Com. v. Roucroft, F.

Court: Superior Court of Pennsylvania
Date filed: 2022-03-18
Citations:
Copy Citations
Click to Find Citing Cases
Combined Opinion
J-S02043-22


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANK ROUCROFT                             :
                                               :
                       Appellant               :   No. 1734 EDA 2021

             Appeal from the PCRA Order Entered August 11, 2021
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0001729-2018


BEFORE: OLSON, J., KING, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.:                            FILED MARCH 18, 2022

       Frank Roucroft (Appellant) appeals from the order entered on August

11, 2021, in the Montgomery County Court of Common Pleas, dismissing his

petition for collateral relief filed under the Post Conviction Relief Act (PCRA).1

Appellant seeks relief from the judgment of sentence of 4½ to 10 years’

incarceration, imposed on October 31, 2019, after the trial court convicted

him of possession with intent to deliver controlled substances (PWID), criminal

use of a communication facility, and conspiracy.2 Appellant’s court-appointed

counsel, Robert L. Adshead, Esquire (PCRA counsel), has filed a petition to

withdraw from representation and a brief pursuant to Anders v. California,

____________________________________________


1   42 Pa.C.S. §§ 9541-9546.

2   35 P.S. § 780-113(a)(30), and 18 Pa.C.S. §§ 7512(a) and 903, respectively.
J-S02043-22


386 U.S. 738 (1967), and Commonwealth v. McClendon, 434 A.2d 1185

(Pa. 1981), abrogated, Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009).3 We grant PCRA counsel’s petition to withdraw, and affirm the order

dismissing Appellant’s petition.

       A recitation of the underlying facts is not necessary to our disposition.

Briefly, on August 30, 2019, at the conclusion of a bench trial, the court found

Appellant guilty of the above-stated crimes. On October 31, 2019, the court

then sentenced Appellant to an aggregate term of 4½ to 10 years’

imprisonment. Appellant did not file a post-sentence motion or direct appeal.

       In September 2020, Appellant filed a pro se PCRA petition, and the court

subsequently appointed PCRA counsel. Although not indicated on the docket,

PCRA counsel filed a no-merit letter, dated June 23, 2021, pursuant to

Turner/Finley. See PCRA Ct. Op., 10/19/21, at 2. After the PCRA court

conducted an independent review of the record, it held a hearing on August

10, 2021, to address the “sole issue of whether trial counsel was ineffective

for in failing to file and/or consult with Appellant regarding a direct appeal.”

Id.


____________________________________________


3  Preliminarily, we note that PCRA counsel erroneously seeks to withdraw
under Anders, supra, instead of the proper procedure espoused in
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Generally, we accept
an Anders brief in lieu of a Turner/Finley letter because an Anders brief
provides greater protection to the defendant. See Commonwealth v.
Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).


                                           -2-
J-S02043-22


      At the evidentiary hearing, PCRA counsel presented the testimony of

trial counsel, Sean Cullen, Esquire (Attorney Cullen or trial counsel), and that

of Appellant, which was summarized by the court as follows:

             Attorney Cullen, an experienced criminal defense attorney,
      has been licensed as an attorney since 1997. He worked in the
      Montgomery County District Attorney’s Office, first as an intern,
      and later he was sworn in as an Assistant District Attorney in,
      1998. There he prosecuted about 2,500 criminal cases and rose
      to the chief of the narcotics unit. After leaving the District
      Attorney’s Office in 2004, he worked for a law firm concentrating
      on criminal defense. He went on to establish his own firm in 2007,
      where he currently practices criminal law, and is also Of Counsel
      for criminal matters for another law firm. He estimated that he
      has represented thousands of clients that were charged with Drug
      Act felonies.

             Several years ago, Attorney Cullen was court-appointed to
      represent Appellant regarding a possession with intent to deliver
      charge. Attorney Cullen met with Appellant several times prior to
      trial, and ultimately Appellant elected to proceed with a non-jury
      trial. Attorney Cullen verified that Appellant was found guilty at
      the trial. He recalled that sentencing was held on October 31,
      2019, and that he advised Appellant of his post-sentence rights.
      In fact, Attorney Cullen had a specific recollection of advising
      Appellant of his right to file a post-sentence motion and of his right
      to file an appeal and the time limits in which to do so. Attorney
      Cullen explained that he advised Appellant twice, once in the
      courtroom before he left and then when he went to see Appellant
      at the correctional facility.

            In a letter dated November 5, 2019, from Attorney Cullen
      addressed to Appellant, he memorialized the meeting at the
      correctional facility he had with Appellant on that date. The
      meeting was only five days from the date Appellant was
      sentenced, well within the appeal period. At that meeting,
      Attorney Cullen brought with him the standard appeal rights form
      and went over Appellant’s case with him. He took time to explain
      any possible issues that might exist for appeal. It was Attorney
      Cullen’s professional opinion that the Commonwealth tried the
      case in a way to avoid potential appellate issues, and that the case
      was “very tight” from a prosecution standpoint. Attorney Cullen

                                      -3-
J-S02043-22


     told this Court that it was ultimately Appellant’s decision not to
     appeal.    Attorney Cullen categorically denied that Appellant
     directed him to file an appeal. Rather, Appellant told him not to.

           The next time Attorney Cullen heard from Appellant was by
     way of a letter he received in his office on June 17, 2020. Therein,
     Appellant for the first time requested that Attorney Cullen file an
     appeal or a PCRA. The envelope from the letter was post-marked
     June 15, 2020. Attorney Cullen responded to Appellant’s letter
     several days later, on June 22, 2020, explaining that the appeal
     period has run, and that if he wanted to file a PCRA, he could not
     represent him with that petition.

           Next, Appellant testified. Appellant recalled meeting with
     Attorney Cullen at the prison on November 5, 2019, and that they
     spoke about the case and the appeal. When asked whether he
     specifically told Attorney Cullen to file a direct appeal, Appellant
     stated as follows:

        Yes. I ─ yeah, that date and the date I got sentenced. I
        signed all these papers and initialed all these papers that I
        said, What are they for? He said for the appeal. So I just -
        ─ when he came to see me, I thought he already, you know,
        started the appeal.

     Appellant did not remember receiving the November 5, 2019
     letter, memorializing his decision not to proceed with an appeal.
     Appellant reaffirmed that he told Attorney Cullen on the date he
     was sentenced and shortly after he was sentencing that he wanted
     to file an appeal.

PCRA Ct. Op. at 2-4 (record citations omitted).

     At the conclusion of the hearing, the court made the following findings:

     I find that Attorney Cullen did testify truthfully and accurately. I
     find his testimony is credible and worthy of belief and I do credit
     it. On the other hand, [Appellant]’s testimony was somewhat
     inconsistent. His memory was not great on some of the issues. I
     further note that the post-sentence rights form was made part of
     the record. That does accurately contain the time limits and the
     post-sentence rights. I find [Appellant] did not prove that he’s
     worthy of any relief here and the petition is denied.


                                    -4-
J-S02043-22


N.T., 8/10/21, at 37.

       On August 11, 2021, the PCRA court entered an order dismissing

Appellant’s petition. This appeal followed.4 Subsequently, on November 8,

2021, PCRA counsel filed a petition to withdraw with this Court, attaching his

November 5, 2021, letter to Appellant, with notice to Appellant that he had

the right to proceed pro se or retain private counsel. Appellant did not file a

response.5

       On appeal, Appellant presents one challenge:

       Whether there is anything in the record that might arguably
       support an appeal to this honorable Court, including whether the
       [PCRA] court abused its discretion by concluding that trial counsel
       and PCRA witness [Attorney Cullen], was a credible witness and
       [Appellant] was not.

Anders Brief at 1.

       Before we may conduct any substantive analysis, we must examine

whether PCRA counsel has met the procedural requirements for withdrawing

as counsel.

             Counsel petitioning to withdraw from PCRA representation .
       . . must review the case zealously. [PCRA] counsel must then
____________________________________________


4 On September 9, 2021, Appellant timely complied with the PCRA court’s
directive to file a concise statement or errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). The court issued a Pa.R.A.P. 1925(a) opinion
on October 19, 2021.

5 Additionally, on December 3, 2021, the Commonwealth sent a letter to this
Court, indicating that it would not file a brief because it was in agreement with
PCRA counsel that there was no basis in either law or fact to support
Appellant’s appeal.


                                           -5-
J-S02043-22


      submit a “no-merit” letter to the trial court, or brief on appeal to
      this Court, detailing the nature and extent of counsel’s diligent
      review of the case, listing the issues which petitioner wants to
      have reviewed, explaining why and how those issues lack merit,
      and requesting permission to withdraw.

            Counsel must also send to the petitioner: (1) a copy of the
      “no merit” letter/brief; (2) a copy of counsel’s petition to
      withdraw; and (3) a statement advising petitioner of the right to
      proceed pro se or by new counsel.

             Where counsel submits a petition and no-merit letter that. .
      . satisfy the technical demands of Turner/Finley, the court —
      trial court or this Court — must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the claims
      are without merit, the court will permit counsel to withdraw and
      deny relief.

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation

omitted).

      Instantly, we conclude that PCRA counsel has substantially complied

with the requirements of Turner/Finley.          Specifically, PCRA counsel’s

Anders brief and petition to withdraw detail the nature and extent of his

review, address the issue raised at the PCRA hearing, and determine that the

claim lacked merit and was frivolous. PCRA counsel indicated that after his

own independent review of the record, he found “there [were] no issues of

arguable merit to be raised on appeal, other than issues which are wholly

frivolous.”   Anders Brief at 10.   In his letter to Appellant, PCRA counsel

indicated he sent Appellant his petition to withdraw, as well as his Anders

brief, and notified him that he had the right to retain private counsel or

proceed pro se. As counsel has complied with the technical requirements to


                                     -6-
J-S02043-22


withdraw his representation pursuant to Turner/Finley, we must now

conduct our independent review of the issues raised by counsel and determine

whether the issues lack merit. See Walters, 135 A.3d at 591.

      As mentioned above, Appellant complains that the PCRA court abused

its discretion because “it did not find Appellant’s testimony credible while, at

the same time, finding trial counsel’s testimony credible.” Anders Brief at 4.

Restated, Appellant is challenging the court’s credibility determinations

concerning trial counsel’s ineffectiveness for failing to file a direct appeal when

Appellant purportedly requested counsel to do so.

      Based on the nature of Appellant’s claim, we are guided by the following.

Our standard of review regarding the denial of PCRA relief calls for us to

determine whether the ruling of the PCRA court is supported by the record

and free of legal error. See Commonwealth v. Busanet, 54 A.3d 35, 45

(Pa. 2012). “Our scope of review is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most favorable to the party

who prevailed in the PCRA court proceeding.” Id.

      Moreover, “[a] PCRA court passes on witness credibility at PCRA

hearings, and its credibility determinations should be provided great deference

by reviewing courts. Indeed, one of the primary reasons PCRA hearings are

held in the first place is so that credibility determinations can be made[.]”

Commonwealth. v. Johnson, 966 A.2d 523, 539 (Pa. 2009) (citations




                                       -7-
J-S02043-22


omitted).   See also Commonwealth v. Flor, 259 A.3d 891, 910-11 (Pa.

2021).

      In the context of a collateral challenge based on ineffectiveness, counsel

is presumed to have been effective.      Commonwealth v. Sneed, 45 A.3d

1096, 1106 (Pa. 2012) (citation omitted). To overcome this presumption, a

petitioner is required to show: (1) the claim is of arguable merit; (2) counsel

lacked an objective, reasonable basis for their actions; and (3) prejudice

resulted from counsel’s deficient performance. Id. Failure to establish any of

the three prongs of this test is fatal to the claim.        Commonwealth v.

Koehler, 36 A.3d 121, 132 (Pa. 2012).

      Here, the PCRA court opined:

             In this case, this [c]ourt was in the best position to
      determine the credibility of both Attorney Cullen and that of
      Appellant, and did so, determining that Attorney Cullen credibly
      testified that he did advise Appellant of his right to file an appeal,
      and that Appellant directed him not to do so. Attorney Cullen’s
      testimony was supported by the November 5, 2019 letter, which
      memorialized his meeting with Appellant at the prison on that
      date, and Appellant’s determination not to go ahead with an
      appeal. Appellant remembered that Attorney Cullen came to visit
      him shortly after sentencing, despite not remembering whether
      he received the letter itself. Appellant seemed confused when
      testifying about what happened at the time of sentencing and his
      memory as to the events was not reliable. Therefore[,] his
      testimony that he directed Attorney Cullen to file an appeal was
      not credited. . . .

PCRA Ct. Op. at 6-7.

      We agree with the PCRA court’s sound reasoning. Appellant is basically

requesting that this Court usurp the role of the PCRA court and render our


                                      -8-
J-S02043-22


own credibility determinations that counsel failed to have constructive

conversations with Appellant about filing a direct appeal.         We are not

permitted to do so. See Johnson, supra. Our review of the certified record

confirms that the PCRA court’s findings and determinations are supported by

the evidence and, therefore, we must accept them.

      Indeed, trial counsel testified that he spoke to Appellant about his

appellate rights on two occasions. First, immediately following the October

31st sentencing, counsel advised Appellant about Appellant’s right to file post-

sentence motions and a direct appeal. See N.T., 8/10/21, at 12-13. The

second time occurred five days later, on November 5th, wherein counsel met

with Appellant at the correctional facility. See id. at 13-15. Counsel provided

Appellant with the standard appeal rights form and went over Appellant’s case

with him to explain the “ramifications” that he was facing. Id. at 15. Counsel

testified that the Commonwealth’s case was strong and that while he believed

Appellant “had the right to appeal, [counsel] explained and went through

every issue with him.” Id. Counsel stated that it was Appellant’s “decision

not to appeal.” Id. at 15-16. Counsel then memorialized his conversation

with Appellant in a letter that was dated the same day as the meeting. In

that letter, counsel also stated he “would have been more than happy to

provide parole services to prepare [Appellant] for parole” and that he wanted

Appellant “to stay in touch with [him] so that [Appellant] could do all the right

things to keep the sentence as short as possible.” Id. at 16. Counsel did aver


                                      -9-
J-S02043-22


that there was a scrivener’s error in the letter – noting he wrote that Appellant

should contact him “as soon as [Appellant received] information that [he was]

coming up for ‘appeal[.]’” Id. at 17. Counsel testified that it should have

stated “parole,” not appeal. Id.. Counsel averred that he did not receive a

response from Appellant regarding his November 5th letter until June 2020,

approximately seven months letter. See id. at 18-19.

      Appellant, also testifying at the evidentiary hearing, confirmed that he

spoke with trial counsel about his post-sentence and direct appeal rights and

that he signed certain documents after he was sentenced. See N.T., 8/10/21,

at 27, 29. Nevertheless, he testified that he thought those papers were for

the direct appeal. Id. at 29. He also stated that he thought he sent counsel

a letter asking if counsel filed “an appeal for [him] or a PCRA” but could not

produce any documentation reflecting his request. Id. at 31-32.

      Based on the record before us, it is clear the PCRA court was free to

reject Appellant’s claim. Appellant presented no substantiated explanation of

when he allegedly requested that trial counsel file a direct appeal, and counsel

both testified and produced documentation demonstrating Appellant’s direct

appeal rights were made known to him and he made the decision not to

appeal. We reiterate that the PCRA court’s credibility determinations should

be provided great deference by reviewing courts. See Johnson, 966 A.2d at

539. Accordingly, Appellant’s sole argument on appeal is unavailing.




                                     - 10 -
J-S02043-22


      Lastly, after conducting our independent review, we are in agreement

with PCRA counsel that there is no basis for relief in the present case. See

Walters, 135 A.3d at 591. Accordingly, we affirm the PCRA court’s dismissal

of Appellant’s petition, and we grant counsel’s petition to withdraw.

      Order affirmed. PCRA Counsel’s Petition for Leave to Withdraw granted.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2022




                                    - 11 -