Com. v. Campbell, A.

J-S37013-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ADRIAN P. CAMPBELL

Appellant No. 878 EDA 2014

Appeal from the PCRA Order February 18, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001226-2011;
CP-45-CR-0001744-2011

BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 24, 2015

Appellant, Adrian P. Campbell, appeals from the order entered in the

Monroe County Court of Common Pleas, which denied his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

The PCRA court set forth the relevant facts and procedural history of

this case as follows.

On April 6, 2010, [Appellant] was stopped while traveling
on State Route 209. A subsequent search of his vehicle
yielded marijuana and fourteen empty baggies. On April
8, 2010, a search warrant was executed on [Appellant’s]
residence, revealing additional marijuana, a scale, and a
large sum of currency.

As a result of the traffic stop, a Criminal Complaint was
____________________________________________

1
42 Pa.C.S.A. §§ 9541-9546.
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filed against [Appellant] on March 16, 2011, charging
[Appellant] with Manufacture, Delivery, or Possession with
Intent to Manufacture or Deliver [(“PWID”)] (35 P.S. §
780-113(a)(30)); Marijuana—Small Amount Personal Use
(35 P.S. § 780-113(a)(31)); Use or Possession of Drug
Paraphernalia (35 P.S. § 780-113(a)(32)); Operating with
Unsafe Equipment (75 [Pa.C.S.A.] § 4107(b)(2)), and;
Improper Sun [S]creening (75 [Pa.C.S.A.] § 4524(e)(1)).

In connection with the search of his residence, a second
Criminal Complaint was filed against [Appellant] on June 3,
2011, charging him with [PWID] (35 P.S. § 780-
113(a)(30)), and; Marijuana—Small Amount Personal Use
(35 P.S. § 780-113(a)(31)).

On June 8, 2011, [Appellant] waived his preliminary
hearing on the charges stemming from the traffic stop.
Accordingly, on September 12, 2011, the Commonwealth
filed a Criminal Information against [Appellant] charging
him with the same counts listed in the Criminal Complaint.
This Criminal Information is docketed at number 1226
Criminal 2011.

On June 29, 2011[, Appellant] waived his preliminary
hearing on the charges emanating from the search of his
residence. Accordingly, on October 3, 2011, the
Commonwealth filed a Criminal Information against
[Appellant] charging him with the same two counts listed
in the Criminal Complaint. This Criminal Information is
docketed at number 1744 Criminal 2011.

* * *

On June 7, 2012, following a trial by jury, [Appellant] was
found guilty of [PWID, possession of marijuana, possession
of a small amount of marijuana, and possession of drug
paraphernalia] docketed at number 1226 Criminal 2011.

On August 21, 2012[, Appellant] entered a plea of guilty to
Amended Count 1 of the Criminal Information docketed at
number 1744 Criminal 2011, Marijuana—Small Amount
Personal Use. This Plea was taken in exchange for the
Commonwealth’s agreement to [ask the court to enter
nolle prosequi on] the other charges in that case. This

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condition was fulfilled.

On the Motion of [Appellant’s] counsel [(“trial counsel”)],[2]
of the Monroe County Public Defender Office, and by Order
of this [c]ourt dated August 28, 2012, sentencing on
[Appellant’s] case docketed at number 1226 Criminal 2011
was continued and scheduled to be held on the same day
as sentencing on [Appellant’s] case docketed at number
1744 Criminal 2011. [Appellant’s] Motion was predicated
on his medical needs: [Appellant] broke his arm in a
motorcycle accident and wished to prolong sentencing on
his case docketed at number 1226 Criminal 2011 so that
he could attend his doctor’s appointments.

On September 26, 2012, [Appellant] was sentenced on
both cases. On [Appellant’s] case docketed at number
1226 Criminal 2011, [Appellant] was sentenced to [an
aggregate] period of incarceration not less than 23 months
and not more than 72 months. On [Appellant’s] case
docketed at number 1744 Criminal 2011, [Appellant] was
sentenced to a [consecutive] period of incarceration not
less than 6 months and not more than 12 months, for a
total aggregate sentence of not less than 29 months and
not more than 84 months. All sentences imposed were
within the statutory guidelines.

On October 3, 2012[, Appellant]…filed a Motion to
Reconsider Sentence seeking State Intermediate
Punishment on both cases. By Order of this [c]ourt dated
October 9, 2012, said Motion was denied.

On November 14, 2012[, Appellant] filed a pro se Notice of
Appeal on both cases.[3]
____________________________________________

2
Trial counsel represented Appellant at his jury trial at number 1226
Criminal 2011 and during his guilty plea at number 1744 Criminal 2011.
3
Appellant’s untimely pro se notice of appeal was dated November 9, 2012,
and entered on the docket on November 14, 2012. Generally, pursuant to
the prisoner mailbox rule, the date a prisoner hands a pro se filing to prison
authorities for mailing operates as the effective filing date. See
Commonwealth v. Chambers, 35 A.3d 34 (Pa.Super. 2011), appeal
(Footnote Continued Next Page)

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On December 24, 2012, [trial counsel] filed a Motion for
Withdrawal of Counsel predicated on his judgment that
there were no errors that could properly be appealed and
on information he received that [Appellant] had hired
[replacement counsel], to represent him in his appeal.[4]

On January 14, 2013, [Appellant], through [replacement
counsel], filed his Statement pursuant to Pennsylvania
Rule of Appellate Procedure 1925(b).

On [February 4,] 2013, the Superior Court quashed
[Appellant’s] appeal as untimely.

On September 25, 2013, [Appellant], through
[replacement counsel], filed the present PCRA [petition]
and a supporting memorandum of law seeking a new trial,
or in the alternative, a reinstatement of his appellate rights
based on two ineffective assistance of counsel claims. …
_______________________
(Footnote Continued)

denied, 616 Pa. 625, 46 A.3d 715 (2012) (explaining “prisoner mailbox rule”
provides that pro se prisoner’s document is deemed filed on date he delivers
it to prison authorities for mailing). Because Appellant was still represented
by trial counsel when Appellant filed his untimely pro se notice of appeal,
however, the court forwarded Appellant’s pro se notice of appeal to trial
counsel on November 16, 2012. See Pa.R.Crim.P. 576(A)(4) (stating in any
case in which defendant is represented by attorney, if defendant submits for
filing written motion, notice, or document that has not been signed by
defendant’s attorney, clerk of courts shall accept it for filing, time stamp it
with date of receipt and make docket entry reflecting date of receipt, and
place document in criminal case file; copy of timestamped document shall be
forwarded to defendant’s attorney and attorney for Commonwealth within 10
days of receipt). On December 4, 2012, the court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).
4
Trial counsel’s motion also asked the court for an extension of time for
Appellant to file a Rule 1925(b) statement. On December 27, 2012, the
court denied trial counsel’s motion to withdraw and granted the motion for
extension. Trial counsel filed another motion to withdraw as counsel on
January 11, 2013, which the court granted on January 18, 2013, following
replacement counsel’s entry of appearance on January 4, 2013.

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(Opinion in Support of Denial of PCRA Relief, filed February 18, 2014, at 1-4;

R.R. at 19-22) (internal citations omitted). On October 7, 2013, the

Commonwealth filed a motion for teleconferencing of trial counsel during the

PCRA hearing, explaining trial counsel had retired and relocated to Florida.

The court granted the Commonwealth’s motion on October 9, 2013. On

December 20, 2013, Appellant filed a motion for reconsideration of the order

granting teleconferencing, claiming it violated Appellant’s rights under the

Confrontation Clause. The court subsequently denied that motion.

The court held a PCRA hearing on December 23, 2013. On February

18, 2014, the court denied PCRA relief. Appellant timely filed a notice of

appeal on March 17, 2014. On March 24, 2014, the court ordered Appellant

to file a Rule 1925(b) statement, which Appellant timely filed on April 11,

2014.

Appellant raises three issues for our review:

WHETHER APPELLANT…IS ENTITLED TO A NEW PCRA
HEARING OR REINSTATEMENT OF HIS APPELLATE RIGHTS
WHERE THE HEARING WAS CONDUCTED WITHOUT
HOLDING A VIDEO CONFERENCE TO OBTAIN TRIAL
COUNSEL’S TESTIMONY?

WHETHER APPELLANT…IS ENTITLED TO THE
REINSTATEMENT OF HIS APPELLATE RIGHTS WHERE
TRIAL COUNSEL FAILED TO FILE A NOTICE OF APPEAL TO
THE SUPERIOR COURT OF PENNSYLVANIA ON HIS
BEHALF?

WHETHER APPELLANT…IS ENTITLED TO A NEW PCRA
HEARING OR REINSTATEMENT OF HIS APPELLATE RIGHTS
WHERE [APPELLANT] WAS DENIED EFFECTIVE

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ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL DID
NOT FULLY INFORM AND ADVISE HIM OF THE POTENTIAL
PENALTIES THE COURT COULD IMPOSE AS A RESULT OF
HIM CONSOLIDATING HIS CASES FOR SENTENCING?

(Appellant’s Brief at 2).

Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if the record contains any support for those findings.

Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,

593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction

court’s credibility determination, it is binding on the appellate court.

Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

In his first issue, Appellant explains the PCRA court permitted trial

counsel to testify at the PCRA hearing via teleconferencing, over Appellant’s

objection, because trial counsel resided outside of Pennsylvania. Appellant

claims the Commonwealth arranged for trial counsel to testify via

teleconferencing as opposed to videoconferencing for expediency. Appellant

argues trial counsel’s testimony by teleconferencing violated Appellant’s

rights under the Confrontation Clause. Appellant asserts he had a Sixth

Amendment constitutional right to confront witnesses against him.

Appellant maintains testimony by teleconferencing deprived Appellant of this

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right because Appellant, defense counsel, and the court were unable to

observe trial counsel’s demeanor to assess credibility. Appellant concedes a

PCRA hearing is not a critical stage in a criminal proceeding, but he suggests

that when the sole issue is the ineffectiveness of counsel, then the PCRA

hearing becomes an adversarial proceeding that should entitle Appellant to

face-to-face confrontation with trial counsel. Appellant concludes the court

abused its discretion by permitting trial counsel to testify by

teleconferencing, and this Court should reinstate Appellant’s appellate rights

nunc pro tunc or afford him a new PCRA hearing with videoconferencing of

trial counsel’s testimony.5 We disagree.

Our Supreme Court has discussed an accused’s rights under the

Confrontation Clause as follows:

The Confrontation Clause of the Sixth Amendment, made
applicable to the States via the Fourteenth
Amendment…provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right…to be confronted with
the witnesses against him…” In [Crawford v.
Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1364, 158
____________________________________________

5
Appellant also contends trial counsel’s testimony by teleconferencing
violated the Rules of Evidence, but Appellant does not specify which rule(s).
Moreover, Appellant objected at the PCRA hearing to trial counsel’s
testimony by teleconferencing solely on Confrontation Clause grounds.
Thus, Appellant waived his complaint based on the rules of evidence. See
Commonwealth v. McDermitt, 66 A.3d 810 (Pa.Super. 2013) (explaining
undeveloped claims are waived and unreviewable on appeal);
Commonwealth v. Lopez, 57 A.3d 74 (Pa.Super. 2012), appeal denied,
619 Pa. 678, 62 A.3d 379 (2013) (stating if appellant set forth specific
grounds for objection before trial court, then all other unspecified grounds
are waived and cannot be raised for first time on appeal).

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J-S37013-15

L.Ed.2d 177, ___ (2004)], the Court held that the Sixth
Amendment guarantees a defendant’s right to confront
those “who ‘bear testimony’” against him, and defined
“testimony” as “[a] solemn declaration or affirmation made
for the purpose of establishing or proving some fact.” The
Confrontation Clause, the High Court explained, prohibits
out-of-court testimonial statements by a witness unless
the witness is unavailable and the defendant had a prior
opportunity for cross-examination. Id. at 53-56, 124 S.Ct.
[at] 1354[, 158 L.Ed.2d at ___].

Commonwealth v. Yohe, 621 Pa. 527, 544, 79 A.3d 520, 530-31 (2013),

cert. denied, ___ U.S. ___, 134 S.Ct. 2662, 189 L.Ed.2d 209 (2014)

(internal footnotes omitted).

Nevertheless:

The focus of claims of violation of this constitutional right
is on the fairness and reliability of the criminal defendant’s
trial. [Appellant] has cited to no authority holding that a
Confrontation Clause challenge may be asserted in non-
trial proceedings, including during PCRA evidentiary
hearings. … To the contrary, on at least two occasions
our Supreme Court has held that Confrontation Clause
issues may not be asserted in collateral proceedings. See
Commonwealth v. Collins, 585 Pa. 45, 65 n.15, 888
A.2d 564, 576 n.15 (2005) (“Crawford, however, is
unavailable to claimants on collateral review…”);
Commonwealth v. Gribble, 580 Pa. 647, 663 n.7, 863
A.2d 455, 464 n.7 (2004) (“We need not concern
ourselves with that question, as this is a collateral attack,
and Crawford does not apply”).

Commonwealth v. Wantz, 84 A.3d 324, 337 (Pa.Super. 2014) (some

internal citations omitted) (emphasis in original).

Instantly, the PCRA court addressed Appellant’s first issue on appeal

as follows:

At the [PCRA] hearing, the Commonwealth called as [its]

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first witness [Appellant’s] trial attorney…who has since
retired and now permanently resides in Florida. [Trial
counsel’s] testimony was taken by telephone.
[Replacement counsel] objected to the admission of [trial
counsel’s] testimony on the grounds that his demeanor
could not be observed, robbing [Appellant] of his right to
confrontation provided by both the Federal and
Pennsylvania Constitutions. This [c]ourt noted counsel’s
objection, admitted the testimony of [trial counsel], and
provided [replacement counsel] an opportunity to brief the
issue.

[Appellant’s brief] is devoid of legal authority which would
support his position that telephone conferencing
procedures do not comply with the confrontation clauses of
the United States and Pennsylvania Constitutions.
Similarly, we are unable to locate any authority which
would either permit or proscribe such testimony at a PCRA
hearing. We posit that this is because the Confrontation
Clause does not extend to PCRA hearings.

A hearing on a PCRA [petition] is not a criminal
proceeding, but a collateral one which is civil in nature. As
such, it is not an adversarial proceeding and a critical
stage in a criminal proceeding as is required to invoke the
protections of the Confrontation Clause. Even if the
Confrontation Clause does extend to collateral
proceedings, the right to a face-to-face confrontation is in
all cases preferred, not mandated. Accordingly, we
conclude that the testimony of [trial counsel] was properly
admitted….

(Opinion in Support of Denial of PCRA Relief at 5-6; R.R. at 23-24) (internal

citations and quotation marks omitted). We accept the court’s reasoning.

See Ford, supra. At the PCRA hearing, Appellant objected to trial counsel’s

testimony by teleconferencing solely on Confrontation Clause grounds.

Because the protections of the Confrontation Clause do not extend to

collateral proceedings such as a PCRA hearing, Appellant’s first issue on

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appeal affords no relief. See Wantz, supra.

In his second issue, Appellant argues trial counsel failed to file a direct

appeal on Appellant’s behalf despite his requests to do so. Appellant asserts

trial counsel sent a letter on or about October 16, 2012, informing Appellant

the court had denied his post-sentence motion and trial counsel would not

be filing an appeal on Appellant’s behalf because there were no appealable

issues. Appellant maintains he received trial counsel’s letter roughly one

week later and understood the letter to mean trial counsel would not file an

appeal for Appellant. Appellant claims he spoke with a fellow inmate

regarding the steps to take to request an appeal, so Appellant filed a pro se

notice of appeal dated November 9, 2012, which the court entered on the

docket on November 14, 2012. Appellant explains the Superior Court

quashed his appeal as untimely. Appellant highlights his testimony at the

PCRA hearing concerning a number of issues he wanted to raise on direct

appeal. Appellant contends trial counsel’s failure to file a requested notice of

appeal deprived Appellant of the opportunity to pursue appellate issues.

Appellant concludes trial counsel’s inaction constitutes per se ineffectiveness,

and this Court must reinstate Appellant’s direct appeal rights nunc pro tunc.

We disagree.

The law presumes counsel has rendered effective assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When

asserting a claim of ineffective assistance of counsel, the petitioner is

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required to demonstrate: (1) the underlying claim has arguable merit; (2)

counsel had no reasonable strategic basis for his 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. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).

“The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

Prejudice is established when [a defendant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The defendant
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (internal citations and quotation marks omitted). The failure to

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satisfy any prong of the test for ineffectiveness will cause the claim to fail.

Williams, supra.

“[T]he PCRA provides the exclusive remedy for post-conviction claims

seeking restoration of appellate rights due to counsel’s failure to perfect a

direct appeal….” Commonwealth v. Lantzy, 558 Pa. 214, 223, 736 A.2d

564, 570 (1999).

[W]here there is an unjustified failure to file a requested
direct appeal, the conduct of counsel falls beneath the
range of competence demanded of attorneys in criminal
cases, denies the accused the assistance of counsel
guaranteed by the Sixth Amendment to the United States
Constitution and Article I, Section 9 of the Pennsylvania
Constitution, as well as the right to direct appeal under
Article V, Section 9, and constitutes prejudice for purposes
of Section 9543(a)(2)(ii). Therefore, in such
circumstances, and where the remaining requirements of
the PCRA are satisfied, the petitioner is not required to
establish his innocence or demonstrate the merits of the
issue or issues which would have been raised on appeal.

Id. at 226-27, 736 A.2d at 572 (internal footnote omitted). “While a

defendant has the ability to relinquish his appellate rights, this can only be

accomplished through a knowing, voluntary and intelligent waiver.” Id. at

228, 736 A.2d at 572.

The following principles apply to a claim that counsel was ineffective

for failing to pursue a direct appeal:

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

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* * *

The rule set out in Knighten has been modified by more
recent decisions, particularly Roe v. Flores-Ortega, 528
U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) and its
Pennsylvania expression, Commonwealth v. Touw, 781
A.2d 1250 (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 to think that a defendant would want
to appeal.

* * *

Pursuant to Roe 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.” Touw[, supra] at
1254 (quoting Roe[, supra] at 480, 120 S.Ct. [at 1036]).

Commonwealth v. Bath, 907 A.2d 619, 622-23 (Pa.Super. 2006), appeal

denied, 591 Pa. 695, 918 A.2d 741 (2007) (emphasis added).

In making this determination, courts must take into
account all the information counsel knew or should have
known. Although not determinative, a highly relevant
factor in this inquiry will be whether the conviction follows
a trial or a guilty plea, both because a guilty plea reduces
the scope of potentially appealable issues and because
such a plea may indicate that the defendant seeks an end
to judicial proceedings. Even in cases when the defendant
pleads guilty, the court must consider such factors as
whether the defendant received the sentence bargained for
as part of the plea and whether the plea expressly
reserved or waived some or all appeal rights. Only by
considering all relevant factors in a given case can a court
properly determine whether a rational defendant would
have desired an appeal or that the particular defendant

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sufficiently demonstrated to counsel an interest in an
appeal.

Roe, supra at 480, 120 S.Ct. at 1036, 145 L.Ed.2d at ___ (internal citations

omitted).

Further, even “[a] deficient failure on the part of counsel to consult

with the defendant does not automatically entitle the defendant to

reinstatement of his…appellate rights; the defendant must show prejudice.”

Touw, supra at 1254. Prejudice in this context means a defendant must

show a reasonable probability that, but for counsel’s deficient failure to

consult, the defendant would have sought additional review. Id.

Instantly, the PCRA court addressed Appellant’s claim as follows:

At the hearing on [Appellant’s] PCRA [petition], [trial
counsel] testified that on October 16, 2012, he sent a
letter to [Appellant] indicating that his Motion to
Reconsider Sentence was denied and communicating his
professional judgment that [Appellant’s] cases lacked
appealable issues. This letter was received by [Appellant]
approximately one week later. [Trial counsel] further
testified that he did not remember ever discussing the
possibility of an appeal with [Appellant]: [Trial counsel]
neither recalls being contacted by [Appellant], nor do his
notes reflect any communication from [Appellant]
regarding his desire to appeal….

Based on the evidence presented at the hearing on
[Appellant’s] PCRA [petition], we find that [Appellant]
failed to establish by a preponderance of the evidence that
he requested an appeal. Although [Appellant]
adamantly maintained his desire to pursue a direct
appeal and even testified vaguely to speaking with
[trial counsel] about an appeal, we are unsatisfied
that [Appellant] actually requested [trial counsel] to
file an appeal. In fact, we were presented with no
evidence, other than the October 16, 2012 letter, that

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there was any communication between [Appellant] and
[trial counsel] during the appeal period, let alone
communication regarding an appeal. Accordingly, we find
that [Appellant] did not request an appeal….

(Opinion in Support of Denial of PCRA Relief at 8-9; R.R. at 26-27) (internal

citations omitted) (emphasis added). We accept and are bound by the

court’s credibility determination, concluding Appellant did not ask trial

counsel to file an appeal on Appellant’s behalf. See Dennis, supra. See

also Lantzy, supra; Bath, supra; Knighten, supra.

Turning to whether trial counsel had a duty to consult with Appellant

about filing an appeal, trial counsel testified at the PCRA hearing, inter alia,

as follows: (1) trial counsel represented Appellant at his jury trial at number

1226 Criminal 2011 and at his guilty plea at number 1744 Criminal 2011;

(2) trial counsel discussed with Appellant the risks of proceeding to trial at

number 1226 Criminal 2011, including the potential sentences Appellant

would face if the jury convicted Appellant of all offenses charged, and

Appellant wanted to go to trial; (3) Appellant decided to enter a guilty plea

at number 1744 Criminal 2011, and the terms of the plea were set forth in

the written plea agreement; (4) trial counsel on Appellant’s behalf requested

consolidation of the cases for sentencing for Appellant’s convenience; (5)

trial counsel did not promise or inform Appellant that he would receive

concurrent sentences as a result of consolidating his cases for sentencing;

(6) trial counsel explained Appellant’s post-sentence rights to Appellant and

personally observed Appellant sign the explanation of post-sentence rights

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form (setting forth Appellant’s post-sentence and appellate rights);6 (7) trial

counsel spoke with Appellant on the phone following sentencing on October

2, 2012, to discuss potentially filing post-sentence motions; (8) the only

issue trial counsel and Appellant discussed during this phone call involved

asking the court to impose a sentence of state intermediate punishment or

boot camp; (9) at no time during this call did Appellant say he was unaware

of the maximum possible sentences involved in his cases; (10) Appellant did

not ask trial counsel to file a direct appeal on his behalf during this phone

call or at any time thereafter; (11) based on his phone conversation with

Appellant, trial counsel filed a post-sentence motion asking the court to

impose a sentence of state intermediate punishment or boot camp; (12)

after the court denied Appellant’s post-sentence motion, trial counsel sent

Appellant a letter dated October 16, 2012, informing Appellant the court had

denied his post-sentence motion and trial counsel would not be filing an

appeal on Appellant’s behalf because there were no appealable issues; (13)

trial counsel’s letter to Appellant confirmed what trial counsel believed had

been the understanding between Appellant and trial counsel—that there

were no issues Appellant wanted to pursue other than the request for state

intermediate punishment or boot camp, which the court had denied; (14)

____________________________________________

6
Appellant’s signature on this form is somewhat illegible; trial counsel
explained that Appellant’s signature was scrawled due to his arm injury at
the time.

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trial counsel knew of no non-frivolous appealable issues; and (15) trial

counsel ultimately learned Appellant filed a pro se notice of appeal.

Appellant also testified at the PCRA hearing, inter alia, as follows: (1)

trial counsel failed to subpoena witnesses Appellant wanted to present at his

jury trial; (2) trial counsel had minimal communication with Appellant about

his case at number 1226 Criminal 2011; (3) Appellant complained to trial

counsel about the prosecutor’s remarks regarding the Commonwealth’s

expert’s testimony, but trial counsel did not address Appellant’s concerns;7

(4) Appellant also complained to trial counsel about a potential juror who

allegedly said he would believe a police officer over Appellant, but trial

counsel did not have that juror stricken; (5) regarding Appellant’s guilty plea

at number 1744 Criminal 2011, Appellant conceded no one had promised

him a specific sentence, but he said there was “talk” that Appellant would

receive a lesser sentence than the one imposed; (6) Appellant denied

signing the explanation of post-sentence rights form; (7) after sentencing,

Appellant spoke with trial counsel; trial counsel informed Appellant that he

would file a post-sentence motion on Appellant’s behalf, but trial counsel felt

____________________________________________

7
Appellant phrased this complaint as follows: “…I didn’t agree with what the
DA was saying to the jury. When he had the specialist up here, you know, it
was basically like the specialist was leading the jury on the topic of the
marijuana being in a big Ziplock bag.” (N.T. PCRA Hearing, 12/23/13, at 46;
R.R. at 81). Appellant’s precise claim is not particularly clear. Notably, trial
counsel objected to the Commonwealth’s expert’s qualifications at trial, but
the court overruled the objection.

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there were no appealable issues; (8) following the conversation with trial

counsel, Appellant believed trial counsel would only be filing a post-sentence

motion on Appellant’s behalf, but not a notice of appeal; (9) after the court

denied Appellant’s post-sentence motion, Appellant claims he asked trial

counsel to file a notice of appeal, but trial counsel insisted there were no

appealable issues;8 and (10) Appellant asked fellow inmates for help in filing

a pro se notice of appeal.

Here, Appellant’s convictions and sentences arose from a jury trial and

a guilty plea. Significantly, Appellant alleged no claims of error in his PCRA

petition or supporting memorandum of law that he wanted to pursue on

direct appeal relative to his jury trial or his guilty plea. Similarly, Appellant’s

brief does not specify any issues Appellant wanted to challenge on direct

appeal in connection with his jury trial or guilty plea.

At the PCRA hearing, the only issues Appellant discussed relative to his

jury trial involved trial counsel’s potential ineffectiveness for his alleged

failure to: (1) subpoena witnesses; (2) communicate with Appellant; (3)

take action regarding Appellant’s complaints of the prosecutor’s comments

about the Commonwealth’s expert’s testimony; and (4) remove a

prospective juror. None of these issues, however, could have been raised on
____________________________________________

8
Appellant did not provide a timeframe for this alleged discussion. Later in
the hearing, Appellant admitted he had no communication with trial counsel
after the court denied his post-sentence motion except for receiving the
October 16, 2012 letter from trial counsel.

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direct appeal. See Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562

(2013) (holding, absent certain specified circumstances, claims of ineffective

assistance of counsel must be deferred until collateral review). See also

Commonwealth v. Martin, 607 Pa. 165, 5 A.3d 177 (2010) (restating

general rule that counsel cannot raise his own ineffectiveness).

Additionally, Appellant advanced no testimony at the PCRA hearing

concerning specific issues he wanted to raise on direct appeal as a result of

his guilty plea. Appellant’s written plea agreement expressly informed

Appellant that his appeal rights were limited to challenging the court’s

jurisdiction, the legality of his sentence, and the validity of his guilty plea.

Appellant’s guilty plea was open as to sentencing and in exchange for

Appellant’s guilty plea to possession of marijuana, the Commonwealth

agreed to ask the court to enter nolle prosequi as to the more serious PWID

offense at number 1744 Criminal 2011.

The record also shows that after Appellant filed a pro se notice of

appeal, Appellant’s subsequent Rule 1925(b) statement raised only one

issue for appellate review: whether the court erred in accepting his guilty

plea because the plea was not knowing, intelligent, and voluntary.

Nevertheless, Appellant failed to challenge the validity of his guilty plea in

his post-sentence motion. Consequently, had this Court not quashed

Appellant’s appeal as untimely, his claim would have been waived for failure

to preserve it. See Pa.R.Crim.P. 720 (governing post-sentence motion

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procedures); Commonwealth v. D’Collanfield, 805 A.2d 1244 (Pa.Super.

2002) (holding appellant waived challenge to validity of his guilty plea where

he failed to initially challenge guilty plea in post-sentence motion). To the

extent Appellant insists he would have pursued other issues on direct appeal

but for counsel’s alleged ineffectiveness, those issues would have likewise

been waived for failure to include them in his Rule 1925(b) statement. See

Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005) (holding

any issues not raised in concise statement are waived on appeal).

Based on these circumstances, trial counsel had no further duty to

consult with Appellant about filing an appeal because (1) no rational

defendant in Appellant’s position would have wanted to appeal; and (2)

Appellant, in particular, failed to demonstrate that he wanted an appeal

filed. See Roe, supra; Bath, supra; Touw, supra. Thus, as presented,

Appellant’s claim regarding trial counsel’s alleged ineffectiveness for failing

to file a direct appeal must fail.

In his third issue, Appellant argues trial counsel did not fully inform

and advise Appellant of the potential penalties the court could impose as a

result of consolidating Appellant’s cases for sentencing. Appellant asserts

trial counsel admitted at the PCRA hearing he did not expressly discuss with

Appellant the possibility of Appellant receiving the maximum sentence for his

guilty plea conviction consecutive to the sentences imposed for his jury trial

convictions. Appellant claims it was his understanding he would receive less

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than the maximum sentence if he pled guilty.9 For these reasons, Appellant

claims his guilty plea was not knowing, voluntary, and intelligent. Appellant

concludes trial counsel’s ineffectiveness caused him to render an unknowing

guilty plea, and this Court should grant Appellant a new trial at number 1744

Criminal 2011. We disagree.

Initially, we observe:

[G]enerally…issues not raised in a Rule 1925(b) statement
will be deemed waived for review. An appellant’s concise
statement must properly specify the error to be addressed
on appeal. In other words, the Rule 1925(b) statement
must be “specific enough for the trial court to identify and
address the issue [an appellant] wishe[s] to raise on
appeal.” Commonwealth v. Reeves, 907 A.2d 1, 2
(Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d
956 (2007). “[A] [c]oncise [s]tatement which is too vague
to allow the court to identify the issues raised on appeal is
the functional equivalent of no [c]oncise [s]tatement at
all.” Id. The court’s review and legal analysis can be
fatally impaired when the court has to guess at the issues
raised. Thus, if a concise statement is too vague, the
court may find waiver.

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (some internal citations omitted).

Additionally, “[a]llegations of ineffectiveness in connection with the

entry of a guilty plea will serve as a basis for relief only if the ineffectiveness

caused the defendant to enter an involuntary or unknowing plea.”
____________________________________________

9
Based on Appellant’s prior record score of four, Appellant faced a maximum
sentence of one (1) year of imprisonment. The court sentenced Appellant to
six (6) to twelve (12) months’ imprisonment for his guilty plea to possession
of marijuana.

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Commonwealth v. Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (quoting

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)).

“Where the defendant enters his plea on the advice of counsel, the

voluntariness of the plea depends on whether counsel’s advice was within

the range of competence demanded of attorneys in criminal cases.” Moser,

supra. Pennsylvania law does not require the defendant to “be pleased with

the outcome of his decision to enter a plea of guilty[; a]ll that is required is

that [his] decision to plead guilty be knowingly, voluntarily and intelligently

made.” Id. at 528-29. See also Commonwealth v. Allen, 557 Pa. 135,

732 A.2d 582 (1999) (explaining court is free to consider totality of

circumstances surrounding plea to determine defendant’s actual knowledge

of implications and rights associated with guilty plea; court may consider

wide array of relevant evidence to assess validity of plea including but not

limited to transcripts from other proceedings, off-the-record communications

with counsel, and written plea agreements).

Instantly, Appellant presented his third issue on appeal in his Rule

1925(b) statement as follows: “The [c]ourt erred by accepting [Appellant’s]

plea of guilty because he did not enter his plea, knowingly, intelligently and

voluntarily.” (Appellant’s Rule 1925(b) Statement, filed April 11, 2014, at

1). Significantly, Appellant failed to present this issue in the context of trial

counsel’s alleged ineffectiveness or mention his current claim on appeal that

he was unaware of the penalties he could face as a result of consolidating his

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cases for sentencing. See id. Appellant’s vague Rule 1925(b) statement

compels waiver of his issue on appeal. See Hansley, supra.

Moreover, in its Rule 1925(a) opinion, the PCRA court explained:

In initial response to [Appellant’s Rule 1925(b) statement],
we point out the obvious: a post-conviction court does not
“accept” guilty pleas. Rather, this [c]ourt denied
Appellant’s petition for relief based on his allegations of
ineffectiveness of counsel in connection with the entry of
Appellant’s guilty plea. What is more is the fact that
Appellant never explicitly raised the argument that his
attorney’s ineffectiveness induced an unknowing or
involuntary plea. This [c]ourt, however, anticipated the
argument and opined on the matter nevertheless. …

(Trial Court Opinion, filed April 17, 2014, at 2). In its opinion denying PCRA

relief, the court reasoned:

At the hearing on [Appellant’s] PCRA [petition], the
Probation Officer who performed [Appellant’s] pre-
sentence investigation testified that, in the Pre-Sentence
Report, she recommended that the sentencing judge run
[Appellant’s] sentences consecutively. The Officer testified
that she would not have changed her recommendation had
[Appellant’s] two cases been sentenced on two separate
dates. Further, [Appellant] was colloquied on the
sentencing judge’s discretion to run multiple sentences
consecutively when [Appellant] entered his plea of guilty:

THE COURT: …[I]f in a given case there is more
than one charge that you’re pleading guilty to; or if
you are pleading guilty to crimes in more than one
case, the sentences imposed on each charge could
be run potentially consecutively, which means one
after the other.

So for example, if you had 3 months to 12 months
on one charge, another 3 months to 12 months on
another charge and then another case where you got
3 months to 12 months you could potentially face up
to 9 months to 36 months in jail because of those

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sentences. And the way—the fancy term is called it
would be aggregated, or run consecutively, and that
each of the maximum penalties for each charge in
each case could be run consecutively.

[N.T. Guilty Plea Hearing, 8/21/12, at 9-10].[10]
Accordingly, we find that [Appellant] suffered no prejudice
and his ineffective assistance of counsel claim predicated
on [trial counsel’s] failure to advise him of the possible
penalties resulting from consolidating his cases for
sentencing is denied.

* * *

Excerpted above, we see that [Appellant] was properly
advised by the [c]ourt of the possibility of consecutively
run sentences at the time of the entry of his guilty plea.
Accordingly, whether [trial counsel] similarly advised
[Appellant] is inapposite in determining the propriety of his
plea.

(Opinion in Support of Denial of PCRA Relief at 14-16; R.R. at 32-34). The

record supports the court’s analysis. See Ford, supra.

Additionally, trial counsel testified at the PCRA hearing that he had

informed Appellant the court could impose the maximum sentence for

Appellant’s guilty plea consecutive to sentences imposed as a result of

Appellant’s jury trial convictions at number 1226 Criminal 2011. Trial

counsel denied telling Appellant he would receive concurrent sentences if he

____________________________________________

10
As well, on June 7, 2012, just prior to commencing Appellant’s jury trial at
number 1226 Criminal 2011, the court explained to Appellant that if the jury
were to convict him of the charges in that case, and if Appellant incurred
convictions in a separate outstanding case, then Appellant could face
consecutive sentences for his crimes. The court specifically explained to
Appellant the meaning of “consecutive” sentences.

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proceeded to a consolidated sentencing hearing. Notably, Appellant

requested consolidation of his cases for sentencing to accommodate medical

treatment for his physical injuries. Thus, even if properly preserved,

Appellant’s claim that his plea was unknowing, unintelligent, and involuntary

would afford him no relief on the ground asserted. See Allen, supra.

Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/24/2015

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