J-S67003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 401 EDA 2016
KEVIN PICKARD
Appeal from the PCRA Order January 29, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013277-2010,
CP-51-CR-0013279-2010, CP-51-CR-0013280-2010
BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 25, 2017
The Commonwealth appeals from the Order entered in the Court of
Common Pleas of Philadelphia County on January 29, 2016, granting Appellee
Kevin Pickard’s Petition filed pursuant to the Post Conviction Relief Act
(PCRA).1 Following a careful review, we affirm.
The PCRA court set forth the relevant facts and procedural history herein
as follows:
On October 7, 2010, [Appellee] was arrested and charged
under three separate Bills of Information,1 with inter-alia; 1) three
counts of Attempted Murder, pursuant to 18 Pa.C.S.A. §2502; 2)
three counts of Aggravated Assault, pursuant to 18 Pa. C.S.A.
§3502(a); and 3) one count of Possession of an Instrument of a
Crime (PIC) with intent pursuant to 18 Pa.C.S.A. 907(a). On June
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1 42 Pa.C.S.A. §§ 9541-9546.
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* Former Justice specially assigned to the Superior Court.
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25 2012, [Appellee], at the conclusion of his jury trial before the
Honorable Lisette Sheridan-Harris, J., was found guilty on all three
charges of Aggravated Assault and the charge of PIC. Judge
Sheridan-Harris, in light of the jury's being unable to reach a
decision, declared a mistrial on all three counts of Attempted
Murder.
On August 10, 2012, Judge Sheridan-Harris imposed
concurrent sentences of five to ten years[’] confinement in a state
correctional facility, on each of the three Aggravated Assault
charges, followed by four concurrent periods of probation of five
years, on each of the Aggravated Assault charges as well as the
PIC charge, to be served consecutively to his period of
confinement, resulting in an aggregate sentence of five to ten
years[’] confinement, followed by five years of probation.
On August 16, 2012, the Commonwealth filed a post
sentence motion seeking reconsideration of [Appellee’s]
sentences. On August 17, 2012, Judge Sheridan-Harris, after a
hearing, vacated [Appellant’s] sentences and imposed a new
sentence of consecutive periods of confinement of five to ten years
on each of the Aggravated Assault charges, as well as a
consecutive period of confinement of two to four years on the PIC
charge, for an aggregate sentence of seventeen to thirty[-]four
years[’] confinement.
On August 23, 2012, [Appellee] filed a pro se memorandum
of law which appears to have been treated by Judge Sheridan-
Harris as a post sentence motion seeking a new trial. On
September 18, 2012, Judge Sheridan-Harris, advising [Appellee]
of his appellate rights, entered an Order denying post trial motion
without a hearing. [Appellee] did not pursue a direct appeal.
On November 15, 2012, [Appellee] timely filed the instant
a [sic] pro se PCRA Petition pursuant to 42 Pa.C.S.A. §9541, et.
Seq. alleging ineffective assistance of counsel. On March 7, 2014,
Todd Michael Mosser, Esq., was appointed as counsel to represent
[Appellee] for the purposes of his PCRA Petition. On October 15,
2015, Mr. Mosser filed an amended PCRA petition on [Appellee’s]
behalf, alleging ineffective assistance of counsel in seeking
reinstatement of [Appellee’s] appellate rights, as well as
reinstatement of his right to file post sentence motions nunc pro
tunc. On July 30, 2015, the Commonwealth filed a motion to
dismiss [Appellee’s] PCRA petition. On October 9, 2015, after a
hearing, the Court issued its notice, pursuant to Rule 907 of the
Pennsylvania Rules of Criminal Procedure (Pa. R. Crim. P.),
advising [c]ounsel and [Appellee] that it intended to dismiss
[Appellee’s] petition within twenty days of issuance. On November
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23, 2015, [Appellee’s] counsel filed "Counsel's Response to Rule
907 Notice," objecting to the dismissal of [Appellee’s] PCRA
petition. On January 29, 2016, after a hearing, the [c]ourt
reinstated [Appellee’s] appellate rights as well as his right to file
post sentence motions nunc pro tunc.
On February 3, 2016, the Commonwealth filed the instant
interlocutory appeal to the Superior Court of Pennsylvania,
contemporaneously filing its Statement of Errors Complained of
on Appeal Pursuant to PA.R.A.P. 1925(b).[2]
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[1] CP-51-CR-0013277-2010; CP-51-CR-0013279-2010 and CP-
51-CR-0013280-2010.
Trial Court Opinion, filed 9/28/16, at 1-3.
The Commonwealth presents a single question for this Court’s review:
Did the lower court err when, in contravention of Supreme
Court precedent, it ruled that [Appellee] was not required to prove
actual prejudice in support of his claim that trial counsel provided
ineffective assistance by not filing a post-sentence motion?3
Commonwealth’s Brief at 3.
The Commonwealth maintains Appellee “did not even attempt to prove”
that trial counsel’s failure to file a post-sentence motion actually prejudiced
him which was a critical element of his ineffectiveness claim under our
Supreme Court’s decision in Commonwealth v. Reaves 592 Pa. 134, 923
A.2d 1119 (2007). Commonwealth’s Brief at 8. The Commonwealth urges
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2 Although the PCRA court characterizes the instant appeal as interlocutory,
an appeal from an Order granting a PCRA petition constitutes a final order for
purposes of appeal. Pa.R.Crim.P. 910; Commonwealth v. Bryant, 566 Pa.
307, 310, 780 A.2d 646, 648 (2000).
3 The Commonwealth does not challenge the PCRA court’s January 29, 2016,
Order to the extent it authorizes Appellant to file a direct appeal nunc pro
tunc. See Commonwealth’s Brief at 7, n. 1.
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this Court to reverse the PCRA court’s Order to the extent it authorizes
Appellee to file a post-sentence motion nunc pro tunc and maintains that
decision was an abuse of discretion. Id. at 17.
In analyzing the Commonwealth's argument, we are guided by a well-
settled standard of review.
When reviewing an order granting PCRA relief, we must determine
whether the decision of the PCRA court is supported by the
evidence of record and is free of legal error. Moreover, we will not
disturb the findings of the PCRA court unless those findings have
no support in the certified record.
Commonwealth v. Rivera, 154 A.3d 370, 377 (Pa.Super. 2017), appeal
denied, 2017 WL 3188983 (Pa. July 27, 2017) (quotations and citation
omitted).
With respect to a claim trial counsel was ineffective for failing to file
post-sentence motions, we observe that in Reaves our Supreme Court
explained that while there are some limited situations in which a defendant
who alleges counsel had been ineffective need not prove prejudice to obtain
relief, the failure to file post-sentence motions is not one of them. Reaves at
149-150, 923 A.2d at 1128–1129. Therein, the Court determined the
defendant “failed to prove Strickland[4]/Pierce[5] prejudice, that is, he failed
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4Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984).
5 Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
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to rebut the presumption of effectiveness by showing ‘that there is a
reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.’” Reaves, 592 Pa. at 154, 923
A.2d at 1131 (citation omitted) see also Commonwealth v. Liston, 602 Pa.
10, 977 A.2d 1089 (2009). Where prejudice cannot be presumed, the
defendant must plead and prove actual prejudice under Strickland by
showing that both his “counsel's performance was deficient” and that the
“deficient performance prejudiced the defense.” Reaves, 592 Pa. at 147, 923
A.2d at 1127 (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2068).
In Liston, our Supreme Court further held that a defendant who is
granted the right to file a direct appeal nunc pro tunc is not automatically
entitled to file post-sentence motions nunc pro tunc. Nevertheless, the Court
recognized that reinstatement of a defendant's right to file post-sentence
motions is warranted in some cases:
Our holding should not be construed as prohibiting a PCRA court
from reinstating a defendant's right to file post-sentence motions
nunc pro tunc. If a defendant successfully pleads and proves that
he was deprived of the right to file and litigate said motions as a
result of the ineffective assistance of counsel, a PCRA court is free
to grant such relief. Presumably, since post-sentence motions are
optional, see Pa.R.Crim.P. 720(B), rarely will counsel be
deemed to have been ineffective for failing to file them
except, for example, when the claim involves the
discretionary aspects of sentence or a challenge to a verdict
on weight of the evidence grounds, claims which must be
raised in the trial court to be preserved for purposes of
appellate review.
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Id. at 19 n. 9, 977 A.2d at 1095 n. 9 (emphasis added). In interpreting
Liston, a panel of this Court explained that a PCRA petitioner may not be
granted reinstatement of his post-sentence motion rights “if he has not
requested such relief with the PCRA court, and if the court did not hold an
evidentiary hearing on that issue.” Commonwealth v. Fransen, 986 A.2d
154, 155 (Pa.Super. 2009).
Herein, contrary to the Commonwealth’s characterization of the PCRA
court’s holding as not requiring proof of actual prejudice and although the
PCRA court did express its confusion as to why different standards apply to a
determination of whether post-sentence motions and/or a direct appeal may
be filed nunc pro tunc, the PCRA court did acknowledge that in light of our
Supreme Court’s holding in Liston one’s right to file post-sentence motions
nunc pro tunc is not automatic even where the PCRA court grants a petitioner
the right to file a direct appeal nunc pro tunc. The court, nevertheless,
determined Appellee properly had met his burden of establishing trial
counsel’s ineffectiveness prevented him from exercising his right to file and
litigate a post-sentence motion which prejudiced him pursuing the sentencing
challenge he now raises. Specifically, the trial court reasoned as follows:
In seeking PCRA relief, [Appellee] has properly preserved
his right to seek reinstatement of his right to file post-sentence
motions nunc pro tunc, by pleading that trial counsel was
ineffective in failing to follow his direction "to file a post sentence
motion challenging the sentence," immediately after his original
sentence was vacated and a new harsher sentence was imposed.
At the hearing held on January 29, 2016, to consider his PCRA
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petition, [Appellee] met his burden of establishing that "he was
deprived of his right to file and litigate post-sentence motions as
a result of counsel's ineffectiveness." [Appellee] testified that two
days after his new sentence was imposed, he met with trial
counsel and requested him to file a post sentence motion to
preserve his right to appeal the discretionary aspects of his
sentence. (N.T., 1/29/16, pgs. 24, 25)
Trial Counsel, W. Fred Harrison, Jr., Esq., testified, that he
had no independent recollection of meeting with [Appellee] or
discussing the filing of post sentence motions after the re-
imposition of [Appellee’s] sentence. (N.T., 1/29/16, pgs. 16, 19,
23) He also testified [Appellee] was "very disappointed in the new
sentence" and that the trial [c]ourt may have been influenced to
impose a harsher sentence by the large turnout of the "police
department" and "community activists" at the resentencing
hearing. (N.T., 1/29/16, pgs. 16-18)
Since there is no evidence that trial counsel objected to the
imposition of the harsher sentence at the time it was imposed,
[Appellee’s] only recourse to preserve this sentencing issue for
appeal was to file a post sentence motion pursuant the
Pennsylvania Rules of Criminal Procedure, Rule 720. In reinstating
[Appellee’s] right to file post-sentence motions nunc pro tunc, the
[c]ourt stated for the record: "I'm finding that ... his rights were,
he was frustrated by his privately retained lawyer not pursuing his
request for review of his sentence. I'm allowing him to file direct
appeal nunc pro tunc as well as post-sentence motions nunc pro
tunc. (N.T., 1/29/16, pgs. 33, 34) "I accept defense counsel's
representation with regard to the case law, and in addition, it
never made any sense to me that there would be any different
standard in a post-sentence then [sic] on a direct appeal. And, at
the heart of all of it, is he has the right and the right must be
carried out by his lawyer especially in this case. What he's really
upset about is the sentence. In order to get that sentence on direct
appeal, he has to file a post-sentence motion." (N.T., 1/29/16,
pgs. 34, 35).
PCRA Court Opinion, filed 1/28/16, at 4-5. We find support in the certified
record for the PCRA court’s holding that trial counsel had been ineffective for
depriving Appellee of the opportunity to litigate post-sentence motions and
that Appellee had been prejudiced thereby as well as for its concomitant
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granting of Appellee’s request for nunc pro tunc relief to file both post-
sentence motions and a direct appeal.
Consistent with Liston and Fransen, supra, Appellee properly pled in
his counselled, amended PCRA petition that trial counsel had deprived him of
the opportunity to litigate a post-sentence motion challenging his sentence
and that counsel had no reasonable basis for doing so. The Commonwealth
ignores the fact that in the petition, as well as in the proposed order attached
thereto, Appellee requested the ability to file both a post-sentence motion and
a direct appeal nunc pro tunc. See Amended Petition for Relief Under the Post
Conviction Relief Act (“PCRA”), filed October 15,2014, at 3-4; Petitioner’s
Memorandum of Law in Support of Amended PCRA Petition, at 6. The
Commonwealth also fails to acknowledge that even prior to this filing, as the
PCRA court recognized, Appellee filed a pro se memorandum seeking a new
trial on August 23, 2012, which the trial court treated as a post sentence
motion and denied without a hearing on September 18, 2012. Also, in his
initial PCRA petition filed pro se on November 15, 2012, Appellee challenged
trial counsel’s effectiveness.
Furthermore, at the PCRA hearing held on January 29, 2016, Appellee
testified as follows:
Q. Okay. And when [trial counsel] visited you, what did you tell
him about that re-sentence?
A. He asked me how do I feel. I told him I wasn’t happy. And
I asked him what can we do to appeal the sentence, and his exact
words to me were that it wasn’t a good idea because it goes in
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front of the same judge and he didn’t object to anything in the
sentence or in the trial itself.
Q. So did you ask him to file a motion?
A. I did ask him to file a motion.
Q. He told you he wouldn’t do it?
A. His exact words to me was it wasn’t nothing to appeal
because it was going to go in front of the same judge.
…
Q. Okay. Was the reason that you asked him to file a motion
to reconsider the sentence so that you could appeal the sentence?
[Counsel]: Objection.
[Appellee]: Yes.
[Counsel]: Leading the witness.
The Court: Overruled.
Q. What was your answer?
A. Yes.
N.T. PCRA Hearing, 1/29/16, at 24-26.
Trial counsel acknowledged at the PCRA hearing that Appellee was “very
disappointed in the new sentence,” admitted he could not recall whether
Appellee had requested that he file post-sentence motions on Appellee’s
behalf, and expressed he was concerned at the time that Appellee could not
continue to pay his fees were counsel to take further action. Id. at 16, 19-
20. Importantly, when asked what he told Appellee “needed to be done”
following the resentencing hearing held on August 17, 2012, counsel replied:
“I said if [he] wanted to do anything or if [he] wanted to file anything, [he]
should ask the [c]ourt to have counsel appointed.” When further questioned
as to whether he had ever withdrawn from the case, counsel replied “No.” Id.
at 20.
The sole issue Appellee raised in his PCRA petition presented a
challenge to the discretionary aspects of his sentence. It is well-established
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that such a claim is considered a petition for permission to appeal which must
be presented initially to the trial court either at the sentencing hearing or in a
timely-filed post-sentence motion, and absent such efforts, one waives a
challenge to the discretionary aspects of his sentence. Commonwealth v.
McAfee, 849 A.2d 270, 274-75 (Pa.Super. 2004), appeal denied, 580 Pa. 695,
860 A.2d 122 (2004). Pennsylvania Rule of Criminal Procedure 120 provides
that “[c]ounsel for a defendant may not withdraw his or her appearance
except by leave of court.” Pa.R.Crim.P. 120(B)(1). Rule 120 further provides
that a motion to withdraw shall be filed either with the clerk of court with
copies served on the attorney for the Commonwealth and the defendant or
made orally on the record in open court in the presence of the defendant.
Pa.R.Crim.P. 120(B)(2). After counsel is granted leave to withdraw, the court
must determine whether new counsel is entering an appearance, new counsel
is being appointed to represent the defendant, or the defendant is proceeding
without counsel. Pa.R.Crim.P. 120(B)(3). As such, trial counsel’s advice to
Appellee to seek the appointment of new counsel was hampered by counsel’s
own failure to seek to withdraw and left Appellee with no means by which to
preserve a challenge to the discretionary aspects of his sentence, for in this
Commonwealth hybrid representation is not permitted. Commonwealth v.
Williams, 151 A.3d 621, 623 (Pa.Super. 2016) (stating pro se motions have
no legal or tolling effect and, therefore, are legal nullities).
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In light of the foregoing and cognizant of our standard of review, we find
the certified record evinces that Appellee requested trial counsel to file a
motion for reconsideration of his sentence and that counsel failed either to do
so or to seek to withdraw as counsel. Appellee also demonstrated at an
evidentiary hearing that he expressed great disappointment following the
resentencing hearing on August 17, 2012, and asked counsel to file post-
sentence motions, that counsel’s monetary concerns may have factored into
his decision not to do so, and that Appellee was prejudiced as a result, for
absent the filing of a post-sentence motion his challenge to the discretionary
aspects of his sentence was waived. Therefore, the restoration of Appellee’s
direct appeal rights nunc pro tunc without a restoration of his post-sentence
rights nunc pro tunc, as requested, would have been inconsequential.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2017
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