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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTHONY SMITH
Appellant No. 856 WDA 2013
Appeal from the PCRA Order May 16, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007617-2009
BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 16, 2014
Appellant, Anthony Smith, appeals from the order entered by the
Honorable Joseph K. Williams, III, Court of Common Pleas of Allegheny
County, that dismissed Smith’s petition pursuant to the Post Conviction
Relief Act (“PCRA”). After careful review, we affirm.
After a non-jury trial, Smith was convicted of aggravated assault of a
police officer, retail theft, disarming a police officer, recklessly endangering
another person, and resisting arrest. On September 14, 2010, the trial court
sentenced Smith to an aggregate term of imprisonment of six to twelve
years, to be followed by 16 years of probation. Smith did not file post-
sentence motions or a direct appeal.
On March 1, 2011, Smith filed a pro se petition for PCRA relief. The
PCRA court appointed counsel, and on September 6, 2011, counsel filed an
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amended PCRA petition. The PCRA court dismissed Smith’s amended
petition via order dated September 21, 2011, which this Court vacated in
part due to the failure of the PCRA court to issue a Rule 907 Notice of Intent
to Dismiss.
Upon remand, the PCRA court issued a Rule 907 notice, and, on
September 19, 2012, the PCRA court again dismissed Smith’s amended
PCRA petition. Smith appealed, and this Court reversed the PCRA court’s
order and remanded for a hearing on Smith’s claims of ineffectiveness of
counsel. The hearing was held on May 15, 2013, and on the next day, the
PCRA court dismissed Smith’s amended petition for the third time. This
timely appeal followed.
On appeal, Smith raises a single issue for our review: “Whether
[Smith] is entitled to reinstatement of his right to file a post-sentence
motion and appeal [from his judgment of sentence,] as he was deprived of
his right to effective assistance of counsel … when [trial counsel] failed to
consult with [Smith] about exercising … [Smith’s] post-sentence and appeal
rights?” Appellant’s Brief, at 3.
Our standard of review of a PCRA court’s denial of a petition for post-
conviction relief is well-settled. We must examine whether the record
supports the PCRA court’s determination and whether the PCRA court’s
determination is free of legal error. See Commonwealth v. Hall, 867 A.2d
619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed
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unless there is no support for the findings in the certified record. See
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). A PCRA
court’s factual findings are binding upon us if the record supports them.
See Commonwealth v. Dennis, 17 A.3d 297 (Pa. 2011). Our scope of
review is limited by the parameters of the PCRA. See Commonwealth v.
Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).
To be eligible for relief under the PCRA, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from one of the errors listed in 42 PA.CONS.STAT.ANN. §
9543(a)(2)(i)-(viii). See Commonwealth v. Albrecht, 554 Pa. 31, 41, 720
A.2d 693, 698 (1998). Section 9543(a)(2) requires,
(2) That the conviction or sentence resulted from one or
more of the following:
(i) A violation of the Constitution of this Commonwealth
or the Constitution or laws of the United States 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.
(ii) 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.
(iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement caused
the petitioner to plead guilty and the petitioner is
innocent.
(iv) The improper obstruction by government officials of
the petitioner's right of appeal where a meritorious
appealable issue existed and was properly preserved in
the trial court.
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(v) Deleted.
(vi) The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and
would have changed the outcome of the trial if it had
been introduced.
(vii) The imposition of a sentence greater than the lawful
maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 PA.CONS.STAT.ANN. § 9543(a)(2)(i)-(viii).
Smith argues that the PCRA court erred in not finding trial counsel
ineffective for failing to consult with Smith about post-sentence motions and
a direct appeal.1 In addressing Smith’s claim of counsel’s ineffectiveness,
we turn to the following principles of law:
In order for Appellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the
evidence, 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 … Appellant must
demonstrate: (1) the underlying claim is of arguable merit; (2)
that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) 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. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)
(citation omitted). Moreover, “[w]e presume counsel is effective and place
upon Appellant the burden of proving otherwise.” Commonwealth v.
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1
Smith’s argument does not distinguish the right to file post-sentence
motions from the right to file a direct appeal. The entirety of his argument
is addressed to the reinstatement of his direct appeal rights.
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Springer, 961 A.2d 1262, 1266-1267 (Pa. Super. 2008). This Court will
grant relief only if Appellant satisfies each of the three prongs necessary to
prove counsel ineffective. Commonwealth v. Natividad, 938 A.2d 310,
321 (Pa. 2007). Thus, we may deny any ineffectiveness claim if “the
evidence fails to meet a single one of these prongs.” Id., 595 Pa. at 207-
208, 938 A.2d at 321 (citation omitted).
An ineffectiveness of counsel claim based upon a failure to file a direct
appeal can be established in one of two ways. First, the petitioner may
establish that he requested that counsel file a direct appeal and counsel did
not. See Commonwealth v. Donaghy, 33 A.2d 12, 15 (Pa. Super. 2010).
Alternatively, the petitioner may establish that counsel had a duty to consult
with the petitioner on the option of a direct appeal if there is reason to think
a rational defendant would want to appeal. See id.
In the instant matter, Smith attempted to establish both types of
claim. First, Smith testified at the PCRA hearing that he asked trial counsel
to file an appeal from his judgment of sentence. See N.T., 5/15/13, at 11-
12. However, Smith also testified that he had never discussed his appellate
rights with trial counsel. See id., at 7. In contrast, trial counsel testified
that he had no direct recollection of any discussions he had with Smith
regarding an appeal, but that if Smith had requested an appeal, he would
have filed one. See id., at 23-24. The PCRA court found trial counsel
credible and Smith not, and concluded that Smith had not requested that
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trial counsel file an appeal. See Opinion, 3/7/2014, at 2. This finding is
within the PCRA court’s discretion and is well supported by the record.
In the alternative, Smith argues that trial counsel should have been
aware that Smith would have wanted to pursue an appeal. Specifically,
Smith contends that counsel should have consulted about an appeal over the
issue of credit for time served, and during that consultation, Smith could
have raised the issue of the sufficiency of the evidence supporting his
convictions.
At first blush, this argument has some merit. The Commonwealth
concedes that Smith was ultimately given relief on the issue of credit for
time served. Furthermore, trial counsel could not recall what issues he had
discussed with Smith post-sentencing. Thus, there were arguably grounds
to conclude that trial counsel should have consulted with Smith on his post-
sentence and direct appeal rights, and there is no evidence that he consulted
with Smith on these issues. However, Smith’s claim ultimately fails for lack
of prejudice.
Smith cannot argue that he was prejudiced by the failure to raise his
issue about credit on direct appeal; this issue was ultimately remedied.
Recognizing this, Smith contends that he would have raised an issue with
the sufficiency of the evidence supporting his convictions. However, as
noted above, the PCRA court did not find Smith credible. Thus, the PCRA
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court did not credit Smith’s contention that he would have requested a
challenge to the sufficiency of the evidence.
As we have already concluded that the PCRA court’s credibility
determination is binding upon us, we can find no prejudice arising from trial
counsel’s alleged failure to consult with Smith about a direct appeal. Smith
has therefore failed to establish the third prong of an ineffectiveness claim,
and his issue on appeal merits no relief.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2014
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