A.P., In Interest of

• Decision Date: 07 December 1992
• Citation: 421 Pa.Super. 141,617 A.2d 764
• Parties: In the Interest of A.P. Appeal of A.P.
• Court: Pennsylvania Superior Court

Page 764

617 A.2d 764

421 Pa.Super. 141

In the Interest of A.P.

Appeal of A.P.

Superior Court of Pennsylvania.

Argued June 1, 1992.

Filed Dec. 7, 1992.

[421 Pa.Super. 143] Bradley S. Bridge, Philadelphia, for appellant.

[421 Pa.Super. 144] Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., participating party.

Before ROWLEY, President Judge, and WIEAND, CIRILLO, OLSZEWSKI, MONTEMURO ^*, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

HUDOCK, Judge:

The question which brings this matter to this Court en banc is: What means, if any, are available to a juvenile to perfect his constitutional right to appellate review of a disposition order when his counsel was ineffective in failing to file a direct appeal, and relief is unavailable under the Post Conviction Relief Act? ¹

This appeal comes to us as an appeal from an order denying Appellant's (A.P.'s) motion to appeal nunc pro tunc. A.P. was adjudicated a delinquent following a hearing on February 26, 1990, concerning charges that he possessed sixty-four vials of crack cocaine. He was placed on probation at the conclusion of the hearing. A.P.'s counsel filed post-trial motions ² which were denied on April 16, 1990. On May 4, 1990, counsel ³ filed a motion for leave to appeal within thirty (30) days (the nunc pro tunc motion). This motion was denied on May 9, 1990. A.P.'s trial counsel then filed a notice of appeal from the denial of post-trial motions on May 11, 1990, ⁴ and a notice of appeal from the denial of the motion for nunc pro tunc appeal was filed May 17, 1990.

A.P. frames the issues as follows:

1. Did not the lower court err by refusing to grant appellant leave to file an appeal nunc pro tunc where the failure to timely file [a] notice of appeal was due to ineffective assistance of counsel that was apparent on this record?

2. Did not the lower court err by refusing to suppress a controlled substance found during a search incident to an arrest where the arrest was made solely because appellant was an Hispanic male, about 5'8"' in height, seen exiting a house where a homicide had occurred five days earlier and the suspect in the homicide was "possibly" an Hispanic male about 5'8"' in height?

Appellant's Substituted Brief at p. 2. We will discuss the issues in the order presented above.

A.P. claims that he has been denied his right to a direct appeal because of the trial court's denial of his motion for a nunc pro tunc appeal. He claims that because he is a juvenile, a nunc pro tunc appeal is his only means for challenging the stewardship of his trial counsel who, he claims, caused him to lose his appeal rights. We agree.

We note, initially, that both juveniles and adults alike have a right to appeal from a court of record. Pennsylvania Constitution, Article V, § 9 reads:

There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.

Because juvenile court is a court of record, the right of appeal attaches. We also note that juveniles are entitled to the assistance of counsel, In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); 42 Pa.C.S.A. § 6337 (Purdon 1982), ⁵ which includes the right to effective assistance of counsel. As we recently held:

To assume that what is meant by assistance of counsel does not include the concept of able, effective representation is to ascribe to the statute a ludicrous result, that is, that such counsel need not be able to perform appropriately, or indeed at all, to fulfill the legislative mandate. The right to counsel prescribed by the Juvenile Act must be read in pari materia with the Rule of Statutory Construction, 1 Pa.C.S.A. § 1922(1), which specifies that:

In ascertaining the intent of the General Assembly in the enactment of a statute, the following presumptions, among others, may be used.

(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.

See also, Gruver v. Gruver, 372 Pa.Super. 194, 539 A.2d 395 (1988).

In The Matter of Brandon Smith, 393 Pa.Super. 39, 43, 573 A.2d 1077, 1079 (1990) (en banc). Therefore, A.P. was not only entitled to the assistance of counsel, but to the effective assistance of counsel in the proceedings against him.

Unlike the review necessary for ordinary claims of ineffectiveness where we would first determine if appellant's ineffectiveness claim is of arguable merit, see generally, Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988), counsel's failure to properly effectuate an appellant's constitutional right to appeal, unless expressly waived by an appellant, ⁶ is ineffective per se. See Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980) ("[The] requirement that counsel protect the appellate right of an accused extends even to circumstances where the appeal is 'totally without merit.' "). Once it is determined that an appellant was denied his or her constitutional right of direct appeal, the proper course of action is to grant the appellant leave to file a direct appeal nunc pro tunc. Commonwealth v. Hoyman, 385 Pa.Super. 439, 561 A.2d 756 (1989). Because counsel is ineffective per se for failing to protect this right, the appellant is entitled to a direct appeal nunc pro tunc without considering the ability to establish the merit of the issues sought to be raised on direct appeal. Commonwealth v. Hoyman, supra (citing Commonwealth v. Ciotto, 382 Pa.Super. 458, 555 A.2d 930 (1989)).

As stated above, following the denial of post-verdict motions, new counsel for A.P., realizing that the time for appeal from the disposition order had already run, filed a motion for permission to appeal nunc pro tunc. In this motion, he raised trial counsel's ineffectiveness in failing to file a timely notice of appeal. Without reference to the claim of ineffectiveness, the trial court found that, because fraud or breakdown in the courts was not alleged or proven, it could not enlarge the time in which A.P. could file an appeal. Pa.R.A.P. 903(a) (Purdon 1990). This was error.

While we agree that generally the trial court's discretion in granting a nunc pro tunc appeal is limited to a finding of fraud Because we find that A.P. was denied his constitutional right to appeal the disposition order, we reverse the trial court and find that A.P.'s motion for nunc pro tunc appeal should have been granted. "However, it is not necessary for us to remand the case to the trial court. Because the substantive issues appellant seeks to have considered on direct appeal have been briefed and argued by the parties, and, the record is complete, we may consider them at this time in the context of a nunc pro tunc direct appeal." Commonwealth v. Hoyman 385 Pa.Super. at 444, 561 A.2d at 759. While the Commonwealth here has not briefed the suppression issue, asserting that the appeal raising the issue has been quashed and therefore not before us, we find the Commonwealth's reasons for ignoring the issue sophistic. Appellant's brief makes it clear that he sought to raise the issue, whatever the technical propriety of so doing. The Commonwealth knew, or should have known, that if this Court decided the issue of the nunc pro tunc appeal in A.P.'s favor, judicial economy would dictate that this Court address the only substantive issue raised--the suppression issue--rather than order a remand to allow the filing of a new appeal with the resultant waste of time and judicial resources. In short, we hold the Commonwealth declined to address the issue at its peril. We therefore turn to A.P.'s second issue involving the suppression of evidence seized from him at the time of his arrest.

                or a breakdown in the processes of the court, see Commonwealth v. Englert, 311 Pa.Super. 78, 457 A.2d 121 (1983), because A.P. was denied his constitutional right to appeal his juvenile disposition due to trial counsel's ineffectiveness[421 Pa.Super. 148] , the proper course to be taken is to grant the right to appeal nunc pro tunc.  Commonwealth v. Hoyman, supra.   A.P. has no other means of redress;  a nunc pro tunc appeal is the only means by which a juvenile can challenge the stewardship of his trial counsel because the Post Conviction Relief Act, supra, which would be the remedy for an adult, is not available to a juvenile.  See In the Interest of DelSignore, 249 Pa.Super. 149, 375 A.2d 803 (1977);  Brandon Smith, supra.   If the constitutional right to appellate review is to have any meaning under these circumstances, it must be protected through a nunc pro tunc appeal
                

Our standard for reviewing the denial of a motion to suppress evidence is well-established:

Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we are to consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Jackson, 359 Pa.Super. 433, 435, 519 A.2d 427, 429 (1986), citing Commonwealth v. Cavalieri, 336 Pa.Super. 252, 254-55, 485 A.2d 790, 791 (1984).

The trial court found the following facts in reaching its decision to deny Appellant's motion to suppress:

The Commonwealth presented the testimony of Police Officer James Gallagher who testified that on February 7, 1990 at approximately 4:00 a.m. he was investigating a homicide that had occurred on February 2, 1990 at 1452 Ithan Street. The officer had been given a description of the...