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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

ERIC ROMONT HOGAN

                            Appellant                      No. 487 MDA 2015


                Appeal from the PCRA Order February 20, 2015
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0003847-2010


BEFORE: BOWES, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                              FILED OCTOBER 04, 2016

        Eric Romont Hogan appeals, pro se, from the order of the Court of

Common Pleas of Luzerne County that dismissed his petition filed pursuant

to the Post Conviction Relief Act.1            After careful review, we vacate and

remand.

        At trial, the Commonwealth established that on November 1, 2010,

Hogan pounded on Donald Skiff’s front door.             Skiff opened the door and

permitted Hogan to enter. Hogan, a stranger to Skiff, explained that he was

being chased. Believing that Hogan wanted help, Skiff dialed 911 from his

cell phone, which he handed to Hogan so that he could speak directly to the

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*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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operator. Skiff overheard Hogan tell the operator that four black males in a

red vehicle were chasing him and had fired shots.         When the call ended,

Hogan handed the phone back to Skiff, pushed Skiff out of the way and ran

toward the kitchen.       Skiff asked Hogan to leave his home.       Hogan ran

through the kitchen and out the back door.          Skiff, who was frightened,

followed and was going to lock the back door, but before he could, Hogan

came bursting back into the house and repeatedly hit Skiff in the face.

         Following the 911 call, Officer Michael Derwin was dispatched to Skiff’s

residence. While standing on the front porch, he heard the rear door slam,

so he proceeded to the back of the house. He heard a cry for help and saw

Skiff on the kitchen floor with severe head injuries.        Skiff described his

assailant as a bald black male wearing a hoodie. Officer Derwin called for an

ambulance and sent a description of the assailant over the radio.

         Another officer took Hogan into custody and brought him back to the

scene, where Officer Derwin noted that Hogan’s left hand was swollen and

had blood on it. There was blood on his clothing. Once Hogan was taken to

the police station, his clothing was seized.       At trial, the Commonwealth

presented the testimony of a forensic DNA scientist who testified that

bloodstains on Hogan’s sweatshirt matched the blood sample provided by

Skiff.

         A jury convicted Hogan of burglary, aggravated assault and recklessly

endangering another person. On December 14, 2011, Hogan was sentenced

to an aggregate term of 11 to 22 years’ incarceration. This Court affirmed

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Hogan’s judgment of sentence on February 4, 2013.         Commonwealth v.

Hogan, 68 A.3d 354 (Pa. Super. 2013) (unpublished memorandum).

      In deciding Hogan’s direct appeal, this Court determined that Hogan

waived his challenges to the weight and sufficiency of the evidence. Hogan

failed to include the weight claim in his Pa.R.A.P. Rule 1925(b) statement of

errors complained of on appeal and failed to identify which element of

burglary was not supported by the evidence in the statement. Nevertheless,

the Court noted that even if Hogan had properly preserved the sufficiency

claim, the evidence at trial was adequate to establish burglary. The Court

was also precluded from reviewing Hogan’s challenge to the discretionary

aspects of his sentence because his brief failed to include a statement of the

reasons for allowance of appeal, as required by Pa.R.A.P. 2119(f), and the

Commonwealth specifically objected to this omission. See Commonwealth

v. Hudson, 820 A.2d 720, 727 (Pa. Super. 2003) (“[W]e may not reach the

merits of [the] claims where the Commonwealth has object[ed] to the

omission of the [Rule 2119(f)] statement.”).

      Following this Court’s disposition of his direct appeal, Hogan did not

file a petition for allowance of appeal with our Supreme Court. On January

29, 2014, Hogan filed a pro se PCRA petition in which he asserted that

appellate counsel had been ineffective for failing to file a requested petition

for allowance of appeal in the Supreme Court and that trial counsel had been

ineffective for waiving challenges to the weight and sufficiency of the

evidence and the discretionary aspects of his sentence.           Hogan also

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requested the appointment of counsel.            On September 10, 2014, without

obtaining permission from the PCRA court, Hogan filed an amended PCRA

petition that included several additional claims.2

       On September 19, 2014, the court appointed Jeffrey A. Yellen,

Esquire, to represent Hogan. Attorney Yellen filed a petition to withdraw as

counsel on January 8, 2015, to which he appended a Turner/Finley3 letter

that states in relevant part:

       Defendant initially [raised] the issues of failure to preserve and
       argue issues on appeal. As an appeal was filed, prejudice would
       need to be shown by the Defendant. On those issues you will
       note that the Superior Court decision indicates a waiver of the
       sufficiency issue, it then goes on to say that even if pled, the
       evidence was sufficient. Further, there is no merit in this case to
       arguing that the discretionary aspects of the sentence should be
       overturned, again despite the Superior Court’s dismissal of those
       issues based on failure to properly raise the issues. While he
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2
  While the amended petition contains several issues that are not cognizable
under the PCRA, we note that Hogan included the following claims of
ineffective assistance of counsel that could afford a petitioner relief if
properly pled and proven: failure to impeach the testimony of witness
Officer Michael Derwin; failure to file a pre-trial motion to suppress evidence
regarding items of Hogan’s clothing that the Commonwealth seized but then
lost; failure to impeach inconsistent testimony of Commonwealth witnesses;
failure to present a favorable plea bargain to the court, and instead advising
Hogan to proceed to trial; failure to file a petition for allowance of appeal
after Hogan requested that he do so; failure to file a motion to suppress an
altered criminal complaint; and failure to file a notice of possible alibi
defense. However, we note that a PCRA petitioner may not file an amended
petition without receiving court approval.                Commonwealth v.
Baumhammers, 92 A.3d 708, 730 (Pa. 2014).

3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).



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     alleges a failure to appeal to the Supreme Court, I additionally
     do not find merit on that issue. Thus, there is no merit to any
     appeal issue he raised or I can think of, regardless of whether
     they were preserved or raised correctly prior.

     Upon meeting with Defendant, he further raised multiple other
     issues. He raised issues of failure to give Miranda warnings,
     and failure to appoint counsel quickly enough, but I could find no
     prejudice or failure of counsel to address these issues.

     He further raised the issue that Officer Derwin could not testify
     that he saw what he thought was blood on Defendant’s
     sweatshirt, because the Officer was not an expert. He raised the
     issue that counsel had discussed a possible plea deal with
     Defendant, and that Defendant then had a constitutional right to
     a pre-trial conference at that point, which did not occur. He
     indicated a desire to suppress the bloody clothing that had been
     destroyed prior to trial. He indicated a belief that he should
     personally have been given the right to ask questions of the
     witnesses, despite having an attorney. He further raised the
     Alleyne case, but indicated no application to his case other than
     lack of understanding of minimum and maximum sentences.

Turner/Finley Letter, 1/8/15, at 1-2.

     The court held a brief hearing on January 28, 2015, during which no

testimony was taken. After the proceeding, the court granted withdrawal,

and the PCRA petition was dismissed on February 20, 2015.        Thereafter,

Hogan filed a timely pro se notice of appeal, and in response to an order

from the trial court, he filed a Rule 1925(b) statement of errors complained

of on appeal on May 4, 2015. The trial court filed its Rule 1925(a) opinion

on July 10, 2015.




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       Hogan has filed an appellate brief that fails to comply with several

requirements of the Pennsylvania Rules of Appellate Procedure.4 The brief

lacks: (1) a table of contents, Pa.R.A.P. 2174(a); (2) a table of citations,

Pa.R.A.P. 2174(b); (3) the text of the order appealed from, Pa.R.A.P.

2115(a); (4) a statement of questions involved, Pa.R.A.P. 2116; (5) a

statement of the case, Pa.R.A.P. 2117; and (6) a summary of the argument,

Pa.R.A.P. 2118.      Nevertheless, we are able to discern the following issues

that were raised either in Hogan’s first pro se PCRA petition or in counsel’s

Turner/Finley letter, and preserved in Hogan’s Rule 1925(b) statement and

in his brief:

       1. Trial counsel was ineffective for failing to raise in a proper
          manner a discretionary aspect of sentencing claim on appeal.

       2. Trial counsel was ineffective for giving advice that led Hogan
          to reject a plea offer of 48 to 96 months’ incarceration.

       3. Trial counsel was ineffective for failing to investigate Miranda
          violations.

       4. Trial counsel was ineffective for failing to suppress all
          proceedings that took place prior to the appointment of
          counsel.

       5. Trial counsel was ineffective for failing to seek to suppress
          testimony about the clothing Hogan was wearing when he
          was arrested because the police took the clothing and later
          lost it.


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4
  On March 23, 2016, Hogan also filed an application for relief entitled
“Application for, inter alia, remand to provide Appellant with the Complete
record,” which is denied.



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      6. Trial counsel was ineffective for failing to object to Officer
         Derwin testifying that he saw blood on Hogan’s hand and
         clothing when he was not qualified as an expert on this topic.

      7. Appellate counsel was ineffective for failing to file an
         exhaustive Rule 1925(b) statement.

      8. Appellate counsel was ineffective for failing to file an appeal
         to the Pennsylvania Supreme Court when requested to do so.

      9. Hogan is entitled to a new sentencing proceeding based on
         Alleyne v. United States, 133 S.Ct. 2151 (2013).

      To be eligible for relief under the PCRA, Hogan must prove by a

preponderance of the evidence that his conviction resulted from “ineffective

assistance of counsel which, in the circumstances of the particular case so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.”       42 Pa.C.S. § 9543(a)(2)(ii).

“Counsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”    Commonwealth v. Ousley, 21 A.3d

1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the

defendant must show that the underlying claim had arguable merit, counsel

had no reasonable basis for his or her action, and counsel’s action resulted

in prejudice to the defendant. Commonwealth v. Prince, 719 A.2d 1086,

1089 (Pa. Super. 1998).

      Based upon our careful review, the eighth issue listed above is

dispositive. In that claim, which Hogan included in his pro se PCRA petition

and has preserved throughout this appeal, Hogan contends that appellate

counsel was ineffective for failing to file a petition for allowance of appeal in



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the Pennsylvania Supreme Court after this Court affirmed his judgment of

sentence.

       Our Supreme Court has held that

       where there is an unjustified failure to file a requested direct
       appeal, the conduct of counsel falls beneath the range of
       competence demanded of attorneys in criminal cases, denies the
       accused the assistance of counsel guaranteed by the Sixth
       Amendment to the United States Constitution and Article I,
       Section 9 of the Pennsylvania Constitution, as well as the right to
       direct appeal under Article V, Section 9, and constitutes
       prejudice for purposes of the [PCRA].

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999). Accordingly, in

such     circumstances,   a   petitioner   is   automatically   entitled   to   the

reinstatement of his appellate rights and is not required to show that our

Supreme Court would have granted review.            Commonwealth v. Liebel,

825 A.2d 630, 634 (Pa. 2003) (citing Lantzy, supra) (emphasis added).

       Hogan asserts that he requested that appellate counsel file a petition

for allowance of appeal. The record reveals that no such petition was filed.

We note that as it pertains to Hogan’s claim that trial counsel was ineffective

in handling his discretionary aspects of sentencing claim, the issue is without

merit.    See Commonwealth v. Rigg, 84 A.3d 1080, 1088 (Pa. Super.

2014) (“[C]ounsel was not per se ineffective in not seeking a discretionary

appeal after this Court affirmed Appellant’s sentence where that was the

lone issue Appellant wished to be reviewed.”) However, because Hogan’s

direct appeal also included challenges to the weight and sufficiency of the




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evidence, he was entitled to seek review in the Supreme Court through

counsel filing a petition for allowance of appeal.5

       Instantly, however, the PCRA court did not address the failure to file a

petition for allowance of appeal in the brief PCRA hearing on January 28,

2015, in its order dismissing Hogan’s petition entered on February 20, 2015,

or in its Rule 1925(a) opinion filed on July 10, 2015. Because Hogan would

be entitled to have his appellate rights reinstated if he showed that he

requested the filing of a petition for allowance of appeal or that counsel did

not adequately consult with him regarding filing one, the PCRA erred in not

addressing this issue. Lantzy, supra.

       Moreover, while the Turner/Finley letter in this matter listed each

matter that Hogan wished to appeal, it did not “explain why each issue

identified by [Hogan] must be deemed meritless . . . [as] require[d] under

Turner.”      Commonwealth v. Glover, 738 A.2d 460, 464 (Pa. Super.

1999).     Thus, we note that even if Hogan’s right to file a petition for

allowance of appeal were not reinstated, the nature of the issues raised by

Hogan and included in the Turner/Finley letter indicate that an evidentiary

hearing may be required. However, without an adequate explanation from



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5
  Hogan asserts that he requested that counsel file a petition for allowance
of appeal. Even if he had not made such a request, he “still may establish
that counsel was ineffective if [counsel] failed to adequately consult with
[him] regarding such an appeal.” Rigg, supra at 1088.



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counsel in his attempt to            withdraw, we   are    unable   to   make   any

determinations regarding each specific issue.6

       For the foregoing reasons, we vacate the PCRA order and remand for

appointment of new counsel, who shall then review the record in full and file

an amended PCRA petition raising Hogan’s claim regarding reinstatement of

direct appeal rights, as well as any additional claims. The PCRA court shall

conduct an evidentiary hearing to determine whether appellate counsel was

per se ineffective for failing to file a requested petition for allowance of

appeal.    If the PCRA court so finds, it shall grant Hogan leave to file a

petition for allowance of appeal nunc pro tunc.           See Commonwealth v.

Harris, 114 A.3d 1, 4 (Pa. Super. 2015) (“[O]nce the PCRA court finds that

the petitioner’s appellate rights have been abridged, it should grant leave to

file a direct appeal and end its inquiry there.”); see also Commonwealth

v. Donaghy, 33 A.3d 12, at 14 n.5 (Pa. Super. 2011) (where PCRA court

grants request for reinstatement of direct appeal rights nunc pro tunc, it is

without authority to reach merits of any remaining claims).

       Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.




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6
 We note that the issue regarding the applicability of Alleyne appears to be
meritless because the record does not reveal that Hogan was sentenced to a
mandatory minimum sentence.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2016




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