from the PCRA Order June 27, 2016 In the Court of Common
Pleas of Philadelphia County Criminal Division at No(s):
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
Green appeals from the June 27, 2016 order denying his PCRA
petition seeking reinstatement of his appellate rights
nunc pro tunc. We reverse and remand for
reinstatement of Appellant's direct appellate rights.
facts and procedural history are as follows. On September 27,
2011, Philadelphia Police Officer Kevin Devlin and his
partner observed Appellant in an area known for drug
trafficking. He saw Appellant bend down between the curb and
a parked vehicle. As Officer Devlin and his partner
approached, someone on the street alerted nearby persons to
their presence. Appellant stood up, looked at the officers in
their car, grabbed his waistband, and walked into a nearby
store. The officers testified they believed they
had witnessed an aborted drug transaction since cars parked
near a curb are often utilized to stash drugs and a male was
standing near Appellant's location. Officer Devlin parked
his vehicle and followed Appellant into the store. He ordered
Appellant to place his hands in the air. Appellant complied,
and the officer saw a gun in Appellant's waistband. He
was arrested and charged with carrying a firearm without a
license, prohibited possession of a firearm, and carrying a
firearm in public in Philadelphia.
retained trial counsel, who filed a motion to suppress the
firearm, alleging that the officers lacked reasonable
suspicion to seize Appellant inside the store. Following an
evidentiary hearing on October 4, 2012, the trial court
denied the motion, and Appellant proceeded to a stipulated
bench trial. The court found him guilty at all counts. On
November 29, 2012, Appellant was sentenced to two to four
years incarceration for carrying a firearm without a license,
and a consecutive aggregate period of eight years of
probation at the other counts. Appellant did not file an
November 3, 2013, Appellant filed a pro se PCRA
petition. Counsel was appointed and thereafter filed amended
petitions on July 23, 2015 and May 16, 2016. The PCRA court
held an evidentiary hearing and subsequently denied relief.
Appellant timely filed a notice of appeal. Appellant raises
one issue for our review.
Did the trial court err in not reinstating Appellant's
right to file an appeal nunc pro tunc from the
judgment of sentence due to ineffective assistance [of] trial
defense [counsel] who failed to discuss with the Appellant a
non-frivolous ground for appeal?
Appellant's brief at 2.
review a denial of PCRA relief to determine whether the
findings of the PCRA court are supported by the record and
free of legal error." Commonwealth v. Orlando,
156 A.3d 1274, 1280 (Pa.Super. 2017) (quoting
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa.
2015)). A PCRA court's credibility findings are to be
accorded great deference, and where supported by the record,
such determinations are binding on a reviewing court.
Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa.
1998). A PCRA court's legal conclusions, however, are
reviewed de novo. Commonwealth v. Chmiel,
30 A.3d 1111, 1127 (Pa. 2011).
relies upon Roe v. Flores-Ortega, 528 U.S. 470
(2000), which supplies the legal framework for the question
presented on appeal. Therein, the High Court addressed
counsel's duty in the situation herein, when the
defendant has not clearly conveyed one way or the other
whether he wishes to appeal. Id. The Court declined
to impose either a per se duty to file a notice of
appeal or a per se duty to consult. "We cannot
say, as a constitutional matter, that in every case
counsel's failure to consult with the defendant about an
appeal is necessarily unreasonable, and therefore
deficient." Id. at 479 (emphasis in original as
italics). However, the Court noted its expectation that
"courts . . . will find, in the vast majority of cases,
that counsel had a duty to consult with the defendant about
an appeal." Id. at 481.
established that a court must first assess whether
consultation has occurred; if so, deficient performance is
established only if counsel failed to file a requested notice
of appeal. The Court stated:
[W]e believe the question whether counsel has performed
deficiently by not filing a notice of appeal is best answered
by first asking a separate, but antecedent, question: whether
counsel in fact consulted with the defendant about an appeal.
We employ the term "consult" to convey a specific
meaning-advising the defendant about the advantages and
disadvantages of taking an appeal, and making a reasonable
effort to discover the defendant's wishes. If counsel has
consulted with the defendant, the question of deficient
performance is easily answered: Counsel performs in a
professionally unreasonable manner only by failing to follow
the defendant's express instructions with respect to an
Id. at 478 (internal citation omitted). If, however,
counsel has not consulted with the defendant, "the court
must in turn ask a second, and subsidiary, question: whether
counsel's failure to consult with the defendant itself