J-S24018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
Appellee :
:
v. :
:
:
FRANKIE ROSADO : No. 2474 EDA 2014
Appellant
Appeal from the PCRA Order July 18, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000018-2012
BEFORE: GANTMAN, P.J., ALLEN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 19, 2017
Appellant, Frankie Rosado, is before us upon remand from the
Pennsylvania Supreme Court with regard to his appeal from the Monroe
County Court of Common Pleas’ order that dismissed his first petition filed
under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
9546. For the following reasons, we reverse and remand with instructions.
The relevant facts and procedural history of this case are as follows.
In 2012, Appellant…was accused of sexually abusing his
former girlfriend’s teenage daughter, whereupon he was
charged with one count each of indecent assault,
corruption of minors, and unlawful contact with minor.
Appellant, then represented by a public defender,
proceeded to trial, whereafter he was convicted of the
aforementioned offenses and later sentenced to an
aggregate term of 33 to 69 months’ imprisonment.
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Appellant hired new counsel (…“Appellate Counsel”) to
represent him at the post-sentencing and appellate stages
of his case. Appellate Counsel filed a post-sentence
motion raising, as relevant here, a sufficiency-of-the-
evidence claim, but the trial court denied relief. Appellate
Counsel then filed a notice of appeal to the Superior Court,
whereupon the trial court issued an order directing him to
file a concise statement of [errors] complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellate Counsel
filed a document styled as a “preliminary” concise
statement, wherein he raised three issues: (1) whether
Appellant’s sentence was “an abuse of discretion”; (2)
whether the trial court erred in excluding evidence that the
alleged victim had previously accused her father of sexual
abuse; and (3) whether a juror fraudulently concealed bias
during voir dire. Appellate Counsel also attached a copy of
his post-sentence motion to the “preliminary” concise
statement, erroneously believing that doing so would
preserve the claims raised therein for purposes of appeal,
and requested additional time to file a “final” concise
statement, which the trial court granted. However,
Appellate Counsel never filed a revised concise statement,
and, accordingly, the trial court considered the three
claims raised in the extant concise statement, and issued a
Pa.R.A.P. 1925(a) opinion rejecting those claims.
Appellate Counsel then filed an appellate brief with the
Superior Court, in which, deciding to abandon the three
claims raised in his concise statement and addressed by
the trial court, he raised as his sole appellate issue the
unpreserved sufficiency claim.
In an unpublished memorandum opinion, the Superior
Court, while noting the three issues preserved in
Appellant’s concise statement, found the sufficiency claim
to be waived, as it was not included therein.
Commonwealth v. Rosado, No. 2754 EDA 2012, 2013
WL 11259105 (Pa.Super. filed July 23, 2013).
Accordingly, the court did not address any of Appellant’s
preserved claims or his sufficiency claim, and, as a result,
it summarily affirmed.
Appellant later filed a [PCRA] petition asserting, inter alia,
that Appellate Counsel’s above-detailed conduct
constituted ineffective assistance of counsel per se, and
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thus seeking reinstatement of his appellate rights nunc pro
tunc. The PCRA court held an evidentiary hearing, at
which Appellate Counsel testified that he believed that
attaching his post-sentence motion to his concise
statement was sufficient to preserve the claims raised for
purposes of appeal, and that he abandoned the three
preserved claims [in the Rule 1925(b) statement] in an
effort to more persuasively argue his sufficiency claim.
Ultimately, the PCRA court found that Appellate Counsel’s
conduct did not amount to ineffectiveness per se, and,
accordingly, denied relief. Appellant appealed to the
Superior Court.
Commonwealth v. Rosado, ___ A.3d ___, 2016 WL 7008042, at *1-*2
(Pa. Nov. 22, 2016). On appeal, this Court labored to determine which of
two types of ineffective assistance of counsel claims Appellant was pursuing:
(1) a claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), as adopted in Pennsylvania by
Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), which
requires the defendant to demonstrate counsel’s act or omission prejudiced
the defendant or (2) a claim under United States v. Cronic, 466 U.S. 648,
104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), decided the same day as
Strickland, in which the United States Supreme Court distinguished those
circumstances where counsel’s act or omission is so inherently damaging to
the defendant that prejudice can be presumed, i.e., per se ineffective
assistance of counsel. Ultimately, we concluded appellate counsel’s acts and
omissions at issue were subject to the Strickland test, rather than the
Cronic per se ineffective assistance of counsel category. Thus, we required
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Appellant to demonstrate prejudice, which he had failed to do. At that point,
we affirmed the PCRA court’s decision to deny relief.
Appellant timely sought review with our Supreme Court, which granted
allowance of appeal to consider whether the filing of an appellate brief that
abandons all issues properly preserved for direct appeal, in favor of pursuing
unpreserved issues, constitutes per se ineffective assistance of counsel. Our
Supreme Court held: “[T]he filing of an appellate brief which abandons all
preserved issues in favor of unpreserved ones constitutes ineffective
assistance of counsel per se.” Rosado, supra at *8. The Court deemed
counsel’s acts and omissions a “complete default,” which precluded litigation
of Appellant’s direct appeal and the functional equivalent of no appeal at all.
Id. at *9. The Rosado Court vacated this Court’s judgment and remanded
the case to us for further action.
Given the Supreme Court’s holding, we now decide the best resolution
of this matter is to put Appellant in a position that will fully restore his direct
appeal rights. Because the foundation for his direct appeal was laid by
counsel who has since been deemed ineffective per se, we remand the case
and direct current counsel to communicate with Appellant about the issues
he wants to pursue on appeal and take steps to preserve the issues
properly. Counsel’s efforts on Appellant’s behalf shall include the filing of
new post-sentence motions nunc pro tunc. Following disposition of the post-
sentence motions nunc pro tunc, either party will have the opportunity to file
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a timely appeal. Any subsequent Rule 1925(b) statement must articulate
clearly and concisely the issues to be raised on appeal, without any
“incorporation by reference” of earlier filings. Finally, the trial court shall
address all issues in a new trial court opinion. Accordingly, we reverse the
order denying PCRA relief and remand for further action consistent with this
disposition.
Order reversed; case remanded with instructions. Jurisdiction is
relinquished.
Judge Allen did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2017
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