J-S27014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 JEROME C. BROOKS                           :
                                            :
                     Appellant              :    No. 2713 EDA 2017

                 Appeal from the PCRA Order August 1, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0002238-2013


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.:                             FILED AUGUST 28, 2018

      Jerome C. Brooks (“Appellant”) appeals from the order dismissing his

first petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

      The PCRA court summarized the factual and procedural history of this

case as follows:

             On June 12, 2014, [Appellant] was found guilty after a jury
      trial, presided over by the Honorable Rose Marie DeFino-Nastasi,
      of homicide by vehicle while under the influence, 75 Pa.C.S.
      § 3735, as a felony of the second degree; accidents involving
      death or personal injury, 75 Pa.C.S. § 3742, as a felony of the
      second degree; driving under the influence (DUI, general
      impairment of driving safely), 75 Pa.C.S. § 3802(a)(1), as a
      misdemeanor of the first degree; and driving under the influence
      of a controlled substance (DUI, combination alcohol/drugs), 75
      Pa.C.S. § 3802(d)(3), as a misdemeanor of the first degree.

            On November 14, 2014, [Appellant] was sentenced to four
      (4) to eight (8) years confinement for the homicide by vehicle
      while under the influence conviction and one (1) to two (2) years
J-S27014-18


      confinement for the Accidents Involving Death or Personal Injury
      conviction. No further penalty was imposed for the two (2) DUI
      convictions. The sentences were ordered to run consecutively for
      an aggregate sentence of five (5) to ten (10) years confinement.
      No direct appeal was filed.

           On March 18, 2015, [Appellant] filed an untimely, pro se,
      Motion for Reconsideration of Sentence, nunc pro tunc.

           On April 17, 2015, the Trial Court denied [Appellant’s]
      Motion for Reconsideration of Sentence for being untimely.

           On June 1, 2015, [Appellant] filed an untimely, pro se
      Motion for Direct Appeal, nunc pro tunc, which was categorized as
      a PCRA petition by the PCRA Unit of the Philadelphia Clerk of
      Courts.

            On October 2, 2015, [Appellant] filed a pro se objection to
      his Motion for Direct Appeal, nunc pro tunc, being categorized as
      a PCRA petition and requesting to withdraw the Motion for Direct
      Appeal and be permitted to file a proper PCRA petition.

            On October 28, 2015, [Appellant] filed the instant, timely,
      pro se PCRA petition.

             On April 7, 2017, PCRA counsel David Rudenstein, Esquire
      filed an Amended PCRA Petition.

            On August 1, 2017, [Appellant’s] PCRA petition was denied
      after an Evidentiary Hearing held by the PCRA Court.

           On August 27, 2017, [Appellant] filed a timely Notice of
      Appeal to the Superior Court of Pennsylvania.

           On October 3, 2017, [Appellant] filed a Rule 1925(b)
      Statement of Matters Complained of on Appeal, pursuant to an
      Order of the Court.

PCRA Court Opinion, 11/8/07, at 1-2. In its Pa.R.A.P. 1925(a) opinion, the

PCRA court concluded that the claims raised in Appellant’s PCRA petitions were




                                    -2-
J-S27014-18



without arguable merit, and attached to its opinion the notes of testimony

from the evidentiary hearing held August 1, 2017. Id.

      Appellant presents the following issue for our review:            “Did the

Honorable PCRA court err when that court failed to reinstate [Appellant’s]

appellate rights, nunc pro tunc?”        Appellant’s Brief at 3 (unnecessary

capitalization omitted). More specifically, Appellant argues that trial counsel

was ineffective for failing to file a direct appeal, and that the PCRA court erred

when it failed to reinstate his appellate rights, nunc pro tunc, on that basis.

Id. at 7-10. Appellant contends that he asked trial counsel to file a direct

appeal, and he testified to that fact at the PCRA hearing. Id. at 7. While

Appellant acknowledges that trial counsel disputed that testimony at the

hearing, he maintains that based upon “logical” analysis, it must be concluded

that he did, in fact, ask counsel to file the appeal.     Id. at 7-9. Appellant

further asserts that “[w]hile counsel claimed that [Appellant] did not ask for

an appeal, [Appellant] did tell counsel that he was unhappy with the sentence

and that information was communicated face-to-face immediately after

[Appellant] was sentenced.” Id. at 9-10. Appellant argues that trial counsel

was ineffective for failing to take the appeal. Id. at 10. Appellant contends

that his appellate rights should be reinstated. Id.

      “Our standard of review for an order denying PCRA relief is whether the

record supports the PCRA court’s determination, and whether the PCRA court’s

determination is free of legal error.”    Commonwealth v. Hernandez, 79

A.3d 649, 651 (Pa. Super. 2013).         The PCRA court’s findings will not be

                                      -3-
J-S27014-18


disturbed unless there is no support for the findings in the certified record.

Id.

      When considering an allegation of ineffective assistance of counsel

(“IAC”), counsel is presumed to have provided effective representation unless

the PCRA petitioner pleads and proves that: (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his or her conduct;

and (3) petitioner was prejudiced           by counsel’s action or omission.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “In order to meet

the prejudice prong of the ineffectiveness standard, a defendant 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. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). A claim of

IAC will fail if the petitioner does not meet any one of the three prongs.

Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). “The burden of

proving ineffectiveness rests with Appellant.” Commonwealth v. Rega, 933

A.2d 997, 1018 (Pa. 2007).

      Further, “[a] PCRA petitioner must exhibit a concerted effort to develop

his ineffectiveness claim and may not rely on boilerplate allegations of

ineffectiveness.” Commonwealth v. Natividad, 938 A.2d 310, 322-323 (Pa.

2007); see Commonwealth v. Spotz, 896 A.2d 1191, 1250 (Pa. 2006)

(finding ineffectiveness claim insufficient when appellant “failed to set forth

his claim pursuant to the three-prong . . . test for establishing an ineffective


                                        -4-
J-S27014-18


assistance of counsel claim”); Commonwealth v. Bracey, 795 A.2d 935, 940

n.4 (Pa. 2001) (“[A]n undeveloped argument, which fails to meaningfully

discuss and apply the standard governing the review of ineffectiveness claims,

simply does not satisfy Appellant’s burden of establishing that he is entitled

to any relief.”).   With these standards in mind, we proceed to examine

Appellant’s claim of trial counsel’s ineffectiveness.

      We first note that Appellant fails to meaningfully discuss the elements

of an IAC claim in his brief. Moreover, Appellant’s cursory averment that he

asked trial counsel to file an appeal on his behalf, and that counsel failed to

do so, is insufficient to satisfy his burden.        “[B]efore a court will find

ineffectiveness of trial counsel for failing to file a direct appeal, Appellant must

prove that he requested an appeal and that counsel disregarded this request.”

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

Appellant asserts that “logical” conclusions establish his desire to have a direct

appeal filed, Appellant fails to identify or present evidence that supports his

assertion that he directed counsel to file an appeal. In fact, Appellant places

much emphasis on the fact that he told counsel that he was not happy with

his sentence. A statement regarding displeasure with a sentence, however,

is not tantamount to requesting that counsel file a direct appeal.

      Furthermore, during the PCRA hearing, Appellant did not definitively

assert that he had asked counsel to file an appeal. The following exchange is

revealing:


                                       -5-
J-S27014-18


     [Counsel]: Well, let me ask you this question, at any time prior
     to leaving the courtroom at time of sentencing, either that day or
     during trial or up at the prison speaking, did you ever tell [trial
     counsel] that if you lose, if you lose, you’d like to take an appeal?

     [Appellant]: No. What he did was, he basically assured me that,
     you know, we’re getting exactly what we want, and this was prior
     to court. So I guess that was a way of nullifying that he didn’t
     want to do the appeal process because he’s saying, you know,
     we’re getting exactly what we -- exactly what we want. And then
     when the sentence was read, that’s not -- I wasn’t in concurrent
     [sic] with that.

     [Counsel]: What did you want?

     [Appellant]:   No, I just wanted to -- I wanted a concurrent
     sentence.

     [Counsel]: You wanted the 1 to 2 to be concurrent with the 4 to
     8.

     [Appellant]: 4 to 8, correct.

     [Counsel]: Okay. So –

     [Appellant]: That was my whole premise. That was my whole
     premise for everything because, number one, I didn’t have --
     there’s -- with me not having no -- what he said at the sentencing
     date didn’t even mix with what I was trying to explain. So his
     thing was that -- his issue was that, well, we got what we want.
     But then after trial, after I was sentenced, then he just said some
     stuff to me in the room, and then I was like, whoa, that can’t be
     it, like where is the -- so I just felt as though there was something
     wrong at that point.

N.T., 8/1/17, at 8-10. Additionally, at the PCRA hearing, the Commonwealth’s

attorney read from the sentencing transcript, reflecting that Appellant had

been advised of his appeal rights at that time. Id. at 16-18. Appellant did

not deny that he had been advised of those rights, but instead stated that he

did not hear or understand those statements.       Id. at 18.    Indeed, in his

                                     -6-
J-S27014-18


statements to the PCRA court, Appellant’s PCRA counsel acknowledged that

Appellant did not ask for a direct appeal. Id. at 41.

        Moreover, Appellant’s trial counsel testified at the PCRA hearing in

significant detail regarding discussions with Appellant pertaining to trial

strategy and sentencing.       N.T., 8/1/17, at 21-28.       Counsel testified that

Appellant did not ask him to file a direct appeal at any time. Id. at 21-28,

37. The PCRA court found trial counsel to be credible. Id. at 47. This Court

will not overturn a PCRA court’s credibility determinations where, as here,

there    is   evidence   on   the   record   to   support   those   determinations.

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).

Because Appellant presents no evidence supporting his claim that he directed

counsel to file an appeal, this claim lacks merit.

        Furthermore, this Court has explained that in some situations, even in

the absence of a request by a defendant, counsel may still be ineffective for

failing to file an appeal. This Court in Commonwealth v. Touw, 781 A.2d

1250 (Pa. Super. 2001), summarized the United States Supreme Court case

of Roe v. Flores-Ortega, 528 U.S. 470 (2000), as follows:

              If counsel has not consulted with the defendant, the
              court must in turn ask a second, and subsidiary,
              question: whether counsel’s failure to consult with the
              defendant itself constitutes deficient performance.
              That question lies at the heart of this case: Under
              what circumstances does counsel have an obligation
              to consult with the defendant about an appeal?

        The Court answered this question by holding:


                                        -7-
J-S27014-18


           [C]ounsel has a constitutionally-imposed duty to
           consult with the defendant about an appeal when
           there is reason to think 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. In making this determination, courts
           must take into account all the information counsel
           knew or should have known.

     A deficient failure on the part of counsel to consult with the
     defendant does not automatically entitle the defendant to
     reinstatement of his or her appellate rights; the defendant must
     show prejudice. The Court held that ‘to show prejudice in these
     circumstances, a defendant must demonstrate that there is a
     reasonable probability that, but for counsel’s deficient failure to
     consult with him about an appeal, he would have timely appealed.’

Touw, 781 A.2d at 1254 (internal citations omitted).

           Where no request has been made, an appellant must
     establish that a duty to consult was owed. Under Roe and Touw,
     an appellant may establish a duty to consult by indicating issues
     that had any potential merit for further review.

Commonwealth v. Bath, 907 A.2d 619, 623 (Pa. Super. 2006).

     Here, however, Appellant does not assert that counsel failed to consult

with him about an appeal. Moreover, Appellant has failed to establish that a

consultation was owed to him. Appellant has not identified any issues that

have potential merit for further review.   Bath, 907 A.2d at 623.    Further,

based on the record, it cannot be concluded that Appellant reasonably

demonstrated to trial counsel that he was interested in appealing. Touw, 781

A.2d at 1254. Therefore, we conclude that Appellant has not established that




                                    -8-
J-S27014-18


counsel owed him a duty to consult and, accordingly, he is entitled to no relief

on this basis.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/18




                                     -9-
