J-S80004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    ROBERT DURHAM,

                             Appellant                No. 697 EDA 2017


             Appeal from the PCRA Order Entered January 20, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010212-2012


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.                           Filed March 19, 2019

       Appellant, Robert Durham, appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we vacate that order and remand for the

reinstatement of Appellant’s direct appeal rights nunc pro tunc.

       The facts underlying Appellant’s conviction are not germane to this

appeal. Briefly, police arrested Appellant in August of 2012 and charged him

with possession of a controlled substance, possession of drug paraphernalia,

possession with intent to deliver a controlled substance, and possession of a

firearm prohibited.1 Following a non-jury trial held on August 28, 2013, the

trial court found Appellant guilty on all counts. On October 16, 2013, the court

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1 35 P.S. § 780-113(a)(30), (a)(16), (a)(32), and 18 Pa.C.S. § 6105,
respectively.
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sentenced Appellant to an aggregate term of 7-14 years’ incarceration and 3

years’ probation. Appellant did not file a post-sentence motion, nor did he file

a notice of appeal. However,

       [o]n May 16, 2014[, Appellant] filed a timely[,] pro se [PCRA]
       petition…. On February 23, 2015[,] David Rudenstein, Esq.[,] was
       appointed to represent [him]. On March 31, 2016, Mr. Rudenstein
       filed an amended PCRA petition. Th[e PCRA] court held an
       evidentiary hearing and on January 20, 2017, dismissed
       [Appellant]’s PCRA [p]etition, finding the issues raised [therein]
       were either without merit or had been waived.

PCRA Court Opinion (PCO), 12/11/17, at 1-2.2

       Appellant filed a timely notice of appeal on February 18, 2017, and a

timely, court-ordered Pa.R.A.P. 1925(b) statement on May 1, 2017.3            The

PCRA court issued its Rule 1925(a) opinion on December 11, 2017.

       Appellant now presents the following question for our review:

        I.    Did the PCRA [c]ourt err when it dismissed [Appellant]’s
              [a]mended [PCRA p]etition when [Appellant] pled, and
              actually did prove, that he was entitled to relief?

Appellant’s Brief at 3.

       We review an order dismissing a petition under the PCRA in the
       light most favorable to the prevailing party at the PCRA level. This
       review is limited to the findings of the PCRA court and the evidence
       of record. We will not disturb a PCRA court’s ruling if it is

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2 In his amended petition, Appellant solely sought to reinstate his direct appeal
rights.

3 In the interim, on April 21, 2017, this Court entered an order dismissing the
instant appeal pursuant to Pa.R.A.P. 3517 due to Appellant’s failure to file a
docketing statement. On May 1, 2017, Appellant filed an application to
reinstate the appeal. By order dated May 5, 2017, this Court vacated the April
21, 2017 order dismissing the appeal.

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      supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court’s decision on any grounds if the
      record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations omitted, emphasis added).

      At issue in this appeal is Appellant’s claim that his trial attorney provided

ineffective assistance of counsel by failing to file a direct appeal on his behalf.

Here, the PCRA court concluded that Appellant’s trial counsel did not provide

ineffective assistance, because Appellant ostensibly failed to request that a

direct appeal be filed following his sentencing hearing. Generally speaking,

      [w]e begin with the presumption that counsel rendered effective
      assistance. To obtain relief on a claim of ineffective assistance of
      counsel, a petitioner must rebut that presumption and
      demonstrate that counsel’s performance was deficient, and that
      such performance prejudiced him. Strickland v. Washington,
      466 U.S. 668, 687–91 … (1984). In our Commonwealth, we have
      rearticulated the Strickland Court’s performance and prejudice
      inquiry as a three-prong test. Specifically, a petitioner must
      show: (1) the underlying claim is of arguable merit; (2) no
      reasonable basis existed for counsel’s action or inaction; and (3)
      counsel’s error caused prejudice such that there is a reasonable
      probability that the result of the proceeding would have been
      different absent such error. Commonwealth v. Pierce, 515 Pa.
      153, 158–59, 527 A.2d 973, 975 (1987).

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (some internal

citations omitted). However, our Supreme Court has held that:

      [W]here there is an unjustified failure to file a requested direct
      appeal, the conduct of counsel falls beneath the range of
      competence demanded of attorneys in criminal cases, denies the

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       accused the assistance of counsel guaranteed by the Sixth
       Amendment to the United States Constitution and Article I,
       Section 9 of the Pennsylvania Constitution, as well as the right to
       direct appeal under Article V, Section 9, and constitutes prejudice
       for purposes of Section 9543(a)(2)(ii). Therefore, in such
       circumstances, and where the remaining requirements of the
       PCRA are satisfied, the petitioner is not required to establish his
       innocence or demonstrate the merits of the issue or issues which
       would have been raised on appeal.

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (footnote omitted,

emphasis added).4

       At the PCRA hearing, Appellant testified that, at the end of his trial on

August 28, 2013, he told his trial attorney, Bruce Wolf, Esq., to file an appeal

on his behalf to contest his conviction for gun possession. N.T., 1/20/17, at

5-7.   According to Appellant, Attorney Wolf did not respond.          Id. at 7.

Appellant admitted that he did not repeat his request to Attorney Wolf

thereafter. Id. at 7-8.

       Attorney Wolf also testified at the PCRA hearing.      His recollection of

representing Appellant was “vague[].”            Id. at 11.   He also had “no

recollection” of Appellant’s mentioning an appeal. Id. He could not locate

any notes or correspondence in his case file indicating that Appellant had

requested an appeal. Id. (indicating that Attorney Wolf “made no notation in

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4 Section 9543(a)(2)(ii) provides for relief under the PCRA for a “conviction or
sentence” that “resulted from,” inter alia, “[i]neffective assistance of counsel
which, in the circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). Our Supreme Court has held
that Section 9543(a)(2)(ii) expresses Strickland’s prejudice standard for
ineffective assistance of counsel claims. See Commonwealth v. Kimball,
724 A.2d 326, 332 (Pa. 1999).

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[his] file one way or the other about being asked about an appeal”). However,

Attorney Wolf did not state that he remembered Appellant’s not asking for an

appeal; rather, he “really just d[idn]’t remember.” Id. at 11-12. Indeed,

Attorney Wolf admitted that it was “entirely possible that [Appellant] said that

[he] want[ed] an appeal. I may not have responded because I knew the time

wasn’t right to file an appeal.” Id. at 12.

      In dismissing Appellant’s PCRA petition, the PCRA court reasoned that

Appellant’s “failure to communicate the [request for an appeal] after the

sentencing hearing, either verbally or in writing, was created by a fault of his

own.” PCO at 8. Regarding the request made to Attorney Wolf immediately

after trial, the court opined that Appellant “admit[ted] that when he made the

statement that Mr. Wolf[] did not respond and he did not follow up with any

additional request or responses to clarify that his request was heard by

counsel.” Id. at 8-9. In any event, the court concluded, Appellant “did not

provide any evidence that would prove by a preponderance of the evidence

that Mr. Wolf[]’s actions ‘undermined the truth-determining process [such]

that no reliable adjudication of guilt or innocence could have taken place.’”

Id. at 10 (citing 42 Pa.C.S. § 9543(a)(2)(ii)).

      We disagree with the PCRA court’s analysis. First, the court provides no

support for the implicit proposition it offers that a request for an appeal should

only be honored by an attorney after a sentencing hearing or following a

decision on a post-sentence motion. It is true that a criminal case is not ripe

for an appeal immediately following sentencing. However, it does not follow

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that a defendant’s request for an appeal is somehow untimely or void if made

prior to sentencing.   To the contrary, it is counsel’s duty to honor such a

request in a timely fashion; there is no burden placed on a defendant to

withhold such a request until the entry of a final order by the trial court.

      In Pennsylvania, an accused has an absolute right to a direct
      appeal. Pa. Const., art. V, § 9. Commonwealth v. Wilkerson,
      490 Pa. 296, 298, 416 A.2d 477, 479 (1980). Counsel must
      protect this absolute right “unless the accused himself effectively
      waives the right.” Id. (citing Commonwealth v. Perry, 464 Pa.
      272, 274, 346 A.2d 554, 555 (1975)). Further, counsel is required
      to protect this appellate right even in circumstances where the
      appeal is “totally without merit.” Id.

Commonwealth v. Bronaugh, 670 A.2d 147, 149 (Pa. Super. 1995). If an

attorney must file a meritless appeal, surely he must file an appeal despite

the fact that the request was premature. That is not to say that counsel must

file a premature appeal; rather, once counsel is aware of his client’s desire to

file an appeal, counsel must file it when it becomes ripe to do so. Nothing in

the jurisprudence of this Commonwealth suggests that such a request must

only be honored when made after the entry of a final order.

      Here, the PCRA court’s Rule 1925(a) opinion does not indicate that it

found Appellant not credible when he testified that he had requested a direct

appeal immediately following the guilty verdict and, in fact, it appears that the

court proceeded under the assumption that the request was made, albeit

prematurely. Nor did the court reject the testimony of Attorney Wolf when he

testified that it was possible that he did not immediately respond to Appellant’s

request because he knew the case was not yet ripe for the filing of an appeal.


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Instead, the court concluded that Appellant should have repeated such a

request at a later time, or should have followed up when Attorney Wolf did

not immediately respond. As we have found no support in the relevant case

law to support that conclusion, we determine that the PCRA court erred in that

regard.

        Nevertheless, the PCRA court concludes, in the alternative, that

Appellant was not prejudiced by counsel’s failure to file a direct appeal on his

behalf.     This conclusion is patently erroneous.        As our Supreme Court

concluded in Lantzy, supra, prejudice is presumed, both under the

ineffectiveness    standard   generally   and    “for     purposes   of   Section

9543(a)(2)(ii)[,]” when counsel fails to file a requested direct appeal. Lantzy,

736 A.2d at 572.     Thus, the PCRA court’s alternative analysis also fails to

justify the denial of Appellant’s timely PCRA petition.

        The Commonwealth provides no argument in support of the PCRA

court’s alternative analysis. Instead, the Commonwealth insists that the court

found Appellant’s testimony not credible and, therefore, it “was entitled to find

that [Appellant] did not ask counsel to file an appeal.” Commonwealth’s Brief

at 7.     However, the Commonwealth fails to cite where in the court’s Rule

1925(a) opinion it rejected Appellant’s testimony on credibility grounds. At

one point, the PCRA court did state that Appellant “failed to present adequate

evidence showing that he made any effort in communicating his appellate

wishes [to] Mr. Wolf[].” PCO at 8 (emphasis added). The terms ‘adequate’

and ‘credible’ are not synonymous. Moreover, in context, the court made that

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statement almost immediately after declaring that Appellant had failed “to

communicate the [request for an] appeal after the sentencing hearing….” Id.

(emphasis added). Thus, we reject the Commonwealth’s characterization of

the record.5     Accordingly, we vacate the order denying Appellant’s PCRA

petition, and remand for the PCRA court to issue an order reinstating

Appellant’s direct appeal rights nunc pro tunc.

       Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2019




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5 The PCRA court did state that it “made credibility determinations and
accordingly, dismissed the claim.” Id. at 9. However, at no point did the
PCRA court specifically identify what credibility determinations it made and,
as noted above, its analysis proceeded under the assumption that Appellant
had made a request for appeal after the verdict. The court’s opinion instead
focused almost entirely on whether Appellant made any subsequent requests
of counsel to file an appeal, not on whether Appellant had made a request in
the first instance. Moreover, Attorney Wolf admitted that Appellant may have
requested an appeal following the verdict, but that he did not remember it
one way or the other. Nevertheless, he stated that if a request had been
made at that time, he would not have responded to Appellant because filing
an appeal at that time would have been premature. Thus, Attorney Wolf’s
testimony did not contradict Appellant’s testimony, and could easily be read
to be consistent with it.

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