J-S15017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

NIJAH CARPENTER ,

                         Appellant                   No. 1058 EDA 2015


               Appeal from the PCRA Order of March 17, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0004539-2010


BEFORE: BENDER, P.J.E., OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                            FILED MARCH 02, 2016

      Appellant, Nijah Carpenter, appeals from the order entered on March

17, 2015, denying his first petition filed under the Post-Conviction Relief Act

(PCRA). We vacate in part and remand with instructions.

      The PCRA court summarized the pertinent facts as follows:

      Philadelphia Narcotics Strike Force Officer Gerald Passalacqua
      and his partner, Officer Brant Miles, saw Appellant . . . exchange
      a small black packet for money with a black male when they
      were conducting surveillance on the 1600 block of West
      Susquehanna Ave. Shortly thereafter, the officers saw Appellant
      exchange another small black packet for money with Mr.
      Pickens. Mr. Pickens was later apprehended by police and found
      to be in possession of a small black packet of crack-cocaine.

      Appellant walked across the street, and while sitting down on the
      steps of a row home, a black firearm fell out of his waistband.
      Appellant was observed putting the firearm back into his
      waistband, and [O]fficer Passalacqua called back-up to arrest
      [Appellant].




*Retired Senior Judge assigned to the Superior Court.
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        When Officers Aponte and McCarron arrived at the scene,
        Appellant fled, discarding his firearm and a bag of drugs. After a
        short foot pursuit the officers arrested [Appellant] and
        confiscated $34.00 on his person in small bills. The officers also
        recovered a clear plastic baggie that [Appellant] discarded
        containing eight small bags of crack-cocaine.

PCRA Court Opinion, 7/17/15, at 1-2.

        On November 18, 2010, a jury convicted Appellant of possession of a

controlled substance with the intent to deliver (PWID).1 On May 13, 2011,

the trial court sentenced Appellant to a term of two and one-half to five

years of imprisonment, followed by a five-year probationary term. Appellant

did not file a timely appeal. On October 17, 2011, Appellant filed a pro se

PCRA petition. The PCRA court appointed counsel, and PCRA counsel filed an

amended petition on July 8, 2013.              The Commonwealth filed a motion to

dismiss on January 27, 2014.            On November 24, 2014, the PCRA court

issued notice of intent to dismiss Appellant’s amended petition without a

hearing.    Appellant did not file a response.         By order entered March 17,

2015, the PCRA court dismissed Appellant’s amended PCRA petition.            This

timely appeal followed. Both Appellant and the PCRA court have complied

with Pa.R.A.P. 1925.

        Appellant raises the following issues:

        1. Did the [PCRA] court err in failing to hold an evidentiary
           hearing to determine whether [t]rial [c]ounsel was ineffective
           for failing to file a direct appeal?
____________________________________________


1
    35 P.S. §780-113(a)(30).



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      2. Did the [PCRA] court err in failing to find that counsel was
         ineffective for failing to file a post-sentence motion?

Appellant’s Brief at 8.

      Our scope and standard of review is well-settled:

      In PCRA appeals, our scope of review is limited to the findings of
      the PCRA court and the evidence on the record of the PCRA
      court's hearing, viewed in the light most favorable to the
      prevailing party. Because most PCRA appeals involve questions
      of fact and law, we employ a mixed standard of review. We defer
      to the PCRA court's factual findings and credibility
      determinations supported by the record. In contrast, we review
      the PCRA court's legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015) (internal citations and quotations omitted).

      Our Supreme Court has held that, “where there is an unjustified failure

to file a requested direct appeal, the conduct of counsel falls beneath the

range of competence demanded of attorneys in criminal cases” such that the

requisite prejudice prong of the tripartite ineffective assistance is presumed.

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (footnote

omitted). Here, in light of the witness certifications Appellant attached to his

amended PCRA petition, the Commonwealth “does not oppose” a remand for

an evidentiary hearing addressing Appellant’s claim that he requested trial

counsel   to   file   an   appeal   and   that   trial   counsel   failed   to   do   so.

Commonwealth’s Brief at 8. Thus, we remand for such a hearing.

      Citing this Court’s decision in Commonwealth v. Liston, 941 A.2d

1279 (Pa. Super. 2008), Appellant next contends that, “[a]ny order

reinstating appellate rights in this matter should also reinstate the right to

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file any post-sentence motion.” Appellant’s Brief at 16. Our Supreme Court

reversed this Court’s decision providing for automatic reinstatement of the

right to file post-sentence motions when appellate rights are reinstated nunc

pro tunc. See generally Commonwealth v. Liston, 977 A.2d 1089 (Pa.

2009). Instead, pursuant to Commonwealth v. Reaves, 923 A.2d 1123,

1129 (Pa. 2007), a defendant must demonstrate prejudice with regard to an

ineffectiveness claim involving the failure to file post-sentence motions.

      With these principles in mind, we turn to Appellant’s claim that trial

counsel was ineffective in failing to file post-sentence motions. Counsel is

presumed to be effective and Appellant has the burden of proving otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super. 2004).

      In order for Appellant to prevail on a claim of ineffective
      assistance of counsel, he must show, by a preponderance of the
      evidence, ineffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place.          Commonwealth v.
      Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999). Appellant
      must demonstrate: (1) the underlying claim is of arguable merit;
      (2) that counsel had no reasonable strategic basis for his or her
      action or inaction; and (3) but for the errors and omissions of
      counsel, there is a reasonable probability that the outcome of
      the proceedings would have been different. Id. The petitioner
      bears the burden of proving all three prongs of the test.
      Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312,
      319-320 (2001).

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005).

      Appellant asserts that he has “a substantial issue relating to whether

the verdict was against the weight of the evidence.”       Appellant’s Brief at 16.

According   to   Appellant,   at   trial   “there   was   confusion   among    the

[Commonwealth’s] own witnesses as to issues as significant as the identity


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of the perpetrator and whether the narcotics introduced at trial were the

same narcotics allegedly recovered from the perpetrator.”           Id. at 17.

Specifically, Appellant identifies “inconsistencies in the testimony regarding

the clothes that [he] was alleged to be wearing,” as well as contradictory

evidence indicating whether eight or nine black packets were confiscated

from him. Id. at 9.

      The PCRA court concluded that Appellant failed to meet his burden of

proving ineffective assistance of counsel:

      The verdict does not shock one’s sense of justice, nor does the
      evidence preponderate heavily against the verdict. The record
      and the evidence align with the verdict. The minor discrepancies
      in clothing and how many small black packets containing crack
      cocaine were inside the clear plastic baggie were topics explored
      in cross-examination. As such, the weight of those discrepancies
      were within the province of the finder of fact to reconcile. The
      jury was able to consider the different descriptions of Appellant’s
      clothing as well as the drugs. They also were informed about
      the officer’s [sic] experience in observing drug transactions.

PCRA Court Opinion, 7/17/15, at 4.           We agree with the PCRA court’s

assessment that Appellant is not entitled to relief on his ineffectiveness claim

involving counsel’s failure to file a post-sentence motion challenging the

weight of the evidence.     See Commonwealth v. Ross, 856 A.2d 93, 99

(Pa. Super. 2004) (explaining that the determination of the weight of the

evidence exclusively is within the province of the fact-finder, who may

believe all, part, or none of the evidence). Thus, this aspect of Appellant’s

ineffectiveness claims fails.




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      In sum, although we affirm the PCRA court’s determination that

Appellant did not prove his claim of ineffectiveness regarding trial counsel’s

failure to file a post-sentence motion, we remand this case for an evidentiary

hearing to address Appellant’s assertion that trial counsel failed to file a

requested appeal.

      Order vacated in part. Case remanded for proceedings consistent with

this memorandum. Jurisdiction relinquished.

  Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2016




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