J-S29026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

JAMERE QUINCE CHRISTIAN

                            Appellant                        No. 1534 WDA 2014


                 Appeal from the PCRA Order August 14, 2014
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0002132-2012


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                                      FILED JULY 15, 2015

        Appellant, Jamere Quince Christian, appeals from the August 14, 2014

order dismissing his petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA) 42 Pa.C.S.A. §§ 9541-9546. After careful review, affirm.

        We summarize the relevant procedural background of this case as

follows. On May 14, 2013, following a bench trial, Appellant was convicted

of two counts of aggravated assault and one count each of simple assault

and recklessly endangering another person (REAP).1              On July 2, 2013, the

trial court imposed an aggregate sentence of seven and one-half to 20 years’

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*
    Retired Senior Judge assigned to the Superior Court.
1
   18 Pa.C.S.A.        §§   2702(a)(1),        2702(a)(4),   2701(a)(3),   and   2705
respectively.
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imprisonment.2       On July 9, 2013, Appellant, pro se, filed a premature

petition for PCRA relief, challenging the effectiveness of trial counsel,

Maribeth Schaffer, Esquire (Attorney Schaffer).3 On July 26, 2013, the trial

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2
  Specifically, on the first count of aggravated assault, the trial court
imposed a sentence of seven and one-half to 20 years’ imprisonment; on the
second aggravated assault charge, the trial court imposed a sentence of two
years and three months to ten years’ imprisonment, to run concurrent to the
sentence at count one; on the simple assault and REAP counts, the trial
court imposed no further penalty.
3
   Thereafter, on July 17, 2013, Attorney Schaffer filed an untimely post-
sentence motion on Appellant’s behalf. Attorney Schaffer did not seek leave
to file the motion nunc pro tunc. Although on October 31, 2013, the trial
court denied said untimely post-sentence motion on its merits, it did not
expressly grant leave to file the motion nunc pro tunc. Trial Court Order,
10/31/13. Therefore, the filing of the motion did not toll the 30-day appeal
period. See Pa.R.A.P. 903(c); see also Commonwealth v. Capaldi, 112
A.3d 1242, 1244 (Pa. Super. 2015) (holding an untimely post-sentence
motion cannot toll the 30-day appeal period unless the trial court grants
leave to file said motion nunc pro tunc upon good cause shown even if the
trial court addresses the merits of the motion). In any event, no direct
appeal was filed.

        Notwithstanding the pendency of his PCRA petition, Appellant, on July
22, 2013, filed a pro se “Motion to Appeal Sentence and Conviction.” As
Appellant was represented by counsel, his pro se filings carried no legal
significance. See Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa.
1993) (discussing the effect of pro se filings and holding, “there is no
constitutional right to hybrid representation either at trial or on appeal.”)
(citation omitted). Therefore, because Appellant was represented, the Clerk
of Courts noted the motion in the docket and forwarded it to Attorney
Schaffer pursuant to Pennsylvania Rule of Criminal Procedure 576. See
Pa.R.Crim.P. 576(A)(4) (providing the clerk of courts, when presented with a
pro se filing by a represented defendant, shall receive and time-stamp the
filing, and “[a] copy of the time stamped document shall be forwarded to the
defendant’s attorney and the attorney for the Commonwealth within 10 days
of receipt[]”).




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court denied Appellant’s premature petition for post-conviction relief without

prejudice for “[Appellant] to file a new petition once the [p]ost-sentence

[m]otions and any subsequent appeal[s] have been ruled on.” Trial Court

Order, 7/26/13.4

       On May 5, 2014, Appellant filed the instant, timely pro se PCRA

petition. The PCRA court appointed counsel on May 8, 2014. On August 14,

2014, the PCRA court held a hearing on Appellant’s petition, which it denied

that day. On September 11, 2014, Appellant filed a timely notice of appeal. 5

       On appeal, Appellant raises the following three issues for our

consideration.

              [I.] Whether trial counsel provided ineffective
              assistance by failing to file [a] direct appeal from the
              judgment of sentence?

              [II.] Whether trial counsel provided ineffective
              assistance by failing to file a motion to suppress the
              victim’s written statement in view of the fact that
              she was intoxicated when she provided the
              statement to Officer Huber, and did not sign it in the
              officer’s presence[?]
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4
  Appellant filed a pro se appeal of the trial court order on September 4,
2013, and this Court quashed the appeal on December 4, 2013, as the
appeal was untimely. Superior Court Order, 1435 WDA 2013, 12/4/13.
5
  Appellant filed a pro se notice of appeal on September 8, 2014, which was
forwarded to his counsel per Rule 576(A)(4). Counsel then filed the instant,
timely appeal.

      Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.




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               [III.] Whether trial counsel provided ineffective
               assistance by failing to advise [Appellant], prior to
               nonjury trial, of the mandatory sentencing guidelines
               as the two charged counts of aggravated assault and
               impact of weapons enhancement guidelines?

Appellant’s Brief at 3.6

       Our standard of review in PCRA matters is well settled. “In reviewing

the   denial    of   PCRA    relief   we       examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (internal

quotation marks and citation omitted). “[O]ur 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.”

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

2015) (en banc), quoting Commonwealth v. Sam, 952 A.2d 565, 573 (Pa.

2008). Further, “[w]e grant great deference to the factual findings of the

PCRA court and will not disturb those findings unless they have no support in

the record.” Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc) (citation omitted), appeal denied, 101 A.3d 785 (Pa. 2014).

Though we defer to the factual findings and credibility determinations of the


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6
  Appellant’s brief contains one issue with three, distinct sub-parts. For
clarity and ease of discussion, we have slightly amended the format to
reflect the three questions Appellant raises.



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PCRA court, “we review the PCRA court’s legal conclusions de novo.”

Reyes-Rodriguez, supra (citation omitted).

        In order to be eligible for PCRA relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at Section 9543(a)(2) of the

PCRA.     42 Pa.C.S.A. § 9543(a)(2).      One such error, which provides a

potential avenue for relief, is ineffective assistance of counsel.         Id.

§ 9543(a)(2)(ii). The issues raised must be neither previously litigated nor

waived. Id. § 9543(a)(3).

      In all of his issues on appeal, Appellant challenges the effectiveness of

trial counsel. “In order to obtain relief on a claim of ineffectiveness, a PCRA

petitioner must satisfy the performance and prejudice test set forth in

Strickland v. Washington, 466 U.S. 668 (1984).”           Commonwealth v.

Reid, 99 A.3d 427, 436 (Pa. Super. 2014). In Pennsylvania, adherence to

the Strickland test requires a PCRA petitioner to establish three prongs.

Id. Specifically, the petitioner must demonstrate “(1) the underlying claim

has arguable merit; (2) no reasonable basis existed for counsel’s actions or

failure to act; and (3) the petitioner suffered prejudice as a result of

counsel’s error[.]”   Id. (citation omitted).   Moreover, we presume counsel

has rendered effective assistance.     Commonwealth v. Rivera, 108 A.3d

779, 789 (Pa. Super. 2014).      In general, if counsel’s particular course of

action had some reasonable basis toward effectuating her client’s interests,


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counsel has provided constitutionally effective assistance. Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014). With regard to counsel’s strategic

choices, “[a] finding that a chosen strategy lacked a reasonable basis is not

warranted unless it can be concluded that an alternative not chosen offered

a potential for success substantially greater than the course actually

pursued.” Id. at 312 (citation omitted). For a petitioner to prove prejudice,

he must demonstrate that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceedings would have

been different.” Id. (citation omitted). “[I]f a claim fails under any required

element of the Strickland test, the court may dismiss the claim on that

basis.”   Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014)

(citation omitted).

      Appellant first challenges counsel’s stewardship by contending she

provided ineffective assistance of counsel by “failing to file [a] direct appeal

when specifically directed to by her client.” Appellant’s Brief at 10.

      In Commonwealth v. Lantzy, 736 A.2d 564, (Pa. 1999), our

Supreme Court considered whether counsel’s failure to file a direct appeal

entitles a petitioner seeking reinstatement of appeal rights nunc pro tunc to

that relief under the PCRA.     In concluding that such relief was available

under the PCRA, the High Court highlighted, “the failure to perfect a

requested appeal is the functional equivalent of having no representation at

all[.]” Id. at 571 (citation omitted). Moreover, because “Article V, Section 9


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of the Pennsylvania Constitution guarantees a direct appeal as of right … a

failure to file or perfect such an appeal results in a denial so fundamental as

to constitute prejudice per se.”    Id. (citations omitted).   Accordingly, our

Supreme Court held the following.

                   [W]here 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, denies the accused the
            assistance of counsel guaranteed by the Sixth
            Amendment to the United States Constitution and
            Article I, Section 9 of the Pennsylvania Constitution,
            as well as the right to direct appeal under Article V,
            Section 9, and constitutes prejudice for the purposes
            of Section 9543(a)(2)(ii).       Therefore, in such
            circumstances,      and    where     the     remaining
            requirements of the PCRA are satisfied, the petitioner
            is not required to establish his innocence or
            demonstrate the merits of the issue or issues which
            would have been raised on appeal.

Id. at 572 (footnote omitted). “The remedy for the deprivation of this

fundamental right of appeal is its restoration.” Commonwealth v. Haun,

32 A.3d 697, 700 (citation omitted) (Pa. 2011). Therefore, in order to be

entitled to relief, Appellant had the burden of proving, by a preponderance of

the evidence, that he requested Attorney Schaffer to file an appeal on his

behalf. See 42 Pa.C.S.A. § 9543(a)(2)(ii); Lantzy, supra.

      At the PCRA hearing, Appellant testified as follows regarding his desire

to seek direct review.

            [PCRA counsel]:

            Q. Did you ask Ms. Schaffer to file a direct appeal
            regarding your conviction?

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           [Appellant]:

           A. Yes, sir.

           Q. Were you advised of your due process rights to
           file an appeal?

           A. I don’t believe so, no.

           Q. Well, [the trial court] usually advises people at
           the time they are sentenced. My notes indicate that
           on July 2, 2013 when you were being sentenced at
           page 6 you asked the judge … [‘]when can I file an
           appeal[?’] Do you recall asking the judge that?

           A. I believe he said 10 days.     I do remember that
           now.

                                        …

           Q. It’s my understanding a direct appeal on the
           merits of the trial was never filed. Is that correct?

           A. No, sir.

N.T., 8/14/14, at 15. Although Attorney Schaffer was present at the hearing

and testified, Appellant did not question her at all with respect to her

representation of Appellant on direct appeal, nor did Appellant ask her

whether he indeed requested that she file an appeal on his behalf.     See

generally id. at 24-34.

     The PCRA court supports its decision as follows.

                  The only evidence [Appellant] presented on
           this issue is his own self-serving testimony that he
           requested [Attorney] Schaffer to file an appeal. The
           record reveals no communication from [Appellant]
           directing [Attorney] Schaffer to file an appeal on his


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            behalf[,] and [Attorney] Schaffer was not questioned
            at the PCRA hearing on this issue.

                   The record does reveal that [Appellant] was
            aware of his appeal rights and was aware of the
            process to file a pro se appeal[,] as he filed an
            untimely one on September 2, 2013, from this
            [c]ourt’s July 26, 2013 denial of his first PCRA
            [petition] in this matter ….       The testimony of
            [Appellant] on this issue is insufficient to overcome
            the presumption of effectiveness in light of the
            record. Further, it is the [c]ourt’s experience that
            defense counsel who has failed to file an appeal
            when directed by their former client will admit the
            error during PCRA proceedings and request that the
            appeal rights be reinstated in order to obtain
            appellate review for their former client.         Here
            [Attorney] Schaffer did not make such an admission
            nor was she questioned on this issue resulting in
            [Appellant] being unable to meet his burden.

                  Accordingly, there is no merit to this allegation
            of error.

PCRA Court Opinion, 11/6/13, at 5-6 (citations omitted). We conclude the

PCRA court did not err in denying relief on this basis.

      As the PCRA court observed, the only evidence presented to

demonstrate Appellant requested that his counsel file a direct appeal was his

own testimony. The PCRA court found Appellant’s testimony “self-serving”

and determined that he presented no evidence on which it could conclude

that Appellant in fact requested such appeal. Id. Because the evidence on

the record at the PCRA court hearing supports the PCRA court’s finding, we




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will not disturb its ruling on this issue.         See Reyes-Rodriguez, supra;

Henkel, supra.7

       Next, Appellant contends counsel was ineffective for failing to file a

motion to suppress a written statement of the victim.         Appellant’s Brief at

11.    Specifically, Appellant argues that counsel should have moved for the

suppression of the statement because the victim made the statement while

under the influence of alcohol, and it was “neither signed nor adopted by the

victim at the time it was written.” Id. at 12. The PCRA court summarized

Attorney Schaffer’s reasons for not filing the motion as follows.

                     [Attorney] Schaffer testified that she did not
              file the requested motion for a variety of reasons:
              she felt there was no legal basis for it; she felt it
              would have bolstered the Commonwealth’s case by
              providing the uncooperative witness to testify once
              on the record; that [Appellant’s] overall strategy was
              premised on the victim not testifying and creating an
              opportunity for her to testify would be counter to
              that; and that she believed a better trial strategy
              was to use the victim’s intoxication at the time of the
              incident and statement to undermine her credibility
              at trial.


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7
   We, however, disagree with the PCRA court’s legal conclusion that
Appellant’s knowledge of the process to file a direct appeal pro se is relevant
to the issue of whether his counsel provided ineffective assistance of
counsel. Regardless of Appellant’s knowledge of the process of filing an
appeal, he has the right to the effective assistance of counsel and the right
to file a direct appeal of his conviction.          Lantzy, supra at 572.
Nevertheless, as the PCRA court did not credit Appellant’s testimony that he
requested a direct appeal, we agree Appellant has failed to establish a right
to relief.



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PCRA Court Opinion, 11/6/13, at 7; accord N.T., 8/14/14, at 27-28, 31-34.

Instantly, we agree with Attorney Schaffer’s assessment that there is no

legal basis for the suppression of this statement.    N.T., 8/14/14, at 27.

Hence, this issue is without arguable merit. Pennsylvania Rule of Criminal

Procedure 581 governs motions to suppress and provides that a defendant

may file “a motion to the court to suppress any evidence alleged to have

been obtained in violation of the defendant’s rights.” Pa.R.Crim.P. 581(A);

see also Commonwealth v. Enimpah, 106 A.3d 695, 698 (Pa. 2014)

(noting that pursuant to Rule 581, a defendant’s own constitutional rights

must have been infringed in order to have standing to pursue a suppression

motion, subject to exceptions not applicable in the instant case).     Here,

Appellant argues the statement of another should have been the subject of a

motion to suppress based on the declarant not signing the statement and

her alleged intoxication; however, Appellant does not assert this statement

was obtained in violation of his own constitutional rights. Therefore, he has

failed to demonstrate this issue is of arguable merit. Consequently, Attorney

Schaffer was not ineffective for not pursuing a motion to suppress.      See

Reid, supra.

     Finally, Appellant argues that trial counsel was ineffective for not

advising him that he could receive a sentence higher than a term of five to

ten years’ imprisonment. Appellant’s Brief at 10. The PCRA court credited

Attorney Schaffer’s testimony that she always informs clients of their


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potential exposure to imprisonment.          PCRA Court Opinion, 11/6/13, at 9;

N.T., 8/14/14, at 30.        As the record supports this credibility determination,

we defer to the PCRA court’s finding and conclude Appellant’s issue is

without merit. See Henkel, supra. Alternatively, Appellant does not argue

that had he been advised of his potential sentence, there is a reasonable

probability that the outcome of the proceedings would have been different.

See generally Appellant’s Brief at 13-14. Therefore, Appellant has failed to

demonstrate      that   he    was   prejudiced    by   Attorney   Schaffer’s   alleged

ineffectiveness. See Spotz, supra. Accordingly, Appellant’s final challenge

fails.

         Based on the foregoing discussion, we conclude the PCRA court did not

err in dismissing Appellant’s PCRA petition. Thus, we affirm the PCRA court’s

August 14, 2014 order.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2015




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