J-S64025-16
2016 PA Super 226
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARVIN HILL
Appellant No. 60 EDA 2016
Appeal from the PCRA Order Dated December 22, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005356-2011
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
OPINION BY SOLANO, J.: FILED OCTOBER 20, 2016
Appellant, Marvin Hill, appeals from the December 22, 2015 order
denying his petition for reinstatement of direct appeal rights pursuant to the
Post Conviction Relief Act, 42 Pa.C.S. § 9541-9546 (PCRA). We affirm.
On January 28, 2013, following a non-jury trial, Appellant was
convicted of third-degree murder,1 carrying a firearm without a license,2
carrying a firearm on public streets in Philadelphia,3 and possessing an
instrument of crime.4 On April 5, 2013, the trial court sentenced Appellant
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(c).
2
18 Pa.C.S. § 6106.
3
18 Pa.C.S. § 6108.
4
18 Pa.C.S. § 907.
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to consecutive terms of imprisonment of 15-40 years for third-degree
murder and 1½-3 years for carrying a firearm without a license. No further
penalty was imposed for the remaining crimes.
Trial counsel, Gerald A. Stein, did not file any post-sentence motions
on Appellant’s behalf. On May 2, 2013, Attorney Stein filed a notice of
appeal to this Court. He was subsequently permitted to withdraw, and J.
Michael Farrell was appointed to represent Appellant.
On May 13, 2013, the trial court ordered Appellant to submit a
Statement of Matters Complained of on Appeal pursuant to Appellate Rule
1925(b). On July 8, 2013, Attorney Farrell submitted a timely Rule 1925(b)
statement in which he raised four claims, including a claim that the verdicts
were contrary to the weight of the evidence.5 In his appellate brief,
however, Attorney Farrell pursued only the weight-of-the-evidence claim.
See Commonwealth v. Hill, No. 1375 EDA 2013 (Pa. Super. Mar. 13,
2014) (unpublished memorandum; “Hill I”). This Court found the weight-
of-the-evidence claim waived because it was not raised in the trial court in
accordance with Criminal Rule 607(A) (“A claim that the verdict was against
the weight of the evidence shall be raised with the trial judge in a motion for
____________________________________________
5
The other claims raised in the 1925(b) statement were: (1) the evidence
was insufficient to support the verdicts; (2) a police detective’s testimony
was improper; and (3) the trial court erred in denying Appellant’s motion to
suppress his statement. See PCRA Court Opinion, 12/22/15, at 2.
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a new trial: (1) orally, on the record, at any time before sentencing; (2) by
written motion at any time before sentencing; or (3) in a post-sentence
motion”). See Hill I at 2. As a result, this Court dismissed the initial direct
appeal. See id. at 4. This Court further noted that Appellant’s weight-of-
the-evidence claim, even if not waived, was meritless because the evidence
against Appellant was overwhelming. See id. at 4 n.4.
On July 16, 2014, Appellant, pro se, filed a petition for post-conviction
relief. Current counsel, John P. Cotter, was appointed and filed an amended
petition on August 7, 2015. In the amended petition, Appellant sought nunc
pro tunc reinstatement of his post-sentence motion and direct appeal rights,
on the basis that “appellate defense counsel was ineffective because he
allowed the defendant’s appeal from the judgment of sentence to be
dismissed.” Amended PCRA petition, 8/7/15, at ¶ 4. Appellant did not
allege that trial counsel was ineffective.
On November 30, 2015, the PCRA court issued a Criminal Rule 907
notice of intent to dismiss Appellant’s petition on the basis that it was
meritless, as will be discussed below. By an order entered December 22,
2015, the PCRA court formally dismissed Appellant’s petition. This appeal
followed.
In this appeal, Appellant raises the following issue, as stated:
Did the trial court err in not reinstating appellant’s right to file an
appeal nunc pro tunc from the judgment of sentence imposed in
this matter because appellate defense counsel on appeal from
the judgment of sentence failed to preserve any issues for
appeal and waived appellant’s right to appeal thereby causing
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the appeal to be dismissed and denying the defendant his right
to appeal and his right to effective assistance of counsel on
appeal?
Appellant’s Brief at 2.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is “to determine whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.
The PCRA court's findings will not be disturbed unless there is no support for
the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d
185, 191-92 (Pa. Super. 2013) (citations and internal quotation marks
omitted).
Generally, to obtain relief on a claim of ineffective assistance of
counsel, a petitioner must plead and prove that: (1) the underlying claim is
of arguable merit; (2) counsel's performance lacked a reasonable basis; and
(3) the ineffectiveness of counsel caused him prejudice. Commonwealth v.
Pierce, 527 A.2d 973, 975 (Pa. 1987). “To demonstrate prejudice, the
petitioner must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have
been different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012)
(quotation marks and citation omitted).
In his petition, Appellant did not seek to prove these three elements of
Pierce. Instead, he argued that he should be afforded relief because his
appellate counsel was ineffective per se, thereby obviating his need to prove
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the three Pierce elements. Appellant’s Brief at 6-7. The PCRA court
rejected this argument, and we agree.
In rare circumstances, “where there has been a complete denial of
counsel or where the circumstances are such that any competent attorney
would be unable to provide effective assistance,” prejudice is presumed, and
the petitioner need not satisfy the Pierce test. Commonwealth v.
Reaves, 923 A.2d 1119, 1128 (Pa. 2007). The Supreme Court of
Pennsylvania “has extended the presumption [of prejudice] in Pennsylvania
to instances where counsel’s lapse ensured the total failure of an appeal
requested by the client.” Id. The situations to which the presumption has
been held to apply are: (1) the failure to file a requested direct appeal, see
Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999); (2) the failure
to file a requested petition for allowance of appeal with the Supreme Court
of Pennsylvania, see Commonwealth v. Liebel, 825 A.2d 630, 635-36 (Pa.
2003); (3) the failure to file a Pa.R.A.P. 1925(b) Statement, see
Commonwealth v. Halley, 870 A.2d 795, 800 (Pa. 2005); and (4) the
filing of a brief so defective that the appeal is quashed, see
Commonwealth v. Franklin, 823 A.2d 906, 910 (Pa. Super. 2003). In
such cases, the petitioner is entitled to reinstatement of his direct appeal
rights. See Halley, 870 A.2d at 801.
By contrast, “[w]here a petitioner was not entirely denied his right to
a direct appeal,” he must ”proceed under the auspices of the PCRA, and the
PCRA court should apply the traditional three-prong [Pierce] test for
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determining whether appellate counsel was ineffective.” Commonwealth v.
Grosella, 902 A.2d 1290, 1293-94 (Pa. Super. 2006) (emphasis in original).
“The difference in degree between failures that completely foreclose
appellate review, and those which may result in narrowing its ambit, justifies
application of the presumption in the more extreme instance.” Halley, 870
A.2d at 801.
Relying on Grosella and Halley, Appellant contends that his original
appellate counsel, Mr. Farrell, pursued his appeal in such a way that
Appellant is entitled to a presumption of prejudice and reinstatement of his
direct appeal rights without further proof. Appellant’s criticism of Attorney
Farrell appears to be that, although Mr. Farrell listed four grounds for appeal
in his Rule 1925(b) Statement, he pursued only one of those four grounds in
this Court — and the issue he chose to pursue was one that had been
waived by a failure to preserve it in the trial court. Mr. Farrell’s decision to
pursue only one issue and not others does not give rise to a claim for per se
ineffectiveness under Grosella, however. As the PCRA court explained:
In Grosella, appellate counsel failed to pursue all of the issues
that the appellant wished to raise on direct appeal. The Superior
Court found that it was not a case where appellate counsel failed
to perfect a direct appeal and overturned the PCRA court which
had reinstated the appellant’s appeal rights nunc pro tunc.
Grosella, 902 A.2d at 1294. The Superior Court opined that
“[w]here a petitioner was not entirely denied his right to a
direct appeal and only some of the issues the petitioner wished
to pursue were waived, the reinstatement of the petitioner’s
direct appeal rights is not a proper remedy.” Id. (emphasis
original).
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PCRA Court Opinion, 12/22/15, at 4. Here, as in Grosella, Mr. Farrell took
all available steps for this Court to review one of Appellant’s issues — that
the verdicts were against the weight of the evidence. While Mr. Farrell did
not pursue the other three claims raised in Appellant’s Rule 1925(b)
statement, this is not per se ineffectiveness warranting reinstatement of
Appellant’s direct appeal rights. See Grosella, 902 A.2d at 1293 (”it is . . .
well-settled that the reinstatement of direct appeal rights is not the proper
remedy when appellate counsel perfected a direct appeal but simply failed to
raise certain claims”).
Of course, Appellant’s weight-of-the-evidence claim was unsuccessful
because it had not been preserved in the trial court. But the preservation
error was not an error on the part of Attorney Farrell; Appellant had a
different trial lawyer who was responsible for preservation of the claim.
Appellant therefore errs to the extent that he suggests that the preservation
error should be considered an instance of Attorney Farrell’s ineffectiveness.
Because there was no ineffectiveness on the part of Appellant’s
appellate counsel in preserving Appellant’s right to appeal, Appellant’s
reliance on Halley also is misplaced. As the PCRA court explained:
In Halley, appella[te] counsel failed to file a Rule 1925(b)
statement, but still filed a brief with Superior Court challenging
the sufficiency of the evidence. The Superior Court held that it
was precluded from considering appellant’s arguments due to
the absence of his Rule 1925(b) statement. On appeal, the
Supreme Court restored appellant’s appeal rights after finding
the failure to comply with a court order to file a Rule 1925(b)
Statement represented actual or constructive denial of
assistance of counsel. Halley, 870 A.2d 795. This is clearly
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incongruent with the instant matter as appella[te] counsel here
complied with this Court’s order to file a Statement of Matters
Complained of on Appeal and, as noted above, the Petitioner did
receive appella[te] review. Therefore there was no constructive
denial of assistance of counsel.
PCRA Court Opinion, 12/22/15, at 5. In contrast to what occurred in
Halley, Attorney Farrell was not responsible for Appellant’s failure to obtain
appellate relief on his weight-of-the-evidence claim. Moreover, despite this
Court’s holding in Appellant’s initial direct appeal that Appellant’s weight-of-
the-evidence claim had been waived in the trial court, this Court
nevertheless discussed the merits of that claim, concluding that it was
meritless in light of the overwhelming evidence of Appellant’s guilt. See
PCRA Court Opinion, 12/22/15, at 4; Hill I, at 4 n.4.
Appellant’s real complaint would seem to be with his trial counsel, who
failed to preserve the weight issue for appellate review. But our decisions
hold that this type of failure at the trial level “does not fall within the narrow
ambit of ineffectiveness claims requiring no finding of prejudice” and
allowing for automatic reinstatement of direct appeal rights because there is
ineffectiveness per se. Commonwealth v. Fransen, 986 A.2d 154, 158
(Pa. Super 2009). A petitioner alleging that counsel was ineffective for
failing to file a post-sentence motion must instead satisfy the Pierce three-
part test for ineffectiveness. See Commonwealth v. Reaves, 923 A.2d
1119, 1128-29 (Pa. 2007). The Pierce standard applies because failure to
file a post-sentence motion — unlike failure to file an appeal, a Rule 1925(b)
statement, or a brief that complies with the Rules of Appellate Procedure —
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“does not waive any and all appellate issues; it waives only those claims
subject to issue preservation requirements which were not otherwise already
properly preserved.” Id. at 1129 (holding that failure to file for sentencing
reconsideration, which resulted in waiver of right to appeal discretionary
aspects of sentence, must be evaluated under Pierce standard for
ineffectiveness).
We recognize Appellant’s view that the combined actions of trial and
appellate counsel resulted in the failure to secure appellate relief when he
was first before this Court. In such a situation, however, it was incumbent
on Appellant to satisfy the three-part Pierce ineffectiveness test, rather
than relying on an argument of ineffectiveness per se. See
Commonwealth v. Mikell, 968 A.2d 779, 782 (Pa. Super. 2009) (where
claim was waived at trial and appellate counsel took all necessary steps to
present that claim on appeal, presumption of prejudice does not apply),
appeal denied, 985 A.2d 971 (Pa. 2009). Because Appellant has made no
effort to satisfy Pierce, the PCRA court properly denied his petition.
In summary, Appellant was neither actually nor constructively denied
his right to a direct appeal and is not eligible for the relief available when
presumed prejudice is found. Nor has he attempted to satisfy the Pierce
standard applicable to claims of ineffective assistance of counsel. Therefore,
the PCRA court properly denied his petition seeking reinstatement of his
direct appeal rights.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2016
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Commonwealth v. Hill
Combined Opinion