   J-S22030-20


   NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

       COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                                                  :
                   v.                             :
                                                  :
                                                  :
       ALEXANDER ASENOV VITTONE                   :
                                                  :
                          Appellant               :   No. 726 MDA 2019

          Appeal from the Judgment of Sentence Entered February 27, 2019
       In the Court of Common Pleas of York County Criminal Division at No(s):
                             CP-67-CR-0000038-2018


   BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

   DISSENTING MEMORANDUM BY OLSON, J.: FILED: JUNE 8, 2020

   I respectfully dissent from the learned majority, as I would deny the petition for

allowance of appeal for failure to invoke this Court’s jurisdiction to review Appellant’s

challenge to the discretionary aspects of his sentence. Consequently, I would affirm

Appellant’s judgment of sentence.

   In Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), our Supreme Court

held that if an appellant fails to file a brief containing a Rule 2119(f) statement1
   ____________________________________________


   *   Retired Senior Judge assigned to the Superior Court.

   1 Pennsylvania Rule of Appellate Procedure 2119(f) requires “[a]n appellant who
   challenges the discretionary aspects of a sentence in a criminal matter [to] set
   forth in a separate section of the brief a concise statement of the reasons relied
   upon for allowance of appeal with respect to the discretionary aspects of a
   sentence. The statement shall immediately precede the argument on the merits
   with respect to the discretionary aspects of the sentence.” Pa.R.A.P. 2119(f).
   The failure to include a Rule 2119(f) statement in the brief amounts to a
   procedural defect.
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and the opposition objects, this Court cannot ignore the procedural defect and must

quash the appeal.2 Tuladziecki, 522 A.2d at 19-21. Our Supreme Court further

explained, in Commonwealth v. Gambal, 561 A.2d 710 (Pa. 1988), that if the

Commonwealth does not file an objection, this Court may either enforce the

procedural requirement, finding waiver of the issue for failure to file a Rule 2119(f)

statement, or ignore the procedural defect, if the failure to file a Rule 2119(f)

statement does not significantly hamper the Court’s ability to determine whether a

substantial question exists. Gambal, 561 A.2d at 713. In sum, if a Rule 2119(f)

statement is not filed and there is no objection, this Court can: (1) deny the petition

for allowance of an appeal for failure to invoke this Court’s jurisdiction to review

the challenge to the discretionary aspects of sentence, (2) waive the procedural

defect and consider whether a substantial question exists, or (3) direct the

appellant to file a supplemental Rule 2119(f) statement.         Commonwealth v.

Penrod, 578 A.2d 486, 490 (Pa. Super. 1990).           Finally, when a Rule 2119(f)

statement is defective and the Commonwealth objects, if the appellant files a reply

brief and a motion to correct the defect, this Court should grant the appellant’s

  ____________________________________________



  2 In prior appeals challenging discretionary aspects of sentence, this Court has
  interchangeably referred to its disposition as “quashal,” “dismissal,” or “denial
  of the petition for allowance of appeal challenging discretionary aspects of
  sentence.” See Commonwealth v Felix, 539 A.2d 371, 376 (Pa. Super.
  1988), appeal denied, 539 A.2d 371 (Pa. 1990). I believe that the correct
  disposition is to “deny the petition for allowance of appeal challenging the
  discretionary aspects of sentence” because it most closely tracks the legislative
  intent to permit review of discretionary sentencing challenges only when certain
  procedural prerequisites have been met. See 42 Pa.C.S.A. § 9781(b); see also
  Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004).

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motion to correct the defect rather than deny the allowance of appeal on the basis

of the procedural defect. Commonwealth v. Mastromarino, 2 A.3d 581, 586

n.4. (Pa. Super. 2010), appeal denied, 14 A.3d 825 (Pa. 2011).

         In the instant case, I concur with the learned majority that “Appellant

  failed to include a Rule 2119(f) statement in his brief, and the Commonwealth

  []objected.”    Majority Memorandum at *4 (citation omitted).         At this point,

  however, I depart from the learned majority.

         Given Appellant’s undisputed omission of a Rule 2119(f) statement and

  the Commonwealth’s objection thereto, prior case law compels this Court to

  find that Appellant failed to invoke the jurisdiction of this Court in his

  discretionary appeal due to the procedural defect in his brief. This defect,

  coupled with the Commonwealth’s objection to the same, precludes a merits

  review of Appellant’s issue.3 Therefore, Appellant waived his challenge to the

  discretionary aspect of his sentence for failure to invoke this Court’s jurisdiction.

  Consequently, I would deny the petition for allowance of appeal for failure to

  invoke this Court’s jurisdiction to review Appellant’s challenge to the

  discretionary aspects of his sentence.

         Moreover, I respectfully disagree with the learned majority’s analysis and

  conclusion that our Supreme Court’s decision in Commonwealth v. Rosado,
  ____________________________________________


  3 If Appellant filed a reply brief containing a Rule 2119(f) statement and a
  motion to amend his brief, subsequent to the Commonwealth’s objection, this
  Court could have granted Appellant the opportunity to amend his brief to include
  a Rule 2119(f) statement and, subsequently, proceeded to determine whether
  a substantial question was raised.


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150 A.3d 425 (Pa. 2016) compels this Court to hold that counsel’s failure to file

the Rule 2119(f) statement constitutes per se ineffectiveness in the context of

the instant discretionary appeal.

       Our Supreme Court in Rosado held that the filing of a brief that

abandoned all preserved issues and set forth only unpreserved issues is the

equivalent of failing to file a direct appeal or petition for allowance of appeal

and, therefore, must be deemed per se ineffectiveness when considered in the

context of a PCRA petition. Rosado, 150 A.3d at 434 (emphasis added).

The Rosado Court’s decision addressed whether, under the circumstances of

that case, Rosado, upon filing a PCRA petition, was required to meet the more

arduous three-prong Strickland/Pierce test4 to prove ineffective assistance of

counsel or whether, pursuant to Cronic,5 counsel’s actions justified a

presumption of prejudice and established per se ineffectiveness. Rosado, 150

A.3d at 428-434. “Errors which completely foreclose appellate review amount

____________________________________________


4 Strickland v. Washington, 466 U.S. 668 (1984) and Commonwealth v.
Pierce, 527 A.2d 976 (Pa. 1987). “The petitioner must establish that: (1) the
underlying claim has arguable merit; (2) no reasonable basis existed for
counsel's actions or failure to act; and (3) petitioner suffered prejudice as a
result of counsel's error such that there is a reasonable probability that the
result of the proceeding would have been different absent such error.”
Commonwealth v. Lesko, 15 A.3d 345, 373-374 (Pa. 2011), citing Pierce,
527 A.2d at 975.

5 United States v. Cronic, 466 U.S. 648 (1984). “In Cronic, the high Court
recognized that ‘[t]here are ... circumstances that are so likely to prejudice the
accused that the cost of litigating their effect in a particular case is unjustified,’
and that in such circumstances, there is a presumption of prejudice.”
Commonwealth v. Diaz, 2020 WL 1479846, at *1 n.1 (Pa. March 26, 2020)
(slip opinion).

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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 Strickland/Pierce framework.” Rosado, 150 A.3d at

438-439.

      The filing of a brief that is defective, in some part, is not per se

ineffectiveness if the defect does not preclude a merits review, or preclude a

merits review, in the alternative, following a finding of waiver that results from

the defect. Commonwealth v. Reed, 971 A.2d 1216, 1226 (Pa. 2009); see

also Commonwealth v. Fink, 24 A.3d 426, 433-434 (Pa. Super. 2011). In

Fink, this Court held that if the defect in the brief causes waiver of appellant’s

sole issue and precludes the reviewing panel from conducting an alternative

merits review on direct appeal, counsel’s actions or inactions in filing the

defective brief amount to per se ineffectiveness. Fink, 24 A.3d at 433-434.

Under these circumstances, the Fink Court held, appellant would be eligible for

PCRA relief and entitled to reinstatement of his direct appeal rights with the

assistance of new counsel. Id. at 434 (emphasis added). By the same token,

if the reviewing panel is able to conduct a merits review, even in the alternative,

despite the defect in the brief, then counsel is not per se ineffective, and

Appellant must establish prejudice, pursuant to the Strickland/Pierce

framework, in a subsequent PCRA ineffectiveness claim. Id.

      Here, counsel’s defective brief, coupled with the Commonwealth’s

objection, bars review of Appellant’s discretionary sentencing challenge -- his

sole issue on direct appeal.      Notwithstanding, counsel’s omission did not

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preclude the filing of a reply brief containing a Rule 2119(f) statement together

with a motion to amend. If this course were followed, this Court could have

granted Appellant the opportunity to amend his defective brief to include the

required Rule 2119(f) statement and, subsequently, proceeded to determine

whether Appellant raised a substantial question (and, if so, addressed the

merits of his discretionary sentencing challenge).          Moreover, absent the

Commonwealth’s objection, this Court could have waived compliance with the

appellate rules and proceeded to determine whether Appellant raised a

substantial question.

      Thus, counsel’s omission, by itself, neither completely foreclosed

appellate review nor amounted to a constructive denial of counsel.             Since

counsel’s failure to file a Rule 2119(f) statement only partially foreclosed

appellate review, any related ineffective assistance of counsel claim would be

subject to the ordinary Strickland/Pierce framework and would not constitute

per se ineffective assistance of counsel. See Rosado, 150 A.3d at 438-439.

As we are without jurisdiction to address Appellant’s discretionary sentencing

challenge, I am reluctant to convert Appellant’s claim into a pseudo-petition for

collateral relief and effectively reinstate Appellant’s direct appeal rights over the

Commonwealth’s objection to a procedural defect. Consideration of counsel’s

ineffectiveness in the context of his discretionary appeal is premature and more

properly reserved for a subsequent collateral proceeding.

      Accordingly, I dissent.




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