J-S43019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

ROBERT L. SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 302 MDA 2023

Appeal from the PCRA Order Entered January 23, 2023

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0001278-2019

BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED: MARCH 22, 2024

Appellant, Robert L. Smith, appeals from the order entered in the Berks 

County Court of Common Pleas, which denied his first petition filed under the 

Post Conviction Relief Act (“PCRA”).1 We affirm. 

The relevant facts and procedural history of this case are as follows. On 

March 30, 2021, a jury convicted Appellant of the following charges: three 

counts each of involuntary deviate sexual intercourse, aggravated indecent 

assault, indecent assault, endangering the welfare of children, and corruption 

of minors; two counts of rape; and one count each of statutory sexual assault

and intimidation, retaliation, or obstruction in child abuse cases. Jacob 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546. 
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Gurwitz, Esquire, represented Appellant at his jury trial. On June 21, 2021, 

the trial court sentenced Appellant to an aggregate term of 71 years and 9 

months to 194 years’ incarceration, followed by 36 years of probation. 

Appellant did not file a post-sentence motion or a direct appeal. 

On May 31, 2022, Appellant timely filed a counseled PCRA petition. In 

his petition, Appellant claimed that Andrew Laird, Esquire (along with another 

attorney in his law firm), who did not represent Appellant at trial, were 

ineffective in failing to file post-sentence motions and/or a direct appeal on 

Appellant’s behalf, after Appellant allegedly retained that firm following trial

to do so. The PCRA court held a hearing on the petition on September 13, 

2022. The PCRA court summarized the relevant testimony from the hearing 

as follows:

Andrew Laird, Esquire, ... was contacted by [Denise 

Bergman, Appellant’s girlfriend,] about [Appellant]’s case 

sometime prior to April of 2021. ... His firm was not hired for 

[Appellant]’s trial. 

After [Appellant]’s trial, Ms. Bergman contacted Attorney 

Laird complaining that [Appellant] received poor 

representation at trial and that she believed Attorney 

Gurwitz was ineffective. She did not raise any trial court 

errors.[2] 

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[2] Ms. Bergman testified that when she spoke to Attorney Laird, she expressed 

her shock that Appellant had been convicted and discussed her concerns about 

various aspects of how Appellant’s case was handled by Attorney Gurwitz. Ms. 

Bergman stated that she did not recall telling Attorney Laird about any errors 

committed by the court during this conversation. Attorney Laird testified that 

his understanding of this conversation was that Ms. Bergman believed 

Attorney Gurwitz provided ineffective assistance of counsel and she was 

(Footnote Continued Next Page)
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On April 2, 2021, Ms. Bergman emailed Attorney Laird

asking how much it would cost to file an appeal in 

[Appellant]’s case. On April 7, 2021, Attorney Laird 

responded by email with a discussion of the various 

complexities involved with PCRA petitions and provided an 

estimate of $15,000.00 to $20,000.00 for representation.

On April 8, 2021, Ms. Bergman emailed Attorney Laird and 

said that [Appellant] would be utilizing [a] public defender 

in his case due to the costs. She thanked Attorney Laird for 

his email about filing a PCRA petition. In response, on the 

same day, Attorney Laird said he highly recommended the 

public defender and said that she could call him if things 

didn’t go well. 

On June 24, 2021, Ms. Bergman emailed Attorney Laird 

stating that she had just talked to [Appellant] and that he 

told her a PCRA needs to be filed within 10 days and that 

there are 30 days to file to the appellate court. She said. “I 

just want to make sure you are taking care of this (which 

I’m sure you are).” Attorney Laird forwarded Ms. Bergman’s 

email to James Gallagher, Esquire, [another attorney at his 

firm], and asked him to check in with Ms. Bergman and 

make this a priority. Attorney Gallagher responded to 

Attorney Laird via email stating that Ms. Bergman was 

incorrect on the PCRA deadlines and that it will take time to 

obtain transcripts to determine if there is a basis to file a 

PCRA petition. Attorney Laird emailed Attorney Gallagher 

asking him to send a memo to Ms. Bergman advising her of 

the relevant timelines. These email exchanges all took place 

on June 24, 2021. 

Later in the day on June 24, 2021, Attorney Gallagher 

emailed Ms. Bergman. [He began by explaining that a PCRA 

petition is not the same as a request for reconsideration or 

an appeal from the verdict in the case.] He [further] 

explained that a request for a judge to reconsider a verdict 

or sentence must be filed within 10 days from the verdict or 

sentencing order. He said that an appeal to the Superior 

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inquiring about retaining him for the purpose of filing a PCRA petition on 

Appellant’s behalf.
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Court has to be filed within 30 days and was limited to 

challenging legal and procedural defects that occurred 

leading up to the verdict and sentencing. He also set forth 

the applicable deadlines for filing a PCRA [petition]. 

Attorney Gallagher confirmed his understanding that Ms. 

Bergman’s claims were based on Attorney Gurwitz’s alleged 

ineffectiveness and explained that he would need to review 

the transcript of the proceedings before filing a PCRA 

[petition]. 

Attorney Laird’s firm was hired by Ms. Bergman to represent 

[Appellant] in a PCRA matter sometime after June 24, 2021. 

Transcripts were requested on June 30, 2021. 

On August 10, 2021, Ms. Bergman responded to Attorney 

Gallagher’s email asking if there was any new information 

on [Appellant]’s case. She also complained that [three

individuals, who were identified by Attorney Gurwitz as 

potential witnesses, were present at Appellant’s trial and

prohibited from entering the courtroom, but Attorney 

Gurwitz did not call them to testify.] She further complained 

that the jurors were escorted through the hallway in front 

of [other witnesses] before entering the courtroom, which 

she believed was improper. 

[After Attorney Gallagher discovered that he had a conflict 

of interest, Appellant]’s case was referred to another 

attorney sometime in October of 2021. 

(PCRA Findings of Fact and Conclusion of Law, filed 1/23/23, at 5-7)

(numbered list omitted). 

The PCRA court denied relief on January 23, 2023. Appellant filed a 

timely notice of appeal on February 22, 2023. On March 3, 2023, the court 

ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of matters 

complained of on appeal, and Appellant complied on March 21, 2023. 

Appellant raises the following issues for our review:

1. Did the PCRA court err in denying Appellant’s ineffective
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assistance of counsel claim for appellate counsel’s failure to

file post-[sentence] motions?

2. Did the PCRA court err in denying Appellant’s ineffective

assistance of counsel claim for appellate counsel’s failure to

file a direct appeal?

(Appellant’s Brief at 4). 

In his issues combined, Appellant asserts that Ms. Bergman hired 

Attorney Laird and Attorney Gallagher to serve as Appellant’s appellate 

counsel. Appellant argues that Ms. Bergman’s mention of a 10-day and 30-

day deadline in her email should have indicated to the attorneys that Appellant 

wished to file a post-sentence motion and a direct appeal. Appellant asserts

that after receiving Ms. Bergman’s email, the attorneys had a duty to contact 

Appellant and discuss possible appellate issues. Appellant claims that 

Attorneys Laird and Gallagher were per se ineffective for failing to file a

requested post-sentence motion and direct appeal. Alternatively, Appellant 

contends that the attorneys were ineffective for failing to consult directly with 

Appellant to clear up any confusion about Appellant’s appellate options after 

Appellant demonstrated that he was interested in filing a direct appeal via Ms. 

Bergman. Appellant concludes that the PCRA court erred in denying relief,

and this Court should reverse the PCRA court’s order and reinstate Appellant’s 

direct appeal rights nunc pro tunc. We disagree. 

“Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s determination 

and whether its decision is free of legal error.” Commonwealth v. Beatty, 
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207 A.3d 957, 960-61 (Pa.Super. 2019), appeal denied, 655 Pa. 482, 218 

A.3d 850 (2019). This Court grants great deference to the factual findings of 

the PCRA court if the record contains any support for those findings. 

Commonwealth v. Howard, 249 A.3d 1229 (Pa.Super. 2021). “[W]e review 

the court’s legal conclusions de novo.” Commonwealth v. Prater, 256 A.3d 

1274, 1282 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 268 A.3d 386 

(2021).

“Counsel is presumed to have rendered effective assistance.” 

Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal 

denied, 663 Pa. 418, 242 A.3d 908 (2020). 

[T]o establish a claim of ineffective assistance of counsel, a 

defendant must show, by a preponderance of the evidence, 

ineffective assistance of counsel which, in the circumstances 

of the particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence 

could have taken place. The burden is on the defendant to 

prove all three of the following prongs: (1) the underlying 

claim is of arguable merit; (2) that counsel had no 

reasonable strategic basis for his or her action or inaction; 

and (3) but for the errors and omissions of counsel, there is 

a reasonable probability that the outcome of the 

proceedings would have been different. 

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019), 

appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and 

quotation marks omitted). The failure to satisfy any prong of the test for 

ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612 

Pa. 333, 30 A.3d 1111 (2011). 

An attorney’s failure to file a post-sentence motion, even if requested to 
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do so, is not per se ineffectiveness. Commonwealth v. Reaves, 592 Pa. 

134, 923 A.2d 1119 (2007) (concluding that PCRA petitioner was required to 

establish actual prejudice where counsel’s alleged deficiency stemmed from 

failure to move for reconsideration of sentence). Thus, a petitioner bears the 

burden of pleading and proving that counsel’s failure to file a post-sentence 

motion prejudiced him. Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 

1089 (2009). 

On the other hand, with respect to a claim that counsel failed to file a 

requested direct appeal:

Our Supreme Court has held that where “there is an 

unjustified failure to file a requested direct appeal, the 

conduct of counsel falls beneath the range of competence 

demanded of attorneys in criminal cases” and denies the 

accused the assistance of counsel that is guaranteed by the 

Sixth Amendment to the United States Constitution and 

Article I, Section 9 of the Pennsylvania Constitution. Such 

an oversight constitutes prejudice and per se ineffectiveness 

under the PCRA. However, “[b]efore a court will find 

ineffectiveness of trial counsel for failing to file a direct 

appeal, Appellant must prove that he requested an appeal 

and that counsel disregarded this request.”

Commonwealth v. Mojica, 242 A.3d 949, 955 (Pa.Super. 2020) (internal 

citations omitted). In other words, if counsel neglects to file a requested

direct appeal, “counsel is per se ineffective as the defendant was left with the 

functional equivalent of no counsel.” Commonwealth v. Markowitz, 32 

A.3d 706, 715 (Pa.Super. 2011), appeal denied, 615 Pa. 764, 40 A.3d 1235 

(2012). 

Even if a defendant does not expressly ask counsel to file a direct appeal, 
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counsel still has a duty “to adequately consult with the defendant as to the 

advantages and disadvantages of an appeal where there is reason to think 

that a defendant would want to appeal.” Commonwealth v. Bath, 907 A.2d 

619, 623 (Pa.Super. 2006), appeal denied, 591 Pa. 695, 918 A.2d 741 (2007). 

In this situation, where the defendant did not request counsel to file a direct 

appeal but counsel failed to consult with the defendant, counsel is not per se

ineffective and the traditional three-prong test “is necessary to decide whether 

counsel rendered constitutionally ineffective assistance by failing to advise his 

client about his appellate rights.” Markowitz, supra at 716. 

Pursuant to [Roe v. Flores-Ortega, 528 U.S. 470, 120 

S.Ct. 1029, 145 L.Ed.2d 985 (2000) and its Pennsylvania 

expression, Commonwealth v. Touw, 781 A.2d 1250 

(Pa.Super. 2001)], counsel has a constitutional duty to 

consult with a defendant about an appeal where counsel has 

reason to believe either “(1) that a rational defendant would 

want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular 

defendant reasonably demonstrated to counsel that he was 

interested in appealing.” [Id.] at 1254 (quoting Roe[, 

supra] at 480, 120 S.Ct. [at 1036]).

Bath, supra at 623. “Where a petitioner can prove either factor, he 

establishes that his claim has arguable merit.” Markowitz, supra at 716. 

Further, prejudice in this context means a defendant must show a reasonable 

probability that, but for counsel’s failure to consult, the defendant would have 

sought additional review. Touw, supra at 1254. 

Instantly, the PCRA court found that neither Appellant nor Ms. Bergman 

acting on Appellant’s behalf, communicated to Attorney Laird or Attorney 
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Gallagher that Appellant wanted to file a post-sentence motion or a direct 

appeal. The record supports the court’s findings. See Howard, supra; 

Beatty, supra. Specifically, our review of the record confirms that Ms. 

Bergman, serving as Appellant’s means of communication, contacted Attorney 

Laird after Appellant was convicted and raised concerns about trial counsel’s 

poor representation of Appellant at trial. From this initial conversation, 

Attorney Laird’s understanding was that Appellant wished to file a PCRA 

petition alleging various instances of trial counsel’s ineffectiveness. 

Thereafter, when Ms. Bergman inquired about costs, Attorney Laird 

responded by explaining the intricacies of a PCRA petition and only quoted her 

an estimate to file a PCRA petition. At no time did Ms. Bergman inform 

Attorney Laird or Attorney Gallagher that she wanted them to file a postsentence motion or appeal on Appellant’s behalf. Notably, Ms. Bergman’s 

primary concerns were about trial counsel’s alleged failures or deficiencies.

Additionally, Ms. Bergman did not correct the attorneys when they repeatedly 

communicated their understanding that Appellant wanted to hire them for the 

purpose of pursuing a PCRA petition. Thus, Attorneys Laird and Gallagher

were not ineffective for failing to file a requested post-sentence motion or 

direct appeal. See Mojica, supra. See also Reaves, supra. 

The PCRA court further determined that Appellant failed to establish that 

the attorneys were ineffective for failing to consult with Appellant regarding a 

direct appeal. From their initial involvement with Appellant’s case, Attorneys 
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Laird and Gallagher were operating under the belief that Appellant was 

retaining them to file a PCRA petition. The court found that Appellant did not 

establish that he reasonably demonstrated an interest in a direct appeal such 

that they had a duty to consult with him. The court explained: 

Ms. Bergman referenced the filing of a PCRA petition and 

the 30-day filing deadline to go to the appellate court in her 

email on June 24, 2021. She wanted to confirm that it was 

being taken care of. In response, Attorney Gallagher 

emailed Ms. Bergman explaining the various deadlines and 

the purpose behind filing a request for reconsideration, an 

appeal to the Superior Court and a PCRA appeal. He then 

set forth his understanding that [Appellant] wanted to raise 

Attorney Gurwitz’s ineffectiveness in a PCRA petition. When 

Ms. Bergman responded on August 10, 2021, she told 

Attorney Gallagher that Attorney Gurwitz failed to call 

certain witnesses [at trial, which again supported an] 

ineffectiveness claim. She didn’t correct Attorney 

Gallagher’s understanding of the purpose of their 

representation, to file a PCRA petition or request that an 

appeal be filed. Therefore, ... neither [Appellant] nor [Ms.] 

Bergman reasonably demonstrated that they were 

interested in appealing. 

(PCRA Findings of Fact and Conclusion of Law at 29). The record supports the 

court’s analysis. See Howard, supra; Beatty, supra. Appellant also failed 

to identify any non-frivolous grounds for a direct appeal or otherwise 

demonstrate that the circumstances of his case were such that the attorneys

should have known that a rational defendant would have wanted to file a direct 

appeal.3 See Bath, supra. Therefore, we agree with the PCRA court that

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In his brief, Appellant vaguely notes that “trial counsel, at a minimum, 

preserved [Appellant]’s weight and sufficiency arguments by moving for a 

(Footnote Continued Next Page)
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Appellant failed to establish ineffective assistance of counsel on the grounds 

alleged.

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 Accordingly, we affirm. 

Order affirmed. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 3/22/2024

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judgment of acquittal at the conclusion of the Commonwealth’s case-in-chief.” 

(Appellant’s Brief at 17). Nevertheless, Appellant does not elaborate on these 

potential claims with any specificity or demonstrate in any manner that a 

weight or sufficiency claim would not have been frivolous. See Bath, supra. 

Likewise, we note that although Ms. Bergman mentioned in an e-mail to the 

attorneys a claim that the jury had entered the courtroom improperly, 

Appellant does not mention this claim on appeal as a potential non-frivolous 

issue that would have obligated the attorneys to consult with him about an 

appeal. 

4 To the extent Appellant claims that Attorneys Laird and Gallagher were 

ineffective because they failed to have reasonable procedures in place to 

discover conflicts of interest in a timely manner, we note that Appellant did 

not raise this claim in his PCRA petition or his 1925(b) concise statement. As 

such, Appellant has waived this argument. See Commonwealth v. Castillo, 

585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (stating: “[A]ny issues not raised 

in a [Rule] 1925(b) statement will be deemed waived”); Pa.R.A.P. 302(a) 

(stating: “Issues not raised in the [PCRA] court are waived and cannot be 

raised for the first time on appeal”).