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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERIC ROMONT HOGAN
Appellant No. 487 MDA 2015
Appeal from the PCRA Order February 20, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003847-2010
BEFORE: BOWES, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 04, 2016
Eric Romont Hogan appeals, pro se, from the order of the Court of
Common Pleas of Luzerne County that dismissed his petition filed pursuant
to the Post Conviction Relief Act.1 After careful review, we vacate and
remand.
At trial, the Commonwealth established that on November 1, 2010,
Hogan pounded on Donald Skiff’s front door. Skiff opened the door and
permitted Hogan to enter. Hogan, a stranger to Skiff, explained that he was
being chased. Believing that Hogan wanted help, Skiff dialed 911 from his
cell phone, which he handed to Hogan so that he could speak directly to the
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*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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operator. Skiff overheard Hogan tell the operator that four black males in a
red vehicle were chasing him and had fired shots. When the call ended,
Hogan handed the phone back to Skiff, pushed Skiff out of the way and ran
toward the kitchen. Skiff asked Hogan to leave his home. Hogan ran
through the kitchen and out the back door. Skiff, who was frightened,
followed and was going to lock the back door, but before he could, Hogan
came bursting back into the house and repeatedly hit Skiff in the face.
Following the 911 call, Officer Michael Derwin was dispatched to Skiff’s
residence. While standing on the front porch, he heard the rear door slam,
so he proceeded to the back of the house. He heard a cry for help and saw
Skiff on the kitchen floor with severe head injuries. Skiff described his
assailant as a bald black male wearing a hoodie. Officer Derwin called for an
ambulance and sent a description of the assailant over the radio.
Another officer took Hogan into custody and brought him back to the
scene, where Officer Derwin noted that Hogan’s left hand was swollen and
had blood on it. There was blood on his clothing. Once Hogan was taken to
the police station, his clothing was seized. At trial, the Commonwealth
presented the testimony of a forensic DNA scientist who testified that
bloodstains on Hogan’s sweatshirt matched the blood sample provided by
Skiff.
A jury convicted Hogan of burglary, aggravated assault and recklessly
endangering another person. On December 14, 2011, Hogan was sentenced
to an aggregate term of 11 to 22 years’ incarceration. This Court affirmed
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Hogan’s judgment of sentence on February 4, 2013. Commonwealth v.
Hogan, 68 A.3d 354 (Pa. Super. 2013) (unpublished memorandum).
In deciding Hogan’s direct appeal, this Court determined that Hogan
waived his challenges to the weight and sufficiency of the evidence. Hogan
failed to include the weight claim in his Pa.R.A.P. Rule 1925(b) statement of
errors complained of on appeal and failed to identify which element of
burglary was not supported by the evidence in the statement. Nevertheless,
the Court noted that even if Hogan had properly preserved the sufficiency
claim, the evidence at trial was adequate to establish burglary. The Court
was also precluded from reviewing Hogan’s challenge to the discretionary
aspects of his sentence because his brief failed to include a statement of the
reasons for allowance of appeal, as required by Pa.R.A.P. 2119(f), and the
Commonwealth specifically objected to this omission. See Commonwealth
v. Hudson, 820 A.2d 720, 727 (Pa. Super. 2003) (“[W]e may not reach the
merits of [the] claims where the Commonwealth has object[ed] to the
omission of the [Rule 2119(f)] statement.”).
Following this Court’s disposition of his direct appeal, Hogan did not
file a petition for allowance of appeal with our Supreme Court. On January
29, 2014, Hogan filed a pro se PCRA petition in which he asserted that
appellate counsel had been ineffective for failing to file a requested petition
for allowance of appeal in the Supreme Court and that trial counsel had been
ineffective for waiving challenges to the weight and sufficiency of the
evidence and the discretionary aspects of his sentence. Hogan also
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requested the appointment of counsel. On September 10, 2014, without
obtaining permission from the PCRA court, Hogan filed an amended PCRA
petition that included several additional claims.2
On September 19, 2014, the court appointed Jeffrey A. Yellen,
Esquire, to represent Hogan. Attorney Yellen filed a petition to withdraw as
counsel on January 8, 2015, to which he appended a Turner/Finley3 letter
that states in relevant part:
Defendant initially [raised] the issues of failure to preserve and
argue issues on appeal. As an appeal was filed, prejudice would
need to be shown by the Defendant. On those issues you will
note that the Superior Court decision indicates a waiver of the
sufficiency issue, it then goes on to say that even if pled, the
evidence was sufficient. Further, there is no merit in this case to
arguing that the discretionary aspects of the sentence should be
overturned, again despite the Superior Court’s dismissal of those
issues based on failure to properly raise the issues. While he
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2
While the amended petition contains several issues that are not cognizable
under the PCRA, we note that Hogan included the following claims of
ineffective assistance of counsel that could afford a petitioner relief if
properly pled and proven: failure to impeach the testimony of witness
Officer Michael Derwin; failure to file a pre-trial motion to suppress evidence
regarding items of Hogan’s clothing that the Commonwealth seized but then
lost; failure to impeach inconsistent testimony of Commonwealth witnesses;
failure to present a favorable plea bargain to the court, and instead advising
Hogan to proceed to trial; failure to file a petition for allowance of appeal
after Hogan requested that he do so; failure to file a motion to suppress an
altered criminal complaint; and failure to file a notice of possible alibi
defense. However, we note that a PCRA petitioner may not file an amended
petition without receiving court approval. Commonwealth v.
Baumhammers, 92 A.3d 708, 730 (Pa. 2014).
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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alleges a failure to appeal to the Supreme Court, I additionally
do not find merit on that issue. Thus, there is no merit to any
appeal issue he raised or I can think of, regardless of whether
they were preserved or raised correctly prior.
Upon meeting with Defendant, he further raised multiple other
issues. He raised issues of failure to give Miranda warnings,
and failure to appoint counsel quickly enough, but I could find no
prejudice or failure of counsel to address these issues.
He further raised the issue that Officer Derwin could not testify
that he saw what he thought was blood on Defendant’s
sweatshirt, because the Officer was not an expert. He raised the
issue that counsel had discussed a possible plea deal with
Defendant, and that Defendant then had a constitutional right to
a pre-trial conference at that point, which did not occur. He
indicated a desire to suppress the bloody clothing that had been
destroyed prior to trial. He indicated a belief that he should
personally have been given the right to ask questions of the
witnesses, despite having an attorney. He further raised the
Alleyne case, but indicated no application to his case other than
lack of understanding of minimum and maximum sentences.
Turner/Finley Letter, 1/8/15, at 1-2.
The court held a brief hearing on January 28, 2015, during which no
testimony was taken. After the proceeding, the court granted withdrawal,
and the PCRA petition was dismissed on February 20, 2015. Thereafter,
Hogan filed a timely pro se notice of appeal, and in response to an order
from the trial court, he filed a Rule 1925(b) statement of errors complained
of on appeal on May 4, 2015. The trial court filed its Rule 1925(a) opinion
on July 10, 2015.
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Hogan has filed an appellate brief that fails to comply with several
requirements of the Pennsylvania Rules of Appellate Procedure.4 The brief
lacks: (1) a table of contents, Pa.R.A.P. 2174(a); (2) a table of citations,
Pa.R.A.P. 2174(b); (3) the text of the order appealed from, Pa.R.A.P.
2115(a); (4) a statement of questions involved, Pa.R.A.P. 2116; (5) a
statement of the case, Pa.R.A.P. 2117; and (6) a summary of the argument,
Pa.R.A.P. 2118. Nevertheless, we are able to discern the following issues
that were raised either in Hogan’s first pro se PCRA petition or in counsel’s
Turner/Finley letter, and preserved in Hogan’s Rule 1925(b) statement and
in his brief:
1. Trial counsel was ineffective for failing to raise in a proper
manner a discretionary aspect of sentencing claim on appeal.
2. Trial counsel was ineffective for giving advice that led Hogan
to reject a plea offer of 48 to 96 months’ incarceration.
3. Trial counsel was ineffective for failing to investigate Miranda
violations.
4. Trial counsel was ineffective for failing to suppress all
proceedings that took place prior to the appointment of
counsel.
5. Trial counsel was ineffective for failing to seek to suppress
testimony about the clothing Hogan was wearing when he
was arrested because the police took the clothing and later
lost it.
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4
On March 23, 2016, Hogan also filed an application for relief entitled
“Application for, inter alia, remand to provide Appellant with the Complete
record,” which is denied.
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6. Trial counsel was ineffective for failing to object to Officer
Derwin testifying that he saw blood on Hogan’s hand and
clothing when he was not qualified as an expert on this topic.
7. Appellate counsel was ineffective for failing to file an
exhaustive Rule 1925(b) statement.
8. Appellate counsel was ineffective for failing to file an appeal
to the Pennsylvania Supreme Court when requested to do so.
9. Hogan is entitled to a new sentencing proceeding based on
Alleyne v. United States, 133 S.Ct. 2151 (2013).
To be eligible for relief under the PCRA, Hogan must prove by a
preponderance of the evidence that his conviction resulted from “ineffective
assistance of counsel which, in the circumstances of the particular case so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
“Counsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d
1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the
defendant must show that the underlying claim had arguable merit, counsel
had no reasonable basis for his or her action, and counsel’s action resulted
in prejudice to the defendant. Commonwealth v. Prince, 719 A.2d 1086,
1089 (Pa. Super. 1998).
Based upon our careful review, the eighth issue listed above is
dispositive. In that claim, which Hogan included in his pro se PCRA petition
and has preserved throughout this appeal, Hogan contends that appellate
counsel was ineffective for failing to file a petition for allowance of appeal in
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the Pennsylvania Supreme Court after this Court affirmed his judgment of
sentence.
Our Supreme Court has held that
where 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 the [PCRA].
Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999). Accordingly, in
such circumstances, a petitioner is automatically entitled to the
reinstatement of his appellate rights and is not required to show that our
Supreme Court would have granted review. Commonwealth v. Liebel,
825 A.2d 630, 634 (Pa. 2003) (citing Lantzy, supra) (emphasis added).
Hogan asserts that he requested that appellate counsel file a petition
for allowance of appeal. The record reveals that no such petition was filed.
We note that as it pertains to Hogan’s claim that trial counsel was ineffective
in handling his discretionary aspects of sentencing claim, the issue is without
merit. See Commonwealth v. Rigg, 84 A.3d 1080, 1088 (Pa. Super.
2014) (“[C]ounsel was not per se ineffective in not seeking a discretionary
appeal after this Court affirmed Appellant’s sentence where that was the
lone issue Appellant wished to be reviewed.”) However, because Hogan’s
direct appeal also included challenges to the weight and sufficiency of the
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evidence, he was entitled to seek review in the Supreme Court through
counsel filing a petition for allowance of appeal.5
Instantly, however, the PCRA court did not address the failure to file a
petition for allowance of appeal in the brief PCRA hearing on January 28,
2015, in its order dismissing Hogan’s petition entered on February 20, 2015,
or in its Rule 1925(a) opinion filed on July 10, 2015. Because Hogan would
be entitled to have his appellate rights reinstated if he showed that he
requested the filing of a petition for allowance of appeal or that counsel did
not adequately consult with him regarding filing one, the PCRA erred in not
addressing this issue. Lantzy, supra.
Moreover, while the Turner/Finley letter in this matter listed each
matter that Hogan wished to appeal, it did not “explain why each issue
identified by [Hogan] must be deemed meritless . . . [as] require[d] under
Turner.” Commonwealth v. Glover, 738 A.2d 460, 464 (Pa. Super.
1999). Thus, we note that even if Hogan’s right to file a petition for
allowance of appeal were not reinstated, the nature of the issues raised by
Hogan and included in the Turner/Finley letter indicate that an evidentiary
hearing may be required. However, without an adequate explanation from
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5
Hogan asserts that he requested that counsel file a petition for allowance
of appeal. Even if he had not made such a request, he “still may establish
that counsel was ineffective if [counsel] failed to adequately consult with
[him] regarding such an appeal.” Rigg, supra at 1088.
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counsel in his attempt to withdraw, we are unable to make any
determinations regarding each specific issue.6
For the foregoing reasons, we vacate the PCRA order and remand for
appointment of new counsel, who shall then review the record in full and file
an amended PCRA petition raising Hogan’s claim regarding reinstatement of
direct appeal rights, as well as any additional claims. The PCRA court shall
conduct an evidentiary hearing to determine whether appellate counsel was
per se ineffective for failing to file a requested petition for allowance of
appeal. If the PCRA court so finds, it shall grant Hogan leave to file a
petition for allowance of appeal nunc pro tunc. See Commonwealth v.
Harris, 114 A.3d 1, 4 (Pa. Super. 2015) (“[O]nce the PCRA court finds that
the petitioner’s appellate rights have been abridged, it should grant leave to
file a direct appeal and end its inquiry there.”); see also Commonwealth
v. Donaghy, 33 A.3d 12, at 14 n.5 (Pa. Super. 2011) (where PCRA court
grants request for reinstatement of direct appeal rights nunc pro tunc, it is
without authority to reach merits of any remaining claims).
Order vacated. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
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6
We note that the issue regarding the applicability of Alleyne appears to be
meritless because the record does not reveal that Hogan was sentenced to a
mandatory minimum sentence.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2016
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