J-S04015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 GARY THOMPSON                             :
                                           :
                    Appellant              :    No. 992 EDA 2019

          Appeal from the PCRA Order Entered February 28, 2019
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0001679-2015


BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                            FILED APRIL 7, 2020

      Appellant, Gary Thompson, appeals from the post-conviction court’s

February 28, 2019 order denying his petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant solely contends that

his trial counsel acted ineffectively by not filing a direct appeal on his behalf.

After careful review, we are compelled to vacate the court’s order and remand

for further proceedings.

      In November of 2016, Appellant and three co-defendants proceeded to

a non-jury trial on charges relating to the robbery of a man on a Philadelphia

street in January of 2015. At the close of trial, the court convicted Appellant

of aggravated assault, robbery, conspiracy, and related offenses. On February

10, 2017, he was sentenced to an aggregate term of 3½ to 7 years’

incarceration, followed by 2 years’ probation.       He did not file any post-

sentence motions, or a direct appeal.
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      On August 10, 2017, Appellant filed a pro se PCRA petition. Counsel

was appointed and an amended petition was filed on his behalf.         Therein,

Appellant claimed that he asked his trial counsel, Judge Hall, Esq., to file a

post-sentence motion and a direct appeal, but Attorney Hall ineffectively failed

to do so. On September 10, 2018, the PCRA court conducted an evidentiary

hearing, at which Appellant and Attorney Hall both testified.     According to

Appellant, just after the imposition of his sentence, he told counsel that he

wanted to file an appeal. See N.T. Hearing, 9/10/18, at 10. Appellant claimed

that Attorney Hall said that he would talk to Appellant about an appeal, but

Appellant never heard from Attorney Hall again.         Id. at 10, 11.    After

sentencing, Appellant was moved to several different jails, and when he finally

was settled at his “home facility” in July of 2017, he asked his mother to call

Attorney Hall to ask about the appeal. Id. at 11, 12. According to Appellant,

his mother could not reach counsel, so Appellant assumed that Attorney Hall

had not filed the appeal on his behalf. Id. at 12. He then filed his PCRA

petition seeking the restoration of his appeal rights nunc pro tunc. Id. at 12,

13.

      Attorney Hall, however, testified that he and Appellant only spoke briefly

about an appeal, and counsel had informed Appellant that he could “think of

no meritorious claims.” Id. at 18. Attorney Hall insisted that Appellant never

asked him to file a post-sentence motion or an appeal, and he claimed that,

had Appellant done so, he would have filed an appeal. Id. at 18, 21. He also




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testified that he had no contact with Appellant’s mother after the sentencing

hearing. Id. at 22.

      At the close of the PCRA hearing, the court took the matter under

advisement. On January 31, 2019, it issued a Pa.R.Crim.P. 907 notice of its

intent to dismiss Appellant’s petition, simply stating that it was “without

merit.” Pa.R.Crim.P. 907 Notice, 1/31/19, at 2 (unnumbered). On February

28, 2019, the court issued an order dismissing the petition “based upon lack

of merit.”   Order, 2/28/19, at 1 (unnumbered; unnecessary capitalization

omitted).

      Appellant filed a timely notice of appeal. It does not appear that the

court directed him to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.      On June 26, 2019, the court issued a single-

paragraph Rule 1925(a) opinion, simply setting forth procedural facts of

Appellant’s case, the issue he raised in his Rule 1925(b) statement, and a

declaration that, “[t]his [c]ourt’s decision should be affirmed.” PCRA Court

Opinion, 6/26/19, at 1 (unnumbered).

      Herein, Appellant raises a single claim for our review: “Did the PCRA

[c]ourt err and/or abuse its discretion when it denied [A]ppellant[’s] petition

under the PCRA seeking leave to file a direct appeal nunc pro tunc where trial

counsel failed to file an appeal?” Appellant’s Brief at 4.

      Preliminarily, we observe that,

      “[o]n appeal from the denial of PCRA relief, our standard and
      scope of review is limited to determining whether the PCRA court’s
      findings are supported by the record and without legal error.”

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      Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013)
      (citation omitted). “[Our] scope of review is limited to the findings
      of the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the PCRA court level.”
      Commonwealth v. Koehler, … 36 A.3d 121, 131 ([Pa.] 2012)
      (citation omitted). “The PCRA court’s credibility determinations,
      when supported by the record, are binding on this Court.”
      Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259 (2011)
      (citation omitted). “However, this Court applies a de novo
      standard of review to the PCRA court’s legal conclusions.” Id.

Commonwealth v. Medina, 92 A.3d 1210, 1214–15 (Pa. Super. 2014) (en

banc).

      Additionally, we recognize:

      Our standard of review when faced with a claim of ineffective
      assistance of counsel is well settled. First, we note that counsel is
      presumed to be effective and the burden of demonstrating
      ineffectiveness rests on appellant.

                                    ***
      A petitioner must show (1) that the underlying claim has merit;
      (2) counsel had no reasonable strategic basis for his or her action
      or inaction; and (3) but for the errors or omissions of counsel,
      there is a reasonable probability that the outcome of the
      proceedings would have been different. The failure to prove any
      one of the three prongs results in the failure of petitioner’s claim.

      Our Supreme Court has held that counsel’s unexplained failure to
      file a requested direct appeal constitutes ineffectiveness per se,
      such that the petitioner is entitled to reinstatement of direct
      appeal rights nunc pro tunc without establishing prejudice.
      However, before a court will find ineffectiveness of counsel for
      failing to file a direct appeal, the petitioner must prove that he
      requested a direct appeal and the counsel disregarded the
      request.

Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011).

      Here, Appellant testified at the PCRA hearing that he requested counsel

file a direct appeal on his behalf. Attorney Hall, on the other hand, testified



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that Appellant never made that request. Thus, the PCRA court was required

to make credibility determination, which it failed to do. Our Supreme Court

has declared that “when a PCRA hearing is held, and the PCRA court makes

findings of fact, we expect the PCRA court to make necessary credibility

determinations.”    Commonwealth v. Johnson, 966 A.2d 523, 539–40 (Pa.

2009). “Indeed, when a PCRA court has failed to make necessary credibility

determinations, we have not hesitated to remand for such findings.”

Commonwealth v. Spotz, 84 A.3d 294, 319 (Pa. 2014).

      In this case, we conclude that we must remand for the court to make

the   necessary    credibility   determination   regarding   whether   Appellant

requested that Attorney Hall file a direct appeal. While we could presume that

the court believed Attorney Hall’s testimony that Appellant made no such

request, we cannot be certain that the court did not reject counsel’s testimony

and deny Appellant’s petition on some other basis. We decline to rest our

decision on speculation rather than explicit findings by the PCRA court.

Therefore, we vacate the court’s order and remand for it to make credibility

determinations on the record, and enter a new order ruling on Appellant’s

petition.

      Order vacated. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/07/2020




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