J-S39019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellant

                        v.

    REVOLUTION HELUMUMBA
    WASHINGTON

                             Appellant               No. 1981 EDA 2018


               Appeal from the PCRA Order entered May 30, 2018
               In the Court of Common Pleas of Delaware County
                Criminal Division at No: CP-23-CR-0005235-2010


BEFORE: GANTMAN, P.J.E., STABILE, J. and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                       FILED OCTOBER 11, 2019

        The Commonwealth of Pennsylvania (“Commonwealth”) appeals from

the May 30, 2018 order entered in the Court of Common Pleas of Delaware

County, granting collateral relief pursuant to the Post Conviction Relief Act

(“PCRA”)1 to Appellee, Revolution Helumumba Washington (“Washington”),

and reinstating his right to file post-sentence motions nunc pro tunc. The

Commonwealth asserts the PCRA court erred by reinstating Washington’s right

to file post-sentence motions based on trial counsel’s ineffectiveness and

contends the court should have limited relief to reinstating Washington’s right



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* Former Justice specially assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.
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to a direct appeal based on appellate counsel’s ineffectiveness. Upon review,

we agree. Therefore, we vacate the May 30, 2018 order.

     In its Rule 1925(a) opinion, the PCRA court provided the following

factual and procedural history:

     On September 16, 2010 [Washington] was arraigned on
     aggravated assault and related offenses in connection with a
     bizarre incident that occurred on June 5, 2010 where
     [Washington] was discovered asleep or unconscious behind the
     wheel of a car that was in gear in the middle of an intersection at
     1301 Honon Street in Chester, Pennsylvania.

     When Chester City Police Sergeant Charles Fell knocked on the
     driver’s side window, [Washington] awoke but let his foot slip off
     the brake pedal such that the vehicle began to roll. Apparently,
     then aroused from slumber [Washington] attempted to drive away
     from the scene. However, other responding officers had arrived
     on the scene including Officer Benozich who had to dive out of the
     way of [Washington] as he accelerated his car away from the
     scene. Sergeant Fell then chased [Washington] speeding through
     the extremely narrow car[-]lined side streets and roadways of the
     Chester City.

     Additional officers gave chase to [Washington] as he drove into
     an alley way through barriers and through a fence into an enclosed
     area. [Washington] was boxed in and began to drive his vehicle
     in tight circles (“donuts”) until he attempted to bail out and make
     a run for it. Officers closed in on him and he retreated back into
     the vehicle at which point multiple officers intervened. Officers
     Benozich and Sheppleman dragged him kicking and screaming out
     of his car.       Even more officers were required to subdue
     [Washington]. It is from these events [Washington’s] charges and
     convictions arise.

     On May 3, 2011 the Commonwealth amended the criminal
     informations identifying officer Stephen Sheppleman rather than
     Sgt. Charles Fell as the victim in connection with Count One (1)
     (aggravated assault). The Commonwealth proceeded to trial on
     Counts one (1) through (3) of the criminal informations. The
     Commonwealth withdrew [additional charges].


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     After jury trial conducted between May 3, 2011 and May 5, 2011
     [Washington] was found guilty of two (2) counts of aggravated
     assault on law enforcement 18 Pa.C.S.A. § 2702[(a)] and one
     count of fleeing or attempting to elude an officer 75 Pa.C.S.A. §
     3733[(a)]. On July 14, 2011 [Washington] was sentenced to
     consecutive sentences on his convictions including incarceration
     for 33 to 120 months on count one aggravated assault, 33 to 120
     months consecutive on the second count of aggravated assault on
     a law enforcement officer, and 21 months to 84 months
     incarceration on conviction of fleeing or attempting to elude an
     officer.

     [Washington’s] aggregate sentence of incarceration was for a
     period of not less than 87 months to not more than 324 months.
     At sentencing [Washington] completed a statement of post-
     sentence rights form in addition to an oral colloquy before the
     court. On July 21, 2011 [Washington] filed counseled post-
     sentence motions to modify his sentence, in arrest of judgment
     and a motion for new trial. On July 25, 2011 [Washington’s] post-
     sentence motions were denied.

     On August 4, 2011 [Washington] filed a Notice of Appeal to the
     Pennsylvania Superior Court to counsel (sic). On August 5, 2011
     [Washington] was ordered to file a concise statement of matters
     complained of.    On August 10, 2011 [Washington] filed a
     counseled statement of matters complained of on appeal. On
     October 21, 2011 the trial court filed its 1925(a) opinion. On
     [September 18, 2012] the Pennsylvania Superior Court affirmed
     [Washington’s] convictions and judgment of sentence.10
       10
          The issues on [Washington’s] direct appeal were directed to the
       alleged “improper” or “late” amendment by the Commonwealth of the
       criminal informations to substitute Officer Sheppleman rather than
       Sergeant Benozich as the victim in count I in derogation of the
       Pa.R.Crim.P. Also, [Washington] challenged the trial court’s factual
       findings on grounds the court contradicted the jury’s findings. Lastly,
       [Washington] challenged the propriety of his sentence. The
       Pennsylvania Superior Court affirmed [Washington’s] convictions and
       sentence.

     On January 31, 2013 [Washington] filed an uncounseled [PCRA]
     pro se petition[. Counsel was appointed and filed an amended
     PCRA petition on December 4, 2014. The Commonwealth filed an
     answer on June 25, 2015. After Washington filed a supplemental
     amended PCRA petition on January 26, 2017, the Commonwealth


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       filed a response on April 5, 2017. A hearing was held on June 27,
       2017, after which Washington filed a letter brief in support of his
       petition and the Commonwealth filed an answer.]

       On May 31, 2018 the PCRA court granted [Washington] PCRA
       relief reinstating nunc pro tunc [his] right to file a motion for
       reconsideration of the denial of post-sentence motions fully
       informed by the completely transcribed record[2] and challenging
       the discretionary aspects of the sentence.

PCRA Court Rule 1925(a) Opinion 12/3/18, at 5-9 (additional footnote

omitted).

       The Commonwealth filed a motion to vacate and, subsequently, a timely

notice of appeal to this Court. Both the Commonwealth and the PCRA court

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

       The Commonwealth asks us to consider two issues:

       [1.] Trial counsel filed and litigated a post-sentence motion to
       modify sentence raising every non-frivolous argument that the
       sentence was “harsh and excessive.” The trial court denied the
       motion. Did the PCRA court err by granting relief in the form of
       reinstating the right to file a motion to modify sentence when the
       petitioner failed to show that trial counsel was ineffective?

       [2.] Appellate counsel filed a brief that waived all issues on direct
       appeal. Was the petitioner entitled to reinstatement of his direct
       appellate rights nunc pro tunc as a result of appellate counsel’s
       ineffectiveness?

Commonwealth Brief at 2-3.


____________________________________________


2 The transcript in question from May 3, 2011 was transcribed in the course
of PCRA proceedings and reflects trial counsel’s objection to the substitution
of one officer for another as a victim in the informations. Transcript, 5/3/11,
at 3-5. When the trial court issued its Rule 1925(a) opinion on direct appeal,
the court mistakenly recalled that trial counsel did not object to the
substitution of the victim’s name. Trial Court Opinion, 10/21/11, at 3.

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      Our standard of review from a PCRA court’s determination 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.” Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). With regard to the

scope of our review, we are “limited to the findings of the PCRA court and the

evidence of record,” viewed in the light most favorable to party who prevailed

before the PCRA court. Id. (citation omitted).

      In its first issue, the Commonwealth argues PCRA court error for

reinstating    Washington’s   right   to   file   a   post-sentence   motion   for

reconsideration of sentence. The Commonwealth contends trial counsel filed

a post-sentence motion to modify in which counsel raised “every non-frivolous

argument . . . that the sentence was ‘harsh and excessive.’” Commonwealth

Brief at 14.   The record reflects that trial counsel did, in fact, file a post-

sentence motion raising several challenges to the sentences imposed. Post-

Sentence Motion to Modify Sentence, 7/21/11, at ¶ 4. The trial court denied

the motion, finding Washington’s long criminal history warranted sentences in

the aggravated range.    See Trial Court Opinion, 10/21/11, at 7-9.

      Washington appealed and raised four claimed errors in his Rule 1925(b)

statement. They included a claim of error for permitting an amendment of

the criminal information immediately prior to trial, substituting the name of

one officer for another as a victim; two claims of error relating to the


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consecutive sentences imposed, including a claim the sentence was excessive;

and a claim of error for denying Washington’s request for a hearing to refute

statements made by an officer at Washington’s sentencing hearing.              Rule

1925(b) Statement, 8/18/11, at ¶¶ 1-4.

       In the brief filed with this Court, direct appeal counsel abandoned the

errors asserted in Washington’s Rule 1925(b) statement and instead claimed,

for the first time, that the trial court failed to state on the record the reasons

for the sentences imposed.3 Because that claim was not preserved either at

sentencing or in Washington’s post-sentence motion, as required for a

discretionary aspect of sentence claim, we found the issue waived and

affirmed    Washington’s      judgment         of   sentence.   Commonwealth     v.

Washington, 2084 EDA 2011, unpublished memorandum at 4-5 (Pa. Super.

filed 9/18/12) (citing Commonwealth v. Messersmith, 860 A.2d 1078,

1096 (Pa. Super. 2004)).

       The Commonwealth claims the PCRA court erred in finding trial counsel

ineffective, arguing that only direct appeal counsel was ineffective and, as a

result, the PCRA court should not have reinstated Washington’s right to file a

post-sentence motion nunc pro tunc.                  In its opinion, the PCRA court

determined that reinstating Washington’s right to file a post-sentence motion


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3 The 1925(b) statement was filed by trial counsel before he was granted
permission to withdraw by this Court. Following his withdrawal, direct appeal
counsel was appointed. We note the trial court did state reasons for the
sentence imposed. See Notes of Testimony, 7/14/11, at 51-52.

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“more appropriately remediates the lapses due to the record that wasn’t

transcribed and counsel’s ineffectiveness.” PCRA Court Opinion, 12/3/18, at

2. “[A] PCRA court can reinstate a defendant’s post-sentence rights nunc pro

tunc if the defendant successfully pleads and proves he was deprived of the

right to file and litigate post-sentence motions as a result of ineffective

assistance of counsel.”   Id. (citing Commonwealth v. Liston, 977 A.2d

1089, 1094 n. 9 (Pa. 2009)).     In Liston, our Supreme Court reversed a

decision by a panel of this Court that determined “all defendants who have

been granted the right to file an appeal nunc pro tunc also must be granted

an automatic right to file post-sentence motions nunc pro tunc.” Id. at 1093

(emphasis in original). In the cited footnote, our Supreme Court explained:

     Our holding should not be construed as prohibiting a PCRA court
     from reinstating a defendant’s right to file post-sentence motions
     nunc pro tunc. If a defendant successfully pleads and proves that
     he was deprived of the right to file and litigate said motions as a
     result of the ineffective assistance of counsel, a PCRA court is free
     to grant such relief. Presumably, since post-sentence motions are
     optional, see Pa.R.Crim.P. 720(B), rarely will counsel be deemed
     to have been ineffective for failing to file them except, for
     example, when the claim involves the discretionary aspects of
     sentence or a challenge to a verdict on weight of the evidence
     grounds, claims which must be raised in the trial court to be
     preserved for purposes of appellate review.

Id. at 1094 n.9.

     As explained above, trial counsel did file a post-sentence motion that

included the challenges to discretionary aspects of sentence. Washington’s

contention that counsel failed to preserve a “harsh, excessive sentence” claim

in the post-sentence motion is belied by the record.       See Post-Sentence

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Motion, 7/21/11, at ¶ 4. Moreover, the challenges to the discretionary aspects

of sentence were included in Washington’s Rule 1925(b) Statement.          See

Statement of Matters Complained of on Appeal, 8/18/11, at ¶ 3. Washington’s

remaining claims of trial court ineffectiveness involved issues that were not

required to be preserved in a post-sentence motion and were, therefore, not

waived on direct appeal.         Under the circumstances, therefore, it was not

appropriate for the PCRA court to grant Washington the opportunity to file

post-sentence motions nunc pro tunc. See Liston, 977 A.2d at 1093-94. We

agree with the Commonwealth that it was error for the court to do so.

        In his second issue, the Commonwealth asks whether Washington was

entitled to reinstatement of his direct appeal rights nunc pro tunc in light of

the ineffectiveness of direct appeal counsel.       In fact, the Commonwealth

concedes Washington is entitled to reinstatement of those direct appeal rights.

As explained above, direct appeal counsel filed a brief with this Court in which

he abandoned the errors asserted in Washington’s Rule 1925(b) statement

and instead claimed, for the first time, that the trial court failed to state on

the record the reasons for the sentences imposed. 4 Because that claim was

not preserved either at sentencing or in Washington’s post-sentence motion,

as required for a discretionary aspect of sentence claim, we found the issue


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4   See n. 3, supra.




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waived    and   we        affirmed   Washington’s   judgment      of     sentence.

Commonwealth         v.     Washington,      2084   EDA   2011,        unpublished

memorandum at 4-5 (Pa. Super. filed 9/18/12) (citing Commonwealth v.

Messersmith, 860 A.2d 1078, 1096 (Pa. Super. 2004)).

      In Commonwealth v. Pulanco, 954 A.2d 639 (Pa. Super. 2008), this

Court recognized that a petitioner’s direct appeal rights may be reinstated

nunc pro tunc when prior counsel caused his sole direct appellate claim to be

waived. Id. at 642 (citing, inter alia, Commonwealth v. Halley, 870 A.2d

795, 801 (Pa. 2005), in turn citing Hernandez, 755 A.2d 1, 9 n.4 (Pa. Super.

2000) (“[A] PCRA petitioner is entitled to an appeal nunc pro tunc where prior

counsel’s actions, in effect, entirely denied his right to a direct appeal, as

opposed to a PCRA petitioner whose prior counsel’s ineffectiveness may have

waived one or more, but not all, issues on direct appeal.”)).

      In the instant case, direct appeal counsel waived the only issue raised

in the brief filed with this Court. In his PCRA filings, Washington raised the

issue of direct appeal counsel’s ineffectiveness. See, e.g., Amended Petition

for PCRA Relief, 12/4/14, at ¶¶ 16, 17 and 25. In accordance with this Court’s

holding in Pulanco, we agree that Washington is entitled to reinstatement of

his direct appeal rights nunc pro tunc, but limited to the issues preserved in

his post-sentence motions and his Rule 1925(b) statement.




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      Because we find that Washington is entitled to reinstatement of his

direct appeal rights nunc pro tunc but not reinstatement of his right to file

post-sentence motions nunc pro tunc, we vacate the order of the PCRA court

and remand for the PCRA court to reinstate Washington’s direct appeal rights

nunc pro tunc, but limited to the issues preserved in his post-sentence motions

and his Rule 1925(b) statement.

      Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/19




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