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Commonwealth v. Green

Superior Court of Pennsylvania

July 24, 2017

ANDRE C. GREEN Appellant

         Appeal from the PCRA Order June 27, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012604-2011



          BOWES, J.

         Andre 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.

         The 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.[1] 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.

         Appellant 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 appeal.

         On 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.[2] 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.

         "[W]e 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).

         Appellant 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.

         Flores-Ortega 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 appeal.

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 ...

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