J-S51032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MUHAMMAD HARGROVE,

                            Appellant                No. 1065 EDA 2015


                   Appeal from the PCRA Order April 10, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0012747-2010


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

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 05, 2016

        Appellant, Muhammad Hargrove, appeals from the order dismissing his

counseled first petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The PCRA court aptly summarized the relevant background of this case

as follows:

              [Appellant] was found guilty by a jury on October 12, 2011
        of criminal trespass and conspiracy; the object of the conspiracy
        was to commit aggravated assault. [Appellant] was sentenced
        to a period of two and [one-]half to five years’ incarceration to
        be followed by four years of probation. He did not file a direct
        appeal.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S51032-16


             [Appellant] filed the instant [timely] PCRA petition, raising
       the sole claim that his attorney, Joseph Santaguida, Esq. 1, was
       ineffective for failing to file a direct appeal. Following a hearing,
       this court dismissed [Appellant’s] petition, and this [timely]
       appeal followed.

(PCRA Court Opinion, 12/23/15, at 1) (some capitalization omitted).            The

PCRA court did not order Appellant to file a concise statement of errors

complained of on appeal.         See Pa.R.A.P. 1925(b).   It filed an opinion on

December 23, 2015. See Pa.R.A.P. 1925(a).

       Appellant raises one issue for our review:

       Did the [PCRA] court err in not reinstating [Appellant’s] right to
       file an appeal nunc pro tunc from the judgment of sentence
       imposed in this matter when [Appellant] showed that he
       requested counsel to file an appeal but instead of filing the
       appeal counsel told [Appellant’s] mother that [Appellant] would
       receive the [maximum sentence] if he appealed?

(Appellant’s Brief, at 2).

             Our review of a PCRA court’s decision is limited to
       examining whether the PCRA court’s findings of fact are
       supported by the record, and whether its conclusions of law are
       free from legal error. We view the findings of the PCRA court
       and the evidence of record in a light most favorable to the
       prevailing party. . . .          The PCRA court’s credibility
       determinations, when supported by the record, are binding on
       this Court; however, we apply a de novo standard of review to
       the PCRA court’s legal conclusions. . . .

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citations and

quotation marks omitted).

____________________________________________


1
  [Appellant] was represented at trial by David Belmont, Esq., and by
Santaguida at sentencing; both parties agreed it was Santaguida to whom a
request to file a direct appeal would have been properly directed.



                                           -2-
J-S51032-16



       In his issue on appeal, Appellant argues the PCRA court erred in failing

to reinstate his direct appeal rights where counsel failed to file a requested

direct appeal.      (See Appellant’s Brief, at 6-7).2   Appellant claims that

following sentencing, his mother asked counsel to file an appeal, but that

counsel ignored this request and erroneously advised her regarding the

potential consequences of an appeal. (See id. at 6). This issue does not

merit relief.

       In order to obtain relief under the PCRA premised upon a claim that

counsel was ineffective, a petitioner must establish by a preponderance of

the evidence that counsel’s ineffectiveness “so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). When considering such a

claim, courts presume that counsel was effective, and place upon the

appellant the burden of proving otherwise. See Commonwealth v. Payne,

794 A.2d 902, 906 (Pa. Super. 2002), appeal denied, 808 A.2d 571 (Pa.

2002). Generally, “[t]o succeed on a claim that counsel was ineffective, [an

a]ppellant must demonstrate that: (1) the claim is of arguable merit; (2)

counsel had no reasonable strategic basis for his or her action or inaction;
____________________________________________


2
    Appellant’s one and one-half-page argument on this issue is
underdeveloped.      Although his sole claim is premised on ineffective
assistance of counsel, he fails to state this specifically, nor does he provide
this Court with any citations to the certified record. See Pa.R.A.P. 2119(a)-
(c). Because we are able to discern the crux of his argument, we decline to
find waiver, and will address it on the merits. See Pa.R.A.P. 2101.



                                           -3-
J-S51032-16



and (3) counsel’s ineffectiveness prejudiced him.”          Commonwealth v.

Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (citation omitted).

               Our Supreme Court has held that counsel’s unexplained
        failure to file a requested direct appeal constitutes ineffective
        assistance per se, such that the petitioner is entitled to
        reinstatement of direct appeal rights nunc pro tunc without
        establishing prejudice.    However, before a court will find
        ineffectiveness of counsel for failing to file a direct appeal, the
        petitioner must prove that he requested a direct appeal and the
        counsel disregarded the request.

Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011), appeal

denied, 30 A.3d 487 (Pa. 2011) (citations omitted).

        Here, the PCRA court determined as follows:

              . . . [Appellant’s] own evidence at the PCRA evidentiary
        hearing established that no such request was made of
        Santaguida. [Appellant’s] mother, Arleatha Hargrove, testified
        that at some point in the weeks following the sentencing, she
        called Santaguida’s office to discuss an appeal. Santaguida’s
        normal practice in such situations is to discuss the benefits and
        drawbacks, both financial and legal, of the filing of an appeal.

               Arleatha Hargrove testified that Santaguida did just this,
        and that she told him that she would “talk to her sons.” (N.T.
        PCRA Hearing, 2/20/15, at 17).3 She took no further action and
        did not call Santaguida again. (See id.). No other witnesses
        testified that they had any contact with Santaguida or that they
        called Santaguida’s office to request that a direct appeal be filed.

              The record is therefore clear that [Appellant], either on his
        own or through his family, did not request that his attorney file a
        direct appeal. Without such request, [Appellant] has failed to
        meet his burden under the PCRA and is not entitled to relief.

____________________________________________


3
    [Appellant] was tried as co-defendant with his brother, Doron Hargrove.



                                           -4-
J-S51032-16



(PCRA Ct. Op., at 2) (record citation formatting provided).

      Upon review, viewing the evidence of record in a light most favorable

to the Commonwealth as the prevailing party, we agree with the PCRA court

that Appellant has not met his burden of establishing ineffective assistance

of counsel with respect to his direct appeal, and we conclude that he is not

entitled to relief.   See Mason, supra at 617; Ousley, supra at 1244.

Accordingly, we affirm the order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2016




                                    -5-
