Commonwealth v. Rosado

150 A.3d 425

COMMONWEALTH of Pennsylvania, Appellee

v.Frankie ROSADO, Appellant

No. 92 MAP 2015

Supreme Court of Pennsylvania.

SUBMITTED: June 8, 2016

DECIDED: November 22, 2016

Elmer D. Christine Jr., Esq., Michael T. Rakaczewski, Esq., for Com. of Pennsylvania, Appellee.

Robert Allen Saurman, Esq., for Frankie Rosado, Appellant.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE TODD

In this appeal, we consider whether filing an appellate brief which abandons all preserved issues in favor of unpreserved ones constitutes ineffective assistance of counsel per se .¹ After careful review, we hold that it does, and so we vacate the Superior Court's order and remand to that court for further proceedings.

The factual and procedural history of this matter is straightforward. In 2012, Appellant Frankie Rosado was accused of sexually abusing his former girlfriend's teenage daughter, whereupon he was charged with one count each of indecent assault, corruption of minors, and unlawful contact with minor.² Appellant, then represented by a public defender, proceeded to trial, whereafter he was convicted of the aforementioned offenses and later sentenced to an aggregate term of 33 to 69 months imprisonment.

Appellant hired new counsel (hereinafter "Appellate Counsel") to represent him at the post-sentencing and appellate stages of his case. Appellate Counsel filed a post-sentence motion raising, as relevant here, a sufficiency-of-the-evidence claim, but the trial court denied relief. Appellate Counsel then filed a notice of appeal to the Superior Court, whereupon the trial court issued an order directing him to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellate Counsel filed a document styled as a "preliminary" concise statement, wherein he raised three issues: (1) whether Appellant's sentence was "an abuse of discretion"; (2) whether the trial court erred in excluding evidence that the alleged victim had previously accused her father of sexual abuse; and (3) whether a juror fraudulently concealed bias during voir dire . Appellate Counsel also attached a copy of his post-sentence motion to the "preliminary" concise statement, erroneously believing that doing so would preserve the claims raised therein for purposes of appeal, and requested additional time to file a "final" concise statement, which the trial court granted.³ However, Appellate Counsel never filed a revised concise statement, and, accordingly, the trial court considered the three claims raised in the extant concise statement, and issued a Pa.R.A.P. 1925(a) opinion rejecting those claims. Appellate Counsel then filed an appellate brief with the Superior Court, in which, deciding to abandon the three claims raised in his concise statement and addressed by the trial court, he raised as his sole appellate issue the unpreserved sufficiency claim.

In an unpublished memorandum opinion, the Superior Court, while noting the three issues preserved in Appellant's concise statement, found the sufficiency claim to be waived, as it was not included therein. Commonwealth v. Rosado, No. 2754 EDA 2012, 2013 WL 11259105 (Pa. Super. filed Jul. 23, 2013). Accordingly, the court did not address any of Appellant's preserved claims or his sufficiency claim, and, as a result, it summarily affirmed.

Appellant later filed a Post Conviction Relief Act ("PCRA")⁴ petition asserting, inter alia , that Appellate Counsel's above-detailed conduct constituted ineffective assistance of counsel per se , and thus seeking reinstatement of his appellate rights nunc pro tunc . The PCRA court held an evidentiary hearing, at which Appellate Counsel testified that he believed that attaching his post-sentence motion to his concise statement was sufficient to preserve the claims raised for purposes of appeal, and that he abandoned the three preserved claims in an effort to more persuasively argue his sufficiency claim. Ultimately, the PCRA court found that Appellate Counsel's conduct did not amount to ineffectiveness per se , and, accordingly, denied relief. Appellant appealed to the Superior Court.

In an unpublished memorandum opinion, the Superior Court affirmed. Commonwealth v. Rosado, No. 2474 EDA 2014, 2015 WL 7352584 (Pa. Super. filed Apr. 17, 2015). The court first quoted extensively from the PCRA court's Rule 1925(a) opinion regarding the doctrine of ineffective assistance of counsel per se as it applies to appeals in Pennsylvania:

There are two types of ineffective assistance of counsel. The first is ineffectiveness under Strickland v. Washington, 466 U.S. 668[, 104 S.Ct. 2052, 80 L.Ed.2d 674] (1984), as adopted in Pennsylvania by Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987), which requires the defendant to demonstrate that he was prejudiced by an act or omission of his attorney.

* * *

The second type of ineffectiveness of counsel is ineffectiveness per se under United States v. Cronic, 466 U.S. 648[, 104 S.Ct. 2039, 80 L.Ed.2d 657] (1984), decided the same day as Strickland, in which the United States Supreme Court categorized circumstances where prejudice will be presumed and need not be proven. The presumption is based on the High Court's recognition that there are "some circumstances so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." (Id. at 658 ).

In Commonwealth v. Brown, 18 A.3d 1147 (Pa. Super. 2011), our Superior Court collected cases that outline the various situations where counsel has been held to be ineffective per se and analyzed the differences between a Cronic violation and a Strickland/Pierce allegation of ineffective assistance of counsel.

* * *

The recognized instances of per se ineffectiveness entitling a defendant to automatic relief are extremely narrow. Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795 (2005) (counsel did not file a Pa.R.A.P. 1925(b) statement and waived all issues, thereby denying the defendant his constitutional right to direct appeal); Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (2003) (attorney did not file a petition for allowance of appeal, as requested by the defendant, and denied his client the right to seek discretionary review with our Supreme Court); Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564, 572 (1999) (lawyer did not file a direct appeal, despite defendant[']s request); see also Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009) (filing of an untimely 1925(b) statement); Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007) (not filing an appellate brief so defendant did not obtain direct review).

On the other hand, the types of actions or inactions that are not subject to Cronic are legion. E.g. Commonwealth v. Reed, 601 Pa. 257, 971 A.2d 1216, 1226 (2009) ("filing an appellate brief, deficient in some aspect or another, does not constitute a complete failure to function as a client's advocate so as to warrant a presumption of prejudice under Cronic"); ... [sic] Commonwealth v. Reaves, 592 A.2d [Pa.] 134, 923 A.2d 1119 (2007) (narrowing ambit of reviewable issues on appeal does not constitute per se ineffectiveness)[.]

Rosado, No. 2474 EDA 2014 at 6–8 (quoting PCRA Court Opinion, 10/31/14, at 6–9). The Superior Court then rejected Appellant's claim that Appellate Counsel's conduct constituted ineffective assistance of counsel per se :

Here, Appellant's appeal was timely filed, a Pa.R.A.P. 1925(b) statement was filed, and this Court acknowledged the claim Appellate Counsel chose to raise on appeal. These facts vitiate Appellant's claim of per se ineffectiveness. As discussed above, because Appellate Counsel litigated Appellant's direct appeal, Appellant's claim of ineffectiveness must be reviewed using the tripartite test of Strickland/Pierce. See also Commonwealth v. West, 883 A.2d 654, 658 n.5 (Pa. Super. 2005) (explaining that per se ineffectiveness does not occur when counsel elected to pursue certain issues in the Pa.R.A.P. 1925(b) statement and omitted others).

In Appellant's direct appeal, we found Appellant waived the only issue appellate counsel chose to raise. This fact, however, does not transform his claim into one of per se ineffectiveness. See [ Reed, 971 A.2d at 1226 ] ("filing an appellate brief, deficient in some aspect or another, does not constitute a complete failure to function as a client's advocate so as to warrant a presumption of prejudice under Cronic").

Id. at 8–9. Accordingly, the court concluded that Appellant was required to demonstrate that Appellate Counsel's errors caused him prejudice, and, finding he had not done so, affirmed the PCRA court's denial of relief.

Appellant timely sought, and this Court granted, allowance of appeal to consider whether filing an appellate brief which abandons all preserved issues in favor of unpreserved ones constitutes ineffective assistance of counsel per se . Commonwealth v. Rosado, 129 A.3d 1237 (Pa. 2015) (order).

Before us, the parties' arguments essentially offer two views of our jurisprudence in this area. Appellant contends that the Superior Court erred in rejecting his claim because it ignored "clear similarities" between the attorneys' conduct in Lantzy, Halley, Bennett, and Liebel—i.e. , the failure to file a requested appeal, concise statement, appellate brief, and petition for allowance of appeal, respectively—and Appellate Counsel's conduct herein. Appellant's Brief at 8. Specifically, Appellant submits that Appellate Counsel's filing of a brief containing no preserved issue is functionally equivalent to not filing a brief—as was the case in Bennett—and, in any event, Appellate Counsel's actions caused the complete forfeiture of merits review—as was the case in each of the aforementioned cases. Thus, Appellant views our earlier decisions in this area as drawing a distinction between attorney errors which cause complete deprivation of appellate review—which constitute ineffective assistance of counsel per se —and attorney ...