Com. v. Berrien, R. ( 2022 )

J-A07042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RAPHEL BERRIEN III :
:
Appellant : No. 1208 EDA 2020
Appeal from the PCRA Order Entered April 29, 2020
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001131-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RAPHEL BERRIEN III :
:
Appellant : No. 1209 EDA 2020
Appeal from the PCRA Order Entered April 29, 2020
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001132-2017
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JUNE 8, 2022
Appellant, Raphel Berrien III, appeals pro se from the order entered in
the Lehigh County Court of Common Pleas, which denied his first petition for
collateral relief under the Post Conviction Relief Act (“PCRA”).1 We vacate and
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1 42 Pa.C.S.A. §§ 9541-9546.
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remand for further proceedings.
The relevant facts and procedural history of this case are as follows. On
April 26, 2018, a jury convicted Appellant of stalking and harassment at docket
No. CP-39-CR-0001131-2017, and of criminal trespass at docket No. CP-39-
CR-0001132-2017. The court sentenced Appellant on June 5, 2018, to an
aggregate term of 58 to 120 months’ imprisonment. The next day, the court
appointed Attorney Sean Poll to represent Appellant for post-sentence motions
and on appeal. Attorney Poll timely filed post-sentence motions on Appellant’s
behalf on June 15, 2018, which the court denied on June 20, 2018.
While still represented by Attorney Poll, on July 3, 2018, Appellant filed
a pro se single direct appeal listing both underlying docket numbers. On
September 21, 2018, Appellant asked the court to let Attorney Poll withdraw
his representation. Following a hearing on October 11, 2018, the court
granted Appellant’s request. This Court quashed the direct appeal on October
1, 2019, as violating the then-recent Supreme Court decision in
Commonwealth v. Walker, 646 Pa. 456, 185 A.3d 969 (2018) (holding that
common practice of filing single notice of appeal from order involving more
than one docket will no longer be tolerated; such practice violates Pa.R.A.P.
341, which requires filing of separate appeals from order that resolves issues
arising on more than one docket; failure to file separate appeals generally
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requires appellate court to quash appeal).2 See Commonwealth v. Berrien,
No. 2059 EDA 2018 (Pa.Super. Oct. 1, 2019) (unpublished memorandum).
On October 17, 2019, Appellant timely filed the current PCRA petition
pro se.3 The court appointed counsel on November 1, 2019, who filed a
motion to withdraw on March 4, 2020, along with a Turner/Finley4 no-merit
letter. On March 19, 2020, the court issued notice of its intent to dismiss the
petition without a hearing per Pa.R.Crim.P. 907 and granted counsel’s request
to withdraw. Appellant filed a pro se response on April 24, 2020. The court
denied PCRA relief on April 29, 2020. On May 29, 2020, Appellant timely filed
a pro se notice of appeal at each underlying docket. This Court subsequently
consolidated the appeals sua sponte. On June 22, 2020, the court ordered
Appellant to file a concise statement of errors complained of on appeal per
Pa.R.A.P. 1925(b), which Appellant timely filed on July 14, 2020.
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2 In Commonwealth v. Young, ___ Pa. ___, 265 A.3d 462 (2021), the
Supreme Court expressly overruled the pronouncement in Walker that the
failure to file separate notices of appeal in connection with issues arising at
more than one docket necessarily requires this Court to quash the appeal.
The Young Court held that Pa.R.A.P. 341 “requires that when a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed from that order at each docket; but, where a timely appeal is
erroneously filed at only one docket, [Pa.R.A.P.] 902 permits the appellate
court, in its discretion, to allow correction of the error, where appropriate.”
Id. at ___, 265 A.3d at 477.
3The current PCRA petition is Appellant’s first PCRA petition following his direct
appeal. Appellant previously filed premature PCRA petitions.
4 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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Appellant raises the following issues for our review:
1) Was the Finley “no merit” Letter filed in this matter
by [PCRA counsel] deficient in that it did not follow
the edicts of [Finley] which were:
a) The “no merit” letter by [PCRA counsel] did not list each
issue Appellant wished to have reviewed?
b) [PCRA counsel] lacked an explanation in the “no merit”
letter, of why Appellant’s issues were meritless?
c) [PCRA counsel] was ineffective and abandoned Appellant
by:
i) Failing to amend the PCRA petition?
ii) Failed to serve a copy of the Finley “no merit” Letter to
Appellant?
iii) Refused to communicate with Appellant throughout the
process in regards to his issues of arguable merit?
2) Did the Trial Court abuse its discretion and erred by:
a) Refusing to appoint counsel to represent your Appellant
pursuant to the Sixth and Fourteenth Amendments of the
U.S. Const. and Pa. Const. Art. I § 9?
b) Forced Appellant to proceed pro se during all critical stages
of the trial process without holding a “Grazier”[5] hearing or
an on the record colloquy pursuant to Pa.R.C.P. 121(c)?
3) Did the Trial Court abuse its discretion and erred by
pre-determining the outcome of trial without looking
at the evidence and failed to justify the sentence?
4) Did the Trial Court lack subject matter jurisdiction
over him due to invalid criminal complaints, affidavits
of probable cause, arrest and search warrants?
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5 See Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
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a) Did the Trial Court abuse its discretion and erred by refusing
to Recuse/Disqualify herself due to her appearance of
impropriety towards your Appellant?
5) Was pre-trial attorney, David Ritter, ineffective when
he:
a) Failed to communicate with Appellant?
b) Did not investigate the case(s) when he failed to challenge
the invalid criminal complaints, affidavits of probable cause,
arrest and search warrants?
6) Was pre-trial attorney, Craig Neely, ineffective when
he:
a) Failed to file a pre-trial suppression motion?
b) Did not investigate the case(s) when he failed to challenge
the invalid criminal complaints, affidavits of probable cause,
arrest and search warrants?
c) Failed to consult with your Appellant about a defense
strategy?
7) Was post-trial attorney, Sean Poll, ineffective when
he Abandoned your Appellant upon commencement of
representation?
(Appellant’s Brief at 2-4) (emphasis added for readability).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v. H.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d
319 (2008). This Court grants great deference to the findings of the PCRA
court if the record contains any support for those findings. Commonwealth
v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
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A.2d 74 (2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. J. Ford, 44 A.3d 1190 (Pa.Super. 2012).
For purposes of disposition, we initially consider Appellant’s seventh
issue on appeal. Appellant argues that direct appeal counsel, Attorney Poll,
failed to meet face-to-face to consult with Appellant, investigate the case,
correspond with Appellant, or otherwise communicate with Appellant upon
commencement of his representation. Appellant asserts that Attorney Poll
failed to file a notice of appeal on Appellant’s behalf, which prompted Appellant
to file a pro se notice of appeal. Appellant maintains this Court ultimately
quashed the appeal because it was defective under Walker, but Attorney Poll
did not inform Appellant about the defect. Appellant claims Attorney Poll
violated various Rules of Professional Conduct. Appellant insists Attorney Poll
was ineffective by denying Appellant the right to a direct appeal. Based on
Attorney Poll’s deficient representation, Appellant contends he was forced to
file a petition requesting that Attorney Poll withdraw his representation.
Appellant concludes Attorney Poll was ineffective, and this Court must grant
appropriate relief. For the following reasons, we agree relief is due.
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied, ___ Pa. ___, 242 A.3d 908 (2020). In general:
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
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process that no reliable adjudication of guilt or innocence
could have taken place. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction;
and (3) but for the errors and omissions of counsel, there is
a reasonable probability that the outcome of the
proceedings would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and
quotation marks omitted).
Nevertheless, there are certain scenarios in which counsel’s
performance is so deficient, such that counsel is “per se ineffective” and the
petitioner need not establish prejudice to succeed on his ineffectiveness claim.
Our Supreme Court has explained
the distinction between situations in which counsel has
narrowed the ambit of appellate review by the claims he has
raised or foregone versus those instances…in which counsel
has failed to file an appeal at all. …[T]he difference in
degree between partial and complete deprivations of review
is significant, as the latter is the functional equivalent of
having no counsel at all. This denial of counsel constitutes
a form of ineffectiveness per se, pursuant to which prejudice
must be presumed because the process itself has been
rendered “presumptively unreliable” under the Sixth
Amendment.
Commonwealth v. Peterson, 648 Pa. 313, 323, 192 A.3d 1123, 1129
(2018) (internal citations and most quotation marks omitted). See also
Commonwealth v. Rosado, 637 Pa. 424, 150 A.3d 425 (2018) (explaining
that errors which completely foreclose appellate review amount to
constructive denial of counsel and thus ineffectiveness per se, whereas those
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which only partially foreclose such review are subject to ordinary three-prong
ineffectiveness test).
Instantly, the trial court sentenced Appellant on June 5, 2018. The next
day, the court appointed Attorney Poll to represent Appellant for post-
sentence motions and on appeal. On June 15, 2018, Attorney Poll timely filed
a post-sentence motion on Appellant’s behalf, which the court denied on June
20, 2018. Although still represented by Attorney Poll, on July 3, 2018,
Appellant filed pro se a timely but defective notice of appeal,6 where Appellant
filed a single notice of appeal listing both underlying docket numbers. As
stated, such procedure violated Walker, which was issued on June 1, 2018.
On September 21, 2018, Appellant asked the court to let Attorney Poll
withdraw his representation. Following a hearing on October 11, 2018, the
court granted Appellant’s request. On October 1, 2019, this Court quashed
Appellant’s appeal under Walker. See Berrien, supra.
In denying Appellant’s PCRA petition, the PCRA court stated that it
“adopt[s] the thorough discussion outlined in the [Turner/Finley] letter[.]”
(Rule 907 Notice, 3/19/20, at 1 n.1). In the Turner/Finley letter, PCRA
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6 Generally, hybrid representation is not permitted in this Commonwealth;
thus, this Court will not accept pro se filings while an appellant is still
represented by counsel. Commonwealth v. Williams, 151 A.3d 621, 623
(Pa.Super. 2016). Nevertheless, the filing of a pro se notice of appeal while
represented by counsel is distinguishable from other filings because a notice
of appeal protects a constitutional right. Id. at 624. Accordingly, a pro se
notice of appeal received from the trial court shall be docketed, even in
instances where the pro se appellant was represented by counsel. Id. at 623.
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counsel reasoned that Appellant’s claim lacked merit because Appellant had
filed the defective notice of appeal pro se (not Attorney Poll), and Appellant
refused Attorney Poll’s representation on appeal by filing a request for
Attorney Poll to withdraw. (See Turner/Finley Letter, filed 3/4/20, at 6-7).
On this record, we cannot agree with the reasoning of PCRA counsel,
which the PCRA court adopted. The record makes clear that Attorney Poll still
represented Appellant when Appellant filed the defective pro se notice of
appeal on July 3, 2018. The Supreme Court announced the decision in
Walker on June 1, 2018, so counsel should have been aware of it at this time.
Thus, counsel should have filed amended, counseled notices of appeal at each
underlying docket within 30 days of the order denying post-sentence motions
to comply with Walker. Counsel’s failure to do so effectively foreclosed
appellate review such that it constitutes per se ineffective assistance of
counsel. See Peterson, supra; Rosado, supra.
The fact that Appellant requested, and the court later permitted
Attorney Poll to withdraw does not change our conclusion, because those
events occurred after Appellant had already filed the defective notice of
appeal while he was still represented by counsel. Under these circumstances,
and particularly in light of our Supreme Court’s recent decision in Young
which expressly overruled the mandatory quashal enunciated in Walker,
Appellant should have an opportunity for a direct appeal. Accordingly, we
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vacate the order denying PCRA relief and remand for reinstatement of
Appellant’s direct appeal rights nunc pro tunc.7
Order vacated. Case remanded for further proceedings. Jurisdiction is
relinquished.
Judge Dubow joins this memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/08/2022
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7Based on our disposition, we decline to address Appellant’s remaining issues
presented in this appeal.
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