J-S52015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GALINA RYTSAR                              :
                                               :
                       Appellant               :   No. 405 EDA 2019

           Appeal from the PCRA Order Entered December 13, 2018
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0005761-2015


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 27, 2019

       Galina Rytsar appeals, pro se,1 from the order entered on December 13,

2018, in the Court of Common Pleas of Bucks County, denying her relief,

without a hearing, on her petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. § 9541 et seq. Rytsar raises a number of claims of

ineffective assistance of counsel, only one of which is immediately relevant.

Rytsar claims trial counsel was ineffective for failing to file a direct appeal

despite her request to do so. After a thorough review of the submissions by

the parties, relevant law, and the certified record, we reverse and remand for

a hearing to determine whether Rytsar requested counsel to file a direct

appeal.
____________________________________________


1  Counsel was allowed to withdraw from representation after filing a
Turner/Finley no-merit letter with the PCRA court. See Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1998) (en banc).
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      We rely upon the PCRA court’s opinion for the underlying factual and

procedural history of this matter.

      In the summer of 2015, the Morrisville Borough Police Department
      suspected a house of prostitution being operated out of a former
      hair salon in Morrisville Borough based on information provided by
      a man who was pulled over immediately after visiting the house.
      The man stated that he found an advertisement for the house of
      prostitution on backpage.com. Following this information and
      after finding the advertisement on backpage.com, a police officer
      went undercover to solicit business for an act of prostitution on
      two separate occasion[s] in June of 2015. The police officer called
      the phone number associated with the advertisements which was
      later determined to be the number of [Rytsar’s] cell phone. A
      search warrant was issued for the Morrisville location and on the
      date of execution, a young woman working for [Rytsar] was
      interviewed. She stated that she had worked for [Rytsar] for
      approximately four years and had previously worked in New
      Jersey for [Rytsar] doing prostitution work. The young woman
      told police that [Rytsar] and her husband had another house of
      prostitution in Warminster, Bucks County. While the house was
      being investigated in Morrisville and the police learned of the
      Warminster house, [Rytsar] and her husband reopened the
      business in Morrisville and began recruiting additional women to
      work out of that location.

      On February 22, 2016, [Rytsar] entered into an open guilty plea
      in which [Rytsar] pleaded guilty to Promoting Prostitution,
      Criminal Conspiracy, and Criminal Use of a Communication
      Facility. Sentencing was deferred and on August 31, 2016,
      [Rytsar] was sentenced to an incarceration of three (3) to ten (10)
      years and a concurrent probation of ten (10) years.

      On September 7, 2016, [Rytsar] filed a motion for reconsideration
      of sentence. On September 16, 2016, this Court denied a hearing
      on [Rytsar’s] motion for reconsideration of sentence.

      On June 19, 2017, [Rytsar] filed a Post-Conviction Relief Act
      (PCRA) Petition. This Court appointed private counsel. On June
      14, 2018, appointed counsel filed a petition to withdraw as counsel
      due to lack of meritorious issues. Attached to this petition was
      the letter that appointed counsel sent to [Rytsar] pursuant to

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      Commonwealth v. Finley, 550 A.2d 213 (1998). On June 19,
      2018, this Court granted appointed counsel’s motion to withdraw
      as counsel.

      On August 16, 2018, this Court filed a notice of intent to dismiss.
      On that same day, a letter from [Rytsar] was delivered to the
      Clerk of Courts of Bucks County asking for an update on the status
      of her PCRA petition.

      On August 17, 2018, this Court scheduled a hearing for October
      11, 2018. On August 30, 2017, another letter from [Rytsar] was
      delivered to the Clerk of Courts of Bucks County requesting
      information on whether she should respond to the notice of intent
      to dismiss or wait until the upcoming hearing. The hearing
      scheduled on October 11, 2018, was continued until October 25,
      2018, because of [Rytsar’s] need of a translator. On October 29,
      2018, this Court entered an order denying application for
      assignment of counsel.

      On November 19, 2018, this Court entered another notice of
      intent to dismiss. On December 13, 2018, this Court dismissed
      [Rytsar’s] PCRA petition. On December 20, 2018, [Rytsar] filed
      an untimely response to our Notice of Intent to Dismiss issued on
      November 19, 2018.         January 4, 2019, [Rytsar] filed a
      supplemental PCRA petition alleging new PCRA claims such as the
      impossibility of a fair trial due to pre-trial publicity and the
      insufficiency of Russian translations during proceedings and by
      counsel.

      On January 14, 2019, [Rytsar] entered a notice of appeal to the
      Superior Court of Pennsylvania appealing the denial of her PCRA
      petition. On February 21, 2019, this Court issued an [o]rder
      requiring [Rytsar] to file a concise statement of errors complained
      of on appeal. [Rytsar] filed her timely concise statement on March
      4, 2019.

PCRA Court Opinion, 5/9/2019, at 1-3.

      Although Rytsar has raised a number of issues in this appeal, we need

address only one, specifically, Rytsar’s claim that trial counsel was ineffective

for failing to file a direct appeal after she had requested counsel to do so. This



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issue was raised both in Rytsar’s PCRA petition and in her Pa.R.A.P. 1925(b)

statement. Both the trial court and the Commonwealth assert that because

none of her other issues are meritorious, counsel was not ineffective for failing

to file the direct appeal. The Commonwealth cited Commonwealth v. Lewis,

634 A.2d 633 (Pa. Super. 1993), which states: “counsel is not ineffective for

failing to file a frivolous appeal which would have been dismissed by this

court.” Lewis, 634 A.2d at 637.2, 3

        In 1999, our Supreme Court determined that an unjustified failure by

counsel to file a requested direct appeal constitutes prejudice for PCRA

purposes.      Where “the remaining PCRA requirements 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.”             See

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999). However, the

mere allegation that counsel failed to file a requested appeal is insufficient to

trigger the application of Lantzy. Rather, the petitioner must plead and prove

that such a request was made and ignored.             See Commonwealth v.

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


____________________________________________


2   The PCRA court cited no case law for this proposition.

3  We note that Westlaw indicates Lewis has been abrogated by
Commonwealth v. Watson, 835 A.2d 786 (Pa. Super. 2003). However, this
refers to Lewis’s claim regarding his PCRA challenge to the discretionary
aspects of his sentence and the denial of that claim based upon the application
of 42 Pa.C.S. § 9543(a)(2)(ii), which is not at issue here.



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       Turning to the present matter, while Rytsar has pled the issue, she

cannot prove her claim without a hearing, as the certified record is devoid of

any specific reference to the claim.4          Therefore, pursuant to Lantzy and

Harmon, we must reverse the order of December 13, 2018, denying Rytsar

relief and remand for a hearing on the issue of counsel’s alleged failure to file

a direct appeal upon request.5

       Order reversed. This case is remanded for action consistent with this

decision. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/19



____________________________________________


4 Appointed counsel’s no-merit letter makes no specific reference to any of
Rytsar’s claims, including the allegation that counsel improperly failed to file
a direct appeal.

5 We are aware of footnote 8 in Lantzy that states the holding is not meant
to affect the “substantial body of case law which concerns the circumstance in
which a defendant seeks to pursue frivolous claims on appeal”. Lantzy, 736
A.2d at 572 n. 8. We believe this footnote allows counsel to continue the
practice of filing an Anders brief on direct appeal. It makes no sense for the
Supreme Court to hold that when counsel has failed to file a direct appeal, the
petitioner need not demonstrate the merits of the issues which would have
been raised, unless those issues were non-meritorious. This is essentially
what the Commonwealth’s interpretation of Lewis allows, and such an
interpretation would have the footnote swallow the holding.

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