J-S53029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

CHRISTOPHER LEE PEPPLE,

                             Appellant                No. 1532 MDA 2015


                 Appeal from the Order Entered March 9, 2015
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0001699-2010


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED AUGUST 11, 2016

       Appellant, Christopher Lee Pepple, appeals nunc pro tunc from the

order denying his petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       The PCRA court summarized the history of this case as follows:

             A two day jury trial was held before the Honorable Richard
       J. Walsh on November 2 and 3, 2011.              The jury found
       [Appellant] guilty of criminal attempt to commit aggravated
       indecent assault of a child (Count 1),1 indecent assault of a child
       (Count 2),2 and endangering the welfare of a child (Count 3)3 for
       incidents involving his then seven-year-old daughter.           On
       February 22, 2012, [Appellant] was sentenced on Counts 1, 2,
       and 3 to an aggregate period of not less than 108 months to not
       more than 408 months in a state correctional institution.
              1
                  18 Pa.C.S. [§] 3125(b).
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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          2
              18 Pa.C.S. [§] 3126(a)(7).
          3
              18 Pa.C.S. [§] 4304(a)(1).

            On September 21, 2012, [Appellant] filed a timely pro se
     Post Conviction Collateral Relief Petition (“PCRA Petition”). On
     September 26, 2012, Attorney Vincent Monfredo was appointed
     to represent [Appellant] and subsequently filed a no merit letter
     pursuant to Turner/Finley4 and an application to withdraw as
     counsel on February 21, 2013. On March 5, 2013, by Order of
     Court Attorney Monfredo was granted leave to withdraw and
     [Appellant] was notified that the [PCRA c]ourt intended to
     dismiss [Appellant’s] PCRA without a hearing and that he had
     twenty days to respond. That same day[, Appellant] filed an
     Amended PCRA Petition.5 In addition to being nearly 100 pages
     long, [Appellant’s] Amended PCRA Petition filed on April 4, 2013,
     was convoluted and failed to list the issues in a concise and
     comprehensible manner. The [PCRA c]ourt ordered [Appellant]
     to file a Second Amended Petition listing the issues and providing
     a succinct statement of support for each within 30 days of the
     date of the order.
          4
            Commonwealth v. Tu[r]ner, 544 A.2d 927 (Pa.
          1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.
          Super. 1988).
          5
            The [PCRA c]ourt presumes that [Appellant] filed
          his Amended PCRA Petition in response to Attorney
          Monfredo’s application to withdraw and not the
          [PCRA c]ourt’s notice of intention to dismiss without
          a hearing.

           On April 22, 2013, [Appellant] filed his Second Amended
     PCRA Petition which was also over 100 pages long. On April 26,
     2013, by Order of Court, [Appellant] was notified that the [PCRA
     c]ourt intended to dismiss his Second Amended PCRA Petition.
     However, [Appellant] was given the opportunity to respond to
     the proposed dismissal or file a Third Amended PCRA Petition
     within 20 days. On May 16, 2013, [Appellant] filed a Third
     Amended PCRA Petition.6
          6
            The document was actually entitled “Amended
          Petition for Post-Conviction Collateral Relief;”

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           however, for purposes of clarity the [PCRA c]ourt will
           refer to it as the Third Amended PCRA Petition.

            By Order of Court dated June 27, 2013, [the PCRA c]ourt
     found that it would be appropriate to hold an evidentiary hearing
     on two issues raised by [Appellant] in his Third Amended PCRA
     Petition: (1) whether trial counsel refused to file a direct appeal
     after request by [Appellant] to do so and (2) whether [Appellant]
     was excluded from participating in jury selection. The [PCRA
     c]ourt also ruled that all remaining issues raised or potentially
     raised in [Appellant’s] PCRA Petition, Amended PCRA Petition,
     Second Amended PCRA Petition, and Third Amended PCRA
     Petition were dismissed as patently frivolous and lacking merit.
     An evidentiary hearing was held on August 1, 2013, after which
     the [PCRA c]ourt, in an Opinion and Order dated August 30,
     2013, determined that the two issues on which the [PCRA c]ourt
     held an evidentiary hearing lacked merit and [Appellant] was not
     entitled to relief. On October 3, 2013, [Appellant] was ordered
     to file and serve on the [PCRA c]ourt within 21 days a concise
     statement of matters complained of on appeal. On October 24,
     2013, [Appellant] filed his Concise Statement of Reasons
     Complained of on Appeal. [Appellant] asserted 41 allegations of
     error relating to the [PCRA c]ourt’s August 30, 2013 Order. Only
     two of the allegations of error raised by [Appellant] actually
     related to the PCRA Court: (1) the [PCRA c]ourt erred by not
     appointing counsel to represent [Appellant] at the evidentiary
     hearing August 1, 2013 and (2) the [PCRA c]ourt erred by not
     providing [Appellant] with records.

            In its Opinion sur 1925(a), the [PCRA c]ourt acknowledged
     that under a fair reading of the Pennsylvania Rules of Criminal
     Procedure, [Appellant] should have been appointed counsel to
     represent him at the PCRA evidentiary hearing on August 1,
     2013. In its Order dated June 24, 2014, the Pennsylvania
     Superior Court vacated the order denying PCRA relief and
     remanding to the PCRA [c]ourt for a new evidentiary hearing
     with appointed counsel. By Order of Court dated November 10,
     2014, the evidentiary hearing was scheduled for January 14,
     2015. The evidentiary hearing was to be limited to the two
     issues the [PCRA c]ourt previously determined warranted a
     hearing and any other issues that [Appellant] raised in pro se
     filings that appointed counsel believed needed to be addressed.




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            At the January 14, 2015, evidentiary hearing, [Appellant]
      was the only witness to testify. The transcript of the hearing
      held on August 1, 2013 and a copy of the Child Protective
      Services Investigation report from 2010 were made part of the
      record. By Opinion and order dated March 9, 2015, the [PCRA
      c]ourt denied [Appellant’s] request for collateral relief and
      dismissed his PCRA petition.

PCRA Court Opinion, 1/5/16, at 1-5. Appellant then brought this nunc pro

tunc appeal from the denial of his PCRA petition.          Both Appellant and the

PCRA court have complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

      1. Did the trial court err in issuing its March 9, 2015 order
      denying the Appellant’s request to extend his deadline to file a
      direct appeal where Appellant’s trial counsel was ineffective for
      providing the Appellant and his mother with erroneous and
      confusing information regarding his right to file a direct appeal
      (see Transcript of Proceedings on August 1, 2013, pages 15-16
      and 54-73) - including, but not limited to, trial counsel having
      indicated to the Appellant that a direct appeal could not be made
      unless there were errors or issues to allege (see Transcript of
      Proceedings on August 1, 2013, page 54-55) - whereby
      effectively depriving Appellant of his right of review on direct
      appeal?

Appellant’s Brief at 19.

      Appellant argues that the PCRA court erred in denying his request for

relief. Appellant’s Brief at 25-27. Appellant claims that his trial counsel was

ineffective in providing confusing information about his direct appeal rights

and therefore deprived Appellant of a direct appeal.

      Our standard of review of an order granting or denying relief under the

PCRA requires us to determine whether the decision of the PCRA court is

supported   by   the   evidence   of   record   and   is    free   of   legal   error.

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Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014). “The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Id.1

       In resolving questions of counsel’s effectiveness, we begin with the

presumption that counsel rendered effective assistance.       Commonwealth

v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014).                  To overcome that

presumption, the petitioner must establish: “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s

error, with prejudice measured by whether there is a reasonable probability

that the result of the proceeding would have been different.” Id. (citation

omitted). If the petitioner fails to prove any of these prongs, the claim is

subject to dismissal. Id.

       “Article V, Section 9 of the Pennsylvania Constitution guarantees a

direct appeal as of right.” Commonwealth v. Lantzy, 736 A.2d 564, 571

(Pa. 1999). “It is well settled that when a lawyer fails to file a direct appeal

requested by the defendant, the defendant is automatically entitled to

____________________________________________


1
  We note that a petition for nunc pro tunc relief “must be considered a PCRA
petition, as the PCRA is the only means for restoring direct appeal rights.”
Commonwealth v. Johnson, 841 A.2d 136, 139 (Pa. Super. 2003). See
also Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (stating
that “[t]he plain language of the [PCRA] demonstrates that the General
Assembly intended that claims that could be brought under the PCRA must
be brought under that Act”).



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reinstatement of his direct appeal rights.” Commonwealth v. Markowitz,

32 A.3d 706, 714 (Pa. Super. 2011).          “[W]here there is an ‘unjustified

failure to file a requested direct appeal,’ counsel is per se ineffective as the

defendant [i]s left with the functional equivalent of no counsel.” Id. at 715

(quoting Lantzy, 736 A.2d at 572).          “The petitioner has the burden of

proving that he requested a direct appeal and that his counsel heard but

ignored or rejected the request.” Commonwealth v. Maynard, 900 A.2d

395, 398 (Pa. Super. 2006).

      In addressing Appellant’s claim, the PCRA court offered the following

analysis, which we adopt as our own:

             It is well-settled that, where a defendant directs counsel to
      file a direct appeal, and counsel refuses, the defendant is
      entitled to reinstatement of his direct appeal rights nunc pro
      tunc. Commonwealth v. Markowitz, 32 A.3d 706, 713 (Pa.
      Super. 2011) (citing Commonwealth v. Lantzy, 736 A.2d 564
      (Pa. 1999)). However, the Concise Statement does not allege
      that [Appellant] explicitly instructed trial counsel to file a direct
      appeal, rather, it states that trial counsel provided “erroneous
      and confusing information” to [Appellant] and his Mother. The
      sections of the PCRA hearing transcript, as cited in the Concise
      Statement, are more illuminating on this issue, but do not weigh
      in favor of finding that trial counsel was ineffective. At the
      hearing, [Appellant’s] mother testified that she was “taking care
      of getting in contact with [trial counsel] for [Appellant].” Aug. 1,
      2013 PCRA Hearing Transcript at 15. Rather than stating that
      [Appellant] had requested a direct appeal or that she had
      instructed counsel to file a direct appeal on [Appellant’s] behalf,
      she merely states that she “never got a straight answer out of
      [counsel]” regarding the direct appeal. Further, [Appellant]
      offered no evidence that he instructed counsel to file a direct
      appeal other than his own statements to that effect at the PCRA
      Hearing. See Aug. 1, 2013 PCRA Hearing Transcript at 60-61.
      Trial Counsel testified that he had explained to [Appellant] that
      he had noted no issues of error to raise on appeal and would

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     have had to file an Anders brief requesting an appeal despite
     his belief that the claim is frivolous. Id. at 55. Counsel further
     explained that the proper method to raise the issue of
     ineffectiveness of counsel would be through a PCRA. Id. at 56.

            “Although counsel may be ineffective for failing to file a
     direct appeal on his client’s behalf, a PCRA petitioner must prove
     that he asked counsel to file an appeal in order to be entitled to
     relief.” Commonwealth v. Maynard, 900 A.2d 395, 397-98
     (Pa. Super. 2006) (citing Commonwealth v. Harmon, 738
     A.2d 1023, 1024 (Pa. Super. 1999)). “Mere allegations will not
     suffice.” Harmon, 738 A.2d at 1024. Thus, the petitioner has
     the burden of proving that he requested a direct appeal and that
     his counsel heard but ignored or rejected the request. Here, the
     only evidence demonstrating that [Appellant] requested [a direct
     appeal] is his own assertions that he did so, in contrast with the
     testimony of counsel. Therefore, [Appellant] has failed to meet
     his burden of demonstrating that counsel ignored any request to
     file a direct appeal.

            Additionally, while it is not contested that trial counsel did
     consult with [Appellant] regarding his appeal rights, [Appellant]
     asserts that counsel’s description of his rights were so
     “erroneous and confusing” as to deprive him of his right to an
     appeal. In order to find that counsel failed to adequately consult
     with a defendant regarding his appellate rights, the Court must
     find that (1) the underlying issue has arguable merit; (2)
     counsel’s actions lacked an objective reasonable basis, and (3)
     actual prejudice resulted from counsel’s act or failure to act.
     Commonwealth v. Burkett, 5 A.3d 1260, 1272 (Pa. Super.
     2010). Here, it is clear that counsel had an objective and
     reasonable basis for his statements to [Appellant]. Counsel
     stated that he noted no issues of error by the trial court and,
     thus, could not have raised any issues on appeal. Aug. 1, 2013
     PCRA Hearing Transcript at 55. Counsel’s only option would
     have been to file an Anders brief and withdraw from
     representing [Appellant]. Id. Without having identified any
     appealable issues, counsel had no other reasonable alternative
     and fully appraised [Appellant] of this fact. At the hearing,
     [Appellant] noted that his only allegation on appeal would be
     ineffective assistance of counsel. Aug. 1, 2013 PCRA Hearing
     Transcript at 71-73. As a general rule, a defendant should wait
     to raise claims of ineffective assistance of trial counsel until
     collateral review; thus, the failure of new counsel to raise such a

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      claim on direct appeal will not waive the claim, and the claim will
      be waived only after a defendant has had the opportunity to
      raise it on collateral review and has failed to avail himself of that
      opportunity. Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.
      2002). Thus, counsel’s instruction to [Appellant] that he should
      file a PCRA to raise his ineffectiveness claims was not erroneous
      and was a reasonable and accurate statement of the law.

PCRA Court Opinion, 1/5/16, at 6-9.

      The PCRA court chose to find credible the testimony offered by trial

counsel and concluded that (1) Appellant did not request trial counsel to file

a timely direct appeal, and (2) counsel appropriately advised Appellant

regarding his appellate rights.     The certified record supports the PCRA

court’s determinations, and we are bound by the PCRA court’s credibility

determinations.   See Commonwealth v. Hutchinson, 25 A.3d 277, 284

(Pa. 2011) (stating that “[t]he PCRA court’s credibility determinations are

binding on [an appellate c]ourt when they are supported by the record.”).

Thus, we conclude that the PCRA court did not err in denying Appellant’s

PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2016




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