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[U] Commonwealth v. Marcolongo

Superior Court of Pennsylvania

February 24, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CHRISTOPHER MARCOLONGO, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered January 23, 2009 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006215-2007

BEFORE: BENDER, J., BOWES, J., and LAZARUS, J.

MEMORANDUM

BENDER, J.

Appellant, Christopher Marcolongo, appeals nunc pro tunc from the judgment of sentence imposed after the trial court found him guilty of robbery, theft, and possessing an instrument of crime (PIC). On appeal, Appellant seeks to challenge the sufficiency of the evidence to sustain his convictions, as well as discretionary aspects of his sentence. For the following reasons, we dismiss this appeal.

Appellant was convicted of the above-stated crimes based on his robbing a pizza delivery man at knifepoint on May 13, 2007. He was sentenced on January 23, 2009, to an aggregate term of four to eight years' incarceration, followed by two years' probation. Appellant did not file post-sentence motions or a direct appeal. However, he filed a timely petition for post conviction relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the restoration of his appeal rights nunc pro tunc. That petition was granted, counsel was appointed, and the instant appeal followed.

Appellant's counsel, Norman Scott, Esquire, subsequently filed with this Court a petition to withdraw his representation of Appellant pursuant to Anders v. California, 386 U.S. 738 (1967), as elucidated by our Supreme Court in Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and amended in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). On May 3, 2013, we issued a memorandum decision concluding that Attorney Scott's Anders brief utterly failed to comply with the requirements of Anders/Santiago. Therefore, we directed that Attorney Scott file either an advocate's brief on Appellant's behalf, or an amended petition to withdraw and brief that complied with Anders/Santiago.

Over seven months have now passed with no action by Attorney Scott. Normally, we would issue another order providing Attorney Scott with a specific number of days to comply with our order before dismissing Appellant's appeal. However, Appellant's right to a direct appeal has already been delayed so substantially that we believe the more appropriate course of action is to dismiss his appeal now. This way, Appellant may forthwith file a PCRA petition asserting Attorney Scott's ineffectiveness and seeking the restoration of his appeal rights nunc pro tunc. See Commonwealth v. Mikell, 968 A.2d 779, 781 (Pa.Super. 2009) ("It is well-settled that 'an accused who is deprived entirely of his right of direct appeal by counsel's failure to perfect an appeal is per se without the effective assistance of counsel, and is entitled to a reinstatement of his direct appellate rights.") (emphasis omitted). Furthermore, under this approach, Appellant will be entitled to new counsel if he ultimately files a nunc pro tunc direct appeal, and will be relieved of the incompetent representation afforded by Attorney Scott.

Appeal dismissed.

Judge Bowes files a dissenting statement.

Judgment Entered.

DISSENTING STATEMENT

BOWES, J.

I respectfully dissent from the distinguished majority's decision to dismiss this appeal. Rather, I would remand for the appointment of new counsel and retain jurisdiction. Such a procedure is looked upon highly favorably by our Supreme Court and avoids the unwarranted complication of requiring Appellant to institute PCRA proceedings in a timely fashion.

I highlight that in Commonwealth v. Bennett, 930 A.2d 1274 (Pa. 2007), wherein counsel abandoned his client by failing to file an appellate brief, this Court initially dismissed the original PCRA appeal. Id. at 1266.

This dismissal caused unwarranted problems. In this regard, our Supreme Court noted,

Many of the concerns raised in this case have been alleviated by the fact that the Superior Court has altered its practice and no longer dismisses such appeals "without prejudice" due to counsel's failure to file a brief. Rather, the court retains jurisdiction over the matter and remands for the appointment of new counsel.

Id. at 1274 n.12.

As the more prudent and less procedurally complex method of resolving this case is to remand for the appointment of new counsel, I would decline to add an additional layer of procedural history to this matter. Accordingly, I dissent.


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