Com. v. White

• Decision Date: 20 March 1996
• Citation: Com. v. White, 674 A.2d 253, 449 Pa.Super. 386 (Pa. Super. Ct. 1996)
• Parties: COMMONWEALTH of Pennsylvania, v. Troy WHITE, Appellant.
• Court: Pennsylvania Superior Court

Page 253

674 A.2d 253

449 Pa.Super. 386

COMMONWEALTH of Pennsylvania, v.Troy WHITE, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 5, 1996.

Filed March 20, 1996.

Troy White, pro se.

Peter J. Gardner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before McEWEN, President Judge, JOHNSON, J., and CERCONE, President Judge Emeritus.

CERCONE, President Judge Emeritus:

This is a pro se appeal from an order of court denying appellantTroy White's petition for relief filed pursuant to the Post Conviction Relief Act (PCRA).42 Pa.C.S.A. § 9541 et seq.We vacate and remand for proceedings consistent with this memorandum.

The PCRA court has provided us with a summary of the underlying facts of this case:

[A]t approximately 7:00 A.M. on June 6, 1991, [appellant] and an accomplice named Tyrone held siblings Debbie and Glenn Chisolm at gunpoint inside the Chisolms' home.[Appellant] then went through the Chisolms' residence, searching for items to steal.Debbie Chisolm knew the [appellant] for over ten years and gave police his name and his description.A police officer also knew the [appellant] and spotted him a short time later.When the officer approached the [appellant], he immediately fled.[Appellant] then ran to the home of Gwendolyn Green and her family, where he shimmied up a drain pipe and entered a window without permission.Once inside, Chris Green, Mrs. Green's son, saw [appellant] and a struggle ensued.Police entered the home and arrested [appellant].

Trial court opinion dated April 12, 1995at 1-2.

A jury found appellant guilty of robbery, ¹ carrying firearms on public streets or public property, ² burglary ³ and criminal conspiracy.⁴After denying post-verdict motions, the trial court, on August 28, 1992, sentenced appellant to an aggregate term of incarceration of not less than ten (10) nor more than twenty (20) years.Appellant did not file a direct appeal.

On October 18, 1993, appellant filed a pro se petition for post-conviction relief and the post-conviction court appointed Robert Fulton, Esquire to represent him.Appointed counsel, on January 31, 1995, filed a "no-merit" letter.On March 7, 1995, the lower court concluded that the PCRA petition was without arguable merit, dismissed the petition, and granted appointed counsel's petition to withdraw.

In this appeal, appellant claims that PCRAcounsel rendered ineffective assistance by filing a "no-merit" letter despite the presence of claims of arguable merit in the underlying PCRA petition.Specifically, appellant argues that trial counsel denied him his constitutional right to file a direct appeal and that PCRAcounsel rendered ineffective assistance by failing to raise that claim in an amended PCRA petition.Because appellant, if successful on this issue, will be awarded a direct appeal nunc pro tunc and because a direct appeal is subject to a standard of review different from the standard governing our review of the denial of a PCRA petition, we decline to address the remaining issues currently raised by appellant.⁵

When examining a post-conviction court's grant or denial of relief, we are limited to determining whether the court's findings were supported by the record and the court's order is otherwise free of legal error.Commonwealth v. Granberry, 434 Pa.Super. 524, 530, 644 A.2d 204, 207(1994).We will not disturb findings which are supported by the record.Id.Before reaching the merits of appellant's claim, we must ascertain whether appellant is eligible for relief under the PCRA.

As stated, appellant has been convicted of a crime under the laws of this Commonwealth and is currently serving a sentence of imprisonment.42 Pa.C.S.A. § 9543(a)(1)(i).Based on our review of the record, we conclude that the challenge to trial counsel's denial of appellant's direct appeal rights has not been previously litigated.Id.§ 9543(a)(3).We must next consider whether the allegation of error has been waived.By failing to raise trial counsel's alleged denial of appellant's right of appeal in an amended PCRA petition, appointed counsel waived that issue.Nevertheless, "an allegation of ineffectiveness of counsel in failing to preserve an issue is sufficient to overcome waiver under section 9543(a)(3)(iii) of the PCRA when the proceedings involves [sic]a petitioner's first PCRA petition."Commonwealth v. Eaddy, 419 Pa.Super. 48, 58, 614 A.2d 1203, 1207(1992), appeal denied, 534 Pa. 636, 626 A.2d 1155(1993).Because appellant has couched the appellate rights issue in terms of ineffectiveness of PCRAcounsel, we will treat the issue as not waived and determine whether it is cognizable under the PCRA.

According to appellant, PCRAcounsel rendered ineffective assistance by filing a "no-merit" letter despite the presence of an issue of arguable merit in the PCRA petition.Specifically, in the original pro se petition for post-conviction relief, appellant averred that trial counsel ignored his request to file an appeal.Appellant characterizes this inaction as a violation of his constitutional right to a direct appeal.Brief of Appellantat 7.Therefore, appellant raises a claim cognizable under the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(v).SeeCommonwealth v. Hickman, 434 Pa.Super. 633, 635, 644 A.2d 787, 788(1994)(allegation that trial counsel was ineffective for failing to file a direct appeal as requested, thereby violating appellant's constitutional right to a direct appeal, deemed cognizable under section 9543(a)(2)(v) of the PCRA).

Despite the presence of this arguably meritorious issue, appointed counsel filed a "no-merit" letter and sought permission to withdraw.If counsel for a criminal defendant, exercising professional judgment, determines that the issues raised in collateral proceedings are meritless, and if the post-conviction court concurs, counsel will be permitted to withdraw.Commonwealth v. Bishop, 435 Pa.Super. 211, 214, 645 A.2d 274, 275(1994);Commonwealth v. Turner, 518 Pa. 491, 494, 544 A.2d 927, 928-29(1988);Commonwealth v. Finley, 379 Pa.Super. 390, 393, 550 A.2d 213, 215(1988).The petitioner may then proceed pro se, or by privately retained counsel, or not at all.Bishop, 435 Pa.Super. at 214, 645 A.2d at 275.Before a post-conviction court may grant such a request to withdraw, counsel must file a "no-merit" letter detailing the nature and extent of review and listing each issue which the petitioner wished to raise.Id. at 214-15, 645 A.2d at 275-76.Counsel must also explain why those issues lack merit.Id.The post-conviction court then conducts an independent judicial determination as to whether the various issues support a grant of relief.Id.The assessment of the PCRA court is subject to appellate scrutiny to ensure compliance with the constraints imposed by Turner.Commonwealth v. Mosteller, 430 Pa.Super. 57, 61, 633 A.2d 615, 617(1993).

In this case, appointed counsel explained in his "no-merit" letter that he had reviewed the record, including transcripts of the proceedings, interviewed trial counsel and contacted petitioner regarding potential claims and prospective witnesses.Further, counsel listed each of the issues raised in appellant's pro se petition, including the claimed denial of appellant's right of appeal.In explaining why this issue lacked merit, post-conviction counsel relied on trial counsel's representations: "[Appellant] never communicated his desire to have an appeal taken from the issues of his trial and/or sentencing."Finley Letterat 2.Appointed counsel does not claim to have obtained either written or oral confirmation from appellant.Nor does he address appellant's allegation to the contrary.Moreover, he did not petition the PCRA court to resolve this credibility dispute through an evidentiary hearing.

We acknowledge that the right to an evidentiary hearing is not absolute.Granberry, supra, 434 Pa.Super. at 532, 644 A.2d at 208.Nevertheless, a hearing may only be denied if a petitioner's claim is patently frivolous and without a trace of support either in the record or from other evidence.Id.Further, a post-conviction petition may not be summarily dismissed as "patently frivolous" when the facts alleged in the petition, if proven, would entitled the petitioner to relief.Id.

As set forth above, appellant's claim that trial counsel ignored his request for an appeal from the judgment of sentence is not without record support.If trial counsel did in fact disregard appellant's request to pursue a direct appeal, then appellant would be entitled to relief, i.e., a direct appeal nunc pro tunc.SeeHickman, supra, 434 Pa.Super. at 635, 644 A.2d at 788(trial court erred in denying PCRA petition without a hearing when petitioner had alleged that trial counsel was ineffective for failing to file a motion to reconsider sentence and a direct appeal; petitioner's averments, if true, would entitle him to direct appeal nunc pro tunc );Commonwealth v. Mosteller, 430 Pa.Super. at 62, 633 A.2d at 618(when a defendant establishes that counsel's ineffectiveness denied him entirely his right to a direct appeal, he is entitled to a direct appeal nunc pro tunc without regard to his ability to establish the merit of the issues which he seeks to raise on direct appeal).Consequently, the post-conviction court erred in relying on appointed counsel's "no-merit" letter and dismissing, without a hearing, appellant's PCRA petition.

Despite the Commonwealth's claim to the contrary, this court's holding in Commonwealth v. Lehr, 400 Pa.Super. 514, 583 A.2d 1234(1990) does not mandate a contrary result.In Lehr, appellant charged trial counsel with ineffectiveness for failing to file a direct appeal from the judgment of sentence.The PCRA court conducted an evidentiary hearing to ascertain whether appellant had ever requested an appeal.At the conclusion of that hearing, the post-conviction court, crediting trial counsel's testimony, found that appellant...