailingparty.” party." Commonwealthv »Hammond, Commonwealth 953A.2d Hammond,953 A.2d544, 544,556 556(Pa. (Pa.Super. Ct.2008). Super.Ct. 2008).“To "Toplead andprove pleadand prove ineffectiveassistance ineffective assistanceofofcounsel counsela apetitioner petitionermust mustestablish: establish:(1) thatthe (1)that theunderlying issuehas underlyingissue has arguablemerit; arguable merit;(2) (2)counsel's counsel'sactions actionslacked lackedananobjective objectivereasonable reasonablebasis; basis;and and(3) actualprejudice (3)actual prejudice resultedfrom resulted fromcounsel's counsel'sact actororfailure failuretotoact.” act."Commonwealth, Commonwealth.v.».Stultz, 114A.3d Stultz,114 A.3d865, 865,880 880(Pa. (Pa. Super. Ct. 2015). Super. Ct. 2015). Prejudice existswhere Prejudiceexists where“there "thereisisaareasonable reasonableprobability that,but probabilitythat, butfor forcounsel's