J-A18033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

STEPHEN STAHL,

                        Appellant                  No. 1589 MDA 2015


              Appeal from the Order Entered August 12, 2015
             In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0001067-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E*

MEMORANDUM BY STEVENS, P.J.E.:                    FILED AUGUST 31, 2016

     Appellant, Stephen Stahl, appeals from the order entered on August

12, 2015, denying his counseled “Petition for Permission to File Nunc Pro

Tunc Appeal,” which constitutes Appellant’s first petition under the Post-

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

     The relevant facts and procedural history are as follows:   Appellant,

who was a high school teacher, was arrested and charged with one count of

corruption of minors, 18 Pa.C.S.A. § 6301(a)(1). The charge stemmed from

a sexual relationship involving Appellant and a fifteen-year-old female

student. Represented by privately-retained counsel, Appellant proceeded to

a jury trial, and on January 16, 2015, the jury convicted Appellant of the

offense.




*Former Justice specially assigned to the Superior Court.
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      On March 23, 2015, Appellant proceeded to a sentencing hearing, at

the conclusion of which the trial court imposed a sentence of six months to

twenty-three months in prison. Moreover, the trial court advised Appellant,

in detail, of his post-sentence and appellate rights.         N.T. sentencing,

3/23/15, at 5-6. Specifically, the trial court indicated the following:

              [Appellant], I have issued your sentence. You have two
      choices if you’d like to appeal my sentence. Since you were
      convicted after a trial, you may appeal to a higher court, or you
      may file a post-sentence motion in front of me. If you appeal to
      a higher court you must file an appeal directly to the Superior
      Court within 30 days of today’s date and it must be in writing. If
      you cannot afford counsel, counsel will be appointed to represent
      you. If you cannot afford counsel, you should notify me within
      ten days of the date of today and I will appoint counsel to
      represent you. If you don’t file an appeal, any errors occurring
      during the trial, or any complaints you have about my sentence,
      will be lost forever.
              You have the right to file a post-sentence motion. This
      must be done within ten days of today’s date and must be in
      writing. As a direct appeal, if you cannot afford counsel, counsel
      will be appointed to represent you. If you need court appointed
      counsel, please notify me within ten days of today and I will
      appoint counsel to represent you.
              It is important that you understand that if you wish to
      argue on appeal that the guilty verdict in your case is against the
      weight of the evidence or that your sentence is excessive, you
      must file a post-sentence motion. With the exception of these
      two issues, it is not necessary to first file a post-sentence motion
      with this Court. However, you have the right to file such a
      motion if you choose to do so. Your post-sentence motion must
      state specifically the reasons you believe you are entitled to
      relief.
              If you file a post-sentence motion this Court will have 120
      days from the date of the filing to make a decision. In certain
      situations I can extend this deadline for an additional 30 days at
      the request of your attorney based upon good cause. If I fail to
      decide your post-sentence motion within this time period, the
      motion will be denied automatically. Once your post-sentence
      motion has been denied, you will have 30 days from the date to

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      file an appeal to the Superior Court. This appeal must be in
      writing and counsel will be appointed to represent you if you
      cannot afford to hire one or have your own attorney.

Id.

      Furthermore, the following relevant exchange occurred regarding

privately-retained counsel’s continued representation of Appellant:

      [Trial Counsel]: Your Honor, I would ask that you grant my
      withdrawal from the case.
      THE COURT: [Appellant], [trial counsel] is requesting that he
      withdraw from your case. Do you have any objection?
      [Appellant]: No, sir.
      THE COURT: I will grant that motion.

Id. at 7-8.

      Thereafter, Appellant filed neither a timely post-sentence motion nor a

timely direct appeal from his judgment of sentence.       However, on July 2,

2015, Appellant filed a counseled petition entitled “Petition for Permission to

File Nunc Pro Tunc Appeal.” Therein, new counsel, who was a member of

the Luzerne County Public Defender’s Office, averred that, Appellant, who

was incarcerated, had been attempting to contact the Public Defender’s

Office in order to obtain new counsel; however, the Public Defender’s Office

did not receive his application for representation until June 23, 2015.

Counsel suggested Appellant did not voluntarily waive his right to a direct

appeal and that it would be in the “interests of justice” for the trial court to

reinstate Appellant’s direct appeal rights.




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      The matter proceeded to a hearing on August 12, 2015, at which

Appellant testified.   Specifically, the following relevant exchange occurred

between Appellant and his court-appointed attorney on direct examination:

      Q: Sir, can you tell the Court what happened after you were
      remanded to the Luzerne County Correctional Facility on March
      23rd?
                                      ***
      A: Okay. You don’t get to call anybody until the counselor would
      call you down and you had one shot. I tried calling an attorney,
      that was my one shot. You get to add numbers to your calling
      list. The numbers I did add were my mother, my sister, my
      wife, et cetera. That’s the only numbers you could call from
      there. During that time, I think six days had passed and I got
      acclimated to the system there and I put in a request to seek
      counsel. I believe it was around April 3rd. I didn’t receive any
      response. Later again that month I tried again. No response. I
      believe this is the fourth attempt when I finally did get a hold of
      the public defender. Also during that time I missed- -there’s five
      other requests that weren’t answered. I requested to see the
      counselor again to try to call a lawyer. No response from the
      counselor. I tried to get a hold of the counselor for early parole.
      He did not respond. I also tried work-release. Doctor, I had a
      medical problem while I was there. No response.
      Q: Sir, what was your level of- -how often were you allowed to
      be out of your cell during that timeframe?
      A: Two hours a day.
      Q: So that would be 22 hours- -
      A: Of lockdown.
      Q: On lockdown. Do you recognize this?
      A: Yes.
      Q: Can you identify what that is for the record?
      A: That’s my application for the public defender.
                                      ***
      Q: Does it accurately depict what you filled out for the Public
      Defender’s Office?
      A: Yes.
      Q: When was that date?
      A: The 16th of June.
                                      ***
      Q: That is the request that you know was received by the Public
      Defender’s Office?

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J-A18033-16


      A: Yes.
      Q: And how did you know that it was received by the Public
      Defender’s Office?
      A: I received a copy back.
      Q: Prior to that, did any of your requests- -did you receive a
      copy back?
      A: No.
      Q: After that time, did someone from the Public Defender’s
      Office reach out for you?
      A: Yes.

N.T. petition hearing, 8/12/15, at 3-6.

      On cross examination, Appellant admitted that he knew, at the time of

sentencing, he had ten days to file a post-sentence motion and thirty days to

file an appeal. Id. at 6-7. Appellant agreed that, despite the fact the trial

court had instructed him to contact the court if he was in need of counsel

following the sentencing hearing, he did not write to or attempt to contact

the court. Id. at 7-9. Appellant admitted that, although he had ten minutes

a day to make telephone calls, he only called an attorney on one occasion,

and he did not ask his family to contact either a private attorney or the

Public Defender’s Office on his behalf.    Id.   Appellant confessed he knew

that if he did not have a lawyer he could represent himself and file

documents pro se. Id. at 9.

      Further, Appellant initially suggested prison officials prevented him

from filing an appeal with the lower court; however, he subsequently

admitted he did not draft a notice of appeal or a letter to the trial court

asking for an appeal. Id. at 9-10. Appellant denied knowing that he could

have applied for a public defender via a video system at the prison. Id.

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J-A18033-16


     At the conclusion of the hearing, the lower court denied Appellant’s

petition, and thereafter, Appellant filed a timely, counseled appeal to this

Court. All Pa.R.A.P. 1925 requirements have been met.

     Appellant argues that the lower court erred in failing to reinstate his

direct appeal rights nunc pro tunc.    Initially, we note that the lower court

should have treated Appellant’s counseled “Petition for Permission to File

Nunc Pro Tunc Appeal” as a timely petition under the PCRA.         The PCRA

“provides for an action by which persons convicted of crimes they did not

commit and persons serving illegal sentences may obtain collateral relief.”

42 Pa.C.S.A. § 9542. As the statute declares, the PCRA “is the sole means

of obtaining collateral relief and encompasses all other common law and

statutory remedies[.]” Id. Thus, “if the underlying substantive claim is one

that could potentially be remedied under the PCRA, that claim is exclusive to

the PCRA.”    Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa.Super.

2004) (emphasis omitted).

     Here, Appellant’s “Petition for Permission to File Nunc Pro Tunc Appeal”

requests the nunc pro tunc restoration of direct appeal rights. The PCRA

encompasses Appellant’s claim for relief, as Appellant is seeking to obtain

collateral relief from his final judgment of sentence and the PCRA may,

potentially, provide a remedy for Appellant. See Commonwealth v. Eller,

569 Pa. 622, 807 A.2d 838 (2002) (holding a petitioner may not pursue

reinstatement of appellate rights nunc pro tunc outside of the PCRA);


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J-A18033-16


Commonwealth v. Farrior, 809 A.2d 396, 397 (Pa.Super. 2002) (holding

“all requests for reinstatement of appellate rights, including PCRA appellate

rights, must meet the timeliness requirements of the PCRA”).

       Appellant’s claim, thus, falls under the rubric of the PCRA, and since

the PCRA encompasses Appellant’s claim, he “can only find relief under the

PCRA’s strictures.” Pagan, 864 A.2d at 1233.1 Accordingly, we utilize the

following standard of review in this case:

             Our review of a PCRA court's decision is limited to
       examining whether the PCRA court's findings of fact are
       supported by the record, and whether its conclusions of law are
       free from legal error. We view the findings of the PCRA court
       and the evidence of record in a light most favorable to the
       prevailing party. . . .The PCRA court's credibility determinations,
       when supported by the record, are binding on this Court;
       however, we apply a de novo standard of review to the PCRA
       court's legal conclusions.

Commonwealth v. Mason, ___ Pa. ___, 130 A.3d 601, 617 (2015)

(quotation marks and quotations omitted).

       With regard to the restoration of appeal rights, this Court has

recognized that a nunc pro tunc appeal should be permitted when the delay

in filing an appeal was caused by an extraordinary circumstance, such as

fraud or some breakdown in the process of the court. See Commonwealth

v. Braykovich, 664 A.2d 133 (Pa.Super. 1995). A “breakdown” can occur
____________________________________________


1
  Since Appellant’s counseled petition, which constitutes his first PCRA
petition, was filed within one year of the date his judgment of sentence
became final, the petition is timely under the PCRA. See 42 Pa.C.S.A. §
9545(b)(1).



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J-A18033-16


when the      trial   court departs from     the    obligations   specified    in   the

Pennsylvania Rules of Criminal Procedure. Commonwealth v. Patterson,

940 A.2d 493 (Pa.Super. 2007).            For instance, “[t]he courts of this

Commonwealth have held that a court breakdown occur[s] in instances

where the trial court, at the time of sentencing, either fail[s] to advise [an]

[a]ppellant of his post-sentence and appellate rights or misadvise[s] him.”

Id. at 498 (citations omitted).

      In the case sub judice, the record is clear that the trial court properly

advised Appellant of his appellate rights such that there has been no

“breakdown” in this regard.         See Patterson, supra.         Moreover, to the

extent Appellant suggested prison officials interfered with his attempt to file

a notice of appeal, the lower court, as was within its province, rejected

Appellant’s    testimony.    N.T.     petition     hearing,   8/12/15,        at    19;

Commonwealth v. Spotz, 624 Pa. 4, 84 A.3d 294 (2014) (indicating

credibility determinations are within the province of the PCRA court).

      This does not end our inquiry, however, as Appellant avers that he did

not otherwise knowingly, understandingly, or voluntarily waive his right to

file a direct appeal with the assistance of counsel.

      In discussing the PCRA, we have clarified the area of waiver as it

relates to a defendant’s right to a direct appeal and counsel as follows:

           It is axiomatic that in our scheme of justice an accused has
      the right to appeal his sentence and to the assistance of
      appointed counsel, if indigent, in doing so. Concomitantly, the
      accused has the ability to “waive” his right to counsel and to an

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J-A18033-16


     appeal. As our Supreme Court capsulized in Commonwealth v.
     Norman, 447 Pa. 217, 285 A.2d 523 (1971):
           In determining whether a defendant has waived a
           constitutional right it is well-settled that the federal
           standards of waiver. . .apply.         The waiver of a
           constitutional right must be “an intentional
           relinquishment or abandonment of a known right or
           privilege.” The presumption must always be against
           the waiver of a constitutional right. Nor can waiver
           be presumed in a silent record case. The United
           States Supreme Court specifically ruled in Carnley
           v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d
           70 (1962):
                  “Presuming waiver from a silent record is
                  impermissible. The record must show, or
                  there must be an allegation and evidence
                  which show, that an accused was offered
                  counsel      but      intelligently     and
                  understandingly rejected the          offer.
                  Anything less is not waiver.”
           Id. at 516, 82 S.Ct. at 890. Thus, this Court is
           constitutionally bound to place the burden of proving
           waiver on the Commonwealth.               Whether [the]
           defendant was represented by private or court-
           appointed counsel. . .are distinctions with no legal
           significance.
     [Norman], 477 Pa. at 221-22, 285 A.2d at 526.
                                   ***
           Moreover, as stated by the Supreme Court of Pennsylvania
     on the subject at hand,
           [T]he trial court, the Commonwealth or trial counsel
           should place on the record, perhaps immediately
           after sentence is imposed, a full examination of the
           accused sufficient to demonstrate that he is aware of
           his right of appeal and his right of counsel for that
           purpose, and that he understands the full import of
           these rights as well as the consequences which may
           flow from their exercise.
     Commonwealth v. Wilson, 430 Pa. 1, 6, 241 A.2d 760, 763
     (1968) (footnote omitted).

Commonwealth v. Davis, 573 A.2d 1101, 1105-06 (Pa.Super. 1990)

(citations, quotations, and emphasis omitted).

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J-A18033-16


        In the case sub judice, we do not have a “silent” record regarding

whether Appellant was aware of his right to file a direct appeal and the

entitlement to court-appointed counsel to aid him in that endeavor.

Specifically, at the conclusion of the sentencing hearing, as indicated supra,

the trial court informed Appellant of these rights. Moreover, at the August

12, 2015, hearing, as indicated supra, Appellant admitted that he had been

informed of and knew these rights.

        As to whether Appellant voluntarily relinquished these known rights,

based on Appellant’s testimony presented at the August 12, 2015, hearing,

the lower court concluded “[i]t is clear that [Appellant] originally had no

intention of appealing his conviction or sentence.” Lower Court Pa.R.A.P.

1925(a) Opinion, filed 11/3/15.2          Additionally, as it relates to Appellant’s

assertions that he attempted to secure counsel prior to his June 16, 2015,

application to the Public Defender’s Office (which was made fifty-four days

after the expiration of the appeal period from his judgment of sentence), the

lower court specifically found “[Appellant’s] vague testimony regarding his

alleged attempts to obtain counsel [ ] lack[s] credibility.” Id.

        Accordingly, we agree with the lower court that Appellant was

informed of his right to appeal and the appointment of appellate counsel

prior to filing the instant petition. Further, constrained by the lower court’s

____________________________________________


2
    The lower court’s Rule 1925(a) opinion is not paginated.



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J-A18033-16


credibility determinations, we find no error of law in the the lower court’s

conclusion that Appellant’s failure to perfect an appeal was done knowingly

and intelligently such that he voluntarily relinquished his right to appeal.

See Davis, supra.

       Finally, we note Appellant baldly suggests that trial counsel was

ineffective in failing to ensure new counsel was appointed prior to seeking to

withdraw at the sentencing hearing.      Appellant’s one paragraph argument

with regard to this issue prevents meaningful review. See Appellant’s Brief

at 11; Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786 (2008)

(finding ineffectiveness claims waived for lack of development). Further, the

sole case to which Appellant cites for this proposition, Commonwealth v.

Stock, 545 Pa. 13, 679 A.2d 760 (1996), is not on point.

       In Stock, our Supreme Court held counsel's failure to file a requested

appeal in a summary case, which resulted in a loss of the appellant's state

constitutional right to appeal, amounted to extraordinary circumstances

permitting the remedy of an appeal nunc pro tunc. Id. at 20, 679 A.2d at

764.   Subsequent to Stock, our Supreme Court held that an unjustified

failure of counsel to perfect an appeal guaranteed as of right constitutes

ineffectiveness per se, such that the petitioner is entitled to reinstatement of

his direct appeal rights from a judgment of sentence nunc pro tunc without

establishing prejudice. Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d

564 (1999).


                                     - 11 -
J-A18033-16


     However, before a court will find ineffectiveness of counsel for failing

to file a direct appeal, the petitioner must prove that he requested a direct

appeal and counsel disregarded the request.    Commonwealth v. Ousley,

21 A.3d 1238 (Pa.Super. 2011).     Presently, Appellant has neither averred

that he requested trial counsel to file a direct appeal nor that counsel

disregarded any such request. See Ousley, supra.

     For all of the aforementioned reasons, we conclude the lower court

properly held that Appellant was not entitled to the reinstatement of his

direct appeal rights nunc pro tunc, and accordingly, we affirm the lower

court’s August 12, 2015, order.

     Affirmed.

     PJE Ford Elliott joins the memorandum.

     PJE Bender notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2016




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