J-S24018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                                        :
                  Appellee              :
                                        :
            v.                          :
                                        :
                                        :
FRANKIE ROSADO                          :         No. 2474 EDA 2014

                  Appellant


                Appeal from the PCRA Order July 18, 2014
             In the Court of Common Pleas of Monroe County
           Criminal Division at No(s): CP-45-CR-0000018-2012



BEFORE: GANTMAN, P.J., ALLEN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED JANUARY 19, 2017

     Appellant, Frankie Rosado, is before us upon remand from the

Pennsylvania Supreme Court with regard to his appeal from the Monroe

County Court of Common Pleas’ order that dismissed his first petition filed

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

9546. For the following reasons, we reverse and remand with instructions.

     The relevant facts and procedural history of this case are as follows.

        In 2012, Appellant…was accused of sexually abusing his
        former girlfriend’s teenage daughter, whereupon he was
        charged with one count each of indecent assault,
        corruption of minors, and unlawful contact with minor.
        Appellant, then represented by a public defender,
        proceeded to trial, whereafter he was convicted of the
        aforementioned offenses and later sentenced to an
        aggregate term of 33 to 69 months’ imprisonment.
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       Appellant hired new counsel (…“Appellate Counsel”) to
       represent him at the post-sentencing and appellate stages
       of his case.     Appellate Counsel filed a post-sentence
       motion raising, as relevant here, a sufficiency-of-the-
       evidence claim, but the trial court denied relief. Appellate
       Counsel then filed a notice of appeal to the Superior Court,
       whereupon the trial court issued an order directing him to
       file a concise statement of [errors] complained of on
       appeal pursuant to Pa.R.A.P. 1925(b). Appellate Counsel
       filed a document styled as a “preliminary” concise
       statement, wherein he raised three issues: (1) whether
       Appellant’s sentence was “an abuse of discretion”; (2)
       whether the trial court erred in excluding evidence that the
       alleged victim had previously accused her father of sexual
       abuse; and (3) whether a juror fraudulently concealed bias
       during voir dire. Appellate Counsel also attached a copy of
       his post-sentence motion to the “preliminary” concise
       statement, erroneously believing that doing so would
       preserve the claims raised therein for purposes of appeal,
       and requested additional time to file a “final” concise
       statement, which the trial court granted.          However,
       Appellate Counsel never filed a revised concise statement,
       and, accordingly, the trial court considered the three
       claims raised in the extant concise statement, and issued a
       Pa.R.A.P. 1925(a) opinion rejecting those claims.
       Appellate Counsel then filed an appellate brief with the
       Superior Court, in which, deciding to abandon the three
       claims raised in his concise statement and addressed by
       the trial court, he raised as his sole appellate issue the
       unpreserved sufficiency claim.

       In an unpublished memorandum opinion, the Superior
       Court, while noting the three issues preserved in
       Appellant’s concise statement, found the sufficiency claim
       to be waived, as it was not included therein.
       Commonwealth v. Rosado, No. 2754 EDA 2012, 2013
       WL 11259105 (Pa.Super. filed July 23, 2013).
       Accordingly, the court did not address any of Appellant’s
       preserved claims or his sufficiency claim, and, as a result,
       it summarily affirmed.

       Appellant later filed a [PCRA] petition asserting, inter alia,
       that    Appellate     Counsel’s  above-detailed      conduct
       constituted ineffective assistance of counsel per se, and

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        thus seeking reinstatement of his appellate rights nunc pro
        tunc. The PCRA court held an evidentiary hearing, at
        which Appellate Counsel testified that he believed that
        attaching his post-sentence motion to his concise
        statement was sufficient to preserve the claims raised for
        purposes of appeal, and that he abandoned the three
        preserved claims [in the Rule 1925(b) statement] in an
        effort to more persuasively argue his sufficiency claim.
        Ultimately, the PCRA court found that Appellate Counsel’s
        conduct did not amount to ineffectiveness per se, and,
        accordingly, denied relief.   Appellant appealed to the
        Superior Court.

Commonwealth v. Rosado, ___ A.3d ___, 2016 WL 7008042, at *1-*2

(Pa. Nov. 22, 2016). On appeal, this Court labored to determine which of

two types of ineffective assistance of counsel claims Appellant was pursuing:

(1) a claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052,   80    L.Ed.2d   674   (1984),   as   adopted   in   Pennsylvania   by

Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), which

requires the defendant to demonstrate counsel’s act or omission prejudiced

the defendant or (2) a claim under United States v. Cronic, 466 U.S. 648,

104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), decided the same day as

Strickland, in which the United States Supreme Court distinguished those

circumstances where counsel’s act or omission is so inherently damaging to

the defendant that prejudice can be presumed, i.e., per se ineffective

assistance of counsel. Ultimately, we concluded appellate counsel’s acts and

omissions at issue were subject to the Strickland test, rather than the

Cronic per se ineffective assistance of counsel category. Thus, we required




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Appellant to demonstrate prejudice, which he had failed to do. At that point,

we affirmed the PCRA court’s decision to deny relief.

      Appellant timely sought review with our Supreme Court, which granted

allowance of appeal to consider whether the filing of an appellate brief that

abandons all issues properly preserved for direct appeal, in favor of pursuing

unpreserved issues, constitutes per se ineffective assistance of counsel. Our

Supreme Court held: “[T]he filing of an appellate brief which abandons all

preserved issues in favor of unpreserved ones constitutes ineffective

assistance of counsel per se.” Rosado, supra at *8. The Court deemed

counsel’s acts and omissions a “complete default,” which precluded litigation

of Appellant’s direct appeal and the functional equivalent of no appeal at all.

Id. at *9. The Rosado Court vacated this Court’s judgment and remanded

the case to us for further action.

      Given the Supreme Court’s holding, we now decide the best resolution

of this matter is to put Appellant in a position that will fully restore his direct

appeal rights.   Because the foundation for his direct appeal was laid by

counsel who has since been deemed ineffective per se, we remand the case

and direct current counsel to communicate with Appellant about the issues

he wants to pursue on appeal and take steps to preserve the issues

properly.   Counsel’s efforts on Appellant’s behalf shall include the filing of

new post-sentence motions nunc pro tunc. Following disposition of the post-

sentence motions nunc pro tunc, either party will have the opportunity to file


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a timely appeal.     Any subsequent Rule 1925(b) statement must articulate

clearly and concisely the issues to be raised on appeal, without any

“incorporation by reference” of earlier filings.   Finally, the trial court shall

address all issues in a new trial court opinion. Accordingly, we reverse the

order denying PCRA relief and remand for further action consistent with this

disposition.

        Order reversed; case remanded with instructions.         Jurisdiction is

relinquished.

        Judge Allen did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2017




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