J-S25012-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 EDWARD ARTHUR GEIER                     :
                                         :
                   Appellant             :   No. 1185 MDA 2019

            Appeal from the PCRA Order Entered June 18, 2019
    In the Court of Common Pleas of Centre County Criminal Division at
                      No(s): CP-14-CR-0000885-2015

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 EDWARD ARTHUR GEIER JR.                 :
                                         :
                   Appellant             :   No. 1186 MDA 2019

            Appeal from the PCRA Order Entered June 18, 2019
    In the Court of Common Pleas of Centre County Criminal Division at
                      No(s): CP-14-CR-0000412-2015


BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY LAZARUS, J.:                        FILED AUGUST 21, 2020

     Edward Arthur Geier, Jr., appeals from the order, entered in the Court

of Common Pleas of Centre County, denying his petition without a hearing

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. Because Geier has established ineffective assistance of counsel per se

with regard to the filing of his Pa.R.A.P. 1925(b) concise statement of errors
J-S25012-20



complained of on appeal, we vacate the order of the PCRA court and remand

for reinstatement of his direct appeal rights.

       In April of 2016, a jury found Geier guilty of one-thousand-seventy-

three sex crimes.1 Geier, through counsel, filed a direct appeal in this Court.

In a memorandum decision, a three-judge panel found that Geier’s sole issue

on appeal was waived because his Rule 1925(b) statement was “far too vague

to warrant meaningful review.”2 Commonwealth v. Geier, 881 MDA 2016,

at 7 (Pa. Super. filed Feb. 23, 2016) (unpublished memorandum).            Our

Supreme Court denied Geier’s petition for allowance of appeal.           Geier

____________________________________________


1 At Centre County docket number 412-2015, the jury found Geier guilty of
counts 1-32 (rape of a child - victim less than thirteen years of age, 18
Pa.C.S.A. § 3121(c)); counts 33-80 (statutory sexual assault, 18 Pa.C.S.A. §
3122.1(b)); counts 81-590 (unlawful contact with a minor, 18 Pa.C.S.A. §
6318(a)(1)); counts 591-617 (involuntary deviate sexual intercourse - person
less than 16 years of age, 18 Pa.C.S.A. § 3123(a)(7)); counts 621-622
(involuntary deviate sexual intercourse - forcible compulsion, 18 Pa.C.S.A. §
3123(a)(1)); counts 623, 627-673 (sexual assault, 18 Pa.C.S.A. § 3124.1));
count 674 (corruption of minors, 18 Pa.C.S.A. § 6301(a)(1)(ii)); counts 675-
1034 (indecent assault - person less than 13 years of age, 18 Pa.C.S.A. §
3126(a)(7)); and counts 1035-1074 (indecent assault - person less than 16
years of age, 18 Pa.C.S.A. § 3126(a)(8)). Counts 618-620 and 624-626 were
nolle prossed. At Centre County docket number 885-2015, the jury found
Geier guilty of one count each of: rape - unconscious person (18 Pa.C.S.A. §
3123 (a)(3)); unlawful contact with a minor (18 Pa.C.S.A. § 6318(a)(1));
statutory sexual assault (18 Pa.C.S.A. § 3122.1(b)); incest (18 Pa.C.S.A. §
4302(b)(2)); and indecent assault without consent (18 Pa.C.S.A. §
3126(a)(1)).

2 Geier’s Rule 1925(b) statement indicated his intent to raise one issue on
appeal: “Was there sufficient evidence to find [Geier] guilty beyond a
reasonable doubt on the charges he was convicted of?” Pa.R.A.P. 1925(b)
Concise Statement of [Errors] Complained of On Appeal, 6/16/16, at [1].



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subsequently filed a timely pro se PCRA petition. The PCRA court appointed

counsel who filed two amended PCRA petitions: an amended PCRA petition

on June 18, 2019 (“counseled amended petition”), and an adopted amended

PCRA petition (“adopted petition”) that Geier attempted to submit pro se on

March 19, 2019.3

       The issues raised in the counseled amended petition were:             (1)

ineffective assistance of counsel for calling Geier as a witness in his own

defense without adequately preparing him; and (2) ineffective assistance of

counsel by filing a concise statement of errors that was so vague as to render

the sole issue on appeal waived. See Petitioner’s Amended Petition for Post-

Conviction Relief, 1/8/19, at [4]. The issues raised in the adopted petition

were: (1) imposition of a sentence greater than the lawful maximum; and (2)

ineffective assistance of counsel for failure to file a post-sentence motion. See

Amended Petition for Post-Conviction Collateral Relief, 3/25/19, at Appendix

A.

       On June 18, 2019, the PCRA court issued an order dismissing Geier’s

PCRA petition.      In its opinion accompanying the order, the PCRA court
____________________________________________


3Geier attempted to file the adopted petition pro se on March 19, 2019, after
counsel had already filed an amended petition, but it was rejected. See
Commonwealth v. Pursell, 724 A.2d 293 (Pa. 1999) (approving post-
conviction court’s refusal to consider issues raised in counseled appellant’s pro
se petition), cert. denied, 528 U.S. 975 (1999); see also Commonwealth v.
Ellis, 626 A.2d 1137, 1139 (Pa. 1993) (hybrid representation is not permitted
and defendants have right to proceed without counsel only if decision is
knowing and voluntary). On March 22, 2019, the PCRA court granted Geier’s
motion to adopt the pro se amended petition. Geier then filed the adopted
petition on March 25, 2019.

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addressed the claims raised in Geier’s adopted petition, but neglected to

address those raised in his counseled amended petition.        See PCRA Court

Opinion and Order, 6/18/19, at 1-3. The PCRA court found that the issues

raised in his adopted petition lacked merit and a sufficient factual basis. Id.

Geier timely filed separate appeals, one at each docket number, and this Court

sua sponte consolidated the cases by order dated September 9, 2019. See

Pa.R.A.P. 513.

      On November 4, 2019, the PCRA court issued an order and opinion

acknowledging that it did not address the claims raised in Geier’s counseled

amended petition, and finding that Geier was entitled to a hearing on both

claims raised in that petition. See PCRA Court Opinion, 11/4/19, at 3-4. At

the time of the PCRA court’s November 4, 2019 opinion, the matter was

already on appeal.

      On appeal, Geier raises the following claim for our review: “[w]hether

the PCRA court erred in failing to address either issue raised in the counseled

[a]mended PCRA [p]etition in its opinion denying and dismissing [Geier’s]

PCRA action.” Appellant’s Brief, at 4.

      Our standard of review for claims denying PCRA relief without a hearing

is well-settled:

      [T]he right to an evidentiary hearing on a post-conviction petition
      is not absolute. It is within the PCRA court’s discretion to decline
      to hold a hearing if the petitioner’s claim is patently frivolous and
      has no support either in the record or [in] other evidence. It is
      the responsibility of the reviewing court on appeal to examine
      each issue raised in the PCRA petition in light of the record
      certified before it in order to determine if the PCRA court erred in

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      its determination that there were no genuine issues of material
      fact in controversy and in denying relief without conducting an
      evidentiary hearing.

      To prevail on a claim alleging counsel’s ineffectiveness under the
      PCRA, [the petitioner] must demonstrate[:]            (1) that the
      underlying claim is of arguable merit; (2) that counsel’s course of
      conduct was without a reasonable basis designed to effectuate his
      client’s interest; and (3) that he was prejudiced by counsel’s
      ineffectiveness, i.e. there is a reasonable probability that but for
      the act or omission in question[,] the outcome of the proceeding
      would have been different.

Commonwealth v. Grayson, 212 A.3d 1047, 1054 (Pa. Super. 2019)

(quoting Commonwealth v. Wah, 42 A.3d 335, 338-39 (Pa. Super. 2012)).

“A claim of ineffectiveness will be denied if the petitioner’s evidence fails to

satisfy any one of these prongs.” Commonwealth v. Busanet, 54 A.3d 35,

45 (Pa. 2012).

      Here, Geier’s amended petition alleged that his trial counsel told him he

had no choice but to testify on his own behalf and that he was not adequately

prepared to testify.   See Petitioner’s Amended Petition for Post-Conviction

Relief, 1/8/19, at [4]. With regard to establishing an ineffectiveness claim for

failing to advise the defendant on his right to testify, our Supreme Court has

stated:

      [t]he decision of whether or not to testify on one’s own behalf is
      ultimately to be made by the defendant after full consultation with
      counsel. In order to sustain a claim that counsel was ineffective
      for failing to advise the appellant of his rights in this regard, the
      appellant must demonstrate either that counsel interfered with his
      right to testify or that counsel gave specific advice so
      unreasonable as to vitiate a knowing and intelligent decision to
      testify on his own behalf.




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Commonwealth v. Carson, 741 A.2d 686, 699 (Pa. 1999) (internal citations

omitted). Moreover, to establish such a claim, the appellant is required to

prove prejudice—in other words, a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different. See

Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa. 1987); see also

Commonwealth v. Alderman, 811 A.2d 592, 596 (Pa. Super. 2002). “A

reasonable probability is a probability sufficient to undermine confidence in

the outcome of the proceeding.” Commonwealth v. King, 57 A.3d 607, 613

(Pa. 2012). “[C]ounsel is ordinarily presumed to be competent” and it is the

appellant’s burden to “demonstrate that a constitutional violation has

occurred.” Id. at 614.

     [A] claim of ineffective assistance generally [cannot] succeed
     through comparing, by hindsight, the trial strategy employed with
     alternatives not pursued. A finding that a chosen strategy lacked
     a reasonable basis is not warranted unless it can be concluded
     that an alternative not chosen offered a potential for success
     substantially greater than the course actually pursued.

Commonwealth v. Reed, 42 A.3d 314, 324 (Pa. Super. 2012) (quoting

Commonwealth v. Miller, 819 A.2d 504, 517 (Pa. 2002)).

     Here, Geier’s counseled amended petition stated in relevant part:

     21. The facts in support of the alleged error(s) upon which this
     [m]otion is based are as follows:

           a. [Geier] knows the following facts to be true of his own
           personal knowledge:

                 i. [Geier] requested that Attorney McClain file and
                 perfect an appeal challenging the sufficiency of the
                 evidence to convict him of all offenses;



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                  ii. [Geier’s] direct appeal was denied by the
                  Pennsylvania Superior Court because his sole issue on
                  appeal was [] waived due to a concise statement of
                  errors that was so vague as to preclude meaningful
                  review by the appellate court[];

                  iii. [Geier] testified in his own defense at trial;

                  iv. [Geier] was informed by Attorney McClain that he
                  had no choice but to testify because he had no
                  defense; and

                  v. [Geier] was not adequately prepared by Attorney
                  McClain to testify on his own behalf.

      22. In the event [Geier’s] motion is allowed, the matters which
      [Geier] intends to assert are as follows:

            a. Ineffective assistance of counsel by filing a concise
            statement of errors that was so vague as to render the sole
            issue on appeal to be waived; and

            b. Ineffective assistance of counsel by calling [Geier] as a
            witness in his own defense and failing to adequately prepare
            him for said testimony.

Petitioner’s Amended Petition for Post-Conviction Relief, 1/8/19, at [4]. In his

supporting memorandum of law, Geier notes that:

      it is difficult to envision any strategic reason to advise [Geier] to
      [testify on his own behalf], as [his] version of events entailed him
      testifying to being aroused by seeing his stepdaughter masturbate
      (N.T. [Trial], 1/19/2016, [at] 511), masturbating with his
      stepdaughter in her room (Id. at 512), and being unable to resist
      her. (Id.)

                                   *    *    *

      According to [Geier], Attorney McClain met with him three to four
      times, ranging from five minutes to forty minutes per meeting,
      with the last meeting prior to trial occurring approximately one
      month in advance of trial. Failure to advise [Geier] against
      testifying and failure to prepare [Geier] for his testimony once it
      was decided that [he] would testify falls below the minimum level
      of performance required of defense counsel.

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Appellant’s Memorandum of Law in Support of Amended Petition for Post-

Conviction Relief, 1/8/19, at 6-7.

       Here, Geier’s amended petition alleged that his trial counsel told him he

had no choice but to testify on his own behalf and that he was not adequately

prepared to testify. Nevertheless, Geier failed to plead prejudice sufficient to

establish an ineffectiveness claim—his petition failed to indicate precisely how

the result of the proceeding would have been different, by a reasonable

probability, by his not testifying. See Pierce, supra; see also Alderman,

supra. Accordingly, this claim fails. See Busanet, supra.4 The PCRA court,


____________________________________________


4 Geier’s claim fails if it does not satisfy any one of the three ineffective
assistance of counsel prongs. See Busanet, supra. In addition to failing to
prove the “prejudice” prong above, Geier’s claim also fails on the “reasonable
basis” prong.

Geier correctly notes above that his testimony corroborated his guilt.
Nevertheless, upon reviewing the record, Geier’s trial strategy, and reason for
testifying, reveals itself quite plainly: Geier’s strategy was to admit to the
lesser crimes and deny the more substantial charges against him. During the
opening argument, Geier’s counsel stated to the jury:

       Make no mistake, [Geier] failed as a father. He failed himself, his
       family, and most importantly, [K.K.M.]. He failed. He will tell you
       what he did, and I am asking you to convict him of some of these
       charges. I expect you to hold him accountable for the things he
       did, specifically corruption of minors. Ed will tell you he did not
       touch these girls. He did not rape these girls. He did other things,
       but he did not rape these girls.

N.T. Trial, 1/18/16, at 67. During closing argument, Geier’s trial counsel
pursued the same strategy when he stated to the jury:




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therefore, did not err in its determination that there were no genuine issues

of material fact with regard to this claim when it denied Geier relief without

conducting an evidentiary hearing. See Grayson, supra.

       Geier’s second ineffectiveness claim is that his counsel filed a Rule

1925(b) statement so vague that it rendered his sole issue on appeal waived.

Geier claims his counsel’s actions amounted to ineffectiveness per se. See

Appellant’s Brief, at 17-18. We agree.

       In Commonwealth v. Rosado, 150 A. 3d 425 (Pa. 2016), our Supreme

Court explained ineffective assistance of counsel per se as follows:

       [g]enerally, an accused asserting that he has been denied his
       constitutional right to effective assistance of counsel must
       demonstrate that counsel engaged in errors which caused him
       prejudice—i.e., that “there is a reasonable probability that, but for
       counsel’s . . . errors, the result of the proceeding would have been
       different.” In Pennsylvania, we have set forth the [] standard as
       a three-part test, requiring an accused to show that (1) his
       underlying claim is of arguable merit; (2) counsel’s action or
____________________________________________


       Ed did do terrible things, and as I told you, he failed as a father.
       I don’t know if there is a worse thing you can do than fail as a
       father, but he did. I expect, he expects, everybody in this room
       expects you to hold him accountable, and now you have to
       determine what you have to hold him accountable for. Facts over
       emotion, and I ask you to find him guilty of a number of charges,
       but specifically the corruption of minors. Review the facts, listen
       to what Ed said, and you’ll have most of the exhibits and you can
       review them. In your collective determination, remember what
       happened and what was said, and I’m going to ask you to find him
       guilty of corruption of minors[.] Thank you.

N.T. Trial, 1/19/16, at 609. Geier has not demonstrated that an alternative
trial strategy offered a potential for success substantially greater than the
course he actually pursued. See Reed, supra. Therefore, Geier has not
demonstrated that the chosen strategy lacked a reasonable basis. Id.

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      inaction lacked a reasonable strategic basis; and (3) but for
      counsel’s conduct, there is a reasonable probability that the
      outcome of the proceedings would have been different. However,
      in certain limited circumstances, including the actual or
      constructive denial of counsel, prejudice may be so plain that the
      cost of litigating the issue of prejudice is unjustified, and a finding
      of ineffective assistance of counsel per se is warranted. See
      [United States v.] Cronic, 466 U.S. [648,] 658-59
      [(1984)] (“There are . . . circumstances that are so likely to
      prejudice the accused that the cost of litigating their effect in a
      particular case is unjustified. Most obvious, of course, is the
      complete denial of counsel.” (footnote omitted))[.]

Id. at 429-30 (some internal citations omitted).

      In Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999), our Supreme

Court found that “a failure to file or perfect [a requested] appeal results in a

denial so fundamental as to constitute prejudice per se.”         Id. at 571.   In

Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005), our Supreme Court

extended the Lantzy holding to cases in which counsel failed to file a Rule

1925(b) statement after the court directed counsel to do so. Id. at 801. The

Court reasoned that, in Halley, like in Lantzy, counsel’s dereliction left

“[a]ppellant without an ability to challenge his conviction and sentence by

means of the direct appeal,” and that “when counsel’s constitutionally deficient

performance deprives a defendant of an appeal that he otherwise would have

taken, the defendant has made out a successful ineffective assistance of

counsel claim entitling him to an appeal.” Id. at 800.

      In Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2006), our

Supreme Court distinguished between situations in which “counsel has

narrowed the ambit of appellate review by the claims he has raised or



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foregone,” versus those “in which counsel failed to file an appeal at all,” with

the second category amounting to per se ineffectiveness.          Id. at 1273.

Additionally, the Court stated, “the failure to file a requested direct appeal or

a [Rule] 1925(b) statement in support thereof is the functional equivalent of

having no counsel at all.” Id.

      Most recently, in Commonwealth v. Parrish, 224 A.3d 682 (Pa. 2020),

our Supreme Court found that a Rule 1925(b) statement filed by PCRA counsel

amounted to ineffectiveness per se because it was “so vague as to render all

of the appellant’s claims waived for purposes of th[e] appeal.” Id. at 684. In

that case, the Court discussed the purpose of Rule 1925 and then analyzed

the Rule 1925(b) statement in issue as follows:

      [A] litigant appealing from the denial of PCRA relief is required to
      strictly comply with the provisions of Rule 1925(b), or his or her
      appellate     issues   are   deemed     to   be    waived.      Rule
      1925(b)(4)(ii) directs that “[t]he [s]tatement shall concisely
      identify each error that the appellant intends to assert with
      sufficient detail to identify the issue to be raised for the
      judge.” Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). As the
      comment to Rule 1925(b) further elaborates:

         The more carefully the appellant frames the [s]tatement,
         the more likely it will be that the judge will be able to
         articulate the rationale underlying the decision and provide
         a basis for counsel to determine the advisability of raising
         that issue on appeal. Thus, counsel should begin the
         winnowing process when preparing the [s]tatement
         and should articulate specific errors with which the appellant
         takes issue and why.

      Pa.R.A.P. 1925(b), comment (emphasis added).

      The statement filed by PCRA counsel [] did not identify any
      specific legal error committed by the PCRA court in its rulings on
      the multifarious claims of trial counsel ineffectiveness presented

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      in the amended PCRA petitions, nor did it even identify which of
      those rulings were being challenged on appeal.             Rather, it
      generically and capaciously encompassed every conceivable claim
      of ineffective assistance of trial counsel contained in the amended
      PCRA petitions. As such, it forced the PCRA court to guess which
      of its rulings were being challenged. Accordingly, waiver of all
      appellate issues is mandated by Pa.R.A.P. 1925(b)(4)(vii), which
      provides that “[i]ssues . . . not raised in accordance with the
      provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.
      1925(b)(4)(vii).

Id. at 700 (emphasis in original). The Court concluded that whenever counsel

“takes any action that wholly deprives his or her client of the right to appellate

review of collateral claims, counsel will be deemed to be ineffective per se.”

Id. at 701 (emphasis in original).

      Here, we find that it is of no moment that defendant’s counsel in Parrish

filed a vague Rule 1925(b) statement on collateral appeal rather than direct

appeal, as in Geier’s case. Rule 1925(b), and its underlying principles, govern

both situations equally. Geier’s counsel on direct appeal, like PCRA counsel in

Parrish, filed a Rule 1925(b) statement that was so vague as to render all

claims on appeal waived.      See Geier, supra.      Geier’s direct appeal Rule

1925(b) statement did not address the sufficiency of the one-thousand-

seventy-three crimes of which Geier was convicted with any specificity. See

Parrish, supra at 700; see also Pa.R.A.P. 1925(b). Counsel’s filing of a

vague Rule 1925(b) statement “wholly deprived” Geier of his right to appellate

review; thus, counsel’s filing constitutes ineffective assistance of counsel per

se. See Parrish, supra at 701-02.




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      Accordingly, we must remand the case for reinstatement of Geier’s

direct appeal rights. See Halley, supra at 801.

      Order vacated. Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2020




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