J-S24018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

FRANKIE ROSADO,

                         Appellant                  No. 2474 EDA 2014


            Appeal from the PCRA Order entered July 18, 2014,
             in the Court of Common Pleas of Monroe County,
           Criminal Division, at No(s): CP-45-CR-0000018-2012


BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED APRIL 17, 2015

      Frankie Rosado (“Appellant”) appeals from the order denying his first

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

42 Pa.C.S.A. §§ 9541-46. We affirm.

      The PCRA court summarized the pertinent facts and discussed in detail

the procedural history as follows:

            On May 9, 2012, a jury convicted [Appellant] of
         Indecent Assault, Unlawful Contact with a Minor, and
         Corruption of a Minor. On August 22, 2012, we sentenced
         [Appellant] to incarceration of not less than thirty-three
         months nor more than ninety-six months.

            Up through sentencing, [Appellant] was represented by
         an attorney (“Trial Counsel”) in the Office of the Monroe
         County Public Defender. Shortly after [Appellant] was
         sentenced, a private attorney (“Appellate Counsel”)
         entered an appearance on behalf of [Appellant]. Appellate
         Counsel represented [Appellant] up through his direct
         appeal to Superior Court.
J-S24018-15


          Appellate Counsel first filed a Motion to Modify Sentence
       with this Court. Apparently because he was not trial
       counsel and had not yet requested transcripts, Appellate
       Counsel used a shotgun approach framing the motion in
       which he challenged the discretionary aspects of the
       sentence, asserted that there was insufficient evidence to
       support the verdict, and alleged juror impropriety. The
       motion requested that we reduce the aggregate sentence
       to a “‘low end’ standard range sentence . . . and/or
       arresting judgment, for a new trial or, in the alternative,
       enter a judgment of acquittal based on the evidence
       adduced at trial.” On September 10, 2012, we entered an
       order denying the motion.

          Appellate Counsel filed an appeal (“Direct Appeal”). In
       response to our order requiring the filing of an appeal
       statement, Appellate Counsel filed a two-count [Pa.R.A.P.]
       Rule 1925(b) statement that again invoked the shotgun
       approach to pleading.

          The first portion of the filing was styled as a
       “preliminary” Rule 1925(b) statement.          Employing a
       construct that he had used before, Appellate Counsel
       attached and incorporated into the preliminary statement
       the Motion for Modification of Sentence that he had
       previously filed on behalf of [Appellant]. In addition, the
       preliminary statement specifically alleged that we abused
       our discretion in sentencing [Appellant], that we erred in
       precluding evidence that the victim had made prior claims
       of sexual abuse against her father, and that a juror had
       committed fraud on this Court. As discussed below, these
       assignments of error were later strategically abandoned.

          The second portion of Appellate Counsel’s filing was a
       petition that requested additional time within which to file
       a “final” statement after he received a transcript he had
       requested.     The petition was based, in part, on the
       erroneous assertion that Appellate Counsel had paid for
       the transcript when, in actuality, payment had not yet
       been tendered. In response, we issued an order that
       directed [Appellant] to pay for the transcript within five
       days and granted him fifteen days from receipt of the
       transcript within which to file a supplemental Rule 1925(b)
       statement if full payment was made within the five[-]day
       period.    Payment was timely rendered and Appellate

                                  -2-
J-S24018-15


       Counsel was promptly given the transcript he requested.
       However, no supplemental or “Final” statement was filed.
       Accordingly, we treated the “preliminary” statement as
       [Appellant’s] only appeal statement.

          On November 20, 2012, we issued an appeal opinion
       (“Prior Appeal Opinion”) in which we found that the three
       claims specifically raised in [Appellant’s] Rule 1925(b)
       statement were without merit and indicated our belief that
       [Appellant] waived any challenge to the weight or
       sufficiency of the evidence that he may be deemed to have
       raised. []

          After Appellate Counsel had the opportunity to review
       the transcript he had previously requested, as well as
       others that were generated during the pendency of the
       appeal, he made the strategic decision to brief [on appeal]
       only the challenge to the sufficiency of the evidence that
       he believed had been properly raised by attaching and
       incorporating the Motion to Modify Sentence into
       [Appellant’s] Rule 1925(b) statement. He abandoned the
       three issues that had been specifically listed in the
       statement because, on reflection and review of the record,
       he believed they were meritless. In addition, Appellate
       Counsel’s prior experience had been that raising one good
       issue - - in his mind at the time the sufficiency of the
       evidence claim - - was better strategy than shot gunning
       multiple claims that had little to no chance of succeeding.

          On July 23, 2013, the Superior Court issued a
       memorandum opinion in the Direct Appeal affirming the
       judgment of sentence. [Commonwealth v. Rosado, 82
       A.3d 1075 (Pa. Super. 2013).] In its opinion, the Superior
       Court found that the sufficiency of the evidence claim had
       been waived. []

           On February 21, 2014, [Appellant] filed a pro se PCRA
       petition alleging that both Trial Counsel and Appellate
       Counsel had been ineffective. Specifically, he alleged that
       Trial Counsel was ineffective for failing to raise the fact
       that the victim had previously accused her father of
       sexually abusing her and then recanted the accusations.
       Second, he alleged that Appellate Counsel was ineffective
       for failing to raise or preserve appeal issues, including the
       failure to brief the issues specifically raised in the Rule


                                   -3-
J-S24018-15


        1925(b)     statement.     The   second     allegation  of
        ineffectiveness ended with a request for “reinstatement of
        appellate rights as to the weight and sufficiency of the
        evidence claims.”

           [Appellant’s] current attorney (“PCRA Counsel”) was
        appointed to represent [Appellant] in the PCRA
        proceedings. In the appointment order, PCRA [C]ounsel
        was granted leave to file an amended petition if necessary.
        After reviewing and discussing the matter with [Appellant],
        PCRA Counsel did not file an amended petition.

           On July 18, 2014, we convened a PCRA hearing. At the
        hearing, [Appellant] called both Trial Counsel and
        Appellate Counsel. Trial Counsel testified that she was
        aware of the previous accusations of molestation made by
        the victim, that the accusations were the crux of her
        theory for [Appellant’s] defense at trial, that she fought to
        have the evidence of these accusations admitted and that
        evidence was, in fact, admitted.           Appellate Counsel
        testified as to why he raised only the issues he listed in the
        Rule 1925(b) statement filed in the Direct Appeal and why
        he later abandoned several issues on appeal.             After
        reviewing transcripts and the law, Appellate Counsel
        believed that the issues specifically raised in the statement
        were meritless. He felt the same way about a weight of
        the evidence claim. He pursued only the sufficiency of the
        evidence claim because he felt that it was the only issue
        that stood any chance on appeal. Appellate Counsel also
        testified that he raised the sufficiency of the evidence
        claim by attaching the Motion for Modification of Sentence
        [to the Rule 1925(b) statement] because he had used that
        construct in prior appeals without issue and was unaware
        of any rule that prohibited the procedure.             At the
        conclusion of the hearing, we issued an order denying the
        PCRA petition, summarizing our reasons for doing so on
        the record. []

PCRA Court Opinion, 10/31/14, at 1-5 (citations omitted).          This timely

appeal followed.   Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.



                                    -4-
J-S24018-15



      Appellant raises the following issue on appeal:

           A. DID THE PCRA COURT ERR AND ABUSE ITS
           DISCRETION BY NOT ALLOWING [APPELLANT] TO FILE A
           NUNC PRO TUNC APPEAL TO THE PENNSYLVANIA
           SUPERIOR COURT WHERE THE RECORD CLEARLY SHOWED
           THAT [APPELLANT] WAS DENIED HIS RIGHT TO
           APPELLATE REVIEW AS A RESULT OF [APPELLATE]
           COUNSEL NOT BRIEFING THE ISSUES RAISED IN THE
           INITIAL [RULE] 1925[(B)] STATEMENT PRESENTED TO
           THE COURT AND WHERE COUNSEL WAS THEREFORE [PER]
           SE INEFFECTIVE IN HIS REPRESENTATION OF []
           APPELLANT?

Appellant’s Brief at 4.

      This Court may only overturn a PCRA court’s dismissal of a PCRA

petition   based    on    an   error   of   law   or   an   abuse   of   discretion.

Commonwealth v. Johnson, 841 A.2d 136, 140 (Pa. Super. 2003), appeal

denied, 858 A.2d 109 (Pa. 2004).            “Great deference is granted to the

findings of the PCRA court, and these findings will not be disturbed unless

they have no support in the certified record.” Commonwealth v. Daniels,

947 A.2d 795, 798 (Pa. Super. 2008) (citation omitted).

      In support of his issue, Appellant argues:

              Despite the rights provided him under the Pennsylvania
           Constitution and case law, Appellant was denied his right
           to direct appeal following a criminal conviction. The denial
           was the result of the actions of prior counsel in failing to
           properly prosecute his appellate rights by making
           appropriate filings with the Superior Court. Specifically,
           counsel filed a 1925(b) statement, as well as an Appellate
           brief, which addressed wholly different issues, such that
           Appellant’s [] appeal was dismissed for failure to argue or
           preserve any issues raised on appeal.



                                        -5-
J-S24018-15


           Under Federal and Pennsylvania case law, the actions of
        counsel in failing to prosecute Appellant’s initial appeal
        resulted in [per] se ineffective representation, such that
        Appellant is entitled to re-file such appeal now on a nunc
        pro tunc basis. While the [PCRA] court focuses on the
        merits of Appellant’s initial appeal and inaccurately
        [analyzes]     this   matter      under   the    ruling    of
        Commonwealth v. Reed[, 971 A.2d 1216 (Pa. 2009),]
        (only limited appellate review provided rather than none as
        here), the more appropriate legal analysis focuses on
        cases where, as here, Appellant was provided no appellate
        review of any kind as a result of the actions or inactions of
        counsel. Appellant in the instant case, is entitled to file a
        nunc pro tunc appeal of the trial issues which have yet to
        be heard on appeal.

Appellant’s Brief at 7. We disagree.

     In rejecting Appellant’s claim, the PCRA court astutely noted:

           There are two types of ineffective assistance of counsel.
        The first is ineffectiveness under Strickland v.
        Washington, 466 U.S. 668 (1984), as adopted in
        Pennsylvania by Commonwealth v. Pierce, 527 A.2d 973
        (Pa. 1987), which requires the defendant to demonstrate
        that he was prejudiced by an act or omission of his
        attorney.    In cases where the Strickland/Pierce test
        applies, the analysis begins with the presumption that
        counsel rendered effective assistance. To obtain relief on a
        claim of ineffective assistance of counsel, a petitioner must
        rebut that presumption and demonstrate that counsel’s
        performance was deficient, and that such performance
        prejudiced him.        In our Commonwealth, we have
        rearticulated the Strickland Court’s performance and
        prejudice inquiry as a three-prong test. Specifically, a
        petitioner must show:       1) the underlying claim is of
        arguable merit; 2) no reasonable basis existed for
        counsel’s action or inaction; and 3) counsel’s error caused
        prejudice such that there is a reasonable probability that
        the result of the proceeding would have been different
        absent such error.

        Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011)
        [(citations omitted)]. Also, counsel cannot be found

                                       -6-
J-S24018-15


         ineffective for failing to pursue a baseless or meritless
         claim. Commonwealth v. Harvey, 812 A.2d 1190, 1199
         (Pa. 2002).

             The second type of ineffectiveness of counsel is
         ineffectiveness per se under United States v. Cronic, 466
         U.S. 648 (1984), decided the same day as Strickland, in
         which     the   United    States    Supreme     categorized
         circumstances where prejudice will be presumed and need
         not be proven. The presumption is based on the High
         Court’s recognition that there are “some circumstances so
         likely to prejudice the accused that the cost of litigating
         their effect in a particular case is unjustified.” (Id. at
         658).

             In Commonwealth v. Brown, 18 A.3d 1147 (Pa.
         Super. 2011), our Superior Court collected cases that
         outline the various situations where counsel has been held
         to be ineffective per se and analyzed the differences
         between a Cronic violation and a Strickland/Pierce
         allegation of ineffective assistance of counsel.

PCRA Court Opinion, 10/31/14, at 6-7.

      The PCRA court then quoted extensively from the Brown decision,

including the following:

             The recognized instances of per se ineffectiveness
         entitling a defendant to automatic relief are extremely
         narrow. Commonwealth v. Halley, 582 Pa. 164, 870
         A.2d 795 (2005) (counsel did not file a Pa.R.A.P. 1925(b)
         statement and waived all issues, thereby denying the
         defendant his constitutional right to direct appeal);
         Commonwealth v. Leibel, 573 Pa. 375, 825 A.2d 630
         (2003) (attorney did not file a petition for allowance of
         appeal, as requested by the defendant, and denied his
         client the right to seek discretionary review with our
         Supreme Court); Commonwealth v. Lantzy, 558 Pa.
         214, 736 A.2d 564, 572 (1999) (lawyer did not file a direct
         appeal,    despite  defendants   request);    see     also
         Commonwealth v. Burton, 973 A.2d 428 (Pa. Super.
         2009) (filing of an untimely 1925(b) statement);
         Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264


                                    -7-
J-S24018-15


           (2007) (not filing an appellate brief so defendant did not
           obtain direct review).

              On the other hand, the types of actions or inactions that
           are not subject to Cronic are legion.                   E.g.
           Commonwealth v. Reed, 601 Pa. 257, 971 A.2d 1216,
           1226 (2009) (“filing an appellate brief, deficient in some
           aspect or another, does not constitute a complete failure to
           function as a client’s advocate so as to warrant a
           presumption of prejudice under Cronic”); . . .
           Commonwealth v. Reaves, 592 A.2d 134, 923 A.2d
           1119 (2007) (narrowing ambit of reviewable issues on
           appeal does not constitute per se ineffectiveness)[.]

PCRA Court Opinion, 10/31/14, at 8-9 (quoting Brown, 18 A.3d at 1156).

      Here, Appellant’s appeal was timely filed, a Pa.R.A.P. 1925(b)

statement was filed, and this Court acknowledged the claim Appellate

Counsel chose to raise on appeal. These facts vitiate Appellant’s claim of per

se ineffectiveness. As discussed above, because Appellate Counsel litigated

Appellant’s direct appeal, Appellant’s claim of ineffectiveness must be

reviewed using the tripartite test of Strickland/Pierce.             See also

Commonwealth v. West, 883 A.2d 654, 658 n.5 (Pa. Super. 2005)

(explaining that per se ineffectiveness does not occur when counsel elected

to pursue certain issues in the Pa.R.A.P. 1925(b) statement and omitted

others).

      In Appellant’s direct appeal, we found Appellant waived the only issue

appellate counsel chose to raise. This fact, however, does not transform his

claim into one of per se ineffectiveness. See Commonwealth v. Reed, 601

Pa. 257, 971 A.2d, 1216, 1226 (2009) (“filing an appellate brief, deficient in

some aspect or another, does not constitute a complete failure to function as

                                      -8-
J-S24018-15



a client’s advocate so as to warrant a presumption of prejudice under

Cronic”).       Rather,   in   order   to    demonstrate   Appellate   counsel’s

ineffectiveness, Appellant must establish each prong of the tripartite

Strickland/Pierce test for ineffectiveness as to each claim he wished to

raise on appeal.

      Neither at the PCRA hearing, nor within his brief, does Appellant

provide such analysis with regard to any claim he wished to raise on appeal.

Thus, we need not consider his undeveloped claims of ineffectiveness

further. See Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981)

(explaining that claims of trial counsel’s ineffectiveness are not self-proving).

      In sum, because Appellant is not entitled to a finding of per se

ineffectiveness, we affirm the PCRA court’s order denying him post-

conviction relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2015




                                       -9-
