J-S74027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
                    v.                     :
                                           :
                                           :
DEMETRIUS SWAAYZE                          :
                                           :
              Appellant                    :   No. 2122 EDA 2016

                 Appeal from the PCRA Order June 28, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0005856-2013


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY LAZARUS, J.:                        FILED DECEMBER 12, 2017

      Demetrius Swaayze appeals from the trial court’s order, entered in the

Court of Common Pleas of Philadelphia County, granting in part and denying

in part his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

      In November 2013, following a non-jury trial, Swaayze was convicted of

robbery of a motor vehicle, conspiracy, theft by unlawful taking, and receiving

stolen property (RSP). On January 14, 2014, Swaayze was sentenced to an

aggregate term of imprisonment of 3-6 years, followed by two years of

probation.   Neither post-trial motions nor a direct appeal was filed.         On

September 25, 2014, Swaayze filed a timely pro se PCRA petition claiming

that trial counsel was ineffective for failing to file a direct appeal. Counsel was

appointed and filed an amended petition seeking reinstatement of Swaayze’s

direct appeal rights and the right to file post-trial motions nunc pro tunc. On
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June 13, 2016, the court held an evidentiary hearing on the petition; Swaayze

participated via video conferencing. Trial counsel and Swaayze testified at the

hearing; the court ultimately denied Swaayze relief on his ineffectiveness

claim.1

       Swaayze filed a timely court-ordered Pa.R.A.P. 1925(b) concise

statement of errors raised on appeal and notice of appeal. He presents the

following issues for our review:

       (1)    Did the PCRA court err and/or abuse its discretion when it
              denied [Swaayze’s] petition under the PCRA seeking
              reinstatement of his right to pursue a direct appeal nunc pro
              tunc where the evidence at the PCRA hearing, properly
              viewed, demonstrated by a preponderance of the evidence
              that [Swaayze] instructed court-appointed counsel to file a
              post-sentence motion and pursue a direct appeal, but trial
              counsel failed to protect petitioner’s appellate rights by
              failing to file a post-sentence motion in the trial court and a
              timely notice of appeal?

       (2)    Did the PCRA court err and/or abuse its discretion when it
              denied [Swaayze’s] petition under the PCRA seeking
              reinstatement of his right to pursue a post-sentence motion
              nunc pro tunc where the evidence at the PCRA hearing,
              properly viewed, demonstrated by a preponderance of the
              evidence that [Swaayze] instructed court-appointed counsel
              to file a post-sentence motion and pursue a direct appeal,
              but trial counsel failed to protect petitioner’s appellate rights
              by failing to file a post-sentence motion in the trial court,
              and trial counsel had no strategic reason for failing to file
              the requested motion, and there is no reasonable possibility


____________________________________________


1 The court did grant relief, in part, amending Swaayze’s sentence to reflect
that count 3 (theft by unlawful taking) and count 4 (RSP) had no further
penalties.



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              that the motion would have resulted in a reduction of the
              sentence imposed?2

       To succeed on a claim that counsel was ineffective for failing to file a

direct appeal, a defendant must plead and present evidence that he in fact

requested counsel to pursue a direct appeal and that counsel failed to do so.

Commonwealth v. Dockins, 471 A.2d 851 (Pa. Super. 1984).                     In

Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001), our Court was

guided by the United States Supreme Court’s decision, Roe v. Flores-

Ortega, 528 U.S. 470 (2000), which answered the question of whether

“counsel [is] deficient for not filing a notice of appeal when the defendant has

not clearly conveyed his wishes [regarding an appeal] one way or the other[.]”

Id. at 477. The Flores-Ortega Court held that:

       [Counsel] has a constitutionally-imposed duty to consult with his
       client about an appeal when there is reason to think that either
       (1) a rational defendant would want to appeal[] or (2) that this
       particular defendant reasonably demonstrated to counsel that he
       was interested in appealing.

Id. at 480.     See also Commonwealth v. Markowitz, 32 A.3d 706 (Pa.

Super. 2011).

       At the PCRA hearing, Swaayze testified that he told his attorney in the

courtroom after he was sentenced that he was “confused and [did]n’t agree

____________________________________________


2 To prove a claim of ineffectiveness, a defendant must establish that: (1) the
underlying claim is of arguable merit; (2) the particular course of conduct
pursued by counsel did not have some reasonable basis designed to effectuate
his client’s interests; and (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the proceedings would have been
different. Commonwealth v. Luster, 71 A.3d 1029, 1039 (Pa. Super. 2013).

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and . . . would like to file a direct appeal immediately and she said okay, she

will see me . . . soon.” N.T. PCRA Hearing, 6/28/16, at 7-8. He further stated

that once he returned to county prison he sent counsel a letter indicating that

he would like to file an appeal. Id. When he was finally transferred to state

prison (SCI-Albion), Swaayze testified that he called his attorney and spoke

to her secretary, telling her he was trying to get in touch with counsel.

Swaayze never received a return call. Id. at 13. Finally, Swaayze testified

he wrote his attorney a second letter regarding his desire to file an appeal

after the unsuccessful phone call. Id. at 14.

       Counsel also testified at the PCRA hearing; she testified that she “did

not recall any discussions about filing a direct appeal . . . [and didn’t] recall

[them] talking about filing an appeal after sentencing.”         Id. at 19-20.

However, counsel did remember talking to Swaayze about how the trial went3

and, that in the winter (after the 30-day appeal period had expired), she

received a letter from Swaayze asking “how the appeal was going.”            Id.

Counsel testified that she “believe[s] that [she] talked [to Swaayze] about not

thinking that an appeal would be fruitful.” Id. at 22. Finally, counsel stated

that she never received a message from her secretary that Swaayze had called

her office to speak with her, id. at 23, and she had nothing in her file, other




____________________________________________


3 In particular, counsel noted that the trial hinged on the credibility and
testimony of the complainant and that such issues went to the weight of the
evidence, which is a difficult matter to win on appeal. N.T. PCRA Hearing,
6/28/16, at 25-26.
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than the letter from the winter, indicating Swaayze wanted to appeal. Id. at

26-27.

      Instantly, the trial court denied Swaayze relief on his ineffectiveness

claim, stating the following at the PCRA hearing:

      Based upon the information and evidence provided, I think there
      is sufficient information that based upon [trial counsel’s]
      testimony and record keeping that she would have filed an appeal
      if it had been properly discussed.

      Mr. Swaayze, just because you talk about filing an appeal, doesn’t
      necessarily mean that your counsel has been fully informed or
      authorized to do so.

N.T. PCRA Hearing, 6/28/16, at 34.

      Here, the PCRA court chose to credit counsel’s testimony and discredit

Swaayze’s,    a   task   which   is   reserved   for   the   court   as   fact-finder.

Commonwealth v. Johnson, 668 A.2d 97 (Pa. 1995). We agree with the

trial court’s conclusion that counsel was not ineffective for failing to file a direct

appeal where counsel testified that: (1) she discussed the possibility of an

appeal with Swaayze, but told him that it would fruitless; (2) Swaayze never

asked her to file an appeal; and (3) counsel’s records did not contain any

communication from Swaayze, during the relevant appeal period, indicating

his desire to have her file an appeal.         Flores-Ortega, supra.         Because

Swaayze failed to present evidence that he in fact requested counsel to pursue

a direct appeal and that counsel failed to do so, Dockins, supra; Touw,

supra, he has not established that his underlying claim has arguable merit.

Luster, supra.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




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