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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ERICK FINNEGAN
Appellant No. 3841 EDA 2015
Appeal from the PCRA Order November 23, 2015
in the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-0001211-2013
BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 03, 2016
Erick Finnegan (Appellant) appeals from the November 23, 2015 order
denying his petition for relief filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
Following a bench trial in July of 2013, the court found Appellant guilty
of retail theft.1 Appellant was sentenced to four to twenty-three months’
incarceration with a term of eighteen months’ probation to be served
consecutively. Appellant filed a motion to modify and reconsider sentence,
which was denied in July of 2013. No direct appeal was filed. In September
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1
See 18 Pa.C.S. § 3929(a)(1).
*
Former Justice specially assigned to the Superior Court.
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2013, Appellant untimely mailed a notice of appeal to the PCRA court. 2 The
PCRA court returned the notice to Appellant, informing him that his appeal
was untimely and noting that no notice of appeal was on file with the Bucks
County Clerk of Courts.
Appellant pro se filed a timely PCRA petition in October of 2013,
alleging ineffective assistance of trial counsel. Thereafter, counsel was
appointed and filed an amended petition on Appellant’s behalf. Specifically,
Appellant alleged trial counsel was ineffective for (1) failing to file a direct
appeal, (2) preventing Appellant from testifying in his own defense, and (3)
allowing Appellant to unknowingly and unintelligently waive his right to a
jury trial, as Appellant was intoxicated. In October of 2015, the PCRA court
held an evidentiary hearing, at which Appellant and trial counsel testified.
At the evidentiary hearing, Appellant testified that in a conversation
with trial counsel following the denial of his motion to reconsider sentence,
he requested that counsel file an appeal on his behalf. N.T., 10/23/15, at
48-51. Appellant further stated that he attempted to request same through
three, interoffice green slips and a letter sent to trial counsel. Id. at 51-69.
Trial counsel categorically denied that Appellant requested him to file an
appeal and further testified that he never received any of the
aforementioned correspondence. Id. at 104-06, 110-11.
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2
The Honorable Albert J. Cepparulo presided over both the trial and PCRA in
the instant case. See Notes of Testimony (N.T.), 7/8/13; N.T. 10/23/15.
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Appellant suggested the outcome of trial may have been different if he
had given his version of events and insisted that he never discussed with
counsel the impact his prior convictions for crimen falsi offenses would have
on the fact-finder. Id. at 43-46. Trial counsel testified about the multiple
concerns he shared with Appellant about testifying and stated that the
ultimate decision not to testify was Appellant’s. Id. at 93-97, 101-04, 116-
18,120-23.
Appellant testified that he was high on heroin when he waived his jury
trial and proceeded to a waiver trial that same day. Id. at 21-24. Appellant
described a conversation between him and counsel on the day of trial that
evinced counsel knew he was “on drugs,” but Appellant was uncertain if he
specifically stated that he was on heroin. Id. at 21-24, 34-36. Counsel
refuted this testimony by maintaining that if he suspected Appellant was
under the influence and could not understand the proceedings, he would not
have allowed the trial to move forward. Id. at 84-91. Further, counsel
observed that Appellant was able understand and appropriately respond to
the questions posed to him by counsel and by the trial court. Id. at 118-20.
The PCRA court held the matter under advisement, and in November
of 2015, the court dismissed Appellant’s petition by order and opinion. In
the opinion, the PCRA court analyzed the “completely contradictory”
testimony of Appellant and counsel and found trial counsel wholly credible
while it found the Appellant incredible. PCRA Court Opinion, 11/23/15, at
12-13. Appellant timely appealed and filed a court-ordered Pa.R.A.P.
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1925(b) statement. In February of 2016, the trial court issued an opinion
incorporating its prior opinion.
Appellant presents the following questions for our review:
1. Did the lower [c]ourt err when it refused to grant
[Appellant] nunc pro tunc relief when extraordinary
circumstances involving a [breakdown] in the administrative and
judicial process interfered with [Appellant’s] ability to
communicate with his attorney and file a timely appeal?
2. Did the PCRA court err by not reinstating [Appellant’s]
appellate rights nunc pro tunc when trial counsel failed to file a
timely direct appeal as directed?
3. Was trial counsel ineffective when he interfered with
[Appellant’s] right to testify?
4. Was trial counsel ineffective when he allowed [Appellant] to
enter an [unknowing] and [involuntary] waiver [of] his right to a
jury trial while he was under the influence of a controlled
substance?
Appellant’s Brief at 3.
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,
995 A.2d 1184, 1189 (Pa. Super. 2010)).
Allowance of appeal nunc pro tunc is within the sound discretion of the
trial court, and our standard of review of a decision of whether to permit an
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appeal nunc pro tunc is limited to a determination of whether the trial court
has abused its discretion or committed an error of law. Commonwealth v.
Yohe, 641 A.2d 1210, 1211 (Pa. Super. 1994) (quoting Commonwealth v.
Nicholas, 592 A.2d 98, 99 n.3 (Pa. Super. 1991), appeal denied, 602 A.2d
858 (Pa. 1992)). The remedy of a nunc pro tunc appeal is intended to
vindicate the appellant's right to appeal in certain extraordinary situations
where that right to appeal has been lost. Commonwealth v. Stock, 679
A.2d 760, (Pa. 1996).
In his first issue, Appellant contends that the trial court should have
granted his right to appeal nunc pro tunc where a breakdown in
communication between him, trial counsel, and the trial court constituted
extraordinary circumstances. Appellant’s Brief at 16-22. We disagree.
As an initial matter, we note that this claim is not properly preserved
for our review, as it was not included in Appellant’s PCRA petition.
Accordingly we deem Appellant’s first issue waived. Commonwealth v.
Keefer, 367 A.2d 1082, 1086 (Pa. 1976); see also Pa.R.A.P.. 302(a)
(issues not raised in the lower court are waived and cannot be raised for the
first time on appeal). Nevertheless, to the extent that testimony at the
evidentiary hearing implied this issue to some extent, we note that the PCRA
court found Appellant’s evidence pertaining to a breakdown in
communication between the Appellant, trial counsel and the PCRA court not
credible. PCRA Court Opinion 12-13. As such, we conclude this claim is
without merit.
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Appellant next claims that the PCRA court erred by not reinstating his
appellate rights when trial counsel failed to file a timely direct appeal as
requested. Appellant’s Brief at 22-25.
We presume counsel is effective. Commonwealth v. Washington,
927 A.2d 586, 594 (Pa. 2007). To overcome the presumption and establish
ineffective assistance of counsel, a PCRA petitioner must prove, by a
preponderance of the evidence: “(1) the underlying legal issue has arguable
merit; (2) counsel’s actions lacked an objective reasonable basis; and (3)
actual prejudice befell the petitioner from counsel’s act or omission.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations
omitted). “A petitioner establishes prejudice when he demonstrates that
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. A claim
will be denied of the petitioner fails to meet any one of these requirements.
Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)
(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). The
unjustified failure to file a requested direct appeal is ineffective assistance of
counsel per se, and an appellant need not show that he likely would have
succeeded on appeal in order to meet the prejudice prong of the test for
ineffectiveness. Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super.
2006).
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At the evidentiary hearing, Appellant submitted documents and
testified in an attempt to establish that he requested that trial counsel file an
appeal and trial counsel failed to do so.3 The PCRA court determined that
Appellant was not entitled to nunc pro tunc appeal because his exhibits and
testimony were not credible:
[W]e only consider whether evidence presented at [Appellant’s]
PCRA hearing was sufficient to prove that he requested an
appeal and Mr. Haag failed to act upon that request. The
relevant testimony of [Appellant] and Mr. Haag relating to the
issue of a request for a direct appeal are completely
contradictory. According to [Appellant], he told Mr. Haag that he
could serve his sentence “standing on [his] head” and then
allegedly said[,] “let’s get the appeal. My sentence will be done
by the time the appeal goes through, and if I lose the appeal,
the time will be done.” Mr. Haag, on the other hand, related to
this [c]ourt that when he visited [Appellant] at the prison after
his conviction [Appellant] told him “he did not want to file an
appeal at that time, that he could do the amount of time he had
standing on his head.” We also noted that Mr. Haag testified
that [Appellant] was concerned about the effect this conviction
would have on the parole or probation he was serving from a
prior conviction.
In the instant matter, this [c]ourt as fact-finder found Mr. Haag,
who is a reputable and experienced Public Defender and an
officer of the court, to be wholly credible. We found completely
credible Mr. Haag’s assertion that he had consulted with the
[Appellant] after the Motion for Reconsideration was denied, and
that [Appellant] indicated at that time that he did not want to
pursue an appeal.
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3
Appellant testified that he sent three, interoffice green slips to trial counsel
and a letter in an attempt to have counsel perfect his appeal. N.T.,
10/23/15, at 53-59, 62-69, 74-79; see also Appellant’s PCRA Exhibits P1-
P4. Appellant had no proof that any of these items were sent via the
interoffice process or mailed. Id. at 53-54, 69, 74-77.
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On the other hand, we did not find [Appellant’s] testimony
credible. We found [Appellant’s] assertions that he had
consistently requested Mr. Haag to file a direct appeal to be
incredible, unsupported by the circumstances, and most likely
improperly motivated by his concerns about the effects on the
sentence he received from a prior conviction, particularly after
having been provided with the opportunity to reflect on his
situation while incarcerated after his conviction in this matter.
We also observed that while [Appellant] recalled with some
clarity that he had advised defense counsel that he could serve
his sentence “standing on his head” while allegedly requesting a
direct appeal, he could not recall with any specificity how
defense counsel responded to that request.
PCRA Court Opinion at 12-13.
Our review of the record, including Appellant's PCRA petition, the
evidentiary hearing and exhibits, supports the PCRA court's conclusion that
Appellant has failed to establish the he requested trial counsel to file a direct
appeal. The PCRA court credited the testimony of Mr. Haag over the
testimony and evidence presented by Appellant at the hearing. N.T.,
10/23/15, 104-24 (Mr. Haag’s testimony). Absent an abuse of discretion,
we cannot disturb this determination. See Commonwealth v. Battle, 883
A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility determinations
are solely within the province of the PCRA court). Accordingly, we discern
no error.
In his third claim, Appellant baldly claims trial counsel rendered
ineffective assistance by interfering with his right to testify. Appellant’s Brief
at 25-27. The PCRA court concluded that Appellant failed to meet his
burden under Johnson, supra, because he could not establish that
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counsel’s actions lacked a reasonable basis. PCRA Court Opinion, 14-16.
We agree with this analysis. The PCRA court reasoned:
Mr. Haag’s advice [that Appellant not testify] was reasonably
based upon [Mr. Haag’s] attempts to suppress or preclude
additional evidence which related to the return of stolen
merchandise to a completely different store for monetary refund
and [Appellant’s] prior criminal history.
The admission of [this evidence] had the obvious potential to
further prejudicially affect the perception of [Appellant’s]
innocence or guilt.
PCRA Court Opinion at 14-26.
Had Appellant declined counsel’s advice and testified, he would have
been subject to cross-examination on incriminating evidence possessed by
the Commonwealth which trial counsel had successfully suppressed as
hearsay. N.T., 7/8/13, at 46-49; N.T., 10/23/15, at 93, 121-22. Thus,
based on our review, the findings of the PCRA court are supported by the
evidence of record, namely, the suppressed evidence and Appellant’s
criminal record. N.T., 7/8/13, at 46-49; N.T., 10/23/15, at 73, 117-18.
This claim is without merit. See Springer, 961 A.2d at 1267.
Finally, Appellant avers he was under the influence of a controlled
substance when he waived his right to a jury trial, which rendered the
waiver unknowing and involuntary. Appellant’s Brief at 27-30. Appellant
further asserts trial counsel knew he was intoxicated and counsel’s actions in
allowing the bench trial to commence evinced ineffective assistance. Id.
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The Pennsylvania Rules of Criminal Procedure provide in pertinent
part:
In all cases, the defendant and the attorney for the
Commonwealth may waive a jury trial with approval by a judge
of the court in which the case is pending, and elect to have the
judge try the case without a jury. The judge shall ascertain from
the defendant whether this is a knowing and intelligent waiver,
and such colloquy shall appear on the record. The waiver shall
be in writing, made a part of the record, and signed by the
defendant, the attorney for the Commonwealth, the judge, and
the defendant's attorney as a witness.
Pa. R. Crim. P. 620.
In addressing Appellant’s final issue, the PCRA court outlined the
waiver colloquy conducted with the Appellant at the waiver trial, shared its
own recollection of Appellant’s appropriate responses, and referenced the
testimony of counsel. PCRA Court Opinion at 16-20. Here, the PCRA court
determined that Appellant’s claim was meritless based on the
aforementioned evidence and its own credibility determinations. We may
not disturb this finding, as it is supported by the record. See N.T., 7/8/13,
4-6; N.T., 10/23/15, 87, 118-20.
For the above reasons, we discern no error in the PCRA court's
decision to dismiss Appellant’s petition. Appellant’s claims are without merit.
He is entitled to no relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/3/2016
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