Com. v. Hall, M.

J-S17039-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MARWAN HALLS,
Appellant No. 2089 EDA 2016
Appeal from the PCRA Order, June 16, 2016,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0101061-2006
BEFORE: BENDER, P.J.E., LAZARUS, J. and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 04, 2018
Marwan Halls appeals from the order denying his first petition for relief
filed under the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-
46. We affirm.
The pertinent facts and procedural history are as follows: On
November 8, 2010, Halls entered a guilty plea to burglary and conspiracy in
Philadelphia County. That same day, the trial court sentenced him to an
aggregate term of 18 months of house arrest, with credit for time served,
and an aggregate, concurrent term of 79 months of probation. Halls filed
neither a post-sentence motion nor a direct appeal. While still on probation,
Halls was convicted of four counts of burglary in Montgomery County, and
was sentenced to an aggregate term of 7 to 14 years of incarceration.
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Due to these new convictions, the Philadelphia County trial court held
a violation of probation hearing. The trial court found Halls in violation of his
probation, revoked his probation, and imposed a new aggregate sentence of
13 ½ to 27 years of imprisonment, followed by a one-year probationary
term. This sentence was to run consecutive to Halls’ Montgomery County
sentence.
Halls filed a counseled motion for reconsideration, which the trial court
denied on October 12, 2012. On December 4, 2012, Halls filed a pro se
appeal to this Court, which we quashed as untimely on April 9, 2013. On
June 25, 2013, Halls filed a timely pro se PCRA. The PCRA court appointed
present counsel, who filed an amended petition, alleging ineffective
assistance of counsel, and requesting the reinstatement of Halls’ direct
appeal rights nunc pro tunc. On June 16, 2016, the PCRA court held an
evidentiary hearing. Halls presented his own testimony. The
Commonwealth called John McMahon, Jr., Esquire, the attorney who filed
Halls’ motion to reconsider sentence. At the conclusion of the hearing, the
PCRA court denied the petition. This timely appeal follows. Both Halls and
the PCRA court have complied with Pa.R.A.P. 1925.
Halls raises the following issue:
I. Whether the [PCRA] Court erred in denying [Halls’]
PCRA petition after an evidentiary hearing on the
issues raised in the amended PCRA petition
regarding violation of [probation] (VOP) counsel’s
ineffectiveness.
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Halls’ Brief at 3.
Our scope and standard of review is well-settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record of
the PCRA court's hearing, viewed in the light most favorable
to the prevailing party. Because most PCRA appeals involve
questions of fact and law, we employ a mixed standard of
review. We defer to the PCRA court's factual findings and
credibility determinations supported by the record. In
contrast, we review the PCRA court's legal conclusions de
novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.
2015) (internal citations and quotations omitted).
To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must establish by a preponderance of the evidence
that counsel's ineffectiveness so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,
counsel’s performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing by the
petitioner.” Id. This requires the petitioner to demonstrate that: (1) the
underlying claim is of arguable merit; (2) counsel had no reasonable
strategic basis for his or her action or inaction; and (3) petitioner was
prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice"
requires the petitioner to show "that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
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have been different." Id. In assessing a claim of ineffectiveness, when it is
clear that appellant has failed to meet the prejudice prong, the court may
dispose of the claim on that basis alone, without a determination of whether
the first two prongs have been met. Commonwealth v. Travaglia, 661
A.2d 352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing
to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132
(Pa. Super. 2003) (en banc).
Halls claims that he is entitled to the reinstatement of his direct appeal
rights because he requested Terry Pugh, Esquire, the attorney who had
represented him at the violation of probation hearing, and who appeared at
his sentencing proceeding,1 to file an appeal on his behalf. As this Court has
summarized:
Generally, if counsel ignores a defendant’s request to
file a direct appeal, the defendant is entitled to have his
appellate rights restored. Commonwealth v. Lantzy,
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1 The record is unclear as to whether Attorney Pugh still represented Halls at
that time. At the October 2, 2012 hearing, Halls appeared with court-
appointed counsel, but informed the trial court that he had hired Attorney
Pugh to represent him. The trial court called Attorney Pugh, who later
appeared and informed the court that he had no notice of the hearing.
Attorney Pugh then presented argument on behalf of Halls, and, after
sentencing, fully instructed Halls that he could file a motion for
reconsideration within ten days and a notice of appeal within thirty days.
Attorney Pugh informed Halls that both filings had to be in writing, and that
“[i]f you wish them done, I will do them for you[.]” N.T., 10/2/12, at 21.
The transcript shows no response from Halls, and if he later asked Attorney
Pugh to file an appeal, this request does not appear of record.
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558 Pa. 214, 736 A.2d 564 (1999). In Lantzy, our
Supreme Court held that an unjustified failure to file a
direct appeal upon request is prejudice per se, and if the
remaining requirements are satisfied, a defendant does not
have to demonstrate his innocence or the merits of the
issue he would have pursued on appeal to be entitled to
relief. However, such relief is only appropriate where the
petitioner plead and proves that a timely appeal was in
fact requested and that counsel ignored that request.
Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa.
Super. 1999). A mere allegation will not suffice to prove
that counsel ignored a petitioner’s request to file an
appeal.
Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006).
In the present case, the PCRA court heard conflicting testimony from
Halls in support of his claim that he timely requested Attorney Pugh to file
an appeal, and from Attorney McMahon, who testified that Halls never asked
him to file an appeal in the Philadelphia County case. According to Attorney
McMahon, in the correspondence that he received from Halls, Halls focused
on filing an appeal of his Montgomery County convictions. Attorney Pugh
was not called to testify. The PCRA court resolved this matter of credibility
against Halls:
At the evidentiary hearing, [Halls] failed to meet the
burden of proof to prove ineffective counsel. [He] claims
that trial counsel was ineffective for failing to file a direct
appeal. [Halls] alleges that he asked Attorney Pugh, at the
end of [his] Violation of Probation hearing, to file a direct
appeal. However, during the evidentiary hearing, [Halls]
failed to produce evidence that he had even asked trial
counsel to file the direct appeal. The court was asked to
make a credibility determination regarding [Halls’] claim
and the court found that [Halls] claim was not credible.
PCRA Court’s Opinion 8/3/17, at 3-4.
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Halls argues that the PCRA court erred in denying him relief, as his
testimony that he asked Attorney Pugh to file the appeal was unrefuted.
Although this is true, the PCRA court still had to accept Halls’ testimony as
credible. As noted above, it did not. This Court “must defer to the
credibility determinations made by the [PCRA] court that observed a
witness’s demeanor first hand.” Commonwealth v. Todd, 820 A.2d 707,
712 (Pa. Super. 2003). As a matter of credibility, the PCRA court believed
trial counsel’s version of the contested facts. We cannot disturb this
determination. See Commonwealth v. Harmon, 738 A.2d 1023, 1025
(Pa. Super. 1999) (explaining that when a PCRA court’s credibility
determination is supported by the record, it cannot be disturbed on appeal).
Halls also argues that the PCRA court should not have denied relief
because the Commonwealth did not call Attorney Pugh. It is a PCRA
petitioner’s responsibility to produce counsel at a PCRA evidentiary hearing
in order to meet his burden of proof that his claims warrant relief.
Commonwealth v. Jones, 596 A.2d 885 (Pa. Super. 1991). As noted by
the PCRA court, Halls did not meet this burden. If Halls believed that
Attorney Pugh would have aided his cause, he should have sought his
appearance at the evidentiary hearing.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/18
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