J-S24018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANKIE ROSADO,
Appellant No. 2474 EDA 2014
Appeal from the PCRA Order entered July 18, 2014,
in the Court of Common Pleas of Monroe County,
Criminal Division, at No(s): CP-45-CR-0000018-2012
BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED APRIL 17, 2015
Frankie Rosado (“Appellant”) appeals from the order denying his first
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
42 Pa.C.S.A. §§ 9541-46. We affirm.
The PCRA court summarized the pertinent facts and discussed in detail
the procedural history as follows:
On May 9, 2012, a jury convicted [Appellant] of
Indecent Assault, Unlawful Contact with a Minor, and
Corruption of a Minor. On August 22, 2012, we sentenced
[Appellant] to incarceration of not less than thirty-three
months nor more than ninety-six months.
Up through sentencing, [Appellant] was represented by
an attorney (“Trial Counsel”) in the Office of the Monroe
County Public Defender. Shortly after [Appellant] was
sentenced, a private attorney (“Appellate Counsel”)
entered an appearance on behalf of [Appellant]. Appellate
Counsel represented [Appellant] up through his direct
appeal to Superior Court.
J-S24018-15
Appellate Counsel first filed a Motion to Modify Sentence
with this Court. Apparently because he was not trial
counsel and had not yet requested transcripts, Appellate
Counsel used a shotgun approach framing the motion in
which he challenged the discretionary aspects of the
sentence, asserted that there was insufficient evidence to
support the verdict, and alleged juror impropriety. The
motion requested that we reduce the aggregate sentence
to a “‘low end’ standard range sentence . . . and/or
arresting judgment, for a new trial or, in the alternative,
enter a judgment of acquittal based on the evidence
adduced at trial.” On September 10, 2012, we entered an
order denying the motion.
Appellate Counsel filed an appeal (“Direct Appeal”). In
response to our order requiring the filing of an appeal
statement, Appellate Counsel filed a two-count [Pa.R.A.P.]
Rule 1925(b) statement that again invoked the shotgun
approach to pleading.
The first portion of the filing was styled as a
“preliminary” Rule 1925(b) statement. Employing a
construct that he had used before, Appellate Counsel
attached and incorporated into the preliminary statement
the Motion for Modification of Sentence that he had
previously filed on behalf of [Appellant]. In addition, the
preliminary statement specifically alleged that we abused
our discretion in sentencing [Appellant], that we erred in
precluding evidence that the victim had made prior claims
of sexual abuse against her father, and that a juror had
committed fraud on this Court. As discussed below, these
assignments of error were later strategically abandoned.
The second portion of Appellate Counsel’s filing was a
petition that requested additional time within which to file
a “final” statement after he received a transcript he had
requested. The petition was based, in part, on the
erroneous assertion that Appellate Counsel had paid for
the transcript when, in actuality, payment had not yet
been tendered. In response, we issued an order that
directed [Appellant] to pay for the transcript within five
days and granted him fifteen days from receipt of the
transcript within which to file a supplemental Rule 1925(b)
statement if full payment was made within the five[-]day
period. Payment was timely rendered and Appellate
-2-
J-S24018-15
Counsel was promptly given the transcript he requested.
However, no supplemental or “Final” statement was filed.
Accordingly, we treated the “preliminary” statement as
[Appellant’s] only appeal statement.
On November 20, 2012, we issued an appeal opinion
(“Prior Appeal Opinion”) in which we found that the three
claims specifically raised in [Appellant’s] Rule 1925(b)
statement were without merit and indicated our belief that
[Appellant] waived any challenge to the weight or
sufficiency of the evidence that he may be deemed to have
raised. []
After Appellate Counsel had the opportunity to review
the transcript he had previously requested, as well as
others that were generated during the pendency of the
appeal, he made the strategic decision to brief [on appeal]
only the challenge to the sufficiency of the evidence that
he believed had been properly raised by attaching and
incorporating the Motion to Modify Sentence into
[Appellant’s] Rule 1925(b) statement. He abandoned the
three issues that had been specifically listed in the
statement because, on reflection and review of the record,
he believed they were meritless. In addition, Appellate
Counsel’s prior experience had been that raising one good
issue - - in his mind at the time the sufficiency of the
evidence claim - - was better strategy than shot gunning
multiple claims that had little to no chance of succeeding.
On July 23, 2013, the Superior Court issued a
memorandum opinion in the Direct Appeal affirming the
judgment of sentence. [Commonwealth v. Rosado, 82
A.3d 1075 (Pa. Super. 2013).] In its opinion, the Superior
Court found that the sufficiency of the evidence claim had
been waived. []
On February 21, 2014, [Appellant] filed a pro se PCRA
petition alleging that both Trial Counsel and Appellate
Counsel had been ineffective. Specifically, he alleged that
Trial Counsel was ineffective for failing to raise the fact
that the victim had previously accused her father of
sexually abusing her and then recanted the accusations.
Second, he alleged that Appellate Counsel was ineffective
for failing to raise or preserve appeal issues, including the
failure to brief the issues specifically raised in the Rule
-3-
J-S24018-15
1925(b) statement. The second allegation of
ineffectiveness ended with a request for “reinstatement of
appellate rights as to the weight and sufficiency of the
evidence claims.”
[Appellant’s] current attorney (“PCRA Counsel”) was
appointed to represent [Appellant] in the PCRA
proceedings. In the appointment order, PCRA [C]ounsel
was granted leave to file an amended petition if necessary.
After reviewing and discussing the matter with [Appellant],
PCRA Counsel did not file an amended petition.
On July 18, 2014, we convened a PCRA hearing. At the
hearing, [Appellant] called both Trial Counsel and
Appellate Counsel. Trial Counsel testified that she was
aware of the previous accusations of molestation made by
the victim, that the accusations were the crux of her
theory for [Appellant’s] defense at trial, that she fought to
have the evidence of these accusations admitted and that
evidence was, in fact, admitted. Appellate Counsel
testified as to why he raised only the issues he listed in the
Rule 1925(b) statement filed in the Direct Appeal and why
he later abandoned several issues on appeal. After
reviewing transcripts and the law, Appellate Counsel
believed that the issues specifically raised in the statement
were meritless. He felt the same way about a weight of
the evidence claim. He pursued only the sufficiency of the
evidence claim because he felt that it was the only issue
that stood any chance on appeal. Appellate Counsel also
testified that he raised the sufficiency of the evidence
claim by attaching the Motion for Modification of Sentence
[to the Rule 1925(b) statement] because he had used that
construct in prior appeals without issue and was unaware
of any rule that prohibited the procedure. At the
conclusion of the hearing, we issued an order denying the
PCRA petition, summarizing our reasons for doing so on
the record. []
PCRA Court Opinion, 10/31/14, at 1-5 (citations omitted). This timely
appeal followed. Both Appellant and the PCRA court have complied with
Pa.R.A.P. 1925.
-4-
J-S24018-15
Appellant raises the following issue on appeal:
A. DID THE PCRA COURT ERR AND ABUSE ITS
DISCRETION BY NOT ALLOWING [APPELLANT] TO FILE A
NUNC PRO TUNC APPEAL TO THE PENNSYLVANIA
SUPERIOR COURT WHERE THE RECORD CLEARLY SHOWED
THAT [APPELLANT] WAS DENIED HIS RIGHT TO
APPELLATE REVIEW AS A RESULT OF [APPELLATE]
COUNSEL NOT BRIEFING THE ISSUES RAISED IN THE
INITIAL [RULE] 1925[(B)] STATEMENT PRESENTED TO
THE COURT AND WHERE COUNSEL WAS THEREFORE [PER]
SE INEFFECTIVE IN HIS REPRESENTATION OF []
APPELLANT?
Appellant’s Brief at 4.
This Court may only overturn a PCRA court’s dismissal of a PCRA
petition based on an error of law or an abuse of discretion.
Commonwealth v. Johnson, 841 A.2d 136, 140 (Pa. Super. 2003), appeal
denied, 858 A.2d 109 (Pa. 2004). “Great deference is granted to the
findings of the PCRA court, and these findings will not be disturbed unless
they have no support in the certified record.” Commonwealth v. Daniels,
947 A.2d 795, 798 (Pa. Super. 2008) (citation omitted).
In support of his issue, Appellant argues:
Despite the rights provided him under the Pennsylvania
Constitution and case law, Appellant was denied his right
to direct appeal following a criminal conviction. The denial
was the result of the actions of prior counsel in failing to
properly prosecute his appellate rights by making
appropriate filings with the Superior Court. Specifically,
counsel filed a 1925(b) statement, as well as an Appellate
brief, which addressed wholly different issues, such that
Appellant’s [] appeal was dismissed for failure to argue or
preserve any issues raised on appeal.
-5-
J-S24018-15
Under Federal and Pennsylvania case law, the actions of
counsel in failing to prosecute Appellant’s initial appeal
resulted in [per] se ineffective representation, such that
Appellant is entitled to re-file such appeal now on a nunc
pro tunc basis. While the [PCRA] court focuses on the
merits of Appellant’s initial appeal and inaccurately
[analyzes] this matter under the ruling of
Commonwealth v. Reed[, 971 A.2d 1216 (Pa. 2009),]
(only limited appellate review provided rather than none as
here), the more appropriate legal analysis focuses on
cases where, as here, Appellant was provided no appellate
review of any kind as a result of the actions or inactions of
counsel. Appellant in the instant case, is entitled to file a
nunc pro tunc appeal of the trial issues which have yet to
be heard on appeal.
Appellant’s Brief at 7. We disagree.
In rejecting Appellant’s claim, the PCRA court astutely noted:
There are two types of ineffective assistance of counsel.
The first is ineffectiveness under Strickland v.
Washington, 466 U.S. 668 (1984), as adopted in
Pennsylvania by Commonwealth v. Pierce, 527 A.2d 973
(Pa. 1987), which requires the defendant to demonstrate
that he was prejudiced by an act or omission of his
attorney. In cases where the Strickland/Pierce test
applies, the analysis begins with the presumption that
counsel rendered effective assistance. To obtain relief on a
claim of ineffective assistance of counsel, a petitioner must
rebut that presumption and demonstrate that counsel’s
performance was deficient, and that such performance
prejudiced him. In our Commonwealth, we have
rearticulated the Strickland Court’s performance and
prejudice inquiry as a three-prong test. Specifically, a
petitioner must show: 1) the underlying claim is of
arguable merit; 2) no reasonable basis existed for
counsel’s action or inaction; and 3) counsel’s error caused
prejudice such that there is a reasonable probability that
the result of the proceeding would have been different
absent such error.
Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011)
[(citations omitted)]. Also, counsel cannot be found
-6-
J-S24018-15
ineffective for failing to pursue a baseless or meritless
claim. Commonwealth v. Harvey, 812 A.2d 1190, 1199
(Pa. 2002).
The second type of ineffectiveness of counsel is
ineffectiveness per se under United States v. Cronic, 466
U.S. 648 (1984), decided the same day as Strickland, in
which the United States Supreme categorized
circumstances where prejudice will be presumed and need
not be proven. The presumption is based on the High
Court’s recognition that there are “some circumstances so
likely to prejudice the accused that the cost of litigating
their effect in a particular case is unjustified.” (Id. at
658).
In Commonwealth v. Brown, 18 A.3d 1147 (Pa.
Super. 2011), our Superior Court collected cases that
outline the various situations where counsel has been held
to be ineffective per se and analyzed the differences
between a Cronic violation and a Strickland/Pierce
allegation of ineffective assistance of counsel.
PCRA Court Opinion, 10/31/14, at 6-7.
The PCRA court then quoted extensively from the Brown decision,
including the following:
The recognized instances of per se ineffectiveness
entitling a defendant to automatic relief are extremely
narrow. Commonwealth v. Halley, 582 Pa. 164, 870
A.2d 795 (2005) (counsel did not file a Pa.R.A.P. 1925(b)
statement and waived all issues, thereby denying the
defendant his constitutional right to direct appeal);
Commonwealth v. Leibel, 573 Pa. 375, 825 A.2d 630
(2003) (attorney did not file a petition for allowance of
appeal, as requested by the defendant, and denied his
client the right to seek discretionary review with our
Supreme Court); Commonwealth v. Lantzy, 558 Pa.
214, 736 A.2d 564, 572 (1999) (lawyer did not file a direct
appeal, despite defendants request); see also
Commonwealth v. Burton, 973 A.2d 428 (Pa. Super.
2009) (filing of an untimely 1925(b) statement);
Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264
-7-
J-S24018-15
(2007) (not filing an appellate brief so defendant did not
obtain direct review).
On the other hand, the types of actions or inactions that
are not subject to Cronic are legion. E.g.
Commonwealth v. Reed, 601 Pa. 257, 971 A.2d 1216,
1226 (2009) (“filing an appellate brief, deficient in some
aspect or another, does not constitute a complete failure to
function as a client’s advocate so as to warrant a
presumption of prejudice under Cronic”); . . .
Commonwealth v. Reaves, 592 A.2d 134, 923 A.2d
1119 (2007) (narrowing ambit of reviewable issues on
appeal does not constitute per se ineffectiveness)[.]
PCRA Court Opinion, 10/31/14, at 8-9 (quoting Brown, 18 A.3d at 1156).
Here, Appellant’s appeal was timely filed, a Pa.R.A.P. 1925(b)
statement was filed, and this Court acknowledged the claim Appellate
Counsel chose to raise on appeal. These facts vitiate Appellant’s claim of per
se ineffectiveness. As discussed above, because Appellate Counsel litigated
Appellant’s direct appeal, Appellant’s claim of ineffectiveness must be
reviewed using the tripartite test of Strickland/Pierce. See also
Commonwealth v. West, 883 A.2d 654, 658 n.5 (Pa. Super. 2005)
(explaining that per se ineffectiveness does not occur when counsel elected
to pursue certain issues in the Pa.R.A.P. 1925(b) statement and omitted
others).
In Appellant’s direct appeal, we found Appellant waived the only issue
appellate counsel chose to raise. This fact, however, does not transform his
claim into one of per se ineffectiveness. See Commonwealth v. Reed, 601
Pa. 257, 971 A.2d, 1216, 1226 (2009) (“filing an appellate brief, deficient in
some aspect or another, does not constitute a complete failure to function as
-8-
J-S24018-15
a client’s advocate so as to warrant a presumption of prejudice under
Cronic”). Rather, in order to demonstrate Appellate counsel’s
ineffectiveness, Appellant must establish each prong of the tripartite
Strickland/Pierce test for ineffectiveness as to each claim he wished to
raise on appeal.
Neither at the PCRA hearing, nor within his brief, does Appellant
provide such analysis with regard to any claim he wished to raise on appeal.
Thus, we need not consider his undeveloped claims of ineffectiveness
further. See Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981)
(explaining that claims of trial counsel’s ineffectiveness are not self-proving).
In sum, because Appellant is not entitled to a finding of per se
ineffectiveness, we affirm the PCRA court’s order denying him post-
conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2015
-9-