J-S51041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEMIER THOMPSON,

                            Appellant                  No. 364 EDA 2015


                  Appeal from the PCRA Order January 16, 2015
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos.: CP-51-CR-0010863-2008
                            CP-51-CR-0013718-2008
                            CP-51-CR-0009938-2008


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 21, 2015

        Appellant, Jemier Thompson, appeals from the order dismissing his

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        This Court previously summarized the factual and procedural history of

this case as follows:

              On June 6, 2008, [A]ppellant committed a robbery at
        gunpoint at the intersection of 37th and Hamilton Streets in
        Philadelphia. Two days later, on June 8, 2008, [A]ppellant
        committed a second robbery at 37th and Baring Streets; and on
        June 28, 2008, [A]ppellant committed robbery of two men at the
        intersection of 36th and Baring Streets.         Shortly after the
                               th
        robberies on June 28 , police found [A]ppellant, and the June
        28th victims properly identified [A]ppellant as the robber.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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              Appellant was charged with a variety of offenses including
       robbery and possession of an instrument of crime. The four
       instances of robbery were consolidated for trial.         Appellant
       waived a jury trial. On June 16, 2010, [A]ppellant was found
       guilty of four counts of robbery with threat of immediate serious
       bodily injury, three counts of theft by unlawful taking of movable
       property, three counts of receiving stolen property, three counts
       of possessing instruments of crime with criminal intent, two
       counts of terroristic threats with intent, three counts of simple
       assault, and three counts of reckless endangerment.[1]

             A sentencing hearing was held on August 4, 2010 where
       the Commonwealth invoked the mandatory minimum sentence
       of five years of incarceration for the robberies to which
       [A]ppellant stipulated. Appellant did not make an objection
       throughout the sentencing hearing. Appellant was sentenced to
       an aggregate term of eight to sixteen years’ imprisonment.

             Appellant filed a motion for reconsideration of [the
       discretionary aspects of] sentence on August 16, 2010 and an
       amended motion on August 26, 201[0]. . . . The judge denied
       [A]ppellant’s motion on December 6, 2010. [The timely direct]
       appeal followed [on January 5, 2011].

(Commonwealth           v.   Thompson,         No.   55   EDA   2011,   unpublished

memorandum at *1-3 (Pa. Super. filed March 13, 2012)) (footnote omitted).

       This Court concluded that Appellant waived his challenge to the

discretionary aspects of his sentence because he failed to (1) object during

the sentencing hearing or raise it in his post-trial motion and (2) include a

Rule 2119(f) statement in his brief. (See id. at *4-6); see also Pa.R.A.P.




____________________________________________


1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3921(a), 3925(a), 907(a), 2706(a)(1),
2701(a), and 2705, respectively.



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2119(f) (requiring separate concise statement of reasons challenging

discretionary aspects of sentence).

       On January 8, 2013, Appellant timely filed a pro se PCRA petition. The

PCRA court appointed counsel who filed an amended PCRA petition on March

21, 2014 requesting that Appellant’s post sentence rights be reinstated nunc

pro tunc because of appellate counsel’s ineffectiveness in failing to file a Rule

2119(f) statement in the brief.

       On July 29, 2014, the Commonwealth filed a motion to dismiss the

PCRA petition. On December 15, 2014, the PCRA court notified Appellant of

its intention to dismiss his PCRA petition without a hearing pursuant to

Pennsylvania Rule of Criminal Procedure 907.           See Pa.R.Crim.P. 907.

Appellant filed a pro se response on December 19, 2014.

       The PCRA court granted the Commonwealth’s motion and dismissed

Appellant’s petition on January 16, 2015.        Appellant timely appealed on

January 29, 2015.2

       Appellant raises the following question for our review: “Did the [PCRA]

court err in not reinstating [A]ppellant’s right to file an appeal nunc pro tunc

from the judgment of sentence due to ineffective assistance of appellate

defense counsel who waived all appeal issues?” (Appellant’s Brief, at 2).


____________________________________________


2
  Pursuant to the PCRA court’s order, Appellant filed a timely Rule 1925(b)
statement on March 4, 2015. The court entered its Rule 1925(a) opinion on
March 23, 2015. See Pa.R.A.P. 1925.



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      Our standard of review is well-settled:

             [A]n appellate court reviews the PCRA court’s findings of
      fact to determine whether they are supported by the record, and
      reviews its conclusions of law to determine whether they are free
      from legal error. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)

(citation omitted).

      A PCRA petitioner is eligible for relief if the claim is cognizable under

the PCRA.   See 42 Pa.C.S.A. § 9543(a).         Cognizable claims include those

that allege ineffectiveness of counsel that undermined the truth-determining

process. See 42 Pa.C.S.A. § 9543(a)(2)(ii).

             We also note that a PCRA petitioner is not automatically
      entitled to an evidentiary hearing. We review the PCRA court’s
      decision dismissing a petition without a hearing for an abuse of
      discretion.

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

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted).




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      It is well-settled that “[a] criminal defendant has the right to effective

counsel . . . .” Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super.

2006) (citation omitted).   Further, counsel is presumed effective, and an

appellant bears the burden to prove otherwise.       See Commonwealth v.

Bennett, 57 A.3d 1185, 1195 (Pa. 2012).

      To succeed on an ineffective assistance of counsel claim, a petitioner

must overcome the presumption that counsel is effective and demonstrate

that counsel’s deficient performance prejudiced him.       See Strickland v.

Washington, 466 U.S. 668, 687 (1984). Pennsylvania has further refined

the Strickland test into a three-prong inquiry.           An appellant must

demonstrate that: (1) his underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the

appellant suffered actual prejudice as a result.     See Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987). A failure to satisfy any prong of the

Pierce test will require rejection of the claim.     See Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014).

      Here, Appellant asserts that “counsel failed to [properly] raise the

[discretionary aspects of sentence] issues that were preserved in post[-]

verdict motions [by] fail[ing] to file a [Rule] 2119(f) [s]tatement.”

(Appellant’s Brief, at 6) (citations omitted). Therefore, “[Appellant] does not

have to show prejudice because appellate counsel (sic) representation was

totally deficient.” (Id. at 6-7) (citations omitted). We disagree.




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      Appellant’s reliance on United States v. Cronic, 466 U.S. 648, 659

(1984)   (prejudice   presumed    where    counsel’s   failure   is   complete);

Commonwealth v. Halley, 870 A.2d 795, 801 (Pa. 2005) (finding per se

ineffectiveness where counsel failed to file court-ordered Rule 1925(b)

statement); and Commonwealth v. Grosella, 902 A.2d 1290, 1294 (Pa.

Super. 2006) (holding counsel’s failure to raise all requested appeal issues

not per se ineffectiveness), is misplaced. (See Appellant’s Brief, at 7).

      Our Supreme Court has stated:

            . . . [T]here have been only three circumstances under
      which this Court determined that counsel’s conduct constituted a
      constructive denial of counsel warranting a presumption of
      prejudice: (1) where counsel failed to file a requested direct
      appeal, see [Commonwealth v.] Lantzy, [736 A.2d 564 (Pa.
      1999)]; (2) where counsel failed to file a statement of matters
      complained of on appeal, see Halley, supra; and (3) where
      counsel failed to file a requested petition for allowance of appeal
      thereby depriving the client of the right to seek discretionary
      review, see Commonwealth v. Liebel, . . . 825 A.2d 630
      ([Pa.] 2003).

Commonwealth v. Reed, 971 A.2d 1216, 1225 (Pa. 2009).

      Here, our independent review of the record reveals that counsel’s

failure to raise the issues that were preserved in Appellant’s post-verdict

motion and file a Rule 2119(f) statement “did not operate to entirely

foreclose appellate review . . . but at most ‘narrowed the ambit’ of the

appeal [] counsel pursued.” Id. (citation omitted). Further, “the filing of an

appellate brief, deficient in some aspect or another, does not constitute a




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complete failure to function as a client’s advocate so as to warrant a

presumption of prejudice under Cronic.” Id. at 1226.

      The PCRA court noted that:

            . . . [I]n neither his petitions nor present [Rule] 1925(b)
      [s]tatement did [Appellant] make any attempt to demonstrate
      what issues his appellate counsel should have raised or
      preserved in the appeal, that they would have merit, or that the
      outcome of his appeal would have been different.

                                  *    *    *

            Nor did he present an offer of proof setting forth what
      facts there are that are not already in the record that would
      show that his counsel was ineffective for not raising or
      preserving them and therefore there was no need for the court
      to conduct a hearing.

(PCRA Court Opinion, 3/23/15, at 6-7).          Upon review, we agree and

conclude that the record supports the PCRA court’s dismissal of Appellant’s

PCRA petition without a hearing where he is not entitled to the benefit of a

presumption of prejudice.       See Miller, supra at 992.       Accordingly,

Appellant’s issue does not merit relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




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