J-S67003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 401 EDA 2016
    KEVIN PICKARD

                 Appeal from the PCRA Order January 29, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0013277-2010,
              CP-51-CR-0013279-2010, CP-51-CR-0013280-2010


BEFORE:       GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED OCTOBER 25, 2017


        The Commonwealth appeals from the Order entered in the Court of

Common Pleas of Philadelphia County on January 29, 2016, granting Appellee

Kevin Pickard’s Petition filed pursuant to the Post Conviction Relief Act

(PCRA).1 Following a careful review, we affirm.

        The PCRA court set forth the relevant facts and procedural history herein

as follows:

              On October 7, 2010, [Appellee] was arrested and charged
        under three separate Bills of Information,1 with inter-alia; 1) three
        counts of Attempted Murder, pursuant to 18 Pa.C.S.A. §2502; 2)
        three counts of Aggravated Assault, pursuant to 18 Pa. C.S.A.
        §3502(a); and 3) one count of Possession of an Instrument of a
        Crime (PIC) with intent pursuant to 18 Pa.C.S.A. 907(a). On June
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
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     25 2012, [Appellee], at the conclusion of his jury trial before the
     Honorable Lisette Sheridan-Harris, J., was found guilty on all three
     charges of Aggravated Assault and the charge of PIC. Judge
     Sheridan-Harris, in light of the jury's being unable to reach a
     decision, declared a mistrial on all three counts of Attempted
     Murder.
            On August 10, 2012, Judge Sheridan-Harris imposed
     concurrent sentences of five to ten years[’] confinement in a state
     correctional facility, on each of the three Aggravated Assault
     charges, followed by four concurrent periods of probation of five
     years, on each of the Aggravated Assault charges as well as the
     PIC charge, to be served consecutively to his period of
     confinement, resulting in an aggregate sentence of five to ten
     years[’] confinement, followed by five years of probation.
            On August 16, 2012, the Commonwealth filed a post
     sentence motion seeking reconsideration of [Appellee’s]
     sentences. On August 17, 2012, Judge Sheridan-Harris, after a
     hearing, vacated [Appellant’s] sentences and imposed a new
     sentence of consecutive periods of confinement of five to ten years
     on each of the Aggravated Assault charges, as well as a
     consecutive period of confinement of two to four years on the PIC
     charge, for an aggregate sentence of seventeen to thirty[-]four
     years[’] confinement.
            On August 23, 2012, [Appellee] filed a pro se memorandum
     of law which appears to have been treated by Judge Sheridan-
     Harris as a post sentence motion seeking a new trial. On
     September 18, 2012, Judge Sheridan-Harris, advising [Appellee]
     of his appellate rights, entered an Order denying post trial motion
     without a hearing. [Appellee] did not pursue a direct appeal.
            On November 15, 2012, [Appellee] timely filed the instant
     a [sic] pro se PCRA Petition pursuant to 42 Pa.C.S.A. §9541, et.
     Seq. alleging ineffective assistance of counsel. On March 7, 2014,
     Todd Michael Mosser, Esq., was appointed as counsel to represent
     [Appellee] for the purposes of his PCRA Petition. On October 15,
     2015, Mr. Mosser filed an amended PCRA petition on [Appellee’s]
     behalf, alleging ineffective assistance of counsel in seeking
     reinstatement of [Appellee’s] appellate rights, as well as
     reinstatement of his right to file post sentence motions nunc pro
     tunc. On July 30, 2015, the Commonwealth filed a motion to
     dismiss [Appellee’s] PCRA petition. On October 9, 2015, after a
     hearing, the Court issued its notice, pursuant to Rule 907 of the
     Pennsylvania Rules of Criminal Procedure (Pa. R. Crim. P.),
     advising [c]ounsel and [Appellee] that it intended to dismiss
     [Appellee’s] petition within twenty days of issuance. On November

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       23, 2015, [Appellee’s] counsel filed "Counsel's Response to Rule
       907 Notice," objecting to the dismissal of [Appellee’s] PCRA
       petition. On January 29, 2016, after a hearing, the [c]ourt
       reinstated [Appellee’s] appellate rights as well as his right to file
       post sentence motions nunc pro tunc.
              On February 3, 2016, the Commonwealth filed the instant
       interlocutory appeal to the Superior Court of Pennsylvania,
       contemporaneously filing its Statement of Errors Complained of
       on Appeal Pursuant to PA.R.A.P. 1925(b).[2]
       ____
       [1] CP-51-CR-0013277-2010; CP-51-CR-0013279-2010 and CP-

       51-CR-0013280-2010.

Trial Court Opinion, filed 9/28/16, at 1-3.

       The Commonwealth presents a single question for this Court’s review:

             Did the lower court err when, in contravention of Supreme
       Court precedent, it ruled that [Appellee] was not required to prove
       actual prejudice in support of his claim that trial counsel provided
       ineffective assistance by not filing a post-sentence motion?3

Commonwealth’s Brief at 3.

       The Commonwealth maintains Appellee “did not even attempt to prove”

that trial counsel’s failure to file a post-sentence motion actually prejudiced

him which was a critical element of his ineffectiveness claim under our

Supreme Court’s decision in Commonwealth v. Reaves 592 Pa. 134, 923

A.2d 1119 (2007). Commonwealth’s Brief at 8. The Commonwealth urges



____________________________________________


2 Although the PCRA court characterizes the instant appeal as interlocutory,
an appeal from an Order granting a PCRA petition constitutes a final order for
purposes of appeal. Pa.R.Crim.P. 910; Commonwealth v. Bryant, 566 Pa.
307, 310, 780 A.2d 646, 648 (2000).
3 The Commonwealth does not challenge the PCRA court’s January 29, 2016,

Order to the extent it authorizes Appellant to file a direct appeal nunc pro
tunc. See Commonwealth’s Brief at 7, n. 1.

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this Court to reverse the PCRA court’s Order to the extent it authorizes

Appellee to file a post-sentence motion nunc pro tunc and maintains that

decision was an abuse of discretion.           Id. at 17.

       In analyzing the Commonwealth's argument, we are guided by a well-

settled standard of review.

       When reviewing an order granting PCRA relief, we must determine
       whether the decision of the PCRA court is supported by the
       evidence of record and is free of legal error. Moreover, we will not
       disturb the findings of the PCRA court unless those findings have
       no support in the certified record.

Commonwealth v. Rivera, 154 A.3d 370, 377 (Pa.Super. 2017), appeal

denied, 2017 WL 3188983 (Pa. July 27, 2017) (quotations and citation

omitted).

       With respect to a claim trial counsel was ineffective for failing to file

post-sentence motions, we observe that in Reaves our Supreme Court

explained that while there are some limited situations in which a defendant

who alleges counsel had been ineffective need not prove prejudice to obtain

relief, the failure to file post-sentence motions is not one of them. Reaves at

149-150, 923 A.2d at 1128–1129.                  Therein, the Court determined the

defendant “failed to prove Strickland[4]/Pierce[5] prejudice, that is, he failed


____________________________________________


4Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984).
5   Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).



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to rebut the presumption of effectiveness by showing ‘that there is a

reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different.’” Reaves, 592 Pa. at 154, 923

A.2d at 1131 (citation omitted) see also Commonwealth v. Liston, 602 Pa.

10, 977 A.2d 1089 (2009).        Where prejudice cannot be presumed, the

defendant must plead and prove actual prejudice under Strickland by

showing that both his “counsel's performance was deficient” and that the

“deficient performance prejudiced the defense.” Reaves, 592 Pa. at 147, 923

A.2d at 1127 (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2068).

      In Liston, our Supreme Court further held that a defendant who is

granted the right to file a direct appeal nunc pro tunc is not automatically

entitled to file post-sentence motions nunc pro tunc. Nevertheless, the Court

recognized that reinstatement of a defendant's right to file post-sentence

motions is warranted in some cases:

      Our holding should not be construed as prohibiting a PCRA court
      from reinstating a defendant's right to file post-sentence motions
      nunc pro tunc. If a defendant successfully pleads and proves that
      he was deprived of the right to file and litigate said motions as a
      result of the ineffective assistance of counsel, a PCRA court is free
      to grant such relief. Presumably, since post-sentence motions are
      optional, see Pa.R.Crim.P. 720(B), rarely will counsel be
      deemed to have been ineffective for failing to file them
      except, for example, when the claim involves the
      discretionary aspects of sentence or a challenge to a verdict
      on weight of the evidence grounds, claims which must be
      raised in the trial court to be preserved for purposes of
      appellate review.




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Id. at 19 n. 9, 977 A.2d at 1095 n. 9 (emphasis added).            In interpreting

Liston, a panel of this Court explained that a PCRA petitioner may not be

granted reinstatement of his post-sentence motion rights “if he has not

requested such relief with the PCRA court, and if the court did not hold an

evidentiary hearing on that issue.” Commonwealth v. Fransen, 986 A.2d

154, 155 (Pa.Super. 2009).

      Herein, contrary to the Commonwealth’s characterization of the PCRA

court’s holding as not requiring proof of actual prejudice and although the

PCRA court did express its confusion as to why different standards apply to a

determination of whether post-sentence motions and/or a direct appeal may

be filed nunc pro tunc, the PCRA court did acknowledge that in light of our

Supreme Court’s holding in Liston one’s right to file post-sentence motions

nunc pro tunc is not automatic even where the PCRA court grants a petitioner

the right to file a direct appeal nunc pro tunc.        The court, nevertheless,

determined Appellee properly had met his burden of establishing trial

counsel’s ineffectiveness prevented him from exercising his right to file and

litigate a post-sentence motion which prejudiced him pursuing the sentencing

challenge he now raises. Specifically, the trial court reasoned as follows:


             In seeking PCRA relief, [Appellee] has properly preserved
      his right to seek reinstatement of his right to file post-sentence
      motions nunc pro tunc, by pleading that trial counsel was
      ineffective in failing to follow his direction "to file a post sentence
      motion challenging the sentence," immediately after his original
      sentence was vacated and a new harsher sentence was imposed.
      At the hearing held on January 29, 2016, to consider his PCRA

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      petition, [Appellee] met his burden of establishing that "he was
      deprived of his right to file and litigate post-sentence motions as
      a result of counsel's ineffectiveness." [Appellee] testified that two
      days after his new sentence was imposed, he met with trial
      counsel and requested him to file a post sentence motion to
      preserve his right to appeal the discretionary aspects of his
      sentence. (N.T., 1/29/16, pgs. 24, 25)
             Trial Counsel, W. Fred Harrison, Jr., Esq., testified, that he
      had no independent recollection of meeting with [Appellee] or
      discussing the filing of post sentence motions after the re-
      imposition of [Appellee’s] sentence. (N.T., 1/29/16, pgs. 16, 19,
      23) He also testified [Appellee] was "very disappointed in the new
      sentence" and that the trial [c]ourt may have been influenced to
      impose a harsher sentence by the large turnout of the "police
      department" and "community activists" at the resentencing
      hearing. (N.T., 1/29/16, pgs. 16-18)
             Since there is no evidence that trial counsel objected to the
      imposition of the harsher sentence at the time it was imposed,
      [Appellee’s] only recourse to preserve this sentencing issue for
      appeal was to file a post sentence motion pursuant the
      Pennsylvania Rules of Criminal Procedure, Rule 720. In reinstating
      [Appellee’s] right to file post-sentence motions nunc pro tunc, the
      [c]ourt stated for the record: "I'm finding that ... his rights were,
      he was frustrated by his privately retained lawyer not pursuing his
      request for review of his sentence. I'm allowing him to file direct
      appeal nunc pro tunc as well as post-sentence motions nunc pro
      tunc. (N.T., 1/29/16, pgs. 33, 34) "I accept defense counsel's
      representation with regard to the case law, and in addition, it
      never made any sense to me that there would be any different
      standard in a post-sentence then [sic] on a direct appeal. And, at
      the heart of all of it, is he has the right and the right must be
      carried out by his lawyer especially in this case. What he's really
      upset about is the sentence. In order to get that sentence on direct
      appeal, he has to file a post-sentence motion." (N.T., 1/29/16,
      pgs. 34, 35).

PCRA Court Opinion, filed 1/28/16, at 4-5. We find support in the certified

record for the PCRA court’s holding that trial counsel had been ineffective for

depriving Appellee of the opportunity to litigate post-sentence motions and

that Appellee had been prejudiced thereby as well as for its concomitant


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granting of Appellee’s request for nunc pro tunc relief to file both post-

sentence motions and a direct appeal.

      Consistent with Liston and Fransen, supra, Appellee properly pled in

his counselled, amended PCRA petition that trial counsel had deprived him of

the opportunity to litigate a post-sentence motion challenging his sentence

and that counsel had no reasonable basis for doing so. The Commonwealth

ignores the fact that in the petition, as well as in the proposed order attached

thereto, Appellee requested the ability to file both a post-sentence motion and

a direct appeal nunc pro tunc. See Amended Petition for Relief Under the Post

Conviction Relief Act (“PCRA”), filed October 15,2014, at 3-4; Petitioner’s

Memorandum of Law in Support of Amended PCRA Petition, at 6.                The

Commonwealth also fails to acknowledge that even prior to this filing, as the

PCRA court recognized, Appellee filed a pro se memorandum seeking a new

trial on August 23, 2012, which the trial court treated as a post sentence

motion and denied without a hearing on September 18, 2012. Also, in his

initial PCRA petition filed pro se on November 15, 2012, Appellee challenged

trial counsel’s effectiveness.

      Furthermore, at the PCRA hearing held on January 29, 2016, Appellee

testified as follows:

      Q.    Okay. And when [trial counsel] visited you, what did you tell
      him about that re-sentence?
      A.    He asked me how do I feel. I told him I wasn’t happy. And
      I asked him what can we do to appeal the sentence, and his exact
      words to me were that it wasn’t a good idea because it goes in


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         front of the same judge and he didn’t object to anything in the
         sentence or in the trial itself.
         Q.    So did you ask him to file a motion?
         A.    I did ask him to file a motion.
         Q.    He told you he wouldn’t do it?
         A.    His exact words to me was it wasn’t nothing to appeal
         because it was going to go in front of the same judge.
                                          …
         Q.    Okay. Was the reason that you asked him to file a motion
         to reconsider the sentence so that you could appeal the sentence?
               [Counsel]: Objection.
               [Appellee]: Yes.
               [Counsel]: Leading the witness.
               The Court: Overruled.
         Q.    What was your answer?
         A.    Yes.

N.T. PCRA Hearing, 1/29/16, at 24-26.

         Trial counsel acknowledged at the PCRA hearing that Appellee was “very

disappointed in the new sentence,” admitted he could not recall whether

Appellee had requested that he file post-sentence motions on Appellee’s

behalf, and expressed he was concerned at the time that Appellee could not

continue to pay his fees were counsel to take further action. Id. at 16, 19-

20.   Importantly, when asked what he told Appellee “needed to be done”

following the resentencing hearing held on August 17, 2012, counsel replied:

“I said if [he] wanted to do anything or if [he] wanted to file anything, [he]

should ask the [c]ourt to have counsel appointed.” When further questioned

as to whether he had ever withdrawn from the case, counsel replied “No.” Id.

at 20.

          The sole issue Appellee raised in his PCRA petition presented a

challenge to the discretionary aspects of his sentence.    It is well-established

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that such a claim is considered a petition for permission to appeal which must

be presented initially to the trial court either at the sentencing hearing or in a

timely-filed post-sentence motion, and absent such efforts, one waives a

challenge to the discretionary aspects of his sentence. Commonwealth v.

McAfee, 849 A.2d 270, 274-75 (Pa.Super. 2004), appeal denied, 580 Pa. 695,

860 A.2d 122 (2004). Pennsylvania Rule of Criminal Procedure 120 provides

that “[c]ounsel for a defendant may not withdraw his or her appearance

except by leave of court.” Pa.R.Crim.P. 120(B)(1). Rule 120 further provides

that a motion to withdraw shall be filed either with the clerk of court with

copies served on the attorney for the Commonwealth and the defendant or

made orally on the record in open court in the presence of the defendant.

Pa.R.Crim.P. 120(B)(2). After counsel is granted leave to withdraw, the court

must determine whether new counsel is entering an appearance, new counsel

is being appointed to represent the defendant, or the defendant is proceeding

without counsel. Pa.R.Crim.P. 120(B)(3). As such, trial counsel’s advice to

Appellee to seek the appointment of new counsel was hampered by counsel’s

own failure to seek to withdraw and left Appellee with no means by which to

preserve a challenge to the discretionary aspects of his sentence, for in this

Commonwealth hybrid representation is not permitted. Commonwealth v.

Williams, 151 A.3d 621, 623 (Pa.Super. 2016) (stating pro se motions have

no legal or tolling effect and, therefore, are legal nullities).




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      In light of the foregoing and cognizant of our standard of review, we find

the certified record evinces that Appellee requested trial counsel to file a

motion for reconsideration of his sentence and that counsel failed either to do

so or to seek to withdraw as counsel.        Appellee also demonstrated at an

evidentiary hearing that he expressed great disappointment following the

resentencing hearing on August 17, 2012, and asked counsel to file post-

sentence motions, that counsel’s monetary concerns may have factored into

his decision not to do so, and that Appellee was prejudiced as a result, for

absent the filing of a post-sentence motion his challenge to the discretionary

aspects of his sentence was waived. Therefore, the restoration of Appellee’s

direct appeal rights nunc pro tunc without a restoration of his post-sentence

rights nunc pro tunc, as requested, would have been inconsequential.

Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2017




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