J-S64025-16


                                  2016 PA Super 226

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.*

OPINION BY SOLANO, J.:                                FILED OCTOBER 20, 2016

        Appellant, Marvin Hill, appeals from the December 22, 2015 order

denying his petition for reinstatement of direct appeal rights pursuant to the

Post Conviction Relief Act, 42 Pa.C.S. § 9541-9546 (PCRA). We affirm.

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

convicted of third-degree murder,1 carrying a firearm without a license,2

carrying a firearm on public streets in Philadelphia,3 and possessing an

instrument of crime.4 On April 5, 2013, the trial court sentenced Appellant
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(c).
2
    18 Pa.C.S. § 6106.
3
    18 Pa.C.S. § 6108.
4
    18 Pa.C.S. § 907.
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to consecutive terms of imprisonment of 15-40 years for third-degree

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

penalty was imposed for the remaining crimes.

       Trial counsel, Gerald A. Stein, 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 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.5           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2014) (unpublished memorandum; “Hill I”).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


____________________________________________


5
  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 Court Opinion, 12/22/15, at 2.




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

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 the initial 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, pro se, filed a petition for post-conviction

relief. Current counsel, John P. Cotter, 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 basis that “appellate defense counsel was ineffective because he

allowed the defendant’s appeal from the judgment of sentence to be

dismissed.”   Amended PCRA petition, 8/7/15, at ¶ 4.           Appellant did not

allege that trial counsel was ineffective.

      On November 30, 2015, the PCRA court issued a Criminal Rule 907

notice of intent to dismiss Appellant’s petition on the basis that it was

meritless, as will be discussed below.       By an order entered December 22,

2015, the PCRA court formally dismissed Appellant’s petition.         This appeal

followed.

      In this appeal, Appellant raises the following issue, as stated:

      Did the trial court err in not reinstating appellant’s right to file an
      appeal nunc pro tunc from the judgment of sentence imposed in
      this matter because appellate defense counsel on appeal from
      the judgment of sentence failed to preserve any issues for
      appeal and waived appellant’s right to appeal thereby causing

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      the appeal to be dismissed and denying the defendant his right
      to appeal and his right to effective assistance of counsel on
      appeal?

Appellant’s Brief at 2.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is “to determine whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.

The PCRA court's findings will not be disturbed unless there is no support for

the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d

185, 191-92 (Pa. Super. 2013) (citations and internal quotation marks

omitted).

      Generally, to obtain relief on a claim of ineffective assistance of

counsel, a petitioner must 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. Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987).        “To demonstrate prejudice, the

petitioner must show that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have

been different.”    Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012)

(quotation marks and citation omitted).

      In his petition, Appellant did not seek to prove these three elements of

Pierce.     Instead, he argued that he should be afforded relief because his

appellate counsel was ineffective per se, thereby obviating his need to prove




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the three Pierce elements.           Appellant’s Brief at 6-7.          The PCRA court

rejected this argument, and we agree.

         In rare circumstances, “where there has been a complete denial of

counsel or where the circumstances are such that any competent attorney

would be unable to provide effective assistance,” prejudice is presumed, and

the petitioner need not satisfy the Pierce test.                  Commonwealth v.

Reaves, 923 A.2d 1119, 1128 (Pa. 2007).                    The Supreme Court of

Pennsylvania “has extended the presumption [of prejudice] in Pennsylvania

to instances where counsel’s lapse ensured the total failure of an appeal

requested by the client.” Id. The situations to which the presumption has

been held to apply are: (1) the failure to file a requested direct appeal, see

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999); (2) the failure

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 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    of   a   brief   so   defective   that   the   appeal    is    quashed,   see

Commonwealth v. Franklin, 823 A.2d 906, 910 (Pa. Super. 2003).                       In

such cases, the petitioner is entitled to reinstatement of his direct appeal

rights. See Halley, 870 A.2d at 801.

         By contrast, “[w]here a petitioner was not entirely denied his right to

a direct appeal,” he must ”proceed under the auspices of the PCRA, and the

PCRA court should apply the traditional three-prong [Pierce] test for

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determining whether appellate counsel was ineffective.” Commonwealth v.

Grosella, 902 A.2d 1290, 1293-94 (Pa. Super. 2006) (emphasis in original).

“The difference in degree between failures that completely foreclose

appellate review, and those which may result in narrowing its ambit, justifies

application of the presumption in the more extreme instance.” Halley, 870

A.2d at 801.

      Relying on Grosella and Halley, Appellant contends that his original

appellate counsel, Mr. Farrell, pursued his appeal in such a way that

Appellant is entitled to a presumption of prejudice and reinstatement of his

direct appeal rights without further proof. Appellant’s criticism of Attorney

Farrell appears to be that, although Mr. Farrell listed four grounds for appeal

in his Rule 1925(b) Statement, he pursued only one of those four grounds in

this Court — and the issue he chose to pursue was one that had been

waived by a failure to preserve it in the trial court. Mr. Farrell’s decision to

pursue only one issue and not others does not give rise to a claim for per se

ineffectiveness under Grosella, however. As the PCRA court explained:

      In Grosella, appellate counsel failed to pursue all of the issues
      that the appellant wished to raise on direct appeal. The Superior
      Court found that it was not a case where appellate counsel failed
      to perfect a direct appeal and overturned the PCRA court which
      had reinstated the appellant’s appeal rights nunc pro tunc.
      Grosella, 902 A.2d at 1294. The Superior Court opined that
      “[w]here 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.” Id. (emphasis
      original).



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PCRA Court Opinion, 12/22/15, at 4. Here, as in Grosella, Mr. Farrell took

all available steps for this Court to review one of Appellant’s issues — that

the verdicts were against the weight of the evidence. While Mr. Farrell did

not pursue the other three claims raised in Appellant’s Rule 1925(b)

statement, this is not per se ineffectiveness warranting reinstatement of

Appellant’s direct appeal rights. See Grosella, 902 A.2d at 1293 (”it is . . .

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”).

      Of course, Appellant’s weight-of-the-evidence claim was unsuccessful

because it had not been preserved in the trial court. But the preservation

error was not an error on the part of Attorney Farrell; Appellant had a

different trial lawyer who was responsible for preservation of the claim.

Appellant therefore errs to the extent that he suggests that the preservation

error should be considered an instance of Attorney Farrell’s ineffectiveness.

      Because there was no ineffectiveness on the part of Appellant’s

appellate counsel in preserving Appellant’s right to appeal, Appellant’s

reliance on Halley also is misplaced. As the PCRA court explained:

      In Halley, appella[te] counsel failed to file a Rule 1925(b)
      statement, but still filed a brief with Superior Court challenging
      the sufficiency of the evidence. The Superior Court held that it
      was precluded from considering appellant’s arguments due to
      the absence of his Rule 1925(b) statement. On appeal, the
      Supreme Court restored appellant’s appeal rights after finding
      the failure to comply with a court order to file a Rule 1925(b)
      Statement represented actual or constructive denial of
      assistance of counsel. Halley, 870 A.2d 795. This is clearly

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      incongruent with the instant matter as appella[te] counsel here
      complied with this Court’s order to file a Statement of Matters
      Complained of on Appeal and, as noted above, the Petitioner did
      receive appella[te] review. Therefore there was no constructive
      denial of assistance of counsel.

PCRA Court Opinion, 12/22/15, at 5.          In contrast to what occurred in

Halley, Attorney Farrell was not responsible for Appellant’s failure to obtain

appellate relief on his weight-of-the-evidence claim. Moreover, despite this

Court’s holding in Appellant’s initial direct appeal that Appellant’s weight-of-

the-evidence   claim   had been waived in         the   trial court, this Court

nevertheless discussed the merits of that claim, concluding that it was

meritless in light of the overwhelming evidence of Appellant’s guilt.        See

PCRA Court Opinion, 12/22/15, at 4; Hill I, at 4 n.4.

      Appellant’s real complaint would seem to be with his trial counsel, who

failed to preserve the weight issue for appellate review. But our decisions

hold that this type of failure at the trial level “does not fall within the narrow

ambit of ineffectiveness claims requiring no finding of prejudice” and

allowing for automatic reinstatement of direct appeal rights because there is

ineffectiveness per se.   Commonwealth v. Fransen, 986 A.2d 154, 158

(Pa. Super 2009).      A petitioner alleging that counsel was ineffective for

failing to file a post-sentence motion must instead satisfy the Pierce three-

part test for ineffectiveness.   See Commonwealth v. Reaves, 923 A.2d

1119, 1128-29 (Pa. 2007). The Pierce standard applies because failure to

file a post-sentence motion — unlike failure to file an appeal, a Rule 1925(b)

statement, or a brief that complies with the Rules of Appellate Procedure —


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“does not waive any and all appellate issues; it waives only those claims

subject to issue preservation requirements which were not otherwise already

properly preserved.” Id. at 1129 (holding that failure to file for sentencing

reconsideration, which resulted in waiver of right to appeal discretionary

aspects of sentence, must be evaluated under Pierce standard for

ineffectiveness).

       We recognize Appellant’s view that the combined actions of trial and

appellate counsel resulted in the failure to secure appellate relief when he

was first before this Court. In such a situation, however, it was incumbent

on Appellant to satisfy the three-part Pierce ineffectiveness test, rather

than   relying   on     an   argument    of   ineffectiveness   per   se.   See

Commonwealth v. Mikell, 968 A.2d 779, 782 (Pa. Super. 2009) (where

claim was waived at trial and appellate counsel took all necessary steps to

present that claim on appeal, presumption of prejudice does not apply),

appeal denied, 985 A.2d 971 (Pa. 2009). Because Appellant has made no

effort to satisfy Pierce, the PCRA court properly denied his petition.

       In summary, Appellant was neither actually nor constructively denied

his right to a direct appeal and is not eligible for the relief available when

presumed prejudice is found.     Nor has he attempted to satisfy the Pierce

standard applicable to claims of ineffective assistance of counsel. Therefore,

the PCRA court properly denied his petition seeking reinstatement of his

direct appeal rights.

       Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2016




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