J-S07022-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    MICHAEL CRUMP                              :
                                               :
                       Appellant               :      No. 3180 EDA 2018

           Appeal from the PCRA Order Entered September 28, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011569-2013


BEFORE:      NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.:                                 FILED MARCH 04, 2020

        Appellant, Michael Crump, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

        In its opinion, the PCRA court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.        Procedurally, we add that the court ordered Appellant on

October 30, 2018, to file a concise statement of errors complained of on appeal

per Pa.R.A.P. 1925(b); Appellant complied on November 20, 2018.

        Appellant raises the following issues for our review:

           DID THE PCRA COURT ERR IN DISMISSING [APPELLANT’S
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S07022-20


         PETITION] BECAUSE THE EVIDENCE ADDUCED BY
         APPELLANT IN THE FORM OF TESTIMONY AT THE OCTOBER
         20, 2017 HEARING AND DOCUMENTS ADMITTED,
         ESTABLISHED BY A PREPONDERANCE THAT FORMER
         DEFENSE COUNSEL WAS PER SE INEFFECTIVE WHEN
         APPELLANT ASKED FORMER DEFENSE COUNSEL TO FILE A
         DIRECT APPEAL TO CHALLENGE THE DISCRETIONARY
         ASPECTS OF HIS SENTENCE AND DESPITE THIS REQUEST,
         FORMER DEFENSE COUNSEL FAILED TO DO SO? …

         DID THE PCRA COURT ERR IN DISMISSING [APPELLANT’S
         PETITION] BECAUSE THE PREPONDERANCE OF THE
         EVIDENCE   ESTABLISHED   THAT    FORMER   DEFENSE
         COUNSEL WAS INEFFECTIVE WHEN SHE FAILED TO
         CONSULT WITH APPELLANT ABOUT FILING AN APPEAL
         EVEN THOUGH APPELLANT REASONABLY DEMONSTRATED
         HIS INTEREST IN APPEALING AND THAT APPELLANT
         WOULD HAVE TIMELY APPEALED IF DEFENSE COUNSEL HAD
         CONSULTED WITH HIM? …

         DID THE PCRA COURT ERR IN DISMISSING [APPELLANT’S
         PETITION] BECAUSE THE EVIDENCE ADDUCED DURING
         THE PCRA PROCEEDINGS, INCLUDING THE HEARING ON
         OCTOBER 20, 2017 AND DOCUMENTS SUBMITTED AS
         EXHIBITS, DEMONSTRATED BY A PREPONDERANCE THAT
         APPELLANT ASKED FORMER DEFENSE COUNSEL WHILE
         SEATED AT COUNSEL TABLE AFTER SENTENCING TO FILE
         AN APPEAL IN ORDER TO CHALLENGE THE DISCRETIONARY
         ASPECTS OF HIS SENTENCE AND THAT DESPITE THIS
         REQUEST, DEFENSE COUNSEL DID NOT FILE A TIMELY
         POST-SENTENCE MOTION IN ORDER TO PRESERVE THIS
         CLAIM FOR APPEAL AND, IN THE ALTERNATIVE, THE
         EVIDENCE SHOWED THAT DEFENSE COUNSEL WAS
         INEFFECTIVE FOR FAILING TO CONSULT WITH APPELLANT
         ABOUT FILING A POST-SENTENCE MOTION IN ORDER TO
         PRESERVE A DISCRETIONARY SENTENCE CHALLENGE FOR
         APPEAL?

(Appellant’s Brief at 4-6).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Timika R. Lane,


                                    -2-
J-S07022-20


we conclude Appellant’s issues merit no relief.      The PCRA court opinion

comprehensively discusses and properly disposes of the questions presented.

(See PCRA Court Opinion, filed May 30, 2019, at 9-19) (finding: (1) court did

not credit Appellant’s testimony that he asked counsel to file notice of appeal

at sentencing hearing; counsel reasonably interpreted letter Appellant sent

during appeal period as request for counsel to file untimely post-sentence

motion for reconsideration of sentence; (2) Appellant did not demonstrate

that counsel had duty to consult with him regarding appeal; at sentencing

hearing, counsel informed Appellant that he needed to notify Public Defender’s

office if he wanted to appeal; Appellant failed to contact counsel in timely

manner; Appellant also failed to show that he would have appealed any non-

frivolous issue; (3) Appellant did not make timely request for filing of post-

sentence motion; moreover, Appellant suffered no prejudice as result of

counsel’s inaction).      The record supports the PCRA court’s decision.

Accordingly, we affirm based on the PCRA court opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/20



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                                                                                   TRIAL DIVISION - CRIMINAL SECTION
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                       COMMONWEALTH OF PENNSYLVANIA
                                                                                                                        CP-51-CR-0011569-2013
                                                                              v.
                                                                                                                            3180 EDA 2018
                                                         MICHAEL CRUMP
                                                             CP-5\-CR.()011569-2013 Comm. v. Crump. Michael
                                                                                   Opinion




                                                                         II
                                                                  II I I I llll ll 111111111111
                                                                           8275964731
                                                                                                              IPINION


                       LANE, J.                                                                                                         May 30, 2019


                                                 The present appeal arises from this court's dismissal of a Post-Conviction Relief Act

                       ("PCRA") petition for Michael Crump ("Appellant''). This court respectfully requests that its

                       decision be affirmed.

                                                                               FACTUAL AND PROCEDURAL IDSTORY

                                 I.              Guilty Plea

                                                 On August 24, 2015, Appellant entered an open guilty plea for the charge of Aggravated

                       Assault (18 Pa.C.S.A. § 2702(A), a first-degree felony). 1 Appellant pled guilty to the following

                       facts:

                                             [O]n August 29, 2013, at about 2:15 in the morning, [Appe11ant] was in the home
                                             with Christina Miranda, the complaining witness. She's present here in court today.
                                             She knows [Appellant] because she has a child with [Appellant]'s brother, so this
                                             [Appellant] is uncle to her child. The complainant and [Appellant] got into an

                       1
                         Although it was an open guilty plea, in exchange for the plea, the Commonwealth dropped Appellant's seven
                       remaining charges, agreed not to seek a mandatory sentence (despite this being Appellant's second strike), and agreed
                       to an offense gravity score of ten. This was reflected on Appellant's written plea colloquy. The Commonwealth also
                       agreed to treat Appellant's REVOC prior record score as a RFEL.

                       Commonwealth v, Crump
        argument, Your Honor, at which time [Appellant] placed his hands around her
        throat and began to choke her, telling her he was going to kill her. Ms. Miranda
        would further testify that he continued to choke her with his hands, dug his nails
        into her neck, threw her against a closet, and banged her head against that closet
        door numerous times. Your Honor, the complainant suffered injuries to her neck,
        chest, chin, right arm, and right knee. The incident stopped because the
        complainant's son, who was 3 years old at the time, woke up and came into the
        room, at which point she was able to get up and get her son and text her aunt, Ms.
        Lisa Rodriguez, who is here today as well. At that point in time, the complainant's
        aunt was able to call 911 for her. Officers responded to the scene. [Appellant] then
        fled the location, the location being 5016 Wayne Avenue here in the City and
        County of Philadelphia. Officers were able to apprehend him approximately seven
        houses down. Your Honor, had this case also gone to trial before the Court, you
        would have heard and seen the photographs of the injuries, heard from the officers,
        and also heard prison calls from [Appellant] relating to the injuries caused to the
        complainant. This is just a brief summary. I would state for the record, Your Honor,
        that all of the witnesses are present here in court today, including the complainant's
        aunt who would be, I suppose, a prompt complaint witness. She did travel down
        from Lehigh County.

 N.T. 8/24/2015 at 8-9.

    II. Sentencing

        Appellant's sentencing was on October 26, 2015. On that date, the court considered the

 presentence investigation, all relevant reports, the sentencing guidelines, the attorneys' arguments

. and recommendations, Appellant's prison calls, and Appellant's statement to the court. N.T.

 10/25/19 at 25.

        The court considered that the thirty-eight-year-old Appellant had a lengthy criminal history

 spanning his entire life from the time he was a juvenile and that a "majority of his convictions ·are

 for violent offenses." Presentence-Psychiatric Report for Michael Crump at 3; Michael Crump

 Criminal History. This was Appellant's second strike (though the Commonwealth waived his

mandatory minimum sentence of ten years). N.T. 10/25/19 at 7. When Appellant was previously
                                              '

 imprisoned, he accumulated twenty misconducts (seven of which were dismissed). N.T. 10/25/19




· Commonwealth v. Crump                                                                             2
at 20-21. The Commonwealth agreed for the purposes of sentencing that his prior gravity score

was Repeat Felon (RFEL), and that his offense gravity score was a ten. Id. at 11.

       The court also considered Appellant's statements in prison calls leading up to the trial,

which showed a shocking lack ofremorse. On August 30, 2013, he stated, "I wasn't in the wrong"

and "All I did was choke, all I did was choke, I mean choke her out and threw her in the closet

door a couple times, real shit." N.T. 10/26/15 at 18; Commonwealth's Sentencing Memorandum

at 2-3. On September 2, 2013, he stated, "The bitch crazy, caught the bitch in my shit ... choked

her the fuck out, she got fucked up." N.T. 10/26/15 at 18; Com.'s Sentencing Mem. at 3. On

September 4, 2013, he stated, "[Y]eah, I'm cool with the assault. That's what the fuck it was. I

balled her the fuck up." N.T. 10/26/15 at 18; Com.'s Sentencing Mem. at 3. He then told an

associate to intimidate the victim: "But um, try to get a message to her and tell her to take this

dollar man ... she can't even pay no fucking rent where she at, she'll definitely jump on that. ...

You know what Pm talking about." N.T. 10/26/15 at 18; Com.'s Sentencing Mem. at 3. On

September 5, 2013, he stated, "I ain't even do that shit, like, I definitely put my hands on her. We

ain't even going to play no games." Com.'s Sentencing Mem. at 4. Finally, on September 15, 2013,

he stated, "[Y]ou dumb bitch ... Like what the fuck is wrong with you? Here you go, my fault,

like I said after I choked you the fuck out." Id.

       The court considered Appellant's presentence report, in which his presentence investigator

labelled Appellant as "attempting to be manipulative" and stated that he "did not appear to feel

any trepidation over his current standing with the Court or about the crime he committed and

seemed to have a sense of entitlement. He blamed his current standing with the Court on the victim

in the matter." Presentence-Psychiatric Rep. for Michael Crump at 3; N.T. 10/26/15 at 19. He then




Commonwealth v, Crump                                                                             3
stated, "Look, there was a fight and somebody lost, she's just bitter" Presentence-Psychiatric Rep.

for Michael Crump at 3; N.T. 10/26/15 at 20.

       The court considered the Commonwealth's explanation of why it recommended an

aggravated sentence that was higher than its usual recommendation of eight to twenty years. N.T.

10/26/15 at 17, 22. The Commonwealth noted that the Appellant ran from the police, tried to bribe

the victim, and now showed a "complete and utter lack of remorse." Id. at 18. The Commonwealth

noted that, two years after the incident, the victim in the case "still struggles with much fear and

anxiety and sleeplessness." Id. at 21. The Commonwealth stated that it agreed to the lower offense

gravity score and prior record score in order to bring her closure. Id at 21. The Commonwealth's

report noted that it was "extremely fortuitous" that the victim even survived the encounter. Com. 's

Sentencing Mem. at 2. It also stated that the victim's son, who witnessed the crime and is now

five, "is afraid to leave her side, fearful that [someone] will try and hurt her." Id.; N.T. 10/26/15

at21-22.

       The court also considered several mitigating factors. Appellant's attorney stated that he

"wanted to change his life around" and that he had a son that he wanted to go home to one day.

N.T. 10/26/15 at 13, 15. Appellant told his presentence investigator that when he was a child, his

father was physically abusive. Presentence-Psychiatric Rep. for Michael Crump at 1. Additionally,

Appellant was previously diagnosed in prison with Dysthymic disorder, although this diagnosis

was described by the supervisor of the prison's behavioral health unit as "mild," "not serious," and

possibly "due to heavy cannabis dependency." Id. at 2.

       The court also heard directly from Appellant, who characterized the crime as a "little fight"

and expressed his doubt that the victim was actually traumatized. N. T. 10/26/15 at 23-24.




Commonwealth v. Crump                                                                               4
        The court stated on the record that it was disturbed by the injuries it saw in pictures of the

victim and determined that Appellant's behavior was very troubling in that he exhibited a complete

lack of remorse. N.T. 10/26/15 at 24-25. The court sentenced Appellant to nine to twenty years of

state incarceration and ordered him to take anger management and get help for his mental health

issues; this sentence was both appropriate and within the statutory range. Id. at 26. AppeJlant's

attorney advised Appellant on the record, told him how long he had to file a post-sentence motion

or appeal, and informed him that he would have to reach out to the public defender's office in

order to do those things. Id. at 26-27.

        On November 18, 2015, Appellant filed an untimely motion to reconsider his sentence, and

on November 23, that motion was denied.

    III. PCRA

        Appellant filed the PCRA petition that is the subject of the present appeal on March 30,

2016, and an amended PCRA petition on Mo.� \1. ,. 2017. The PCRA petition alleged that

Appellant's trial counsel was ineffective in failing to file or consult with him regarding a direct

appeal. This court, which also presided over Appellant's guilty plea and sentencing, held an

evidentiary hearing for the PCRA petition on October 20, 2017.2

        At the evidentiary hearing, Appellant testified that, during his sentencing hearing, he asked

his attorney for an appeal, but she did not respond. N.T. 10/20/17 at 33. He also testified that this

verbal request was made in court, during the proceedings, and at the same audible volume as his

court testimony. Id. at 10.

        However, this alleged request was not reflected in the notes of testimony from sentencing,

which the Conunonwealth exhibited at the hearing. N:T. 10/26/15 at 27. Those sentencing notes


2As Appellant's trial counsel moved to a new jurisdiction and was unavailable, Appellant was the only testifying
witness at this hearing. N.T. 10/20/I 7 at 45.

Commonwealth v. Crump                                                                                         5
also reflect that when asked ifhe understood that he had to contact the public defenders' office to

file a post-sentence motion or appeal, Appellant replied, "Yeah, I understand." Id When asked if

he had any questions about his sentence, Appellant did respond "Damn, why so much?" but he did

not request to change his sentence, as Appellant now claims. Id. The court did not find Appellant's

testimony on this matter to be credible.

       Although Appellant stated at the PCRA hearing that he was not aware that his sentence

could be more than six years, his signed guilty plea colloquy stated that he faced twenty years in

prison. N.T. 10/20/17 at 7, 23. During the guilty plea proceedings, the court asked him if he and

his attorney had discussed the colloquy form and his maximum possible sentence of twenty years:

Appellant replied that he did and he was satisfied with his attorney's representation. N.T. 8/24/15

at 6, 7. Additionally, at the sentencing hearing, his counsel stated on the record that she discussed

Appellant's potential sentence of twenty years with him, as well as the fact that if he withdrew his

guilty plea and took the case to trial, he would face eight charges, around sixty-six years of prison,

mandatory minimums, and a potential lifetime of Megan's Law registration. N.T. 10/26/15 at 7-8.

       Twenty-three days after sentencing, on November 18, after the period for filing a post·

sentence motion had passed, Appellant's counsel received a letter from Appellant which included

the line "I need for you to file for a time reduction for me." N.T. 10/20/17 at 14, 34; Ex. P-2. It did

not mention any conversation Appellant had with counsel in court. N.T. I 0/20/17 at 33. The top

of the letter read October 28, 2015 (two days after sentencing), but the letter was postmarked

November 16. Ex. P-2. Appellant stated during the PCRA hearing that he wrote his letter from

Curran-Fromhold Correctional Facility, where he resided for around two days after sentencing.

N. T. 10/20/17 at 13. However, his letter opens with the statement that he was located at State

Correctional Institution Graterford. Jd.; Ex. P-2. When Appellant testified, he explained that this



Commonwealth v. Crump                                                                                6
discrepancy was because he did not complete the final draft of the letter, or send it, until after he

had been moved from Curran-Fromhold to Graterford. N. T. I 0/20/ 17 at 13, 32, 34.

       Upon receiving Appellant's untimely letter, counsel immediately filed an untimely post-

sentence motion that same day, asking for a reduced sentence. N.T. 10/20/17 at 34; Ex. P-3. The

next day, counsel sent Appellant a letter stating "I believe you mean you would like us to file a

motion to reconsider the sentence." Ex. P-4. Appellant never responded or clarified what he meant

by his "time reduction" statement, but a post-sentence motion was the only reasonable

interpretation of the statement. As Appellant's appellate options were limited by the fact that he

pled guilty and his discretionary sentence appeal was waived by a lack of preservation, Appellant

did not have any non-frivolous issues to appeal. Counsel included reference to this in its Jetter,

noting that "since the filing of this motion is not timely, there is no sentencing claim preserved for

an appeal." Ex. P-4.

       Counsel later wrote again to Appellant, explaining that the court denied his post-sentence

motion. Ex. P-5; N.T. I 0/20/17 at 35. In response, Appellant sent her an untimely, unexplained,

and untiled prose notice of appeal. Ex. P-3. The Chief of the Appeals Division at the Philadelphia

Public Defenders Association responded to Appellant, informing him that the notice of appeal was

never docketed, and "since it was both dated and sent after the time for filing a notice of appeal

had passed, it will not result in an appeal being heard by the Pennsylvania appellate courts." Ex.

P-7; N.T. 10/20/17 at 35. Two months later, Appellant filed the present PCRA petition.

       After hearing all of the above evidence at the PCRA evidentiary hearing, the court allowed

Appellant and the Commonwealth to file additional responses on December 15, 2017 and July 18,

2018, respectively. On September 28, 2018, the court dismissed the PCRA petition, concluding




Commonwealth v. Crump                                                                               7
that Appellant's counsel could not be faulted for not filing a frivolous appeal or a motion that was

not timely requested by Appellant.

   IV. Appeal

       Appellant filed the present appeal on October 26, 2018. In his statement of matters

concerned, Appellant asserts the following:

    1. The PCRA Court erred in dismissing Claim # 1, because the evidence adduced by
       Appellant in the form of testimony at the October 20, 2017 hearing and documents
       submitted, established by a preponderance that former defense counsel was per se
       ineffective when Appellant asked former defense counsel to file a direct appeal to
       challenge the discretionary aspects of his sentence and despite this request, former
       defense counsel failed to do so. In particular, the evidence shows that Appellant
       expressed surprise and disappointment in the length of his sentence in an outburst
       in the courtroom as soon as the sentence was pronounced by the Court; Appellant
       asked defense counsel to file a direct appeal while he and counsel were still seated
       at counsel table at the conclusion of the sentencing hearing; Appellant wrote to
       defense counsel two days after sentencing to ask again that an appeal be filed
       regarding the length of his sentence; and that defense counsel received Appellant's
       letter within the time period for filing an appeal, yet instead of filing an appeal,
       defense counsel filed an untimely post· sentence motionfor reconsideration.

   2. The PCRA Court erred in dismissing Claim # 2, because the preponderance of the
      evidence established that former defense counsel was ineffective when she failed
      to consult with Appellant about filing an appeal even though Appellant reasonably
      demonstrated his interest in appealing and that Appellant would have timely.
      appealed if defense counsel had consulted with him. In particular, the evidence
      establishes that Appellant expressed surprise and disappointment in the length of
      his sentence when the sentence was imposed; that Appellant asked defense counsel
      to file an appeal while seated at counsel table at the conclusion of the sentencing
      hearing; that Appellant wrote to defense counsel two days after the sentencing
      hearing to ask again for an appeal to be filed regarding his sentence; that defense
      counsel received Appellant's letter within the appeal period yet did not follow up
      with him or consult with him regarding the advantages anddisadvantages of filing
      an appeal and instead filed an untimely post-sentence motion for reconsideration of
      sentence; and that defense counsel did not write to, call, or visit Appellant during
      the 30-day time period for filing an appeal in order to discuss appeal options with
      him. Further, Appellant testified that he would have filed a timely appeal if former
      defense counsel had consulted with him; indeed, he attempted to appeal after he
      learned that counsel had not, but his attempt was late.

   3. The PCRA Court erred in dismissing Claim # 5, because the evidence adduced
      during the PCRA proceedings, including the hearing on October 20, 2017 _and


Commonwealth v, Crump                                                                             8
       documents submitted as exhibits, demonstrated by a preponderance that Appellant
       asked former defense counsel while seated at counsel table after sentencing to file
       an appeal in order to challenge the discretionary aspects of his sentence and that
       despite this request, defense counsel did not file a timely post-sentence motion in
       order to preserve this claim for appeal. The evidence also showed that defense
       counsel was ineffective for failing to consult with Appellant about filing a post-
       sentence motion in order to preserve a discretionary sentence challenge for appeal.

                                         DISCUSSION

       The proper standard for appellate PCRA review is well-established:

       Our review of a PCRA court's decision is limited to examining whether the PCRA
       court's findings of fact are supported by the record, and whether its conclusions of
       law are free from legal error. We view the findings of the PCRA court and the
       evidence of record in a light most favorable to the prevailing party .... To be
       entitled to PCRA relief, a petitioner bears the burden of establishing, by a
       preponderance of the evidence, that his conviction or sentence resulted from one or
       more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2) [including
       ineffective counsel].

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citations omitted). The court "grants

great deference to the findings of the PCRA court, and we will not disturb those findings merely

because the record could support a contrary holding." Commonwealth v. Nelson, 514 A.2d 1107,

1110 (Pa. Super. 1990), quoted in Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001).

       An ineffective counsel PCRA claim warrants relief if the counsel's ineffectiveness "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); see, e.g., Commonwealth v. Spatz, 84 A.3d 294,

311 (Pa. 2014). Counsel is strongly presumed to be effective, and it is the defendant's burden to

overcome this preswnption. Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009). To

succeed with an ineffective counsel claim, a defendant must prove each of the following elements:

"(1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or

her action or inaction; and (3) the petitioner suffered prejudice because of counsel's




Commonwealth v. Crump                                                                           9
ineffectiveness." Commonwealth v, Chmiel, 3 0 A.3d 1111, 1127 (Pa. 2011 ). In the present case,

Appellant failed to prove that his counsel acted ineffectively.

   I.   Appellant's counsel was not ineffective when it did not file an appeal or continue to
        consult with Appellant regarding an appeal.

        Appellant is mistaken in arguing that his counsel was ineffective for failing to file or

consult with Appellant regarding an appeal. When an appellant challenges the effectiveness of his ·

counsel in this way, he_ must establish either that he asked his counsel to file an appeal, or that

there was a duty to consult. Appellant did not establish either, and as a result, this court properly

dismissed his PCiiA petition.

        A. Appellant did not request an appeal.

        "[BJefore a court will find ineffectiveness of counsel for failing to file a direct appeal, the

petitioner must prove that he requested a direct appeal and the counsel disregarded the request.''

Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011) (finding no duty to file an appeal

or consult about one where the defendant did not ask for an appeal and the defendant's only

potential claim was lacking in merit). If a defendant proves that he directly asked his counsel to

file an appeal and his counsel failed to do so, the defendant has shown ineffective assistance of

counsel per se. Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super. 2006). However, if the

defendant fails to show that he requested an appeal, his counsel "cannot be faulted" for failing to

file an unrequested appeal. Id. In the case at bar, after an evidentiary hearing, the court found that

Appellant never requested an appeal and as a result, his counsel was not ineffective for not filing

one.

        In the case at bar, Appellant's counsel was very clear with Appellant at sentencing about

what he had to do ifhe wished to file an appeal and how long he had to do so. After Appellant was

sentenced, counsel advised him on the record:

Commonwealth v. Crump                                                                               10
        [Counsel:] So [Appellant], you plead guilty and you've been sentenced today by the
        Honorable Judge Lane. Your sentence on the aggravated assault charge is 9 to 20-
        years of state incarceration. You will be getting credit for the time you've already
        served. You have 10 days to ask Her Honor to reconsider the sentence that she
        imposed. And you have 30 days from today's date if you wish to exercise any of
        your appellate rights. All of those rights are limited because it was a guilty plea and
        you were sentenced. Jfyou want to exercise either one of those rights, you have to
        contact our office in [sic] and we will do that for you. Do you understand that?

        [Appellant:] Yeah, I understand.

N.T. 10/26/15 at 26-27 (emphasis added). Appellant therefore knew and understood that he was

responsible for timely contacting the public defender's office if he wanted to exercise his right to

a post-sentence motion or an appeal. The fact that Appellant did not contact his counsel within the

proper time for preserving his claim is not the fault of his counsel.

        Appellant claimed that he asked his attorney for an appeal at his sentencing hearing and

that his attorney ignored his request: however, the court did not find this claim credible. N.T.

10/20/17 at 33. Despite Appellant's assertion that he made the request during proceedings at the

same volume he used to testify, the request was not in the hearing's notes of testimony. N.T.

10/26/15 at 27.

        Although Appellant did eventually send his attorney a letter requesting a "time reduction"

before his appeals period was over, his attorney was perfectly reasonable in interpreting this to

mean an untimely request for a motion for reconsideration of his sentence, rather than an appeal.

N.T. 10/20/17 at 33. After all, if his attorney had filed an appeal rather than a motion to reconsider,

it would have been dismissed. Appellant waived almost all of his appellate options by pleading

guilty. Appellant does not argue that his sentence was illegal or outside of the statutory maximum.

His one remaining avenue for an appeal (which Appellant admitted was the only thing he would

have considered appealing) was his discretionary sentence. N.T. 10/20/17 at 14. However, that too

was waived, for Appellant failed to preserve these claims by objecting at sentencing or filing a

Commonwealth v, Crump                                                                               11
timely motion for reconsideration. See Commonwealth v. Griffin, 65 A.3d 932 (Pa. Super. 2013)

("Objections to the discretionary aspects of a sentence are generally waived if they are not raised

at the sentencing hearing or in a motion to modify the sentence imposed."); see also

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003) ("[I]ssues challenging the

discretionary aspects of sentencing must be raised in a post-sentence motion or by raising the claim

during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a

sentence is waived."). Counsel included reference to this waiver when she informed Appellant by

letter that "since the filing of [his post-sentence motion] is not timely, there is no sentencing claim

preserved for an appeal." Ex. P-4. Upon receiving this letter, Appellant neither contested nor

attempted to clarit, his counsel's reasonable interpretation of his request. N.T. 10/20/17 at 15, 38.

Appellant therefore failed to show the PCRA court that he timely requested an appeal.

       B. Appellant was not owed a duty to consult regarding an appeal.

       Counsel was not ineffective for not consulting with Appellant about an appeal, because

Appellant was not owed a duty to consult. When a defendant fails to demonstrate to counsel that

he wished to appeal, in order to prove that there was a duty to consult, he must show that a rational

defendant in his case would have wanted to appeal (for example, he must show that there were

non-frivolous grounds for appeal). Commonwealth v. Bath, 907 A.2d 619, 623 (Pa. Super. 2006)

(holding that the defendant failed to prove a duty to consult regarding an appeal to the Pennsylvania

Supreme Court when he did not demonstrate any non-frivolous, non-waived issues) (citing

Commonwealth v. Touw, 781 A.2d 1250, 1254 (Pa. Super. 2001) (remanding for further

investigation on counsel's duty to consult regarding an appeal when both the counsel at issue and

the Commonwealth agreed that the sentencing court legally erred in misapplying the sentencing

guidelines)). Factors that should be considered in determining whether the defendant had non-



Commonwealth v. Crump                                                                               12
frivolous issues to appeal include whether the defendant has limited his appealable issues by

pleading guilty. Commonwealth v. Markowitz, 32 A.3d 706, 716 (Pa. Super. 2011).

         In order to successfully prove his claim, a defendant must also demonstrate prejudice by

showing that he would have appealed had there been a consultation with counsel. Touw, 781 A.2d

at 1254-55. In determining whether a defendant has proven this additional factor, a PCRA court

must balance a defendant's assertion that he would appeal with, for example, the fact that he "made

no effort to contact counsel during the appeal period." Id.

         Here, Appellant did not successfully prove that his counsel had a duty to consult him

regarding an appeal. As demonstrated in section I (A), supra, Appellant's counsel made it clear to

Appellant, on the record, at his sentencing hearing, that if he wanted an appeal, he would have to

timely contact the public defenders' office and let them know. N.T. 10/26/15 at 26-27. Appellant

failed to timely contact his counsel, and as a result, failed to demonstrate to counsel that he wished

to appeal.

         Appellant also failed to show that he would have appealed a non-frivolous issue. Because

he pled guilty and his sentence was legal and did not exceed the statutory maximum, Appellant

recognizes that the only thing that he potentially could have challenged were the discretionary

aspects of his sentence: when asked at the PCRA hearing whether he ever wanted to appeal

anything besides the length of the sentence, he responded "No." N.T. 10/20/17 at 15. However,

Appellant waived any appeal of discretionary sentencing factors when he failed to file a post-

sentence motion (or timely instruct his counsel to file said motion). Therefore, any appeal would

have been frivolous and immediately dismissed. A rational defendant would not file such a

petition, so counsel was not ineffective for not filing it. 3


3 Even if
          Appellant had not waived his discretionary sentence appellate claim, an appeal would most likely have failed,
as the court's sentence was legal, rational, and well-reasoned, as explained in sect1on II (A), infra,

Commonwealth v. Crump                                                                                               13
       It should be noted that even if Appellant had successfully proved a duty to consult, his

claim would still fail because the court also found that he failed to demonstrate that he would have

appealed. His only attempt to contact his attorney during the appeals period was one untimely and

unclear letter. Ex. P-2. Appellant then failed to respond when his attorney sent him two subsequent

letters, despite the fact that his appeal period was still pending when his attorney contacted him.

N.T. 10/20/17 at 37-38. Appellant took no action for almost a month before sending an untiled pro

se appeal to the defenders association. Ex. P-3. The Chief of the Appeals Division at the

Philadelphia Public Defenders Association responded to Appellant, informing him that the notice

of appeal was never docketed, and "since it was both dated and sent after the time for filing a notice

of appeal had passed, it will not result in an appeal being heard by the Pennsylvania appellate

courts." Ex. P-7; N.T. 10/20/17 at 35. Appellant took no action for over two more months before

filing the present PCRA. N.T. 10/20/17 at 37. As such, the PCRA court properly determined that

Appellant failed to prove that counsel was ineffective for not consulting with him about an appeal.

   II. Appellant's counsel was not ineffective when it did not file a timely post-sentence
       motion or continue to consult Appellant about a post-sentence motion.

       The PCRA court properly found that Appellant's counsel was not ineffective when it did

not file a post-sentence motion or continue to consult Appellant regarding a post-sentence motion.

Appellant failed to show that he timely asked his counsel to file a post-sentence motion or that

filing said motion would have affected the outcome of his case in any positive way.

       A. Counsel was not ineffective when it did notfile a timely post-sentence motion.

        The PCRA court ruled that Appellant' s counsel was not ineffective in not filing a timely

post-sentence motion because Appellant never asked her to do so, but more importantly, because

Appellant failed to show that he was prejudiced by this inaction in any way.




Commonwealth v, Crump                                                                               14
       Appellant did not timely ask for a post-sentence motion. Appellant claimed that he asked

his attorney for an appeal at sentencing and later sent her a letter asking for a time reduction:

however, this court has already demonstrated in section I (A), supra, that it did not find the former

claim credible and that it found the letter to be untimely. As Appellant did not claim to attempt to

contact his attorney at any other time during the ten days after his sentencing, he has failed to prove

that he timely asked for a post-sentence motion. His attorney filed a post-sentence motion the very

day that she received Appellant's untimely request to do so: this demonstrates that if she had any

idea that Appellant wanted to file a timely post-sentence motion, she would have done so. N.T.

10/20/17 at 34-35.

       Assuming, arguendo, that Appellant asked his attorney to file a post-sentence motion, his

claim is without merit, as Appellant failed to show that he was prejudiced by his counsel's inaction.

To prove that his counsel has been ineffective in failing to file a post-sentence motion, a defendant

must show that he was actually prejudiced. Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007)

(holding that prejudice is required because, while it does waive discretionary sentencing issues, a

failure to file a post-sentence does not waive a defendant's right to appeal completely).

        To show prejudice, a court should focus on the outcome of the post-sentence motion

proceeding itself rather than any possible effects the motion would have on an appeal. Id. at 154.

In Commonwealth v. Reaves, the Superior Court incorrectly found prejudice based on the fact that

counsel's failure to file a post-sentence motion (based on discretionary sentencing factors)

destroyed the opportunity for an appeal; the Pennsylvania Supreme Court held that the Superior

Court erred and should have focused on whether the post-sentence motion would actually have

had an effect at the trial level. Id. In that case, because the PCRA court was the same as the

sentencing court and made it clear that it would not have changed the sentence had a post-sentence



Commonwealth v. Crump                                                                               15
motion been filed, the defendant failed to show prejudice, and his ineffective counsel claim failed.

Id.

       In this case, as in Reaves, the PCRA court was the same as the sentencing court and

determined that, had Appellant filed a timely post-sentence motion, the court would have denied

it. This is further evidenced by the fact that when Appellant's attorney filed an untimely post-

sentence motion, the court denied it. N.T. 10/20/17 at 35. Appellant's sentence was legal, fair, and

appropriate.

       The sentencing court had a plethora of reasons for giving Appellant an aggravated sentence

and for refusing to reduce that sentence. Appellant had a long, violent criminal history, he racked

up misconducts in prison previously, this was his "second strike," and Appellant ran from the

police. 18. Appellant made many shocking statements about the case from prison, such as "I wasn't

in the wrong;" "All I did was choke ... her out and threw her in the closet door a couple times,

real shit;" "choked her the fuck out, she got fucked up;" "[Yjeah, I'm cool with the assault. That's

what the fuck it was. I balled her the fuck up;" "[Y]ou dumb bitch." .. Like what the fuck is wrong

with you? Here you go, my fault, like I said after I choked you the fuck out;" and "I definitely put

my hands on her. We ain't even going to play no games." N.T. 10/26/15 at 18; Com.'s Sentencing

Mem. at 2-4. His prison calls also reveal that he tried to get an associate to bribe and intimidate

the victim. N.T. 10/26/15 at 18.

       Appellant's presentence investigator called him "manipulative," stated that he "did not

appear to feel any trepidation over his current standing with the Court or about the crime he

committed, and seemed to have a sense of entitlement. He blamed his current standing with the

Court on the victim in the matter." Presentence-Psychiatric Rep. for Michael Crump at 3; N.T.

10/26/15 at 19. Appellant also told his investigator "Look, there was a fight and somebody lost,



Commonwealth v. Crump                                                                            16
she's just bitter." Presentence-Psychiatric Rep. for Michael Crump at 3; N.T. 10/26/15 at 19. The

court also considered the fact that when Appellant had the chance to speak directly to the court, he

characterized the crime as a "little fight" and announced his doubt that the victim was actually

traumatized. N.T. 10/26/15 at 23-24.

       Finally, the court also considered that the victim "still struggles with fear, anxiety, and

sleeplessness" and that her five-year-old son who witnessed the assault "is afraid to leave her side,

fearful that [someone] will try and hurt her." N.T. 10/26/15 at 21-22.

       The court, which considered all relevant reports, the statements of Appellant, his attorney,

and the district attorney, summed up its reasons for Appellant's sentence of nine to twenty years

on the record in detail:

       [W]hat is really troubling to me are the things that you said[;] not only your actions
       for choking this young lady, but also 'the things that you said in prison. You said
       that you weren't in the wrong. You repeatedly said that. You did acknowledge that
       you should have handled things differently, but then you started calling her all kinds
       of derogatory names and you said that that bitch crazy. Caught that bitch in my shit,
       and then that's when you continued on to a tirade of profanity. And it's these things
       that show me that even though you say that you wish you handled things differently,
       you do things to show me that there really is a lack of remorse and that you don't
       really feel what you did was wrong, and it was. And it's very troubling. And even
       if someone is ignorant enough to spit in your face, that's your reaction. That's
       troubling. You've got to learn how to handle things differently. All right. After I
       reviewed the presentence investigation, I reviewed all the reports for the purpose
       of the sentencing, and I've heard the attorney's argument on both sides, and I've also
       heard you [Appellant]. [ ... ] I was troubled by your prison tapes, your lack of
       remorse, that you choked her and I saw the pictures with the bruising and the scars
       on this young lady. Her son came in and witnessed this.

N.T. 10/26/17 at 24-27. The court's sentence for Appellant was, therefore, appropriate.

        Because of all of the troubling sentencing factors listed above, the PCRA court (which was

also the sentencing court) was certain that, had Appellant filed a timely post-sentence motion to

shorten his discretionary sentence, it would not have been granted. In fact, upon reconsideration

of Appellant's shocking behavior, the court might even have given him a longer sentence. As a


Commonwealth v. Crump                                                                              17
result, as in Reaves, Appellant failed to show prejudice, and his claim that counsel was ineffective

for not filing a post-sentence motion was properly denied.

       B. Counsel was not ineffective when it did not continue to consult Appellant regarding
          a timely post-sentence motion

       Finally, counsel was not ineffective when it did not continue to consult Appellant regarding

a timely post-sentence motion. Counsel only has a duty to consu1t a defendant on his appellate

options when either the defendant has asked for her to do so, or when a rational defendant in his

case would want to appeal. Commonwealth v. Bath, 907 A.2d 619, 623 (Pa. Super. 2006). In

section I, supra, it was established that Appellant failed to show that he wished to file an appeal,

failed to establish that a rational defendant would have appealed, and failed to show that any

prejudice resulted from his counsel's actions. In section II (A), supra, it was established that the

court held that Appellant failed to show that he wished to file a timely post-sentence motion and

that Appellant was not prejudiced in any way when his counsel did not file one. Counsel made it

clear to Appellant that he would have to contact her within ten days if he wanted to file a post-

sentence motion; Appellant did not do so. N.T. 10/26/15 at 26-27. Additionally, the court would

have either denied this post-sentence motion or increased Appellant's sentence. Appellant

experienced no prejudice when his counsel did not consult with him about a post-sentence motion.

Therefore, the court properly dismissed his PCRA petition.




Commonwealth v. Crump                                                                             18
                                       CONCLUSION

       After reading the applicable evidence, statutes, case laws, and rules, this court has

committed no prejudicial or reversible errors in Appellant's case. Accordingly, the PCRA court's

decision should be affirmed.




                                                                                      Lane, J.




Commonwealth v. Crump                                                                         19
Commonwealth v. Michael Crump                                       CP-51-CR-0011569-2013


                                     PROOF OF SERVICE

        I hereby certify that I am this day serving the foregoing opinion upon the person(s), and
in the manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:



Defense Attorney:     Jennifer J. Tobin, Esq.
                      702 N. 3rd St.
                      Philadelphia, PA 19123


Type of Service: (x) First Class Mail () Certified ( ) Personal Service


District Attorney:    Larry Goode, Esq.
                      Interim Supervisor, Appeals Unit
                      Philadelphia District Attorney's Office
                      Three South Penn Square
                      Philadelphia, PA 19107-3499

Type of Service: (x) First Class Mail ( ) Certified () Personal Service



Date: May 30, 2019



KateiitornJsq.
�
Law Clerk to the Honorable Timika Lane
