J-S77002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GERALD SMITH

                            Appellant                 No. 691 EDA 2012


             Appeal from the PCRA Order entered January 23, 2012
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0312371-2006


BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED FEBRUARY 09, 2015

        Appellant, Gerald Smith, appeals from the January 23, 2012 order of

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

for collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-46. For the reasons stated below, we vacate the order and remand

for proceedings consistent with this memorandum.

        The trial court summarized the procedural background as follows:

        [Appellant] was tried before this [c]ourt and a jury on November
        19-26, 2007, and was found guilty of third-degree murder,
        possession of an instrument of crime (“PIC”) and recklessly
        endangering another person (“REAP”). On March 4, 2008, this
        [c]ourt sentenced [Appellant] to nine and one-half to twenty
        years incarceration for third-degree murder and one to two years
        incarceration for REAP, consecutive to the murder sentence, and
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        no further penalty for PIC, for an aggregate ten and one-half to
        twenty-two years incarceration and $3,000 in restitution.

Trial Court Opinion, 4/5/12, at 1. No direct appeal was filed.

        On February 17, 2009, Appellant filed a timely pro se PCRA petition

alleging ineffective assistance of trial counsel for failing to appeal his

convictions. Contemporaneously, Appellant filed a pro se motion to obtain

trial transcript. In response to the petition, the trial court appointed James

Bruno, Esq. to represent Appellant in the PCRA proceedings. The procedural

history from this point on is unclear.           A review of the trial court docket

reveals that on December 10, 2010, at a “hearing,” counsel for Appellant

and the Commonwealth agreed that an “evidentiary hearing” had to be held

on this matter.       Trial Court Docket Entry, 12/10/10.                Apparently, this

“evidentiary hearing” was continued several times. There is no indication,

however, that any evidence was ever taken at any of these “hearings;”

rather, it seems the trial court entertained oral argument from both counsel.

On February 3, 2011, the trial court instructed Mr. Bruno to obtain a

statement from Appellant “as to if and when he requested his [trial] lawyer

to take an appeal, when, where and how.”                   Id., 02/03/11.         Several

continuances     later,   PCRA     counsel     for   Appellant   filed    the   requested

statement.1 On the same day, December 9, 2011, the trial court issued a

____________________________________________


1
    In relevant part, the statement reads as follows:

(Footnote Continued Next Page)


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Notice under Rule 907 notifying Appellant of its intention to dismiss his PCRA

petition.   The trial court dismissed the petition on January 23, 2012.

Appellant timely appealed.2           In its Rule 1925(a) opinion the trial court

explained the dismissal as follows: “The affidavit does not aver that

[Appellant] requested counsel to file an appeal. This claim is without merit



                       _______________________
(Footnote Continued)

      After sentencing, I spoke to my [trial attorney] and we discussed
      appealing this matter. He advised me not to file an appeal.

      I was immediately taken back to prison and subsequently sent
      upstate. I contact[ed] my sister . . . and requested her that she
      contact [my trial attorney] because I was unable to contact him.

      I later learned that my sister contacted [my trial attorney] and
      was told that it was too late to file the appeal.

Verification, 12/7/11, at 2.
2
  Despite being so ordered by the trial court, Mr. Bruno did not file a Rule
1925(b) statement. Additionally, on appeal, Mr. Bruno failed to file a brief
on behalf of Appellant. As a result, we remanded the matter to the trial
court to determine whether counsel had abandoned Appellant.               We
reinstated the appeal upon counsel filing a belated brief. On March 25,
2013, Mr. Bruno petitioned this Court to allow him to withdraw from the case
and remand to the trial for the appointment of new counsel following his
temporary suspension from the practice of law. We granted Mr. Bruno’s
petition on April 10, 2013. After the trial court appointed new counsel, this
Court granted new counsel’s application to remand for the filing of a Rule
1925(b) statement and a supplemental opinion by the trial court. We
granted the application on June 7, 2013. Appellant filed the Rule 1925(b)
statement on June 11, 2013. Regarding the supplemental opinion, the
record shows a document dated June 18, 2014 from the trial court stating
that no supplemental opinion will be filed because the trial judge who
presided over this case was no longer sitting as a Judge in Philadelphia
County.



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and counsel had a reasonable basis for his inaction.”      Trial Court Opinion,

4/5/12, at 3.

      On appeal, Appellant claims trial counsel was ineffective for failing to

file an appeal.

      Our standard of review for an order denying post-conviction
      relief is whether the record supports the PCRA court’s
      determination, and whether the PCRA court’s determination is
      free of legal error.  The PCRA court’s findings will not be
      disturbed unless there is no support for the findings in the
      certified record.

Commonwealth v. McDermitt, 66 A.3d 810, 813 (Pa. Super. 2013)

(internal citations omitted).

      [A]ppellant is required to make the following showing in order to
      succeed with [a claim of ineffective assistance of counsel]: (1)
      that the underlying claim is of arguable merit; (2) that counsel
      had no reasonable strategic basis for his or her action or
      inaction; and (3) that, but for the errors and omissions of
      counsel, there is a reasonable probability that the outcome of
      the proceedings would have been different. The failure to satisfy
      any prong of this test will cause the entire claim to fail. Finally,
      counsel is presumed to be effective, and appellant has the
      burden of proving otherwise.

Id. (internal citations omitted).

      Without holding an evidentiary hearing, the trial court concluded trial

counsel had a reasonable basis for his inaction because Appellant never

asked his counsel to file the appeal. Trial Court Opinion, 4/5/12, at 3.

      Even if we were to agree with the trial court that Appellant did not ask

counsel to file an appeal that, alone, does not end the ineffective assistance

of counsel analysis.



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       Ordinarily, an appellant must request an appeal before counsel
       will be found ineffective for failing to pursue an appeal. “Before
       a court will find ineffectiveness of counsel for failing to file a
       direct appeal, the defendant must prove that he requested an
       appeal    and    that    counsel     disregarded   that   request.”
       Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa. Super.
       1999), appeal denied, 563 Pa. 659, 759 A.2d 383 (2000).

       The rule set out by Knighten was subsequently modified by
       more recent decisions, particularly Roe v. Flores–Ortega, 528
       U.S. 470, 480, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and its
       Pennsylvania expression, Commonwealth v. Touw, 781 A.2d
       1250, 1254–1255 (Pa. Super. 2001). These cases impose a
       duty on counsel to adequately consult with the defendant as to
       the advantages and disadvantages of an appeal where there is
       reason for counsel to think that a defendant would want to
       appeal.[3] The failure to consult may excuse the defendant from
____________________________________________


3
    In Touw, we noted:

       The [U.S. Supreme] Court defined “consult” as “advising the
       defendant about the advantages and disadvantages of taking an
       appeal, and making a reasonable effort to discover the
       defendant’s wishes.” [Flores–Ortega, 528 U.S. at 478]. The
       Court continued:

              If counsel has not consulted with the defendant, the
              court must in turn ask a second, and subsidiary,
              question: whether counsel’s failure to consult with
              the    defendant     itself    constitutes  deficient
              performance. That question lies at the heart of this
              case: Under what circumstances does counsel have
              an obligation to consult with the defendant about an
              appeal?

       Id. The Court answered this question by holding:

              [C]ounsel has a constitutionally-imposed duty to
              consult with the defendant about an appeal when
              there is reason to think either (1) that a rational
              defendant would want to appeal (for example,
              because there are nonfrivolous grounds for appeal),
(Footnote Continued Next Page)


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      the obligation to request an appeal under Knighten, such that
      counsel could still be found to be ineffective in not filing an
      appeal even where the defendant did not request the appeal.

      Pursuant to Flores–Ortega and Touw, counsel has a
      constitutional duty to consult with a defendant about an appeal
      where counsel has reason to believe either (1) that a rational
      defendant would want to appeal (for example, because there are
      non-frivolous grounds for appeal), or (2) that this particular
      defendant reasonably demonstrated to counsel that he was
      interested in appealing.

McDermitt, 66 A.3d at 814-15.

      As in Commonwealth v. Carter, 21 A.3d 680 (Pa. Super. 2011),

      [i]n this case, the PCRA court did not make—in fact, could not
      make—any factual findings regarding whether counsel
      adequately consulted with Appellant because it dismissed
      Appellant’s PCRA petition without first holding an evidentiary
      hearing at which trial counsel could testify with regard to his
      communications with Appellant. In doing so, the PCRA court
      erred.


                       _______________________
(Footnote Continued)

             or (2) that this particular defendant reasonably
             demonstrated to counsel that he was interested in
             appealing. In making this determination, courts must
             take into account all the information counsel knew or
             should have known.

      Id. at 480[.] A deficient failure on the part of counsel to consult
      with the defendant does not automatically entitle the defendant
      to reinstatement of his or her appellate rights; the defendant
      must show prejudice. The Court held that “to show prejudice in
      these circumstances, a defendant must demonstrate that there
      is a reasonable probability that, but for counsel's deficient failure
      to consult with him about an appeal, he would have timely
      appealed.” Id. at 484[.]

Touw, 781 A.2d at 1254.



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      . . . As stated in Touw, a PCRA court must make factual findings
      regarding whether trial counsel adequately consulted with a
      criminal defendant regarding the advantages and disadvantages
      of filing an appeal. Of necessity, such factual findings must be
      based on testimony from trial counsel at an evidentiary hearing.

Id. at 684.

      Here, Appellant does not state he requested his trial counsel to appeal

his convictions. In fact, Appellant merely states that he intended to appeal.

The question remains, however, whether trial counsel adequately consulted

with Appellant regarding the appeal, and what transpired from that

conversation.    From Appellant’s statement, it appears there was some

discussion about the appeal. However, because the PCRA court did not hold

a hearing on this matter, it is unclear whether the discussion constituted a

consultation, and whether this consultation met the standards pronounced in

Flores—Ortega, supra, and Touw, supra.          Accordingly, we vacate the

PCRA court’s order and remand for a hearing.

      Order vacated.      Case remanded with instructions.       Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015



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