J-S61036-14


NON-PRECEDENTIAL DECISION              SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
          v.                              :
                                          :
STEPHEN MOSS,                             :
                                          :
                  Appellant               :   No. 741 WDA 2014

                    Appeal from the PCRA Order April 4, 2014,
                 in the Court of Common Pleas of Mercer County,
                Criminal Division, at No: CP-43-CR-0001492-2010

BEFORE:        FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                   FILED OCTOBER 07, 2014

      Stephen Moss (Appellant) appeals from the April 4, 2014 order which

denied his petition for relief filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      On September 1, 2010, Appellant was arrested and charged with

persons not to possess firearms, possession of a small amount of marijuana,

and possession of drug paraphernalia. He was convicted by a jury of these

charges on August 11, 2011, and was sentenced to a term of five to ten

                    n consecutive to any existing sentence. Appellant timely

filed a motion to modify the sentence as being excessive, which was denied.

Appellant timely appealed, and on August 2, 2012, a panel of this Court

                                                        luding that Appellant

failed to raise a substantial question concerning the discretionary aspects of




*Retired Senior Judge assigned to the Superior Court.
J-S61036-14


his sentence. See Commonwealth v. Moss, 60 A.3d 556 (Pa. Super. 2012)

(unpublished memorandum at 3).1

      On June 17, 2013, Appellant filed, pro se, a PCRA petition. Counsel

was appointed and an amended petition was filed. A hearing was held on

April 3, 2014, and on April 4, 2014, the PCRA court entered an order

denying Appellant relief. Appellant timely filed a notice of appeal. The PCRA

court ordered Appellant to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925, and Appellant complied.



                                                                     ef petition

alleging that trial counsel was ineffective for failing to raise on direct appeal

the issues of sufficiency of the evidence and the denial of the omnibus

motion on the grounds the Appellant asked counsel to raise those issues on



      Preliminarily we note that, in reviewing the propriety of an order

granting or denying PCRA relief, an appellate court is limited to ascertaining

whether the record supports the determination of the PCRA court and

whether the ruling is free of legal error. Commonwealth v. Johnson, 966

A.2d 523, 532 (Pa. 2009). This Court grants great deference to the findings



1
                                                                    rior opinion.




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of the PCRA court if the record contains any support for those findings.

Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 2007). Furthermore,

to be entitled to relief under the PCRA, the petitioner must plead and prove

by a preponderance of the evidence that the conviction or sentence arose

from one or more of the errors enumerated in section 9543(a)(2) of the

PCRA, which includes ineffective assistance of counsel.       See 42 Pa.C.S.

§ 9543(a)(2)(ii).



assistance of counsel, we bear in mind that counsel is presumed to be

effective.   Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).              To

overcome this presumption, Appellant bears the burden of proving the

              (1) the underlying substantive claim has arguable merit; (2)

counsel whose effectiveness is being challenged did not have a reasonable

basis for his or her actions or failure to act; and (3) the petitioner suffered

                                                              Id.

claim will be denied if he fails to meet any one of these three prongs. Id.

      On appeal, Appellant argues that

      the PCRA Court has err
      to determine the merits of the issues once it has been shown

      Once the Appellant requested that his Trial Counsel raise the
      additional issues in his direct appeal, Trial Counsel should have
      included those issues in the appeal to allow this Honorable
      Superior Court to consider them.




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case back to the trial level so that a proper direct appeal can be prepared

pertaining to the sufficiency of the evidence and the denial of the omnibus

        Id.

           It is well-
     of his right of direct appeal by counsel's failure to perfect an
     appeal is per se without the effective assistance of counsel, and

     Commonwealth v. Johnson, 889 A.2d 620, 622 (Pa. Super.
     2005) (emphasis added) (citing Commonwealth v. Halley, 582
     Pa. 164, 870 A.2d 795 (2005) (failing to file a Pa.R.A.P.1925(b)
     statement on behalf of an accused seeking to appeal his
     sentence, resulting in the waiver of all claims, constitutes an
     actual or constructive denial of counsel and entitles the accused
     to a direct appeal nunc pro tunc regardless of his ability to
     establish the merits of the issues that were waived);
     Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999)
     (failing to file a requested direct appeal denies the accused the
     assistance of counsel and the right to a direct appeal, and the
     accused is entitled to reinstatement of his direct appeal rights)).
     See Commonwealth v. Franklin, 823 A.2d 906 (Pa. Super.
     2003) (holding that reinstatement of direct appeal rights was
     proper where the appellant's brief on direct appeal was so

     extreme     circumstances,    where   counsel   has   effectively
     abandoned his or her client and cannot possibly be acting in the
     client's best interests, our Supreme Court has held that the risk
                                                 Commonwealth v.
     West, 883 A.2d 654, 658 (Pa. Super. 2005).

           However, it is also well-settled that the reinstatement of
     direct appeal rights is not the proper remedy when appellate
     counsel perfected a direct appeal but simply failed to raise
     certain claims. See Johnson, supra. 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. See Halley, 582 Pa. at 172, 870 A.2d at 801



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      completely foreclose appellate review, and those which may
                                        Johnson; supra (noting this
      Court has expressly distinguished between those cases where a
      PCRA petitioner is entitled to a direct appeal nunc pro tunc
      where prior counsel's actions, in effect, entirely denied his right
      to a direct appeal, as opposed to a PCRA petitioner whose prior
      counsel's ineffectiveness may have waived one or more, but not
      all, issues on direct appeal); Commonwealth v. Ginglardi, 758
      A.2d 193 (Pa. Super. 2000) (indicating that where two of the
      three issues presented on direct appeal were waived the relief
      afforded under Lantzy was unavailable to a PCRA petitioner). In
      such circumstances, the appellant 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.

Commonwealth v. Grosella, 902 A.2d 1290, 1293-94 (Pa. Super. 2006).

      Thus, in this case, because appellate counsel did indeed perfect



traditional three-prong test outlined in Martin, supra

wholly fails to do so.   Moreover, pursuant to Grosella, supra, the relief

Appellant asks us to grant, the reinstatement of his right to direct appeal, is

improper in this case. Accordingly, we hold that the PCRA court did not err

as a matter of law in denying Appellant relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/7/2014




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