J-S17039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

MARWAN HALLS,

                        Appellant                   No. 2089 EDA 2016


                Appeal from the PCRA Order, June 16, 2016,
           in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0101061-2006


BEFORE: BENDER, P.J.E., LAZARUS, J. and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                          FILED MAY 04, 2018

     Marwan Halls appeals from the order denying his first petition for relief

filed under the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-

46. We affirm.

     The pertinent facts and procedural history are as follows:            On

November 8, 2010, Halls entered a guilty plea to burglary and conspiracy in

Philadelphia County.    That same day, the trial court sentenced him to an

aggregate term of 18 months of house arrest, with credit for time served,

and an aggregate, concurrent term of 79 months of probation. Halls filed

neither a post-sentence motion nor a direct appeal. While still on probation,

Halls was convicted of four counts of burglary in Montgomery County, and

was sentenced to an aggregate term of 7 to 14 years of incarceration.
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        Due to these new convictions, the Philadelphia County trial court held

a violation of probation hearing. The trial court found Halls in violation of his

probation, revoked his probation, and imposed a new aggregate sentence of

13 ½ to 27 years of imprisonment, followed by a one-year probationary

term.    This sentence was to run consecutive to Halls’ Montgomery County

sentence.

        Halls filed a counseled motion for reconsideration, which the trial court

denied on October 12, 2012.          On December 4, 2012, Halls filed a pro se

appeal to this Court, which we quashed as untimely on April 9, 2013. On

June 25, 2013, Halls filed a timely pro se PCRA. The PCRA court appointed

present counsel, who filed an amended petition, alleging ineffective

assistance of counsel, and requesting the reinstatement of Halls’ direct

appeal rights nunc pro tunc.         On June 16, 2016, the PCRA court held an

evidentiary     hearing.     Halls    presented   his   own   testimony.     The

Commonwealth called John McMahon, Jr., Esquire, the attorney who filed

Halls’ motion to reconsider sentence. At the conclusion of the hearing, the

PCRA court denied the petition. This timely appeal follows. Both Halls and

the PCRA court have complied with Pa.R.A.P. 1925.

        Halls raises the following issue:

           I.    Whether the [PCRA] Court erred in      denying [Halls’]
                 PCRA petition after an evidentiary      hearing on the
                 issues raised in the amended            PCRA petition
                 regarding violation of [probation]     (VOP) counsel’s
                 ineffectiveness.



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Halls’ Brief at 3.

      Our scope and standard of review is well-settled:

         In PCRA appeals, our scope of review is limited to the
         findings of the PCRA court and the evidence on the record of
         the PCRA court's hearing, viewed in the light most favorable
         to the prevailing party. Because most PCRA appeals involve
         questions of fact and law, we employ a mixed standard of
         review. We defer to the PCRA court's factual findings and
         credibility determinations supported by the record. In
         contrast, we review the PCRA court's legal conclusions de
         novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015) (internal citations and quotations omitted).

      To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable

strategic basis for his or her action or inaction; and (3) petitioner was

prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice"

requires the petitioner to show "that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would



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have been different." Id. In assessing a claim of ineffectiveness, when it is

clear that appellant has failed to meet the prejudice prong, the court may

dispose of the claim on that basis alone, without a determination of whether

the first two prongs have been met.            Commonwealth v. Travaglia, 661

A.2d 352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing

to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc).

       Halls claims that he is entitled to the reinstatement of his direct appeal

rights because he requested Terry Pugh, Esquire, the attorney who had

represented him at the violation of probation hearing, and who appeared at

his sentencing proceeding,1 to file an appeal on his behalf. As this Court has

summarized:

              Generally, if counsel ignores a defendant’s request to
          file a direct appeal, the defendant is entitled to have his
          appellate rights restored. Commonwealth v. Lantzy,
____________________________________________


1 The record is unclear as to whether Attorney Pugh still represented Halls at
that time. At the October 2, 2012 hearing, Halls appeared with court-
appointed counsel, but informed the trial court that he had hired Attorney
Pugh to represent him. The trial court called Attorney Pugh, who later
appeared and informed the court that he had no notice of the hearing.
Attorney Pugh then presented argument on behalf of Halls, and, after
sentencing, fully instructed Halls that he could file a motion for
reconsideration within ten days and a notice of appeal within thirty days.
Attorney Pugh informed Halls that both filings had to be in writing, and that
“[i]f you wish them done, I will do them for you[.]” N.T., 10/2/12, at 21.
The transcript shows no response from Halls, and if he later asked Attorney
Pugh to file an appeal, this request does not appear of record.




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         558 Pa. 214, 736 A.2d 564 (1999). In Lantzy, our
         Supreme Court held that an unjustified failure to file a
         direct appeal upon request is prejudice per se, and if the
         remaining requirements are satisfied, a defendant does not
         have to demonstrate his innocence or the merits of the
         issue he would have pursued on appeal to be entitled to
         relief. However, such relief is only appropriate where the
         petitioner plead and proves that a timely appeal was in
         fact requested and that counsel ignored that request.
         Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa.
         Super. 1999). A mere allegation will not suffice to prove
         that counsel ignored a petitioner’s request to file an
         appeal.

Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006).

      In the present case, the PCRA court heard conflicting testimony from

Halls in support of his claim that he timely requested Attorney Pugh to file

an appeal, and from Attorney McMahon, who testified that Halls never asked

him to file an appeal in the Philadelphia County case. According to Attorney

McMahon, in the correspondence that he received from Halls, Halls focused

on filing an appeal of his Montgomery County convictions.         Attorney Pugh

was not called to testify. The PCRA court resolved this matter of credibility

against Halls:

             At the evidentiary hearing, [Halls] failed to meet the
         burden of proof to prove ineffective counsel. [He] claims
         that trial counsel was ineffective for failing to file a direct
         appeal. [Halls] alleges that he asked Attorney Pugh, at the
         end of [his] Violation of Probation hearing, to file a direct
         appeal. However, during the evidentiary hearing, [Halls]
         failed to produce evidence that he had even asked trial
         counsel to file the direct appeal. The court was asked to
         make a credibility determination regarding [Halls’] claim
         and the court found that [Halls] claim was not credible.

PCRA Court’s Opinion 8/3/17, at 3-4.

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      Halls argues that the PCRA court erred in denying him relief, as his

testimony that he asked Attorney Pugh to file the appeal was unrefuted.

Although this is true, the PCRA court still had to accept Halls’ testimony as

credible.   As noted above, it did not.     This Court “must defer to the

credibility determinations made by the [PCRA] court that observed a

witness’s demeanor first hand.” Commonwealth v. Todd, 820 A.2d 707,

712 (Pa. Super. 2003). As a matter of credibility, the PCRA court believed

trial counsel’s version of the contested facts.     We cannot disturb this

determination.   See Commonwealth v. Harmon, 738 A.2d 1023, 1025

(Pa. Super. 1999) (explaining that when a PCRA court’s credibility

determination is supported by the record, it cannot be disturbed on appeal).

      Halls also argues that the PCRA court should not have denied relief

because the Commonwealth did not call Attorney Pugh.           It is a PCRA

petitioner’s responsibility to produce counsel at a PCRA evidentiary hearing

in order to meet his burden of proof that his claims warrant relief.

Commonwealth v. Jones, 596 A.2d 885 (Pa. Super. 1991). As noted by

the PCRA court, Halls did not meet this burden.       If Halls believed that

Attorney Pugh would have aided his cause, he should have sought his

appearance at the evidentiary hearing.




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Order affirmed.

 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/18




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