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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
ROBERT P. SMITH,                           :
                                           :
                    APPELLANT              :
                                           :     No. 3559 EDA 2015


                Appeal from the PCRA Order November 24, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005836-2011

BEFORE: DUBOW, SOLANO, AND PLATT*, JJ.

MEMORANDUM BY DUBOW, J.:                         FILED FEBRUARY 08, 2017

        Appellant, Robert P. Smith, appeals from the November 24, 2015

Order denying his first Petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46, in which he requested the

reinstatement of his direct appeal rights nunc pro tunc. After careful review,

we affirm.

        We summarize the relevant facts and procedural history as gleaned

from the record.     On May 8, 2012, following a waiver trial, the trial court

convicted Appellant of Aggravated Assault, Simple Assault, and Recklessly

Endangering Another Person. The court sentenced Appellant that same day



*
    Retired Senior Judge Assigned to the Superior Court.
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to a term of five to ten years’ incarceration, followed by five years’

probation.   The court also convicted Appellant of Terroristic Threats, but

imposed no further penalty on that conviction. Appellant did not file a Post-

Sentence Motion or a timely Notice of Appeal.

      On October 2, 2012, Appellant filed a pro se PCRA Petition seeking

reinstatement of his appellate rights.     On November 12, 2013, the PCRA

court appointed Appellant counsel who filed an Amended PCRA Petition on

November 6, 2014, and a second Amended PCRA Petition on August 27,

2015. On November 24, 2015, the PCRA court held a hearing on Appellant’s

Petition, at which Appellant and his trial counsel, Lenora Clayton, Esquire,

testified.

      Appellant testified that Ms. Clayton represented him at trial, and that

at the conclusion of trial, he requested that the court impose sentence

immediately because he did not want to remain in county custody.          N.T.,

11/24/15, at 17, 19, 23. He testified that immediately after the imposition

of sentence he asked Ms. Clayton to file an appeal on his behalf. Id. at 23-

24.    He testified that he has not had any direct contact with Ms. Clayton

since his trial, but that he wrote her a letter the evening after the trial

ended, and attempted to call her at least three times, leaving several voice

messages in the following days, to no avail. Id. at 19-20. He acknowledged

that he kept no records of these calls or a copy of the letter. Id. at 21. He

also testified that he wrote a letter to Ms. Clayton’s supervisors regarding his



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desire to file an appeal; however, he did not keep copies of those letters.

Id. at 22-23, 25, 28. He testified that Ms. Clayton responded to his letter to

her supervisor on August 10, 2012. Id. at 25-27. In it, Appellant testified,

Ms. Clayton emphatically denied ever receiving a receiving a request from

him to file an appeal. Id.

      Ms. Clayton also testified at Appellant’s PCRA hearing.     She testified

that she has been a criminal defense attorney with the Defender Association

for her entire 33-year career. Id. at 31, 33. She testified that after the trial

court found Appellant guilty of the Aggravated Assault and related charges,

she recommended requesting a pre-sentence report prior to proceeding to

the imposition of sentence. Id. at 33. Instead, Appellant insisted on being

sentenced immediately because “he didn’t want to stay in Philadelphia.” Id.

      Ms. Clayton also testified that at no time did Appellant request that

she file an appeal on his behalf.      Id. at 33-34.    Had he done so, she

testified, she would have written the word “appeal” on the file and submitted

it to her office’s appellate unit within the 30-day time limit. Id. at 37-39.

She also testified that she received no correspondence from Appellant

requesting that she file an appeal, and she does not recall receiving any calls

or phone messages from him. Id. at 33-34, 46. Ms. Clayton confirmed that

she responded to two letters sent to her supervisor by Appellant, in which

she denied categorically that Appellant had ever asked her to file an appeal

on his behalf. Id. at 34, 37.



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      Following his PCRA hearing, the PCRA court denied Appellant’s Petition.

On November 30, 2015, Appellant filed a timely Notice of Appeal from the

Order denying his PCRA Petition.       Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

      Appellant raises one issue on appeal in which he claims that the PCRA

court erred in denying his request for reinstatement of his direct appeal

rights nunc pro tunc.   Appellant’s Brief at 3.   Appellant specifically claims

that the trial court abused its discretion when it credited the testimony of

Appellant’s trial counsel that Appellant did not ask her to file an appeal from

Appellant’s Judgment of Sentence over Appellant’s testimony to the

contrary. Id. at 7.

      When reviewing the denial of a PCRA Petition, “we examine whether

the PCRA court’s determination is supported by the record and free of legal

error.”   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal

quotation marks and citation omitted). “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. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).           Credibility

determinations are left to the sound discretion of the PCRA court; this Court

will not disturb those determinations on appeal. Commonwealth v. Lehr,

583 A.2d 1234, 1236 (Pa. Super. 1990). Moreover, this Court grants great

deference to the PCRA court’s findings as long as the record contains any



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support for those findings. Commonwealth v. Carr, 768 A.2d 1164, 1166

(Pa. Super. 2001).

      With respect to a defendant’s right to appeal from his judgment of

sentence, this Court has explained:

         The right of a criminal defendant to appeal is guaranteed
         in the Pennsylvania Constitution, Article V § 9. However,
         before a court will find ineffectiveness of trial counsel for
         failing to file a direct appeal, Appellant must prove that he
         requested an appeal and that counsel disregarded this
         request. Mere allegation will not suffice; the burden is on
         Appellant to plead and prove that his request for an appeal
         was ignored or rejected by trial counsel.

Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999)

(citations omitted).    It is the petitioner’s obligation to present facts, and

supporting evidence where necessary, of each issue asserted in his PCRA

Petition. Commonwealth v. Collins, 687 A.2d 1112, 1115 (Pa. 1996).

      As Appellant aptly notes, his issue on appeal challenges the trial

court’s credibility determination, to which, as a reviewing court, we accord

great deference. As to the credibility of Appellant and his trial counsel, the

trial court explained its decision to credit counsel’s testimony over that of

Appellant as follows:

         After carefully reviewing the record before it, this [c]ourt
         finds that [Appellant] failed to meet his burden of proof
         and that his testimony is patently self-serving and entirely
         unsupported by objective evidence.               The [c]ourt
         specifically finds that [Appellant’s] testimony that he asked
         Ms. Clayton to file an appeal at the conclusion of his bench
         trial before Judge Beloff, and that he subsequently
         followed up by writing to and calling her, is simply not
         credible. Furthermore, [Appellant] failed to produce any


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        evidence or documents supporting this contention. To the
        contrary, the evidence suggests just the opposite. The
        [c]ourt notes that not only does [Appellant] have a
        working knowledge of the judicial system as a result of his
        extensive criminal record, but was well aware of the
        procedural steps necessary to protect his appellate rights,
        as he testified that he knew he had thirty days to file an
        appeal and that if counsel didn’t file a timely appeal on his
        behalf he would have done it himself “to preserve” his
        rights. In point of fact, [Appellant] filed the instant pro se
        PCRA [P]etition himself [ ], lending support to his
        testimony.

        In contrast, the [c]ourt finds credible Ms. Clayton’s
        testimony that had [Appellant] requested that she file an
        appeal, she would have written “appeal” across the face of
        the file and forwarded it to her office’s appellate unit for
        further action. The [c]ourt further finds that Ms. Clayton’s
        testimony that [Appellant] never asked her to file an
        appeal is credible and is supported by the evidence of
        record and is consistent with the evidence of record.
        Furthermore, as noted above, she did in fact respond to
        two untimely letters [sent to her supervisor], in which she
        stated categorically that [Appellant] had never asked her
        to file an appeal on his behalf.

PCRA Court Opinion, 3/23/16, at 5-6 (citations omitted).

     Following our review of the record, including the Notes of Testimony

from Appellant’s November 24, 2015 PCRA hearing, we agree with the trial

court that Appellant “utterly failed to meet his burden of proof and is not

entitled to reinstatement of his appellate rights as trial counsel was not

ineffective in her representation” of Appellant. Id. at 7. Because Appellant

failed to offer the PCRA court anything more than unsupported allegations of

his counsel’s ineffectiveness in support of his claim that he requested that

Ms. Clayton file an appeal on his behalf, and the court found Ms. Clayton’s



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testimony to the contrary credible, the court did not abuse its discretion in

denying Appellant’s requested relief.     Accordingly, Appellant’s claim on

appeal lacks merit.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/8/2017




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