J-S53029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHRISTOPHER LEE PEPPLE,

Appellant No. 1532 MDA 2015

Appeal from the Order Entered March 9, 2015

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0001699-2010

BEFORE: BOWES, SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 11, 2016

Appellant, Christopher Lee Pepple, appeals nunc pro tunc from the 

order denying his petition for relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court summarized the history of this case as follows:

A two day jury trial was held before the Honorable Richard 

J. Walsh on November 2 and 3, 2011. The jury found 

[Appellant] guilty of criminal attempt to commit aggravated 

indecent assault of a child (Count 1),1indecent assault of a child 

(Count 2),2and endangering the welfare of a child (Count 3)3for 

incidents involving his then seven-year-old daughter. On 

February 22, 2012, [Appellant] was sentenced on Counts 1, 2, 

and 3 to an aggregate period of not less than 108 months to not 

more than 408 months in a state correctional institution.

1 18 Pa.C.S. [§] 3125(b).

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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2 18 Pa.C.S. [§] 3126(a)(7).

3 18 Pa.C.S. [§] 4304(a)(1).

On September 21, 2012, [Appellant] filed a timely pro se

Post Conviction Collateral Relief Petition (“PCRA Petition”). On 

September 26, 2012, Attorney Vincent Monfredo was appointed 

to represent [Appellant] and subsequently filed a no merit letter 

pursuant to Turner/Finley4and an application to withdraw as 

counsel on February 21, 2013. On March 5, 2013, by Order of 

Court Attorney Monfredo was granted leave to withdraw and 

[Appellant] was notified that the [PCRA c]ourt intended to 

dismiss [Appellant’s] PCRA without a hearing and that he had 

twenty days to respond. That same day[, Appellant] filed an 

Amended PCRA Petition.5 In addition to being nearly 100 pages 

long, [Appellant’s] Amended PCRA Petition filed on April 4, 2013, 

was convoluted and failed to list the issues in a concise and 

comprehensible manner. The [PCRA c]ourt ordered [Appellant] 

to file a Second Amended Petition listing the issues and providing 

a succinct statement of support for each within 30 days of the 

date of the order.

4 Commonwealth v. Tu[r]ner, 544 A.2d 927 (Pa. 

1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. 

Super. 1988).

5 The [PCRA c]ourt presumes that [Appellant] filed 

his Amended PCRA Petition in response to Attorney 

Monfredo’s application to withdraw and not the 

[PCRA c]ourt’s notice of intention to dismiss without 

a hearing.

On April 22, 2013, [Appellant] filed his Second Amended 

PCRA Petition which was also over 100 pages long. On April 26, 

2013, by Order of Court, [Appellant] was notified that the [PCRA 

c]ourt intended to dismiss his Second Amended PCRA Petition. 

However, [Appellant] was given the opportunity to respond to 

the proposed dismissal or file a Third Amended PCRA Petition

within 20 days. On May 16, 2013, [Appellant] filed a Third 

Amended PCRA Petition.6

6 The document was actually entitled “Amended 

Petition for Post-Conviction Collateral Relief;” 
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however, for purposes of clarity the [PCRA c]ourt will 

refer to it as the Third Amended PCRA Petition.

By Order of Court dated June 27, 2013, [the PCRA c]ourt 

found that it would be appropriate to hold an evidentiary hearing 

on two issues raised by [Appellant] in his Third Amended PCRA 

Petition: (1) whether trial counsel refused to file a direct appeal 

after request by [Appellant] to do so and (2) whether [Appellant] 

was excluded from participating in jury selection. The [PCRA 

c]ourt also ruled that all remaining issues raised or potentially 

raised in [Appellant’s] PCRA Petition, Amended PCRA Petition, 

Second Amended PCRA Petition, and Third Amended PCRA 

Petition were dismissed as patently frivolous and lacking merit. 

An evidentiary hearing was held on August 1, 2013, after which 

the [PCRA c]ourt, in an Opinion and Order dated August 30, 

2013, determined that the two issues on which the [PCRA c]ourt 

held an evidentiary hearing lacked merit and [Appellant] was not 

entitled to relief. On October 3, 2013, [Appellant] was ordered 

to file and serve on the [PCRA c]ourt within 21 days a concise 

statement of matters complained of on appeal. On October 24, 

2013, [Appellant] filed his Concise Statement of Reasons 

Complained of on Appeal. [Appellant] asserted 41 allegations of 

error relating to the [PCRA c]ourt’s August 30, 2013 Order. Only 

two of the allegations of error raised by [Appellant] actually 

related to the PCRA Court: (1) the [PCRA c]ourt erred by not 

appointing counsel to represent [Appellant] at the evidentiary 

hearing August 1, 2013 and (2) the [PCRA c]ourt erred by not 

providing [Appellant] with records.

In its Opinion sur 1925(a), the [PCRA c]ourt acknowledged 

that under a fair reading of the Pennsylvania Rules of Criminal 

Procedure, [Appellant] should have been appointed counsel to 

represent him at the PCRA evidentiary hearing on August 1, 

2013. In its Order dated June 24, 2014, the Pennsylvania 

Superior Court vacated the order denying PCRA relief and 

remanding to the PCRA [c]ourt for a new evidentiary hearing 

with appointed counsel. By Order of Court dated November 10, 

2014, the evidentiary hearing was scheduled for January 14, 

2015. The evidentiary hearing was to be limited to the two 

issues the [PCRA c]ourt previously determined warranted a 

hearing and any other issues that [Appellant] raised in pro se

filings that appointed counsel believed needed to be addressed.
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At the January 14, 2015, evidentiary hearing, [Appellant] 

was the only witness to testify. The transcript of the hearing 

held on August 1, 2013 and a copy of the Child Protective 

Services Investigation report from 2010 were made part of the 

record. By Opinion and order dated March 9, 2015, the [PCRA 

c]ourt denied [Appellant’s] request for collateral relief and 

dismissed his PCRA petition.

PCRA Court Opinion, 1/5/16, at 1-5. Appellant then brought this nunc pro 

tunc appeal from the denial of his PCRA petition. Both Appellant and the 

PCRA court have complied with Pa.R.A.P. 1925.

Appellant presents the following issue for our review:

1. Did the trial court err in issuing its March 9, 2015 order 

denying the Appellant’s request to extend his deadline to file a 

direct appeal where Appellant’s trial counsel was ineffective for 

providing the Appellant and his mother with erroneous and 

confusing information regarding his right to file a direct appeal 

(see Transcript of Proceedings on August 1, 2013, pages 15-16 

and 54-73) - including, but not limited to, trial counsel having 

indicated to the Appellant that a direct appeal could not be made 

unless there were errors or issues to allege (see Transcript of 

Proceedings on August 1, 2013, page 54-55) - whereby 

effectively depriving Appellant of his right of review on direct 

appeal?

Appellant’s Brief at 19.

Appellant argues that the PCRA court erred in denying his request for 

relief. Appellant’s Brief at 25-27. Appellant claims that his trial counsel was 

ineffective in providing confusing information about his direct appeal rights 

and therefore deprived Appellant of a direct appeal.

Our standard of review of an order granting or denying relief under the 

PCRA requires us to determine whether the decision of the PCRA court is 

supported by the evidence of record and is free of legal error. 
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Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014). “The 

PCRA court’s findings will not be disturbed unless there is no support for the 

findings in the certified record.” Id.

1

In resolving questions of counsel’s effectiveness, we begin with the 

presumption that counsel rendered effective assistance. Commonwealth 

v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that 

presumption, the petitioner must establish: “(1) the underlying claim has 

arguable merit; (2) no reasonable basis existed for counsel’s action or failure 

to act; and (3) the petitioner suffered prejudice as a result of counsel’s 

error, with prejudice measured by whether there is a reasonable probability 

that the result of the proceeding would have been different.” Id. (citation 

omitted). If the petitioner fails to prove any of these prongs, the claim is 

subject to dismissal. Id.

“Article V, Section 9 of the Pennsylvania Constitution guarantees a 

direct appeal as of right.” Commonwealth v. Lantzy, 736 A.2d 564, 571 

(Pa. 1999). “It is well settled that when a lawyer fails to file a direct appeal 

requested by the defendant, the defendant is automatically entitled to 

____________________________________________

1 We note that a petition for nunc pro tunc relief “must be considered a PCRA 

petition, as the PCRA is the only means for restoring direct appeal rights.” 

Commonwealth v. Johnson, 841 A.2d 136, 139 (Pa. Super. 2003). See 

also Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (stating 

that “[t]he plain language of the [PCRA] demonstrates that the General 

Assembly intended that claims that could be brought under the PCRA must 

be brought under that Act”).
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reinstatement of his direct appeal rights.” Commonwealth v. Markowitz, 

32 A.3d 706, 714 (Pa. Super. 2011). “[W]here there is an ‘unjustified 

failure to file a requested direct appeal,’ counsel is per se ineffective as the 

defendant [i]s left with the functional equivalent of no counsel.” Id. at 715 

(quoting Lantzy, 736 A.2d at 572). “The petitioner has the burden of 

proving that he requested a direct appeal and that his counsel heard but 

ignored or rejected the request.” Commonwealth v. Maynard, 900 A.2d 

395, 398 (Pa. Super. 2006).

In addressing Appellant’s claim, the PCRA court offered the following 

analysis, which we adopt as our own:

It is well-settled that, where a defendant directs counsel to 

file a direct appeal, and counsel refuses, the defendant is 

entitled to reinstatement of his direct appeal rights nunc pro 

tunc. Commonwealth v. Markowitz, 32 A.3d 706, 713 (Pa. 

Super. 2011) (citing Commonwealth v. Lantzy, 736 A.2d 564 

(Pa. 1999)). However, the Concise Statement does not allege 

that [Appellant] explicitly instructed trial counsel to file a direct 

appeal, rather, it states that trial counsel provided “erroneous 

and confusing information” to [Appellant] and his Mother. The 

sections of the PCRA hearing transcript, as cited in the Concise 

Statement, are more illuminating on this issue, but do not weigh 

in favor of finding that trial counsel was ineffective. At the 

hearing, [Appellant’s] mother testified that she was “taking care 

of getting in contact with [trial counsel] for [Appellant].” Aug. 1, 

2013 PCRA Hearing Transcript at 15. Rather than stating that 

[Appellant] had requested a direct appeal or that she had 

instructed counsel to file a direct appeal on [Appellant’s] behalf, 

she merely states that she “never got a straight answer out of 

[counsel]” regarding the direct appeal. Further, [Appellant] 

offered no evidence that he instructed counsel to file a direct 

appeal other than his own statements to that effect at the PCRA 

Hearing. See Aug. 1, 2013 PCRA Hearing Transcript at 60-61. 

Trial Counsel testified that he had explained to [Appellant] that 

he had noted no issues of error to raise on appeal and would 
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have had to file an Anders brief requesting an appeal despite 

his belief that the claim is frivolous. Id. at 55. Counsel further 

explained that the proper method to raise the issue of 

ineffectiveness of counsel would be through a PCRA. Id. at 56.

“Although counsel may be ineffective for failing to file a 

direct appeal on his client’s behalf, a PCRA petitioner must prove 

that he asked counsel to file an appeal in order to be entitled to 

relief.” Commonwealth v. Maynard, 900 A.2d 395, 397-98 

(Pa. Super. 2006) (citing Commonwealth v. Harmon, 738 

A.2d 1023, 1024 (Pa. Super. 1999)). “Mere allegations will not 

suffice.” Harmon, 738 A.2d at 1024. Thus, the petitioner has 

the burden of proving that he requested a direct appeal and that 

his counsel heard but ignored or rejected the request. Here, the 

only evidence demonstrating that [Appellant] requested [a direct 

appeal] is his own assertions that he did so, in contrast with the 

testimony of counsel. Therefore, [Appellant] has failed to meet 

his burden of demonstrating that counsel ignored any request to 

file a direct appeal.

Additionally, while it is not contested that trial counsel did 

consult with [Appellant] regarding his appeal rights, [Appellant] 

asserts that counsel’s description of his rights were so 

“erroneous and confusing” as to deprive him of his right to an 

appeal. In order to find that counsel failed to adequately consult 

with a defendant regarding his appellate rights, the Court must 

find that (1) the underlying issue has arguable merit; (2) 

counsel’s actions lacked an objective reasonable basis, and (3) 

actual prejudice resulted from counsel’s act or failure to act. 

Commonwealth v. Burkett, 5 A.3d 1260, 1272 (Pa. Super. 

2010). Here, it is clear that counsel had an objective and 

reasonable basis for his statements to [Appellant]. Counsel 

stated that he noted no issues of error by the trial court and, 

thus, could not have raised any issues on appeal. Aug. 1, 2013 

PCRA Hearing Transcript at 55. Counsel’s only option would 

have been to file an Anders brief and withdraw from 

representing [Appellant]. Id. Without having identified any 

appealable issues, counsel had no other reasonable alternative 

and fully appraised [Appellant] of this fact. At the hearing, 

[Appellant] noted that his only allegation on appeal would be 

ineffective assistance of counsel. Aug. 1, 2013 PCRA Hearing 

Transcript at 71-73. As a general rule, a defendant should wait 

to raise claims of ineffective assistance of trial counsel until 

collateral review; thus, the failure of new counsel to raise such a 
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claim on direct appeal will not waive the claim, and the claim will 

be waived only after a defendant has had the opportunity to 

raise it on collateral review and has failed to avail himself of that 

opportunity. Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 

2002). Thus, counsel’s instruction to [Appellant] that he should 

file a PCRA to raise his ineffectiveness claims was not erroneous 

and was a reasonable and accurate statement of the law.

PCRA Court Opinion, 1/5/16, at 6-9.

The PCRA court chose to find credible the testimony offered by trial 

counsel and concluded that (1) Appellant did not request trial counsel to file 

a timely direct appeal, and (2) counsel appropriately advised Appellant 

regarding his appellate rights. The certified record supports the PCRA 

court’s determinations, and we are bound by the PCRA court’s credibility 

determinations. See Commonwealth v. Hutchinson, 25 A.3d 277, 284 

(Pa. 2011) (stating that “[t]he PCRA court’s credibility determinations are 

binding on [an appellate c]ourt when they are supported by the record.”). 

Thus, we conclude that the PCRA court did not err in denying Appellant’s 

PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/11/2016