J-S63026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

EDWARD FLETCHER

                            Appellant                    No. 592 EDA 2015


                  Appeal from the PCRA Order January 30, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011820-2012


BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                            FILED DECEMBER 14, 2015

        Appellant, Edward Fletcher, appeals pro se from the January 30, 2015

order denying his petition filed pursuant to the Post Conviction Relief Act

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

        We summarize the procedural history of this case, as contained in the

certified record, as follows. Appellant was charged on June 29, 2012 with

murder, firearms not to be carried without a license (VUFA), carrying a

firearm in public in Philadelphia, and possession of an instrument of crime, in

connection with June 12, 2012 drive-by shooting death of Diamond Diore

Brown.1 On July 23, 2013, Appellant entered a negotiated plea of guilty to

third-degree murder and VUFA.            The trial court sentenced Appellant that
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1
    18 Pa.C.S.A. §§ 2502, 6101(a)(1), 6108, and 907, respectively.
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same day to the recommended sentence under the plea agreement of 20 to

40 years’ incarceration for the third-degree murder charge with no additional

penalty for the VUFA charge. No post-sentence motion or notice of appeal

was filed.

       On June 17, 2014, Appellant filed a pro se PCRA petition averring,

inter alia, that plea counsel was ineffective for failing to file a direct appeal.

In response to Appellant’s August 19, 2014 motion to proceed pro se, the

PCRA court conducted a Grazier2 hearing on October 20, 2014, after which

it granted Appellant’s motion. On January 30, 2015, the PCRA court held a

hearing on Appellant’s PCRA petition, at which Appellant’s plea counsel

testified. At the conclusion of the hearing, the PCRA court denied Appellant

relief, determining that Appellant did not sustain his burden to show he

timely instructed plea counsel to file an appeal.       The PCRA court further

determined counsel was not ineffective for failing to consult with Appellant

about an appeal after sentencing. On February 17, 2015, Appellant filed a

timely pro se notice of appeal.3

       On appeal, Appellant raises the following issues for our review.

              [1] Whether the PCRA court violated Appellant’s
              rights to due process of law under the 5th
              amendment of the United States Constitution and
              the 14th amendment of the Constitution of the State
____________________________________________
2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
3
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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            of Pennsylvania when the PCRA court denied
            [A]ppellant his constitutional rights to file an appeal?

            [2] Whether defense counsel provided deficient
            performance when counsel failed to file a Notice of
            Appeal?

Appellant’s Brief at 3.

      We address this issue in compliance with the following standards.

            Our standard of review of the denial of a PCRA
            petition is limited to examining whether the court’s
            rulings are supported by the evidence of record and
            free of legal error. This Court treats the findings of
            the PCRA court with deference if the record supports
            those findings. It is an appellant’s burden to
            persuade this Court that the PCRA court erred and
            that relief is due.

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 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.      The PCRA court’s credibility
            determinations, when supported by the record, are
            binding on this Court. However, this Court applies a
            de novo standard of review to the PCRA court’s legal
            conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc) (internal quotation marks and citations omitted), appeal granted,

105 A.3d 658 (Pa. 2014). Additionally, 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 42




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Pa.C.S.A. § 9543(a)(2).   These issues must be neither previously litigated

nor waived. Id. at § 9543(a)(3).

     When reviewing a claim of ineffective assistance of counsel, we apply

the following test, first articulated by our Supreme Court in Commonwealth

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

                 When considering such a claim, courts
           presume that counsel was effective, and place upon
           the appellant the burden of proving otherwise.
           Counsel cannot be found ineffective for failure to
           assert a baseless claim.

                  To succeed on a claim that counsel was
           ineffective, Appellant must demonstrate that: (1) the
           claim is of arguable merit; (2) counsel had no
           reasonable strategic basis for his or her action or
           inaction; and (3) counsel’s ineffectiveness prejudiced
           him.

                                      …

                [T]o demonstrate prejudice, appellant must
           show there is a reasonable probability that, but for
           counsel’s error, the outcome of the proceeding would
           have been different.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal

quotation marks and citations omitted). “Failure to establish any prong of

the test will defeat an ineffectiveness claim.”        Commonwealth v.

Birdsong, 24 A.3d 319, 330 (Pa. 2011).

     As Appellant’s issues are interrelated, we address them together.

Appellant claims that his plea counsel was ineffective for failing to file a

direct appeal when instructed by him to do so.       Appellant’s Brief at 6.


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Appellant asserts, “[t]he court record established that [A]ppellant[] sent

timely letters to counsel requesting an appeal to be filed on his behalf.

Counsel did not file a Notice of Appeal and admit[ted] to the PCRA court[]

that he may have lost the letters and/or inadvertently destroyed the letters.”

Id. Alternatively, Appellant claims that “even if [A]ppellant did not verbally

asked [sic] counsel to file a direct appeal, counsel is deemed ineffective for

failing to consult with his client about his appellate rights, whereas, in this

matter at hand, [A]ppellant have [sic] meritorious issues for appeal.” Id. at

7.

      We have recently described the distinction between Appellant’s

alternative claims of ineffectiveness of counsel relative to a failure to file an

appeal, and Appellant’s attendant burden with respect to each.

                  Our Supreme Court has held that counsel’s
            unexplained failure to file a requested direct appeal
            constitutes ineffective assistance 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. …

                  With regard to counsel’s duty to consult, this
            Court has held as follows:

                  [Case law] impose[s] a duty on counsel to
                  adequately consult with the defendant as to
                  the advantages and disadvantages of an
                  appeal where there is reason to think that a
                  defendant would want to appeal. The failure to
                  consult may excuse the defendant from the

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                  obligation to request an appeal … such that
                  counsel could still be found to be ineffective in
                  not filing an appeal even where appellant did
                  not request the appeal.

                                           …

                        Pursuant to [Roe v. Flores–Ortega,
                  528 U.S. 470 (2000),] and [Commonwealth
                  v. Touw, 781 A.2d 1250 (Pa. Super. 2001),]
                  counsel has a constitutional duty to consult
                  with a defendant about an appeal where
                  counsel has reason to believe either (1) that a
                  rational defendant would want to appeal (for
                  example, because there are nonfrivolous
                  grounds for appeal), or (2) that this particular
                  defendant reasonably demonstrated to counsel
                  that he was interested in appealing.

            Commonwealth v. Bath, 907 A.2d 619, 623 (Pa.
            Super. 2006) (quotations, quotation marks, and
            citations omitted) (footnotes added).

Commonwealth v. Ousley, 21 A.3d 1238, 1243-1245 (Pa. Super. 2011),

appeal denied, 30 A.3d 487 (Pa. 2011).

      Instantly, the PCRA court concluded Appellant did not meet his burden

for either claim. After a full hearing, the PCRA court determined as follows.

            [The PCRA c]ourt found that [] Appellant’s testimony
            that he requested trial counsel to file an appeal
            lacked credibility. Initially, Appellant indicated that
            he had no contact with Mr. Patrizio because he was
            being moved from prison to prison and had no pen
            and paper or phone privileges.            Later in his
            testimony, he indicated that he did speak to family
            members by phone.         He then testified that he
            believed he did write to Mr. Patrizio, but that he had
            no copy of his correspondence.




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PCRA    Court   Opinion,    5/21/15,   at    4-5.    Furthermore,    Appellant’s

characterization of counsel’s testimony is imprecise. Counsel testified that

he had no recollection of any letter from Appellant requesting he file a notice

of appeal.   N.T., 1/30/15, at 31.     Counsel did acknowledge his file was

missing or destroyed, but it was within the PCRA court’s discretion to assess

the credibility of the witnesses, and we conclude the record supports its

factual finding that Appellant did not timely request counsel to file a notice of

appeal. See Medina, supra (noting credibility determinations of the PCRA

court, when supported, are binding on this Court).

       In support of his alternative claim, that counsel was ineffective for

failing to consult him and seek his consent for filing an appeal, Appellant

cites U.S. v. Stearnes, 68 F.3d 328 (9th Cir. 1995) (holding that test for

ineffective assistance of counsel for failing to file a desired direct appeal,

even in a plea case, was not whether an appeal was requested, but whether

the decision not to file an appeal was consented to by the defendant).

Appellant’s Brief at 8.    Appellant contends his burden is met if the record

shows that he did not consent to counsel’s decision not to file an appeal. Id.

Stearnes does not obviate Appellant’s burden to show that plea counsel had

a reason to believe an appeal was or would be desired. See Ousley, supra.

       Instantly, the PCRA court notes that “[t]he only issues which would

have been available for Appellant to challenge on review would have been

the voluntariness of his plea and the legality of his sentence.” PCRA Court


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Opinion, 5/21/15, at 6, citing Commonwealth v. Markowitz, 32 A.3d 706,

711 (Pa. Super. 2011), appeal denied, 40 A.3d 1235 (Pa 2012). Appellant

does not challenge either.4 Id. The PCRA court further notes as follows.

              Appellant entered into a knowing, intelligent, and
              voluntary negotiated guilty plea to third degree
              murder following a full colloquy wherein the
              Appellant was advised of all of his rights.         []
              Appellant received the benefit of not facing a life
              sentence in exchange for his plea. Considering the
              evidence presented during the guilty plea and the
              deal struck by defense counsel with the assent of his
              client, counsel would not be on notice to consult with
              his client regarding filing an appeal.

Id. at 5.       Accordingly, the PCRA court concluded Appellant did not

demonstrate that counsel received any indication from Appellant that an

appeal was desired or that Appellant had any non-frivolous issues that would

merit review.

       Based on the record before us, we discern no abuse of discretion or

legal error in the PCRA court’s factual findings and conclusions.          See

Ousley, supra. For these reasons, we affirm the January 30, 2015 order

denying Appellant’s PCRA petition.

       Order affirmed.




____________________________________________
4
  In his brief, Appellant identifies, as meritorious direct appeal issues, the
length of his negotiated sentence and the fact that the reduced charge of
third-degree murder, to which he pled guilty, was not contained in the
original criminal information. Appellant’s Brief at 9.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




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