J-S10017-19 (Pa. Super. Ct. Jun. 19, 2019)

J-S10017-19 No. 265 EDA 2018




Appeal from the PCRA Order Entered December 18, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0013496-2014 BEFORE: GANTMAN, P.J.E., STABILE, and COLINS, JJ. MEMORANDUM BY STABILE, J.:

Retired Senior Judge assigned to the Superior Court.

Appellant, Darian Person, appeals from the December 18, 2017 order denying his petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. We affirm.

The PCRA court recited the pertinent facts on the record at the PCRA hearing:

On 9/22, 2014, [Appellant] was with a group of individuals, including [Q.D.], [S.M.], [R.F.], and [A.T.], that this group was looking for another group of young people, who had been in an altercation with some of their friends a few days prior, that this group was walking around, that they came into contact with another group of teenagers and that they began fighting, that that fight was broken up by the SEPTA police, that, thereafter, the fight sparked up again as the other group followed [Appellant] and his group from the area.

At the point in which the fight started up again, [Q.G.] yelled to [Appellant] get the gat, get the gat and at that point, [Appellant] took a .22 caliber weapon from the backpack of one of the others and fired four or five shots into the crowd of individuals that were fighting. [D.B.] was struck twice and survived, [A.A-B.], a fifteen-year-old bystander, was struck in the left side of the back and was killed. At least five witnesses identified [Appellant] as the shooter. All were his friends who had been there with him except a woman, who attempted to grab [Appellant] after the shooting, and identified him in a photo array.

N.T. Hearing, 12/18/17, at 114-16.

On December 2, 2015, Appellant entered a negotiated guilty plea to third degree murder, aggravated assault, and conspiracy. The Commonwealth reduced the murder charge from first to third degree in exchange for the plea. The trial court imposed an aggregate 25 to 50 years of incarceration, and Appellant did not file a direct appeal. On September 8, 2016, Appellant filed this timely first PCRA petition seeking, among other things, reinstatement of the right to file a direct appeal. The PCRA court conducted a hearing on December 18, 2017. The PCRA court found, among other things, that Appellant received a favorable plea bargain and that he never asked plea counsel to file a direct appeal on his behalf. The PCRA court therefore denied relief. This timely appeal followed.

Appellant raises a single issue for our review:

Was the PCRA court correct in denying reinstatement of [Appellant's] rights nunc pro tunc when, after an evidentiary hearing, the court credited trial counsel's testimony that [Appellant] never communicated to counsel his interest in appealing after entering his negotiated guilty plea?

Appellant's Brief at 1.

During the proceedings before the PCRA court, counsel filed a petition to withdraw pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc). The PCRA court never ruled on the petition and never permitted counsel to withdraw. At the conclusion of the PCRA hearing, counsel agreed to file a notice of appeal on Appellant's behalf. N.T. Hearing, 12/18/17, at 132-33. Counsel has remained on the case and filed a brief on Appellant's behalf. --------

On review, we must determine whether the PCRA court's findings are supported by the record and free of legal error. Commonwealth v. Pitts , 981 A.2d 875, 878 (Pa. 2009). Appellant claims counsel was ineffective for failing to file a requested appeal and/or failing to consult Appellant about the possibility of an appeal. To overcome the presumption of counsel's effectiveness, a PCRA petitioner must plead and prove that the underlying issue has arguable merit; that counsel had no reasonable strategic basis for the disputed action or inaction; and that the result of the proceeding would have been different but for counsel's error. Commonwealth v. King , 57 A.3d 607, 613 (Pa. 2012).

"[W]hen a lawyer fails to file a direct appeal requested by the defendant, the defendant is automatically entitled to reinstatement of his direct appeal rights." Commonwealth v. Markowitz , 32 A.3d 706, 714 (Pa. Super. 2011), appeal denied , 40 A.3d 1235 (Pa. 2012). Instantly, Appellant testified that he requested a direct appeal, and counsel testified that Appellant did not do so. Appellant produced a letter he claims he sent to counsel, but there was no evidence the letter was mailed and the PCRA court disbelieved its authenticity. Appellant also claims he asked several family members to contact counsel about filing a direct appeal, but he produced no evidence to support that claim. The PCRA court found counsel credible and Appellant not credible. "The PCRA court's credibility determinations, when supported by the record, are binding on this Court." Commonwealth v. Medina , 92 A.3d 1210, 1214 (Pa. Super. 2014) (en banc), appeal dismissed , 140 A.3d 675 (Pa. 2016). For the reasons explained in the PCRA court's April 18, 2018 opinion, we agree that this issue lacks merit.

Next, we consider Appellant's argument that counsel was ineffective for failing to consult with him about filing a direct appeal. The United States Supreme Court has held as follows:

[C]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.

Roe v
. Flores-Ortega
, 528 U.S. 470, 480 (2000).

Instantly, the PCRA court found that Appellant's plea bargain was very favorable, given the overwhelming evidence of his guilt and the high likelihood of a conviction for first-degree murder if Appellant proceeded to trial. And, as we have already explained, the PCRA court credited counsel's testimony that Appellant did not demonstrate interest in taking a direct appeal. For the reasons explained in the PCRA court's April 18, 2018 opinion, we agree that this issue lacks merit. We direct that a copy of that opinion be filed along with this memorandum.

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/19/19

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