J-S74035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                       v.

ERICK FINNEGAN

                            Appellant                   No. 3841 EDA 2015


                 Appeal from the PCRA Order November 23, 2015
                  in the Court of Common Pleas of Bucks County
                   Criminal Division at No(s): CP-0001211-2013


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                         FILED NOVEMBER 03, 2016

         Erick Finnegan (Appellant) appeals from the November 23, 2015 order

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

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

         Following a bench trial in July of 2013, the court found Appellant guilty

of retail theft.1   Appellant was sentenced to four to twenty-three months’

incarceration with a term of eighteen months’ probation to be served

consecutively. Appellant filed a motion to modify and reconsider sentence,

which was denied in July of 2013. No direct appeal was filed. In September




____________________________________________


1
    See 18 Pa.C.S. § 3929(a)(1).


*
    Former Justice specially assigned to the Superior Court.
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2013, Appellant untimely mailed a notice of appeal to the PCRA court. 2 The

PCRA court returned the notice to Appellant, informing him that his appeal

was untimely and noting that no notice of appeal was on file with the Bucks

County Clerk of Courts.

       Appellant pro se filed a timely PCRA petition in October of 2013,

alleging ineffective assistance of trial counsel.           Thereafter, counsel was

appointed and filed an amended petition on Appellant’s behalf. Specifically,

Appellant alleged trial counsel was ineffective for (1) failing to file a direct

appeal, (2) preventing Appellant from testifying in his own defense, and (3)

allowing Appellant to unknowingly and unintelligently waive his right to a

jury trial, as Appellant was intoxicated. In October of 2015, the PCRA court

held an evidentiary hearing, at which Appellant and trial counsel testified.

       At the evidentiary hearing, Appellant testified that in a conversation

with trial counsel following the denial of his motion to reconsider sentence,

he requested that counsel file an appeal on his behalf. N.T., 10/23/15, at

48-51. Appellant further stated that he attempted to request same through

three, interoffice green slips and a letter sent to trial counsel. Id. at 51-69.

Trial counsel categorically denied that Appellant requested him to file an

appeal    and    further    testified   that   he   never    received   any   of   the

aforementioned correspondence. Id. at 104-06, 110-11.

____________________________________________


2
  The Honorable Albert J. Cepparulo presided over both the trial and PCRA in
the instant case. See Notes of Testimony (N.T.), 7/8/13; N.T. 10/23/15.



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     Appellant suggested the outcome of trial may have been different if he

had given his version of events and insisted that he never discussed with

counsel the impact his prior convictions for crimen falsi offenses would have

on the fact-finder. Id. at 43-46. Trial counsel testified about the multiple

concerns he shared with Appellant about testifying and stated that the

ultimate decision not to testify was Appellant’s. Id. at 93-97, 101-04, 116-

18,120-23.

     Appellant testified that he was high on heroin when he waived his jury

trial and proceeded to a waiver trial that same day. Id. at 21-24. Appellant

described a conversation between him and counsel on the day of trial that

evinced counsel knew he was “on drugs,” but Appellant was uncertain if he

specifically stated that he was on heroin.    Id. at 21-24, 34-36.   Counsel

refuted this testimony by maintaining that if he suspected Appellant was

under the influence and could not understand the proceedings, he would not

have allowed the trial to move forward.      Id. at 84-91.   Further, counsel

observed that Appellant was able understand and appropriately respond to

the questions posed to him by counsel and by the trial court. Id. at 118-20.

     The PCRA court held the matter under advisement, and in November

of 2015, the court dismissed Appellant’s petition by order and opinion. In

the opinion, the PCRA court analyzed the “completely contradictory”

testimony of Appellant and counsel and found trial counsel wholly credible

while it found the Appellant incredible.   PCRA Court Opinion, 11/23/15, at

12-13.   Appellant timely appealed and filed a court-ordered Pa.R.A.P.

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1925(b) statement. In February of 2016, the trial court issued an opinion

incorporating its prior opinion.

      Appellant presents the following questions for our review:

      1.     Did the lower [c]ourt err when it refused to grant
      [Appellant]   nunc    pro   tunc  relief    when    extraordinary
      circumstances involving a [breakdown] in the administrative and
      judicial process interfered with [Appellant’s] ability to
      communicate with his attorney and file a timely appeal?

      2.    Did the PCRA court err by not reinstating [Appellant’s]
      appellate rights nunc pro tunc when trial counsel failed to file a
      timely direct appeal as directed?

      3.   Was trial counsel ineffective when he interfered with
      [Appellant’s] right to testify?

      4.    Was trial counsel ineffective when he allowed [Appellant] to
      enter an [unknowing] and [involuntary] waiver [of] his right to a
      jury trial while he was under the influence of a controlled
      substance?

Appellant’s Brief at 3.

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.   Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

      Allowance of appeal nunc pro tunc is within the sound discretion of the

trial court, and our standard of review of a decision of whether to permit an



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appeal nunc pro tunc is limited to a determination of whether the trial court

has abused its discretion or committed an error of law. Commonwealth v.

Yohe, 641 A.2d 1210, 1211 (Pa. Super. 1994) (quoting Commonwealth v.

Nicholas, 592 A.2d 98, 99 n.3 (Pa. Super. 1991), appeal denied, 602 A.2d

858 (Pa. 1992)).      The remedy of a nunc pro tunc appeal is intended to

vindicate the appellant's right to appeal in certain extraordinary situations

where that right to appeal has been lost. Commonwealth v. Stock, 679

A.2d 760, (Pa. 1996).

        In his first issue, Appellant contends that the trial court should have

granted his right to appeal nunc pro tunc where a breakdown in

communication between him, trial counsel, and the trial court constituted

extraordinary circumstances. Appellant’s Brief at 16-22. We disagree.

        As an initial matter, we note that this claim is not properly preserved

for our review, as it was not included in Appellant’s PCRA petition.

Accordingly we deem Appellant’s first issue waived.           Commonwealth v.

Keefer, 367 A.2d 1082, 1086 (Pa. 1976); see also Pa.R.A.P.. 302(a)

(issues not raised in the lower court are waived and cannot be raised for the

first time on appeal).    Nevertheless, to the extent that testimony at the

evidentiary hearing implied this issue to some extent, we note that the PCRA

court    found   Appellant’s   evidence     pertaining   to   a   breakdown   in

communication between the Appellant, trial counsel and the PCRA court not

credible.   PCRA Court Opinion 12-13.       As such, we conclude this claim is

without merit.

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      Appellant next claims that the PCRA court erred by not reinstating his

appellate rights when trial counsel failed to file a timely direct appeal as

requested. Appellant’s Brief at 22-25.

      We presume counsel is effective.      Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome the presumption and establish

ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence: “(1) the underlying legal issue has arguable

merit; (2) counsel’s actions lacked an objective reasonable basis; and (3)

actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).   “A petitioner establishes prejudice when he demonstrates that

there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. A claim

will be denied of the petitioner fails to meet any one of these requirements.

Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)

(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).                   The

unjustified failure to file a requested direct appeal is ineffective assistance of

counsel per se, and an appellant need not show that he likely would have

succeeded on appeal in order to meet the prejudice prong of the test for

ineffectiveness. Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super.

2006).




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       At the evidentiary hearing, Appellant submitted documents and

testified in an attempt to establish that he requested that trial counsel file an

appeal and trial counsel failed to do so.3 The PCRA court determined that

Appellant was not entitled to nunc pro tunc appeal because his exhibits and

testimony were not credible:

       [W]e only consider whether evidence presented at [Appellant’s]
       PCRA hearing was sufficient to prove that he requested an
       appeal and Mr. Haag failed to act upon that request. The
       relevant testimony of [Appellant] and Mr. Haag relating to the
       issue of a request for a direct appeal are completely
       contradictory. According to [Appellant], he told Mr. Haag that he
       could serve his sentence “standing on [his] head” and then
       allegedly said[,] “let’s get the appeal. My sentence will be done
       by the time the appeal goes through, and if I lose the appeal,
       the time will be done.” Mr. Haag, on the other hand, related to
       this [c]ourt that when he visited [Appellant] at the prison after
       his conviction [Appellant] told him “he did not want to file an
       appeal at that time, that he could do the amount of time he had
       standing on his head.” We also noted that Mr. Haag testified
       that [Appellant] was concerned about the effect this conviction
       would have on the parole or probation he was serving from a
       prior conviction.

       In the instant matter, this [c]ourt as fact-finder found Mr. Haag,
       who is a reputable and experienced Public Defender and an
       officer of the court, to be wholly credible. We found completely
       credible Mr. Haag’s assertion that he had consulted with the
       [Appellant] after the Motion for Reconsideration was denied, and
       that [Appellant] indicated at that time that he did not want to
       pursue an appeal.
____________________________________________


3
  Appellant testified that he sent three, interoffice green slips to trial counsel
and a letter in an attempt to have counsel perfect his appeal. N.T.,
10/23/15, at 53-59, 62-69, 74-79; see also Appellant’s PCRA Exhibits P1-
P4. Appellant had no proof that any of these items were sent via the
interoffice process or mailed. Id. at 53-54, 69, 74-77.



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      On the other hand, we did not find [Appellant’s] testimony
      credible. We found [Appellant’s] assertions that he had
      consistently requested Mr. Haag to file a direct appeal to be
      incredible, unsupported by the circumstances, and most likely
      improperly motivated by his concerns about the effects on the
      sentence he received from a prior conviction, particularly after
      having been provided with the opportunity to reflect on his
      situation while incarcerated after his conviction in this matter.
      We also observed that while [Appellant] recalled with some
      clarity that he had advised defense counsel that he could serve
      his sentence “standing on his head” while allegedly requesting a
      direct appeal, he could not recall with any specificity how
      defense counsel responded to that request.

PCRA Court Opinion at 12-13.

      Our review of the record, including Appellant's PCRA petition, the

evidentiary hearing and exhibits, supports the PCRA court's conclusion that

Appellant has failed to establish the he requested trial counsel to file a direct

appeal.     The PCRA court credited the testimony of Mr. Haag over the

testimony and evidence presented by Appellant at the hearing.               N.T.,

10/23/15, 104-24 (Mr. Haag’s testimony).        Absent an abuse of discretion,

we cannot disturb this determination. See Commonwealth v. Battle, 883

A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility determinations

are solely within the province of the PCRA court). Accordingly, we discern

no error.

      In his third claim, Appellant baldly claims trial counsel rendered

ineffective assistance by interfering with his right to testify. Appellant’s Brief

at 25-27.     The PCRA court concluded that Appellant failed to meet his

burden under Johnson, supra, because he could not establish that




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counsel’s actions lacked a reasonable basis.    PCRA Court Opinion, 14-16.

We agree with this analysis. The PCRA court reasoned:

      Mr. Haag’s advice [that Appellant not testify] was reasonably
      based upon [Mr. Haag’s] attempts to suppress or preclude
      additional evidence which related to the return of stolen
      merchandise to a completely different store for monetary refund
      and [Appellant’s] prior criminal history.

      The admission of [this evidence] had the obvious potential to
      further prejudicially affect the perception of [Appellant’s]
      innocence or guilt.

PCRA Court Opinion at 14-26.

      Had Appellant declined counsel’s advice and testified, he would have

been subject to cross-examination on incriminating evidence possessed by

the Commonwealth which trial counsel had successfully suppressed as

hearsay.   N.T., 7/8/13, at 46-49; N.T., 10/23/15, at 93, 121-22.       Thus,

based on our review, the findings of the PCRA court are supported by the

evidence of record, namely, the suppressed evidence and Appellant’s

criminal record.   N.T., 7/8/13, at 46-49; N.T., 10/23/15, at 73, 117-18.

This claim is without merit. See Springer, 961 A.2d at 1267.

      Finally, Appellant avers he was under the influence of a controlled

substance when he waived his right to a jury trial, which rendered the

waiver unknowing and involuntary.     Appellant’s Brief at 27-30.   Appellant

further asserts trial counsel knew he was intoxicated and counsel’s actions in

allowing the bench trial to commence evinced ineffective assistance. Id.




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        The Pennsylvania Rules of Criminal Procedure provide in pertinent

part:

        In all cases, the defendant and the attorney for the
        Commonwealth may waive a jury trial with approval by a judge
        of the court in which the case is pending, and elect to have the
        judge try the case without a jury. The judge shall ascertain from
        the defendant whether this is a knowing and intelligent waiver,
        and such colloquy shall appear on the record. The waiver shall
        be in writing, made a part of the record, and signed by the
        defendant, the attorney for the Commonwealth, the judge, and
        the defendant's attorney as a witness.

Pa. R. Crim. P. 620.

        In addressing Appellant’s final issue, the PCRA court outlined the

waiver colloquy conducted with the Appellant at the waiver trial, shared its

own recollection of Appellant’s appropriate responses, and referenced the

testimony of counsel. PCRA Court Opinion at 16-20. Here, the PCRA court

determined      that   Appellant’s   claim     was   meritless   based   on   the

aforementioned evidence and its own credibility determinations.          We may

not disturb this finding, as it is supported by the record. See N.T., 7/8/13,

4-6; N.T., 10/23/15, 87, 118-20.

        For the above reasons, we discern no error in the PCRA court's

decision to dismiss Appellant’s petition. Appellant’s claims are without merit.

He is entitled to no relief.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2016




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