J-S64025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MARVIN HILL

                            Appellant                     No. 60 EDA 2016


             Appeal from the PCRA Order Dated December 22, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005356-2011

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

MEMORANDUM BY SOLANO, J.:                                  FILED JULY 17, 2017

        This case has returned to us upon remand from the Pennsylvania

Supreme Court, following that Court’s disposition of Appellant Marvin Hill’s

appeal from the order that dismissed his petition filed under the Post

Conviction Relief Act (“PCRA”).1          In accordance with the direction of the

Supreme Court, we reverse and remand with instructions.

        On January 28, 2013, following a non-jury trial, Appellant was

convicted of third-degree murder, carrying a firearm without a license,

carrying a firearm on public streets in Philadelphia, and possessing an

instrument of crime.2 On April 5, 2013, the trial court sentenced Appellant
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541–9546.
2
    18 Pa.C.S. §§ 2502(c), 6106, 6108, and 907, respectively.
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to consecutive terms of imprisonment of 15-40 years for third-degree

murder and 1½ to 3 years for carrying a firearm without a license.          No

further penalty was imposed for the remaining crimes.

       Trial counsel, Gerald A. Stein, Esq., did not file any post-sentence

motions on Appellant’s behalf. On May 2, 2013, Attorney Stein filed a notice

of appeal to this Court. He was subsequently permitted to withdraw, and J.

Michael Farrell, Esq., was appointed to represent Appellant.

       On May 13, 2013, the trial court ordered Appellant to submit a

Statement of Matters Complained of on Appeal pursuant to Appellate Rule

1925(b). On July 8, 2013, Attorney Farrell submitted a timely Rule 1925(b)

statement in which he raised four claims, including a claim that the verdicts

were contrary to the weight of the evidence. 3        In his appellate brief,

however, Attorney Farrell pursued only the weight-of-the-evidence claim.

See Commonwealth v. Hill, No. 1375 EDA 2013 (Pa. Super., Mar. 13,

2014) (unpublished memorandum; “Hill I”). This Court found the weight-

of-the-evidence claim waived because it was not raised in the trial court in

accordance with Criminal Rule 607(A) (“A claim that the verdict was against

the weight of the evidence shall be raised with the trial judge in a motion for

a new trial: (1) orally, on the record, at any time before sentencing; (2) by

____________________________________________
3
  The other claims raised in the 1925(b) statement were: (1) the evidence
was insufficient to support the verdicts; (2) a police detective’s testimony
was improper; and (3) the trial court erred in denying Appellant’s motion to
suppress his statement. See PCRA Ct. Op., 12/22/15, at 2.



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written motion at any time before sentencing; or (3) in a post-sentence

motion”).   See Hill I at 2.   As a result, this Court dismissed Appellant’s

direct appeal.   See id. at 4.       This Court further noted that Appellant’s

weight-of-the-evidence claim, even if not waived, was meritless because the

evidence against Appellant was overwhelming. See id. at 4 n.4.

      On July 16, 2014, Appellant, acting pro se, filed a petition for post-

conviction relief. Current counsel, John P. Cotter, Esq., was appointed and

filed an amended petition on August 7, 2015.         In the amended petition,

Appellant sought nunc pro tunc reinstatement of his post-sentence motion

and direct appeal rights on the ground that “appellate defense counsel was

ineffective because he allowed the defendant’s appeal from the judgment of

sentence to be dismissed.” Am. PCRA Pet., 8/7/15, at ¶ 4. Appellant did

not allege that trial counsel was ineffective.         By an order entered

December 22, 2015, the PCRA court dismissed Appellant’s petition as

meritless. Appellant appealed to this Court, claiming that his right to file an

appeal nunc pro tunc from the judgment of sentence should be reinstated

because the failure of appellate counsel to preserve any issues for appeal (1)

caused Appellant’s right to appeal to be waived, and (2) constituted per se

ineffective assistance of counsel.    Commonwealth v. Hill, 149 A.3d 362,

364 (Pa. Super. 2016) (“Hill II”).

      This Court considered whether Appellant had demonstrated per se

ineffective assistance of counsel, which would mean that he was not required

to show prejudice under Commonwealth v. Reaves, 923 A.2d 1119, 1128

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(Pa. 2007).       See Hill II, 149 A.3d at 365.                   If Appellant had not

demonstrated per se ineffective assistance of counsel, he would be required

to satisfy the traditional three-prong test for ineffectiveness, which requires

a petitioner to plead and prove that: (1) the underlying claim is of arguable

merit; (2) counsel’s performance lacked a reasonable basis; and (3) the

ineffectiveness    of     counsel    caused       him    prejudice.   See   id.    (citing

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)).

      We held that Appellant failed to establish per se ineffective assistance

because Appellant failed to show that “counsel’s lapse ensured the total

failure of an appeal requested by the client” and that prejudice therefore

should be presumed. Hill II, 149 A.3d at 365-66 (citing Reaves, 923 A.2d

at 1128).      We based that holding on a comparison to other situations in

which the presumption of prejudice had been held to apply: (1) the failure of

counsel to file a requested direct appeal, see Commonwealth v. Lantzy,

736 A.2d 564, 572 (Pa. 1999); (2) the failure of counsel to file a requested

petition for allowance of appeal with the Supreme Court of Pennsylvania,

see Commonwealth v. Liebel, 825 A.2d 630, 635-36 (Pa. 2003); (3) the

failure   of    counsel     to    file   a   Pa.R.A.P.      1925(b)   statement,      see

Commonwealth v. Halley, 870 A.2d 795, 800 (Pa. 2005); and (4) the

filing by counsel of an appellate brief so defective that the appeal was

dismissed, see Commonwealth v. Franklin, 823 A.2d 906, 910 (Pa.

Super. 2003). See Hill II, 149 A.3d at 365. We therefore concluded that

Appellant’s     claim   was      subject     to    the   three-part   Pierce   test   for

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ineffectiveness, which requires that a PCRA petitioner establish actual

prejudice.    See id. at 367; see also Pierce, 527 A.2d at 975.             Because

Appellant failed to plead and prove prejudice in his PCRA decision, we

affirmed the order below dismissing Appellant’s petition.           See Hill II, 149

A.3d at 367.

      In his Supreme Court petition for allowance of appeal, Appellant

asserted that his appellate counsel’s pursuit of only the unpreserved weight

claim on his direct appeal and the failure of his counsel to pursue his

preserved issues on that appeal constituted per se ineffective assistance of

counsel. Appellant’s Pet. for Allowance of Appeal, 10/31/16. On April 11,

2017, our Supreme Court granted Appellant’s petition, reversed our

decision, and remanded the matter to this Court with instructions “to

reinstate    [Appellant’s]   appeal    rights   nunc   pro   tunc   consistent   with

Commonwealth v. Rosado, [150] A.3d [425] (Pa. 2016),” which was

decided by the Supreme Court after we rendered our decision in Hill II.

Commonwealth v. Hill, No. 482 EAL 2016, 2017 WL 1332940 (Pa. Apr. 11,

2017) (per curiam order).

      In Rosado, the defendant’s counsel filed a Rule 1925(b) statement

that raised three issues, but that did not include a challenge to the

sufficiency of the evidence.          Then, in Rosado’s direct appeal, counsel

abandoned the three issues that had been preserved in the Rule 1925(b)

statement and sought to raise only the sufficiency claim.            This Court held

that the sufficiency claim was waived because it had not been included in the

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Rule 1925(b) statement, and we therefore affirmed Rosado’s conviction. In

a subsequent PCRA petition, Rosado claimed that his appellate counsel had

been ineffective per se and sought reinstatement of his appellate rights nunc

pro tunc.   We rejected that argument on the basis of Commonwealth v.

Reed, 971 A.2d 1216, 1226 (Pa. 2009) (holding that the “filing of an

appellate brief, deficient in some aspect or another, does not constitute a

complete failure to function as a client’s advocate so as to warrant a

presumption of prejudice”), and Commonwealth v. West, 883 A.2d 654,

658 n.5 (Pa. Super. 2005) (holding that per se ineffectiveness does not

occur when counsel pursues certain issues in a Pa.R.A.P. 1925(b) statement

and not others). On appeal, the Supreme Court disagreed, holding that “the

filing of an appellate brief which abandons all preserved issues in favor of

unpreserved ones constitutes ineffective assistance of counsel per se.”

Rosado, 150 A.3d at 434.         The Court further held that errors which

“completely foreclose appellate review amount to a constructive denial of

counsel and thus ineffective assistance of counsel per se, whereas those

which only partially foreclose such review are subject to the ordinary

[Pierce] framework.” Id. at 433.

      In the present case, Appellant’s claim that the conduct of his appellate

counsel constituted per se ineffective assistance is analogous to the claim of

the defendant in Rosado. Like Rosado’s counsel, Appellant’s counsel raised

a single issue on appeal — weight of evidence — that had been waived for

failure to raise it in a pre- or post-sentence motion. In both cases, appellate

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counsel abandoned all preserved issues on appeal and raised only the

waived issue, thereby “completely foreclos[ing] appellate review.” Rosado,

150 A.3d at 434.     Therefore, consistent with Rosado, and in accordance

with the Supreme Court’s mandate, we remand for the reinstatement of

Appellant’s post-sentence and appellate rights.

      Counsel for Appellant may file a new post-sentence motion nunc pro

tunc on Appellant’s behalf in which he raises the weight-of-the-evidence

issue that he sought to present on direct appeal. Following disposition of the

post-sentence motion, either party will have the opportunity to file a timely

appeal. Any subsequent Rule 1925(b) statement must articulate clearly and

concisely all issues to be raised on appeal.

      Appellant’s motion to remand is denied as moot.        Order reversed.

Case remanded to the trial court with instructions to reinstate Appellant’s

post-sentence and appeal rights nunc pro tunc. Jurisdiction relinquished.

      Judge Stabile joins the memorandum.

      President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2017




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