J-S57021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DIOUL DEVAUGHN

                         Appellant                   No. 2041 EDA 2014


                 Appeal from the PCRA Order June 25, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0014555-2008


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                            FILED OCTOBER 22, 2015

      Dioul DeVaughn brings this appeal from the order entered on June 25,

2014, in the Court of Common Pleas of Philadelphia County, that dismissed

without a hearing, his petition filed pursuant Pennsylvania’s Post Conviction

Relief Act (PCRA), §§ 9541–9546.      DeVaughn claims (1) trial counsel was

ineffective for failing to file a direct appeal, and (2) the PCRA court erred in

failing to hold an evidentiary hearing. DeVaughn’s Brief at 2. Based upon

the following, we reverse and remand for an evidentiary hearing.

      The PCRA court has summarized the background of this case, as

follows:

      On December 18, 2007, at approximately 1:20 a.m.,
      [DeVaughn] was standing on the steps of a house in the 3100
      block of Sheridan Street in Philadelphia. Two Philadelphia police
      officers pulled onto the block in their vehicle and engaged
      [DeVaughn] in a brief conversation. When one of the officers
      opened his car door to get out of the vehicle, [DeVaughn] ran
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       into a nearby alley. The officers pursued [DeVaughn] and
       observed him discard a handgun to the ground. The gun was
       recovered and found to be a 9mm handgun, loaded with 13
       rounds in the magazine and one in the chamber. The handgun,
       which was engraved with the name “Atlanta Police Department,”
       had previously been reported stolen (N.T. 3/24/09, 6-10).

       [DeVaughn] was arrested and charged with violations of the
       Uniform Firearms Act as well as receiving stolen property. On
       March 24, 2009, [DeVaughn] litigated a motion to suppress the
       handgun before this Court. This Court denied [DeVaughn’s]
       motion, at which point [DeVaughn] immediately waived his right
       to a jury and proceeded to trial before this Court. This Court
       found [DeVaughn] guilty of violating section 6106 of the Uniform
       Firearms Act (firearms not to be carried without a license) and
       section 6108 (carrying firearms on public streets or public
       property in Philadelphia). This Court found [DeVaughn] not guilty
       of Receiving Stolen Property. On September 9, 2009, this Court
       sentenced [DeVaughn] to an aggregate term of two to four years
       incarceration, followed by three years of probation. Qawi Abdul-
       Rahman, Esquire, represented [DeVaughn] throughout these
       proceedings.

       On August 13, 2010, [DeVaughn] filed pro se PCRA petition.
       Elayne C. Bryn, Esquire, was appointed represent him [on
       August 30, 20121]. On September 26, 2012, Ms. Bryn filed an
       amended petition on [DeVaughn’s] behalf, claiming that counsel
       was ineffective for failing to file a post-sentence motion and a
       direct appeal. On December 18, 2012, Ms. Bryn filed a
       supplemental amended petition, consisting of an affidavit, signed
       by [DeVaughn], which set forth [DeVaughn’s] alleged
       communication with trial counsel regarding the filing of a post-
       sentence motion and appeal.

PCRA Court Opinion, 2/19/2015, at 1–2.

       On October 16, 2013, the PCRA court issued an order pursuant to

Pa.R.Crim.P. 907(1), giving notice of intent to dismiss the petition. On June
____________________________________________


1
  There were three appointed counsel in this case prior to the appointment of
Elayne C. Bryn, Esquire.



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25, 2014, the PCRA court dismissed the PCRA petition without a hearing.

This appeal followed.2

       The principles that guide our review are well settled:

           This Court’s standard of review regarding an order
           denying a petition under the PCRA is whether the
           determination of the PCRA court is supported by the
           evidence of record and is free of legal error. The PCRA
           court’s findings will not be disturbed unless there is no
           support for the findings in the certified record.

Commonwealth v. Walls, 993 A.2d 289, 294–295 (Pa. Super. 2010)

(internal citations and citation omitted).

       It is clear that where a defendant clearly asks for an appeal and

counsel fails to file one, a presumption of prejudice arises regardless of the

merits of the underlying issues. Commonwealth v. Lantzy, 558 Pa. 214,

736 A.2d 564 (Pa. 1999). A PCRA court must hold a hearing to determine

“whether [an] [a]ppellant requested that counsel so appeal.            If it is

determined that this request was made and counsel failed to comply, [an]

[a]ppellant’s rights must be reinstated.” See Commonwealth v. Daniels,

737 A.2d 303, 305 (Pa. Super. 1999). However, a PCRA court may decline

to hold a hearing on the petition if the PCRA court determines that a

petitioner’s claim is patently frivolous and is without a trace of support in




____________________________________________


2
  DeVaughn timely complied with the PCRA court’s order to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).



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either the record or from other evidence. Commonwealth v. Jordan, 772

A.2d 1011, 1014 (Pa. Super. 2001).

      As recounted by the PCRA court in its opinion, excerpted above, on

December 18, 2012, counsel for DeVaughn filed a supplemental amended

PCRA petition, attaching DeVaughn’s sworn, signed affidavit.      The affidavit

states, in relevant part:

      On March 24, 2009, I was found guilty by Judge Ellen Ceisler of
      the charges of Firearms Not to be Carried Without a License (18
      Pa.C.S. § 6106) and Carrying Firearms in a Public Place (18
      Pa.C.S. § 6108), for the above-captioned matter.              On
      September 9, 2009, Judge Ceisler sentenced me to 2 to 4
      years, followed by a three year probation for Firearms Not to be
      Carried Without a License (18 Pa.C.S. § 6106) and a concurrent
      sentence of 2 to 4 years for Carrying Firearms in a Public Place
      (18 Pa.C.S. § 6108). Qawi Abdul-Rahman, Esquire, represented
      me for my waiver trial and sentencing.

      On 10-9-09 I contacted my attorney, Qawi Abdul-Rahman,
      Esquire, by letter regarding the filing of post-verdict motions,
      post-sentence motions and/or a direct appeal on my behalf for
      this case. However, Mr. Abdul-Rahman did not file a post-
      verdict motion, post-sentence motion or direct appeal for this
      matter.

DeVaughn’s Supplement to Amended Petition Under the Post Conviction

Relief Act, 12/12/2012, Exhibit “A” (Affidavit of Dioul DeVaughn) (emphasis

added). The affidavit is type-written, except for two blanks that are filled in

with hand-written notations of “10-9-09” and “letter.”

      The PCRA court assessed the affidavit and dismissed the petition,

explaining:

      Assuming arguendo that [DeVaughn] did in fact send such a
      letter to Mr. Abdul-Rahman, based on [DeVaughn’s] own

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      affidavit, counsel could not possibly have received the letter in
      time to file a post-sentence motion or appeal within the
      proscribed deadlines for filing. According to [DeVaughn], his
      letter to counsel was not sent until thirty days after
      [DeVaughn’s] sentencing date.             Thus it is clear that
      [DeVaughn’s] counsel would not have received the letter [until]
      after the thirty day period for filing an appeal would clearly have
      passed and the ten day period for filing post-sentence motions
      would long have expired.

      Counsel cannot be deemed ineffective for failing to file a post-
      sentence motion or appeal where, by [DeVaughn’s] own account,
      [DeVaughn] failed to make a timely request of counsel to take
      such action. It was [DeVaughn’s] actions, not counsel’s that
      resulted in [DeVaughn’s] forfeiture of his post-trial rights.

PCRA Court Opinion, 2/17/2015, at 3–4. We disagree with this analysis.

      Although the affidavit was filed in support of the amended PCRA

petition, DeVaughn’s averment that he sent his attorney a letter on October

9, 2009, was regarded by the PCRA court as fatal to DeVaughn’s claim. The

PCRA court implicitly determined that DeVaughn’s October 9, 2009 letter

was the first time he contacted counsel regarding an appeal. This finding,

however, is not established by the record. Rather, the affidavit raises the

question whether DeVaughn communicated with counsel prior to the letter

he contends he sent to counsel.     Therefore, we conclude the PCRA court

erred in dismissing DeVaughn’s petition without an evidentiary hearing.

Accordingly, we vacate the PCRA court’s order and remand for a hearing

consistent with this decision.

      Order reversed. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2015




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