J-S24037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

ALPHONSO REED

                            Appellant                        No. 1483 MDA 2015


           Appeal from the Judgment of Sentence January 23, 2013
              In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0001482-2011


BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                                   FILED MAY 04, 2016

       Appellant, Alphonso Reed, purports to appeal nunc pro tunc from the

judgment of sentence entered in the Lebanon County Court of Common

Pleas, following his convictions for delivery of a controlled substance,

criminal   use    of   communication       facility,   and   two   counts   of   criminal

conspiracy.1 For the following reasons, we conclude the PCRA court erred in

reinstating Appellant’s post-sentence motion and direct appeal rights nunc

pro tunc. Accordingly we reverse the order granting this relief and remand

the case to the PCRA court for further proceedings.

       In its opinion, the PCRA/trial court set forth the relevant facts of this

____________________________________________


1
  35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 7512(a) and 903(a)(1),
respectively.
J-S24037-16


case as follows:

         On or about June 2, 2011, Detectives Ryan Mong [“Det.
         Mong”] and Adam Saul [“Det. Saul”] were conducting
         surveillance of an alleged drug sale between an unknown
         individual and an undercover officer, Sergeant Brent
         Hopkins [“Sgt. Hopkins”].        A confidential informant
         arranged for [Sgt. Hopkins] to meet an individual identified
         as Charles Holloway [“Mr. Holloway”]. After meeting Sgt.
         Hopkins, [Mr.] Holloway made a phone call and a short
         time later an unidentified individual came onto the scene.
         Det. Mong described him as an older man with a graying
         beard. This individual handed an item to [Mr.] Holloway
         who then turned and immediately handed a bag of crack
         cocaine to [Sgt. Hopkins].      After the transaction was
         complete, the [detectives] followed the individual on foot
         until they lost sight of him. That individual remained
         unknown and was identified in [the case report] as merely
         “Juan Doe.”

         On or about August 19, 2011, at approximately 7:30 p.m.,
         [Appellant] was walking along the 800 block of Chestnut
         Street, Lebanon, PA, when [Det.] Mong and [Det.] Saul
         drove by in an unmarked vehicle. Det. Mong recognized
         [Appellant] as the “Juan Doe” with the graying beard from
         the June 2, 2011 incident. Det. Mong and [Det.] Saul
         approached [Appellant] in order to determine his name.
         The [d]etectives had their badges in plain view and Det.
         Mong identified himself to [Appellant]. Det. Mong testified
         that he did not intend on arresting [Appellant] at that
         time. Det. Saul stood slightly behind Det. Mong during the
         interaction with [Appellant], close enough to hear the
         conversation and to assist Det. Mong if needed. Det. Mong
         asked [Appellant] for some identification.       [Appellant]
         handed a Pennsylvania Identification Card to Det. Mong,
         who radioed the information to dispatch to determine if
         there were any outstanding warrants for [Appellant]. Det.
         Mong told [Appellant] that they had stopped him because
         they recognized his as a person who had sold drugs to an
         undercover officer.      Det. Mong returned [Appellant’s]
         identification. Dispatch notified Det. Mong that there were
         no outstanding warrants for [Appellant].         Det. Mong
         testified that he could not recall if he had returned
         [Appellant’s] identification before stating that [Appellant]

                                    -2-
J-S24037-16


        was stopped because of the sale of drugs.

        Det. Mong asked [Appellant] if he had any drugs or
        weapons on his person, to which [Appellant] replied in the
        negative. Det. Mong then asked [Appellant] if he would
        consent to a search of his person, which [Appellant]
        replied in the affirmative. This search produced thirteen
        (13) bags of crack cocaine, two [cellphones], and money.
        After the search, [Appellant] was arrested and read his
        [Miranda] warnings.

(Trial Court Opinion, filed September 11, 2015, at 2-4).

     Procedurally, on November 11, 2011, the Commonwealth charged

Appellant at docket # CP-38-CR-0001482-2011, with delivery of a controlled

substance, criminal use of communication facility, and two counts of criminal

conspiracy in connection with the June 2, 2011 drug transaction.         The

Commonwealth also charged Appellant at docket # CP-38-CR-0001483-

2011, with possession with intent to deliver a controlled substance (“PWID”),

possession of a controlled substance, and possession of drug paraphernalia

in connection with the August 19, 2011 search of Appellant’s person.      On

December 23, 2011, Appellant filed a pre-trial motion in which he sought the

suppression of all evidence seized during the August 19, 2011 interaction

with police.   Specifically, Appellant challenged whether the police had

reasonable suspicion to subject Appellant to an investigative detention and

whether he gave valid consent to the search of his person.        The court

conducted a hearing on January 25, 2012, and partially granted Appellant’s

suppression motion on May 23, 2012. The court determined the August 19,

2011 investigative detention of Appellant was lawful but Appellant’s consent

                                    -3-
J-S24037-16


to the search was invalid. As a result, the court dismissed all of the charges

against Appellant at docket # CP-38-CR-0001483-2011.

        On November 15, 2012, Appellant proceeded to a bench trial for the

June 2, 2011 charges at docket # CP-38-CR-0001482-2011.          At trial, the

Commonwealth presented various witnesses including Det. Mong, who

testified that on August 19, 2011, he immediately recognized Appellant as

the unidentified suspect involved in the June 2, 2011 drug transaction with

Sgt. Hopkins. Following trial, the court convicted Appellant of delivery of a

controlled substance, criminal use of communication facility, and two counts

of criminal conspiracy.      The court deferred sentencing pending the

preparation of a pre-sentence investigation (“PSI”) report. On January 23,

2013, the court sentenced Appellant to concurrent terms of four (4) to ten

(10) years’ imprisonment for the delivery of a controlled substance

conviction, twenty-seven (27) months to ten (10) years for the conspiracy to

deliver a controlled substance conviction, and eighteen (18) months to seven

(7) years for the criminal use of communication facility conviction. The court

imposed a mandatory minimum sentence for Appellant’s conviction of

delivery of a controlled substance because the offense took place in a school

zone.

        Appellant timely filed a notice of appeal on January 29, 2013.     On

February 14, 2013, the court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant


                                    -4-
J-S24037-16


timely complied on March 4, 2013.              In his concise statement, Appellant

raised challenges to the sufficiency of the evidence and the weight of the

evidence.      This Court affirmed Appellant’s judgment of sentence on

November 25, 2013.         See Commonwealth v. Reed, No. 244 MDA 2013,

unpublished memorandum (Pa.Super. filed November 25, 2013) (concluding

sufficiency of evidence issue lacked merit and weight of evidence issue was

waived for failing to preserve it in timely post-sentence motion).

        On March 17, 2014, Appellant timely filed a pro se petition pursuant to

the Post Conviction Relief Act (“PCRA”).2 The court appointed counsel, who

filed an amended petition on August 15, 2014, and a second amended

petition on October 3, 2014.             In the second amended PCRA petition,

Appellant claimed prior counsel was ineffective for failing to: (1) preserve

Appellant’s challenge to the weight of the evidence; (2) preserve Appellant’s

challenge to the court’s partial denial of Appellant’s suppression motion; and

(3) challenge the court’s imposition of a mandatory minimum sentence for

Appellant’s delivery of a controlled substance conviction under Alleyne v.

United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

The PCRA court held an evidentiary hearing on April 27, 2015. On May 29,

2015, the PCRA court granted relief by reinstating Appellant’s post-sentence

motion and direct appeal rights nunc pro tunc, limited to Appellant’s

____________________________________________


2
    42 Pa.C.S.A. §§ 9541-9546.



                                           -5-
J-S24037-16


challenges to the weight of the evidence and the partial denial of Appellant’s

suppression motion. Appellant immediately filed a notice of appeal nunc pro

tunc. On June 2, 2015, the court ordered Appellant to file a Rule 1925(b)

statement, and Appellant complied.      On June 25, 2015, with the court’s

permission, Appellant withdrew his notice of appeal and filed a nunc pro tunc

post-sentence motion. In his nunc pro tunc post-sentence motion, Appellant

raised challenges to the weight of the evidence, the partial denial of his pre-

trial suppression motion, and the imposition of the mandatory minimum

sentence for his delivery of a controlled substance conviction.    On August

11, 2015, the court denied Appellant’s post-sentence motion and did not

address Appellant’s sentencing issue.    On August 31, 2015, Appellant filed

his “reinstated” notice of appeal nunc pro tunc. That same day, the court

ordered Appellant to file a Rule 1925(b) statement, and Appellant complied

on September 10, 2015.

      Appellant raises the following issues for our review:

         WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF
         THE EVIDENCE PRESENTED AT THE TRIAL?

         WHETHER THE TRIAL COURT ERRED WHEN IT DENIED []
         APPELLANT’S PRE-TRIAL MOTION CHALLENGING THE
         REASONABLE SUSPICION FOR THE STOP AND THE INITIAL
         PROBABLE CAUSE FOR THE ARREST OF [] APPELLANT?

(Appellant’s Brief at 6).

      Before we can address the merits of the issues presented on appeal,

we must determine whether this appeal is properly before us, where


                                     -6-
J-S24037-16


Appellant previously had a counseled direct appeal and this Court affirmed

the judgment of sentence on November 25, 2013. In other words, we must

determine if reinstatement of Appellant’s direct appeal rights was the proper

remedy under the circumstances of this particular case.

      “[A]n accused who is deprived entirely of his right of direct appeal by

counsel’s failure to perfect an appeal is per se without the effective

assistance of counsel, and is entitled to reinstatement of his direct appellate

rights.”   Commonwealth v. Grosella, 902 A.2d 1290, 1293 (Pa.Super.

2006) (quoting Commonwealth v. Johnson, 889 A.2d 620, 622 (Pa.Super.

2005)).    Importantly, there are very few circumstances where counsel’s

conduct warrants a presumption of prejudice and the reinstatement of a

petitioner’s direct appeal rights nunc pro tunc. Commonwealth v. Adam

Reed, 601 Pa. 257, 272, 971 A.2d 1216, 1225 (2009). These circumstances

include: (1) where counsel failed to file a requested direct appeal; (2) where

counsel failed to file a concise statement of errors claimed of on appeal; or

(3) where counsel failed to file a requested petition for allowance of appeal.

Id. at 272-73, 971 A.2d at 1225. “In those extreme circumstances, where

counsel has effectively abandoned his…client and cannot possibly be acting

in the client’s best interests, our Supreme Court has held that the risk

should fall on counsel, and not on his client.”   Commonwealth v. West,

883 A.2d 654, 658 (Pa.Super. 2005).

      On the other hand, “the reinstatement of direct appeal rights is not the


                                     -7-
J-S24037-16


proper remedy when appellate counsel perfected a direct appeal but simply

failed to raise certain claims.” Grosella, supra at 1293. Significantly:

         Where a petitioner was not entirely denied his right to a
         direct appeal and only some of the issues the petitioner
         wished to pursue were waived, the reinstatement of the
         petitioner’s direct appeal rights is not a proper remedy. In
         such circumstances, the [petitioner] must proceed under
         the auspices of the PCRA, and the PCRA court should apply
         the traditional three-prong test for determining whether
         appellate counsel was ineffective.

Id. at 1293-94 (internal citations and parentheticals omitted).

      Instantly, appellate counsel actually filed and perfected a direct appeal

on Appellant’s behalf in 2013, in which counsel raised challenges to the

sufficiency of the evidence and the weight of the evidence.        This Court

addressed the sufficiency of the evidence issue on the merits, disposed of

the weight of the evidence issue on the basis of waiver, and affirmed the

judgment of sentence on November 25, 2013.            Thus, counsel did not

completely foreclose appellate review but simply “narrowed its ambit.” See

id. (distinguishing between cases where counsel’s failure extinguished

defendant’s right to direct appeal and cases where counsel might have

waived or abandoned some but not all issues on direct appeal). Therefore,

we conclude the PCRA court erred in reinstating Appellant’s post-sentence

motion and direct appeal rights nunc pro tunc.       Instead, the PCRA court

should have considered Appellant’s ineffective assistance of counsel claims

under the auspices of the PCRA and applied the traditional three-prong

ineffective assistance of counsel test. Id.

                                     -8-
J-S24037-16


      For the foregoing reasons, we reverse the order reinstating Appellant’s

post-sentence motion and direct appeal rights nunc pro tunc and remand

this matter to the PCRA court to address Appellant’s claims under the

auspices of the PCRA and the traditional test for ineffective assistance of

counsel.    In like manner, the PCRA court must address Appellant’s

sentencing claim. Accordingly, we remand this case to the PCRA court for

proceedings consistent with this decision.

      Case remanded to PCRA court with instructions for further PCRA

proceedings. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2016




                                     -9-
