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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNESYLVANIA                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MARIO KINDELAN-RAY

                        Appellant                   No. 1343 EDA 2015


            Appeal from the PCRA Order entered April 24, 2015
              In the Court of Common Pleas of Lehigh County
             Criminal Division at No: CP-39-CR-0001777-2011


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                            FILED April 27, 2016

     Appellant, Mario Kindelan-Ray, appeals from the order the Court of

Common Pleas of Lehigh County entered on April 24, 2015 dismissing his

petition pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-46. Upon review, we affirm.

     The   underlying   facts   and   procedural   history   were   adequately

summarized by the PCRA court in its April 24, 2015 opinion.         See PCRA

Court Opinion, 4/24/15, at 1-2. Briefly, on December 1, 2011, following a

jury trial, Appellant was convicted of providing false identification to law

enforcement officers.    The jury acquitted Appellant of two counts of

possession with intent to deliver controlled substances and two counts of

possession of controlled substances. On the same day, the sentencing court

imposed a six to twelve months’ imprisonment in the county jail. Appellant
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did not a file post-sentence motion or direct appeal.      On March 14, 2012,

Appellant filed a PCRA petition, raising claims of ineffective assistance of trial

counsel. The PCRA court dismissed the PCRA petition on the basis Appellant

was no longer serving the subject sentence. On appeal, this Court found the

PCRA court erred in concluding Appellant was ineligible for PCRA relief based

on its finding Appellant had served his sentence. Accordingly, we vacated

the order and remanded to the PCRA court for further proceedings.            See

Commonwealth v. Kindel[a]n-Ray, No. 336 EDA 2014, unpublished

memorandum at 8 (Pa. Super. filed November 17, 2014). On remand, the

PCRA court held a hearing on Appellant’s PCRA petition and eventually

denied it as meritless. PCRA Court Order, 4/24/15. This appeal followed.

      In this appeal, Appellant presents two ineffective assistance of counsel

claims, which we review under the following standards.

      Counsel is presumed effective, and the petitioner bears the
      burden of proving otherwise. To prevail on an ineffectiveness
      claim, the petitioner must plead and prove, by a preponderance
      of the evidence, the following three elements: (1) the underlying
      claim has arguable merit; (2) counsel had no reasonable basis
      for his or her action or inaction; and (3) the petitioner suffered
      prejudice as a result of counsel’s action or inaction.

Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013) (citations

omitted).

      In his first claim, Appellant argues that the PCRA court erred in not

finding trial counsel ineffective for failure to file an appeal to this Court,




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despite Appellant asking counsel to do so in a timely manner. Appellant’s

Brief at 8. We disagree.

      In reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determinations are supported by the record and are
      free of legal error. 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.

Id. at 603 (citations omitted).

      Although Appellant testified that he (personally, and through family

members and friends) repeatedly attempted to contact counsel by phone

because he wanted to appeal the conviction, the PCRA court found

Appellant’s testimony not credible. In fact, the PCRA court credited counsel

who stated she did not receive any phone call or message from Appellant or

from others on his behalf. See PCRA Court Opinion, 4/24/15, at 3-4. As a

reviewing court, we are unable to make credibility determinations or

substitute our judgment for that of the PCRA court.              See Roney;

Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009). Accordingly,

because the record supports the PCRA court’s credibility determinations, we

will not disturb them.

      In his next claim, Appellant argues counsel was ineffective for failing to

advise him of his appeal rights.    Appellant’s entire “analysis” of this issue

consists of two conclusory sentences: (i) the claim has arguable merit “since

counsel’s act or omission conflict[s] with . . . the [c]onstitutional right to

direct appeal;” and (ii) “there was no reasonable strategy” for the omission

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and, but for counsel’s omission, the outcome would have been different.

Appellant’s Brief at 9. Appellant’s argument lacks not only analysis but also

authority for his claim.     The claim is, therefore, waived.       See, e.g.,

Commonwealth v. Hakala, 900 A.2d 404, 407 (Pa. Super. 2006)

(“Because [appellant] fails to offer either analysis or case citation in support

of the relief he seeks, we deem all of his questions waived.”).

      Even if we were to conclude otherwise, the claim is meritless.         As

noted above, Appellant failed to prove he asked counsel to file an appeal.

The ineffectiveness inquiry, however, does not end here. Indeed, “[w]here a

defendant does not ask his attorney to file a direct appeal, counsel still may

be held ineffective if he does not consult with his client about the client’s

appellate rights.” Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa.

Super. 2011). This standard imposes a duty on counsel to adequately

consult with defendant as to the advantages and disadvantages of an appeal

where there is reason for counsel to think a defendant would want to appeal.

See Roe v. Flores-Ortega, 528 U.S. 470 (2000); Commonwealth v.

Touw, 781 A.2d 1250 (Pa. Super. 2001). Specifically, Roe and Touw

impose a constitutional duty on appellate counsel to adequately consult with

the defendant as to advantages and disadvantages of an appeal only when

“(1) . . . a rational defendant would want to appeal (for example, because

there are non-frivolous grounds for appeal), or (2) . . . this particular

defendant reasonably demonstrated to counsel that he was interested in


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appealing.” Touw, 781 A.2d at 1254 (quoting Flores-Ortega, 528 U.S. at

480). Here, the PCRA court found (and we agree) that Appellant failed to

demonstrate he was interested in appealing.        The only inquiry remains

whether a rational defendant in his position would want to appeal.           The

PCRA court noted that Appellant “was acquitted of the most serious charges,

and it is difficult to see how, under those circumstances, a rational defendant

would want to appeal.”       PCRA Court Opinion, 4/24/15, at 4 (internal

quotation marks omitted). We also note Appellant nowhere detailed which

non-frivolous issue(s) he intended to raise on direct appeal. In light of the

foregoing, even if preserved for our review, the claim would be meritless.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2016




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