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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
MAURICE JONES,                           :          No. 854 EDA 2014
                                         :
                        Appellant        :


                  Appeal from the PCRA Order, March 4, 2014,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0000354-2011


BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 08, 2015

      Appellant appeals the order dismissing his first petition brought

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541 to

9546. Finding no merit in the issue raised on appeal, we affirm.

      On January 10, 2012, appellant was found guilty following a bench

trial of robbery-threatening serious bodily injury, carrying firearms without a

license, and resisting arrest. The charges against appellant arose from an

incident that occurred shortly before midnight on December 31, 2010, in

Upper Darby.     As the victim was returning home from work, he heard

appellant behind him and turned to look.          He described appellant as

dark-skinned, with braids and a hoodie. (Notes of testimony, 12/15/11 at

8.)   The victim stated that he turned around three times to observe
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appellant.     (Id. at 29.)    The victim made an in-court identification of

appellant. (Id. at 8.)

        During the robbery, appellant took an iPod, a cell phone, and some

money from the victim. (Id. at 14.) After the robbery, the victim went to

his house, which was just ten feet from where the incident occurred. (Id. at

16.)     The victim’s mother called the police, who arrived in two to five

minutes. (Id.) The police had the victim get in their car and proceeded to

drive around the neighborhood. (Id. at 17.) As they approached a group of

kids, the victim said, “I think that’s them.” (Id.) A police officer testified

that they called the victim’s cell phone, that appellant answered the phone,

and that the victim identified appellant as the perpetrator. (Id. at 35.)1

        At this point, the police car made a U-turn, and appellant fled.      The

police gave pursuit and the officer testified that he never lost sight of

appellant. (Id. at 17-18, 40.) After police caught appellant, they took the

victim to the scene where the victim identified appellant as the perpetrator.

(Id. at 19.) The victim noted that appellant matched his description. (Id.)

No gun or contraband of the victim was found on appellant. (Id. at 40.)

        Prior to trial, appellant’s counsel filed a Motion for a Line-up which the

court denied following a review of the notes of testimony from the

preliminary hearing and the argument of counsel.            On April 12, 2012,

appellant was sentenced to 6 to 13 years’ imprisonment followed by one


1
    The officer also made an in-court identification of appellant. (Id. at 36.)


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year of probation. No direct appeal was filed. On March 27, 2013, appellant

timely filed the instant PCRA petition pro se. Counsel was appointed and an

amended petition was filed. On January 9, 2014, an evidentiary hearing was

held at which appellant and his trial counsel testified. As noted, the petition

was dismissed and appellant now brings this timely appeal.

      On appeal, appellant raises a single issue, contending that counsel was

ineffective in failing to file a direct appeal upon request, or in failing to

adequately consult with appellant as to the merits of an appeal.

      Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination, and whether

the PCRA court’s determination is free of legal error.    Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

      Moreover, as appellant’s issue on appeal is stated in terms of

ineffective assistance of counsel, we also note that appellant is required to

make the following showing in order to succeed with such a claim: (1) that

the underlying claim is of arguable merit; (2) that counsel had no reasonable

strategic basis for his or her action or inaction; and (3) that, but for the

errors and omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different. Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010).        The failure to satisfy any



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prong of this test will cause the entire claim to fail.      Commonwealth v.

Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed

to be effective, and appellant has the burden of proving otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).

      Preliminarily,   we   note   that   both   appellant   and   trial   counsel,

Howard Anmuth, Esq., testified at the PCRA hearing.          The PCRA court has

made an on-the-record finding that the testimony of appellant was not

credible and that the testimony of Attorney Anmuth was credible.             (Trial

court opinion, 11/26/14 at 2-4.)2          We are bound by the credibility

determinations of the court where they are supported by the record.

Commonwealth v. Stewart, 84 A.3d 701, 711 (Pa.Super. 2013), appeal

denied, 93 A.3d 463 (Pa. 2014).               Consequently, we cannot accept

appellant’s account and must accept Attorney Anmuth’s testimony in

resolving appellant’s issue on appeal.

      In his issue on appeal, appellant argues that counsel was ineffective in

failing to file a direct appeal or failing to consult. Appellant claims he wanted

Attorney Anmuth to appeal the denial of the Motion for a Line-up. We note

the following guide to our inquiry in matters pertaining to the alleged failure

to file a direct appeal upon request:

            “Before a court will find ineffectiveness of counsel for
            failing to file a direct appeal, the defendant must
            prove that he requested an appeal and that counsel

2
  The pages of the trial court opinion are unnumbered; the numbers given
are by our count.


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            disregarded that request.”   Commonwealth v.
            Knighten, 742 A.2d 679, 682 (Pa.Super.1999),
            appeal denied, 563 Pa. 659, 759 A.2d 383 (2000).

                  The rule set out by Knighten was
            subsequently modified by more recent decisions,
            particularly Roe v. Flores-Ortega, 528 U.S. 470,
            480, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and
            its Pennsylvania expression, Commonwealth v.
            Touw, 781 A.2d 1250, 1254-1255 (Pa.Super.2001).
            These cases impose a duty on counsel to adequately
            consult with the defendant as to the advantages and
            disadvantages of an appeal where there is reason for
            counsel to think that a defendant would want to
            appeal.    The failure to consult may excuse the
            defendant from the obligation to request an appeal
            under Knighten, such that counsel could still be
            found to be ineffective in not filing an appeal even
            where the defendant did not request the appeal.

                   Pursuant to Flores-Ortega and Touw,
            counsel has a constitutional duty to consult with a
            defendant about an appeal where counsel has reason
            to believe either (1) that a rational defendant would
            want to appeal (for example, because there are non-
            frivolous grounds for appeal), or (2) that this
            particular defendant reasonably demonstrated to
            counsel that he was interested in appealing.

Commonwealth v. McDermitt, 66 A.3d 810, 814-815 (Pa.Super. 2013).

      At the hearing, Attorney Anmuth testified that he habitually makes it a

point to discuss appeals options with clients. (Notes of testimony, 1/9/14 at

29.) He stated that whenever a client asks for an appeal, he instructs them

to contact the appeals department of the Public Defender’s Office. (Id.) If

the client writes him a letter, he forwards it to the appeals department. (Id.

at 30.) While Attorney Anmuth could not testify with 100% accuracy that

appellant did not request an appeal, he stated that if appellant had, he


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would have told him to contact the appeals department.          (Id. at 35.)

Attorney Anmuth stated that appellant never wrote him a letter or e-mail, or

telephoned him requesting an appeal. (Id.) Attorney Anmuth did opine that

appellant did not have any rational, non-frivolous grounds for an appeal.

(Id. at 32.)

      We are bound by the PCRA court’s credibility findings, and we must,

therefore, conclude that appellant did not request an appeal.          As for

Attorney Anmuth’s obligation to consult with appellant, we also find that

counsel had no duty arising under Flores-Ortega and Touw. There simply

was no issue as to identification. The victim never wavered, hesitated, or

equivocated in his identification, and he identified appellant on multiple

occasions.     Moreover, appellant was apprehended minutes after the crime

and matched the victim’s description.     Finally, police also testified as to

appellant’s identity. There was no reason why Attorney Anmuth should have

believed that appellant wanted an appeal or that an appeal of the order

denying a line-up was anything other than frivolous. We find no merit here.

      Accordingly, we will affirm the order dismissing appellant’s PCRA

petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2015




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