Com. v. Hill, M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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.*
MEMORANDUM BY SOLANO, J.: FILED JULY 17, 2017
This case has returned to us upon remand from the Pennsylvania
Supreme Court, following that Court’s disposition of Appellant Marvin Hill’s
appeal from the order that dismissed his petition filed under the Post
Conviction Relief Act (“PCRA”).1 In accordance with the direction of the
Supreme Court, we reverse and remand with instructions.
On January 28, 2013, following a non-jury trial, Appellant was
convicted of third-degree murder, carrying a firearm without a license,
carrying a firearm on public streets in Philadelphia, and possessing an
instrument of crime.2 On April 5, 2013, the trial court sentenced Appellant
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*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541–9546.
2
18 Pa.C.S. §§ 2502(c), 6106, 6108, and 907, respectively.
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to consecutive terms of imprisonment of 15-40 years for third-degree
murder and 1½ to 3 years for carrying a firearm without a license. No
further penalty was imposed for the remaining crimes.
Trial counsel, Gerald A. Stein, Esq., 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, Esq., 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. 3 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2014) (unpublished memorandum; “Hill I”).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
a new trial: (1) orally, on the record, at any time before sentencing; (2) by
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3
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 Ct. Op., 12/22/15, at 2.
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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 Appellant’s
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, acting pro se, filed a petition for post-
conviction relief. Current counsel, John P. Cotter, Esq., 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 ground that “appellate defense counsel was
ineffective because he allowed the defendant’s appeal from the judgment of
sentence to be dismissed.” Am. PCRA Pet., 8/7/15, at ¶ 4. Appellant did
not allege that trial counsel was ineffective. By an order entered
December 22, 2015, the PCRA court dismissed Appellant’s petition as
meritless. Appellant appealed to this Court, claiming that his right to file an
appeal nunc pro tunc from the judgment of sentence should be reinstated
because the failure of appellate counsel to preserve any issues for appeal (1)
caused Appellant’s right to appeal to be waived, and (2) constituted per se
ineffective assistance of counsel. Commonwealth v. Hill, 149 A.3d 362,
364 (Pa. Super. 2016) (“Hill II”).
This Court considered whether Appellant had demonstrated per se
ineffective assistance of counsel, which would mean that he was not required
to show prejudice under Commonwealth v. Reaves, 923 A.2d 1119, 1128
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(Pa. 2007). See Hill II, 149 A.3d at 365. If Appellant had not
demonstrated per se ineffective assistance of counsel, he would be required
to satisfy the traditional three-prong test for ineffectiveness, which requires
a petitioner to 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. See id. (citing
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)).
We held that Appellant failed to establish per se ineffective assistance
because Appellant failed to show that “counsel’s lapse ensured the total
failure of an appeal requested by the client” and that prejudice therefore
should be presumed. Hill II, 149 A.3d at 365-66 (citing Reaves, 923 A.2d
at 1128). We based that holding on a comparison to other situations in
which the presumption of prejudice had been held to apply: (1) the failure of
counsel to file a requested direct appeal, see Commonwealth v. Lantzy,
736 A.2d 564, 572 (Pa. 1999); (2) the failure of counsel 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 of counsel 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 by counsel of an appellate brief so defective that the appeal was
dismissed, see Commonwealth v. Franklin, 823 A.2d 906, 910 (Pa.
Super. 2003). See Hill II, 149 A.3d at 365. We therefore concluded that
Appellant’s claim was subject to the three-part Pierce test for
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ineffectiveness, which requires that a PCRA petitioner establish actual
prejudice. See id. at 367; see also Pierce, 527 A.2d at 975. Because
Appellant failed to plead and prove prejudice in his PCRA decision, we
affirmed the order below dismissing Appellant’s petition. See Hill II, 149
A.3d at 367.
In his Supreme Court petition for allowance of appeal, Appellant
asserted that his appellate counsel’s pursuit of only the unpreserved weight
claim on his direct appeal and the failure of his counsel to pursue his
preserved issues on that appeal constituted per se ineffective assistance of
counsel. Appellant’s Pet. for Allowance of Appeal, 10/31/16. On April 11,
2017, our Supreme Court granted Appellant’s petition, reversed our
decision, and remanded the matter to this Court with instructions “to
reinstate [Appellant’s] appeal rights nunc pro tunc consistent with
Commonwealth v. Rosado, [150] A.3d [425] (Pa. 2016),” which was
decided by the Supreme Court after we rendered our decision in Hill II.
Commonwealth v. Hill, No. 482 EAL 2016, 2017 WL 1332940 (Pa. Apr. 11,
2017) (per curiam order).
In Rosado, the defendant’s counsel filed a Rule 1925(b) statement
that raised three issues, but that did not include a challenge to the
sufficiency of the evidence. Then, in Rosado’s direct appeal, counsel
abandoned the three issues that had been preserved in the Rule 1925(b)
statement and sought to raise only the sufficiency claim. This Court held
that the sufficiency claim was waived because it had not been included in the
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Rule 1925(b) statement, and we therefore affirmed Rosado’s conviction. In
a subsequent PCRA petition, Rosado claimed that his appellate counsel had
been ineffective per se and sought reinstatement of his appellate rights nunc
pro tunc. We rejected that argument on the basis of Commonwealth v.
Reed, 971 A.2d 1216, 1226 (Pa. 2009) (holding that the “filing of an
appellate brief, deficient in some aspect or another, does not constitute a
complete failure to function as a client’s advocate so as to warrant a
presumption of prejudice”), and Commonwealth v. West, 883 A.2d 654,
658 n.5 (Pa. Super. 2005) (holding that per se ineffectiveness does not
occur when counsel pursues certain issues in a Pa.R.A.P. 1925(b) statement
and not others). On appeal, the Supreme Court disagreed, holding that “the
filing of an appellate brief which abandons all preserved issues in favor of
unpreserved ones constitutes ineffective assistance of counsel per se.”
Rosado, 150 A.3d at 434. The Court further held that errors which
“completely foreclose appellate review amount to a constructive denial of
counsel and thus ineffective assistance of counsel per se, whereas those
which only partially foreclose such review are subject to the ordinary
[Pierce] framework.” Id. at 433.
In the present case, Appellant’s claim that the conduct of his appellate
counsel constituted per se ineffective assistance is analogous to the claim of
the defendant in Rosado. Like Rosado’s counsel, Appellant’s counsel raised
a single issue on appeal — weight of evidence — that had been waived for
failure to raise it in a pre- or post-sentence motion. In both cases, appellate
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counsel abandoned all preserved issues on appeal and raised only the
waived issue, thereby “completely foreclos[ing] appellate review.” Rosado,
150 A.3d at 434. Therefore, consistent with Rosado, and in accordance
with the Supreme Court’s mandate, we remand for the reinstatement of
Appellant’s post-sentence and appellate rights.
Counsel for Appellant may file a new post-sentence motion nunc pro
tunc on Appellant’s behalf in which he raises the weight-of-the-evidence
issue that he sought to present on direct appeal. Following disposition of the
post-sentence motion, either party will have the opportunity to file a timely
appeal. Any subsequent Rule 1925(b) statement must articulate clearly and
concisely all issues to be raised on appeal.
Appellant’s motion to remand is denied as moot. Order reversed.
Case remanded to the trial court with instructions to reinstate Appellant’s
post-sentence and appeal rights nunc pro tunc. Jurisdiction relinquished.
Judge Stabile joins the memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2017
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