J-S44007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 CHRISTOPHER GLEN GREER                    :
                                           :
                    Appellant              :   No. 940 WDA 2018

             Appeal from the PCRA Order Dated June 14, 2018,
    In the Court of Common Pleas of Fayette County Criminal Division at
                      No(s): CP-26-CR-0001322-2016


BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                        FILED NOVEMBER 18, 2019

      Appellant, Christopher Glen Greer, files this purported nunc pro tunc

appeal from the March 22, 2017 judgment of sentence. For the reasons that

follow, we vacate the order reinstating Appellant’s direct appeal rights nunc

pro tunc and remand this matter for further proceedings consistent with this

memorandum.

      This Court previously described the initial procedural history and facts

of this case, as follows:

             Christopher Glen Greer appeals from the March 22, 2017
      judgment of sentence entered in the Court of Common Pleas of
      Fayette County after a jury convicted him of aggravated assault
      by vehicle, aggravated assault, criminal mischief, simple assault,
      recklessly endangering another person, and fleeing or attempting
      to elude an officer.1 Appellant was also convicted by the trial court
      of four summary offenses, including driving while operating
      privilege is suspended or revoked.2 The trial court sentenced
      [A]ppellant to 30 days to 6 months of imprisonment on the driving
      while operating privilege is suspended or revoked conviction and
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     imposed a consecutive sentence of 6 to 20 years of imprisonment
     on the aggravated assault conviction. The trial court imposed no
     further penalty on the remaining convictions. We affirm.

          1    75 Pa.C.S.A. § 3732.1(a), 18 Pa.C.S.A.
          § 2702(a)(2), 18 Pa.C.S.A. § 3304(a)(5), 18
          Pa.C.S.A. § 2701(a)(1), 18 Pa.C.S.A. § 2705, and 75
          Pa.C.S.A. § 3733(a), respectively.

          2   75 Pa.C.S.A. § 1543(a).

          The trial court set forth the following factual history:

          On April 21, 2016, Corporal Delbert DeWitt of the
          Uniontown City Police Department (UPD) was on
          patrol in the early morning hours in Uniontown,
          Fayette County, Pennsylvania. During his patrol,
          Corporal DeWitt observed a dark colored Chevrolet
          pick-up truck on Berkeley Street cross the double
          yellow line and swerve back into the lane of travel on
          multiple occasions.[Footnote 3]       Corporal DeWitt
          activated the cruiser’s overhead lights with the intent
          to effectuate a traffic stop. The operator of the truck,
          later identified as Appellant, slowed down and turned
          on the right turn signal. Nevertheless, when Corporal
          DeWitt turned on the cruiser’s siren, Appellant turned
          the signal off and accelerated southbound on Derrick
          Avenue.

                 [Footnote 3] He called the registration on
                 the vehicle into the Fayette County 9–1 1
                 Center to obtain the vehicle’s information.
                 The 9–1–1 Center responded that the
                 information provided to them was
                 registered to a Subaru not a Chevrolet.

          Corporal DeWitt followed Appellant and called out over
          the radio that he was in pursuit of a truck occupied by
          one person who failed to yield to him. Appellant
          slowed down as he approached the Uniontown
          Country Club, made an abrupt left turn over the
          double yellow lines and drove onto the country club’s
          golf course. With the assistance of Officer Kurt Defoor
          and Tyler Garlick, an intern with the UPD, Corporal

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           DeWitt proceeded very slowly to Cinder Road, the
           suspected area of Appellant’s location. As Corporal
           DeWitt continued on Cinder Road, he looked to his
           right and saw the truck accelerate towards him.
           Appellant struck Corporal DeWitt’s vehicle in the front
           passenger area. Trooper Todd Stevenson, a collision
           analyst and reconstruction specialist with the
           Pennsylvania State Police, testified in his expert
           opinion that there was no evasive steering or braking
           to avoid the collision.

                                   * * *

     Trial court opinion, 5/4/17 at 2–4.

           The record reflects that following his convictions, the trial
     court imposed judgment of sentence on March 22, 2017. On April
     6, 2017, [A]ppellant then filed an untimely post-sentence motion
     for modification of sentence. The trial court denied the untimely
     motion on April 11, 2017. On April 20, 2017, [A]ppellant filed a
     notice of appeal to this [C]ourt and simultaneously filed what he
     termed a “Concise Issue.” (Appellant’s “concise issue,” 4/20/17;
     docket # 33.) The trial court filed an opinion on May 4, 2017.

Commonwealth v. Greer, 179 A.3d 604, 606 WDA 2017 (Pa. Super. filed

October 25, 2017) (unpublished memorandum at *1–2).

     In Appellant’s direct appeal, counsel raised two issues; the first

challenged the sufficiency of the evidence, and the second averred that the

sentence was excessive. Greer, 606 WDA 2017 (unpublished memorandum

at *2). In affirming the judgment of sentence on October 25, 2017, we found

the sufficiency challenge to be waived because Appellant was convicted of ten

separate charges, and he failed to specify the element or elements and the

crimes he was challenging.     Id. (unpublished memorandum at *3).         In

rejecting Appellant’s second issue regarding the discretionary aspects of his


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sentence, we determined that Appellant did not challenge his sentence at

sentencing and did not file a timely motion to reconsider sentence. Thus,

Appellant failed to invoke our jurisdiction. Id. at *4; see Commonwealth

v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (“The right to appellate review

of the discretionary aspects of a sentence is not absolute,” and such an appeal

should be considered a petition for allowance of appeal.).

       Appellant filed a timely petition for allowance of appeal, which our

Supreme Court denied. Commonwealth v. Greer, 184 A.3d 544, 420 WAL

2017 (Pa. filed April 18, 2018). In the interim, on January 5, 2018, Appellant

filed a pro se petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546, raising, inter alia, multiple issues of ineffective

assistance of counsel.        PCRA Petition, 1/5/18, at 6–8.   The PCRA court

appointed counsel on January 10, 2018. Order, 1/10/18, docket entry 43.

Counsel did not file an amended petition, and the PCRA court scheduled a

hearing for June 14, 2018. Order, 3/14/18, docket entry 44. On June 14,

2018, the PCRA court entered an order stating:

              AND NOW, this 14th day of June, 2018, after hearing[1] on
       the defendant’s Petition for Post Conviction Collateral Relief, upon
       review of the Opinion of the Superior Court and upon
       consideration that there was no objection by the Commonwealth,
       it is ORDERED and DECREED that the petition is GRANTED and the
       defendant’s direct appeal rights are REINSTATED.
____________________________________________


1  There is no transcript from that hearing in the record certified to us on
appeal, nor is there a docket entry indicating that notes of testimony from this
date were transcribed.



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Order, 6/14/18, docket entry 50.2 Counsel filed a notice of appeal nunc pro

tunc on June 25, 2018. Notice of Appeal, 6/25/18, docket entry 51. Both

counsel and the PCRA court complied with Pa.R.A.P. 1925.

       On    November      9,   2018,     counsel   filed   a   motion   to   withdraw

representation in this Court, which we granted on November 16, 2018. We

remanded this matter to the PCRA court for the appointment of new counsel.

The PCRA court appointed present counsel on March 19, 2019.

       Appellant raises the following issues in this appeal:

       I. The Commonealth [sic] presented insufficient evidence to
       support the charge of aggravated assault, in that the testimony of
       the alleged victim failed to establish that the injuries he suffered
       amounted to serious bodily injury.

       2.    The Commonwealth presented insufficient evidence to
       establish that elements of the charge of aggravted [sic] assault by
       vehicle, in that at the time the vehicle had contact with victim’s
       vehicle, the Appellant was suffereing [sic] a seizure and his actions
       were not intentional or within his control.

       3. The Commonwealth failed to establish the elements of the
       crime of criminal mischief in that the Appellant was not in control
       of his actions when his vehicle damaged the victim’s car as the
       Appellant suffered a seizure.

       4. The Commonwealth failed to establish that the Appellant
       intentionally or recklessly put the victim in danger of serious
       bodily injury or that the vehicle was traveling at such a speed that
       the victim was in any significant danger.



____________________________________________


2  Neither the June 14, 2018 order nor the Pa.R.A.P. 1925(a) opinion reveals
the basis for the PCRA court’s decision to reinstate Appellant’s direct appeal
rights nunc pro tunc.

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Appellant’s Brief at 3 (unnecessary capitalization removed).

       Initially, we must address whether this appeal is properly before us, and

note the following:

       It is well-settled that an accused who is deprived entirely of his
       right of direct appeal by counsel’s failure to perfect an appeal is
       per se without the effective assistance of counsel, and is entitled
       to reinstatement of his direct appellate rights. In those extreme
       circumstances, where counsel has effectively abandoned his or
       her client and cannot possibly be acting in the client’s best
       interests, our Supreme Court has held that the risk should fall on
       counsel, and not his client.

       However, it is also well-settled that the reinstatement of direct
       appeal rights is not the proper remedy when appellate counsel
       perfected a direct appeal but simply failed to raise certain claims.
       Where a petitioner was not entirely denied his right to a direct
       appeal and only some of the issues the petitioner wished to pursue
       were waived, the reinstatement of the petitioner’s direct appeal
       rights is not a proper remedy. In such circumstances, the
       appellant must proceed under the auspices of the PCRA, and the
       PCRA court should apply the traditional three-prong test for
       determining whether appellate counsel was ineffective.[3]

Commonwealth v. Mikell, 968 A.2d 779, 781-82 (Pa. Super. 2009)

(citations, quotation marks and emphases omitted).

       As noted supra, in Appellant’s direct appeal, we found that the

sufficiency-of-the-evidence issue was waived.         Greer, 606 WDA 2017


____________________________________________


3  Counsel is presumed to have provided effective representation unless the
PCRA petitioner pleads and proves all of the following: (1) the underlying legal
claim is of arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s interest; and
(3) prejudice, to the effect that there was a reasonable probability of a
different outcome if not for counsel’s error. Commonwealth v. Johnson,
179 A.3d 1105, 1114 (Pa. Super. 2018), appeal denied, 197 A.3d 1174 (Pa.
2018).

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(unpublished memorandum at *3).           As to Appellant’s second issue, we

concluded that Appellant did not comply with pertinent case law to raise a

substantial question concerning the appropriateness of his sentence. Id. at

*4 and n.3. Therefore, Appellant was not entirely denied his right to a direct

appeal, and reinstatement of Appellant’s direct appeal rights was not the

proper remedy. Rather, the PCRA court should have applied the traditional

three-prong test to determine whether appellate counsel was ineffective.

Mikell, 968 A.2d at 781–782; see also Commonwealth v. Perry, 128 A.3d

1285, 1290 n.2 (Pa. Super. 2015) (when appellate counsel perfected a direct

appeal but failed to raise certain claims, reinstatement of direct appeal rights

is not the proper remedy; rather, the court must apply the PCRA traditional

three-prong   test   for   determining   whether   counsel   was   ineffective);

Commonwealth v. Grosella, 902 A.2d 1290 (Pa. Super. 2006) (PCRA court

erred in reinstating the appellant’s direct appeal rights where appellate

counsel did not effectively abandon the appellant such that he was entirely

denied his right to a direct appeal).

      Accordingly, we are constrained to vacate the PCRA court’s June 14,

2018 order reinstating Appellant’s direct appeal rights nunc pro tunc and

remand this matter to the PCRA court for proceedings consistent with this

memorandum. Upon remand, the court should consider all of the cognizable

claims raised in Appellant’s PCRA petition.




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      Order vacated.       Case remanded with instructions.   Jurisdiction

relinquished.

      Judge McLaughlin joins the Memorandum.

      P.J.E. Ford Elliott concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2019




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