J-S31041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TERRY DALE STITELY

Appellant No. 1670 MDA 2014

Appeal from the PCRA Order of September 12, 2014

In the Court of Common Pleas of Franklin County

Criminal Division at No: CP-28-CR-0000906-2011

BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.: FILED JUNE 12, 2015

Terry Dale Stitely appeals the September 12, 2014 order that denied 

his petition for relief filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

On March 31, 2011, Stitely was charged with indecent assault, 18 

Pa.C.S.A. § 3126(a)(7), corruption of the morals of a minor, 18 Pa.C.S.A. 

§ 6301(a)(1), and endangering the welfare of a child, 18 Pa.C.S.A. 

§ 4304(a)(1). At trial, Stitely was represented by Attorney Christopher L. 

Reibsome of the Franklin County Public Defender’s Office. Following trial on 

September 24 and 25, 2012, a jury found Stitely guilty of all three charges. 

Notes of Testimony (“N.T.”), 9/25/2012, at 95. The trial court ordered an 

evaluation by the Sexual Offender’s Assessment Board (“SOAB”), and 
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sentencing was deferred until the SOAB produced its report.1 On February 

27, 2013, the trial court sentenced Stitely to nine to sixty months’ 

incarceration for indecent assault, nine to sixty months’ incarceration for 

corruption of the morals of a minor, and nine to sixty months’ incarceration 

for endangering the welfare of a child. The indecent assault and corruption 

of minors sentences were ordered to run consecutively to each other and the 

endangering the welfare of a child sentence was ordered to run concurrently 

with the indecent assault sentence. Stitely received an aggregate sentence 

of eighteen to 120 months’ incarceration.

Shortly after sentencing, Attorney Reibsome left the Public Defender’s 

Office and Attorney Michael Toms from the same office took over Stitely’s 

case. No direct appeal was filed. On January 14, 2014, Stitely filed a timely 

pro se PCRA petition. On January 15, 2014, the PCRA court appointed 

Attorney Michael Palermo as counsel for Stitely. On May 8, 2014, counsel 

filed an amended PCRA petition.

The PCRA court held a hearing on the petition on July 31, 2014. At the 

hearing, Stitely testified that, after his conviction, he met with Attorney 

Reibsome and asked about how to file an appeal. N.T., 7/31/2014, at 6. 

Stitely also said that he asked Attorney Reibsome to file an appeal after 

Stitely was sentenced. Id. at 9. Stitely testified that he met with Attorney 

____________________________________________

1 The report did not recommend that Stitely was a sexually violent 

predator. N.T., 2/27/2014, at 15.
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Toms when he was at the Franklin County jail about filing a post-sentence 

motion, but Attorney Toms advised against it. Id. at 10. After he was 

transferred to SCI-Camp Hill, Stitely had no contact with Attorney Toms until 

he received a letter in late March or early April. Id. at 14-15. At SCI-Camp 

Hill, Stitely did not have access to mail or phone calls for a period of time

during the intake process. Id. at 15. Stitely admitted that he never sent a 

letter to either attorney requesting a direct appeal. Id. at 23. Stitely 

testified that he was advised by Attorney Toms that, if Stitely filed a PCRA 

petition alleging ineffective assistance of counsel, Attorney Toms would be 

unable to represent him because Attorney Toms was also with the Public 

Defender’s Office and outside counsel would need to be appointed. Id. at 

28.

Attorney Reibsome testified that, after Stitely’s conviction, he met with 

Stitely about an appeal and discussed the potential benefits of a direct 

appeal versus a PCRA petition. Id. at 32. Attorney Reibsome could not 

recall if Stitely asked him to file an appeal, but he recalled telling Stitely that 

the issues Stitely was raising (i.e. failing to object to Commonwealth 

questions) were not available on direct appeal. Id. at 33, 35. Attorney 

Reibsome did not file an appeal because Stitely’s sentencing was the day 

before his last day with the Public Defender’s Office and he was passing the 

case to another attorney. Id. at 33-34.
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Attorney Toms testified that he met with Stitely at the jail on March 8, 

2014. Attorney Toms’ notes from the meeting were entered into evidence.2 

Id. at 39. Attorney Toms said that his notes indicated that Stitely wanted to 

file an appeal, but during the meeting, Stitely changed his mind and wanted 

to file a PCRA petition instead. Id. at 40-41. On March 25, 2014, Attorney 

Toms sent Stitely a letter, reviewing the decision reached at their meeting 

and enclosing a PCRA petition for Stitely to draft. Id. at 42-43. Attorney 

Toms testified that Stitely never asked him to file a direct appeal. Instead, 

although Stitely initially wanted a direct appeal when they started talking, he

changed his mind during their conversation. Id. at 43.

On September 12, 2014, the PCRA court issued an opinion and order 

that denied Stitely’s PCRA petition. On October 3, 2014, Stitely filed a 

timely notice of appeal. The PCRA court ordered Stitely to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), 

and Stitely timely complied. On November 3, 2014, the PCRA court filed an 

opinion pursuant to Pa.R.A.P. 1925(a), in which it adopted its September 12, 

2014 opinion and order.

Stitely raises one issue for our review:

Whether the PCRA Court erred in denying [Stitely] relief in the 

form of restoration of his direct appeal rights where he 

presented uncontradicted testimony that he requested an 

____________________________________________

2 Attorney Toms conceded that some of the notes may have been made 

during a March 13, 2014 videoconference with Stitely. Id. at 45.
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appeal, was in restrictive custody and was unable to receive any 

communication from his counsel, including the correspondence 

that informed [Stitely] the appeal requested was not going to be 

filed.

Stitely’s Brief at 6 (emphasis in original).

Our standard of review for an order denying PCRA relief is well-settled:

This Court’s standard of review regarding a PCRA court’s order is 

whether the determination of the PCRA court is supported by the 

evidence of record and is free of legal error. Great deference is 

granted to the findings of the PCRA court, and these findings will 

not be disturbed unless they have no support in the certified 

record. 

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations 

and quotation marks omitted). “Further, the PCRA court’s credibility 

determinations are binding on this Court, where there is record support for 

those determinations.” Commonwealth v. Timchak, 69 A.3d 765, 769 

(Pa. Super. 2013) (citation omitted).

Stitely’s argument at the PCRA hearing and on appeal is that he 

requested that a direct appeal be filed, his counsel failed to do so, and 

therefore, his counsel was constitutionally ineffective. Stitely contends that 

his direct appeal rights should be reinstated. In the alternative, Stitely 

argues that, due to the transfer to SCI-Camp Hill, he was out of 

communication with his counsel during the appeal period and that reason 

should suffice to reinstate his direct appeal rights. Stitely’s Brief at 11-13. 

The governing legal standard of review of ineffective assistance of 

counsel claims is well-settled:
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[C]ounsel is presumed effective, and to rebut that presumption, 

the PCRA petitioner must demonstrate that counsel’s 

performance was deficient and that such deficiency prejudiced 

him. Strickland v. Washington, 466 U.S. 668 (1984). This 

Court has described the Strickland standard as tripartite by 

dividing the performance element into two distinct components. 

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). 

Accordingly, to prove trial counsel ineffective, the petitioner 

must demonstrate that: (1) the underlying legal issue has 

arguable merit; (2) counsel’s actions lacked an objective 

reasonable basis; and (3) the petitioner was prejudiced by 

counsel’s act or omission. Id. A claim of ineffectiveness will be 

denied if the petitioner’s evidence fails to satisfy any one of 

these prongs.

Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012) (citations 

formatted). Furthermore, “[i]n accord with these well-established criteria 

for review, [an appellant] must set forth and individually discuss 

substantively each prong of the [Pierce] test.” Commonwealth v. 

Fitzgerald, 979 A.2d 908, 910 (Pa. Super. 2009). 

It is well settled that when a lawyer fails to file a direct appeal 

requested by the defendant, the defendant is automatically 

entitled to reinstatement of his direct appeal rights. 

Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (Pa. 

1999). Where a defendant does not ask his attorney to file a 

direct appeal, counsel still may be held ineffective if he does not 

consult with his client about the client’s appellate rights. Roe v. 

Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 

985 (2000); [Commonwealth v.] Carter, [21 A.3d 680, 682 

(Pa. Super. 2011)]. Such ineffectiveness, however, will only be 

found where a duty to consult arises either because there were 

issues of merit to raise on direct appeal or the defendant, in 

some manner, displayed signs of desiring an appeal. Roe v. 

Flores-Ortega, supra.

Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa. Super. 2011).
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With regard to counsel’s duty to consult with a defendant regarding 

the filing of an appeal, this Court has held as follows:

[Case law] impose[s] a duty on counsel 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. The failure to consult may excuse the defendant 

from the obligation to request an appeal . . . such that counsel 

could still be found to be ineffective in not filing an appeal even 

where appellant did not request the appeal.

Commonwealth v. Bath, 907 A.2d 619, 623 (Pa. Super. 2006) 

(quotations, quotation marks, and citations omitted).

Instantly, the PCRA court found that Stitely did not want a direct 

appeal after consultation with his attorney. PCRA Court Opinion and Order 

(“P.C.O.”), 9/12/2014, at 4. The trial court found that both Attorney 

Reibsome and Attorney Toms discussed appeal options with Stitely, but that 

Stitely never requested a direct appeal. Id. at 5-6. The PCRA court credited 

Attorney Toms’ testimony that Stitely decided to pursue a PCRA petition 

instead of a direct appeal. Id. at 6. The PCRA court also found that 

Attorney Toms adequately consulted with Stitely about his appellate rights. 

Again, the PCRA court credited Attorney Toms’ testimony and notes that 

reflect that Attorney Toms and Stitely discussed both a direct appeal and a 

PCRA petition and concluded that the issues Stitely wished to raise were best 

served in a PCRA petition. Id. at 7.

As noted, we are bound by the PCRA court’s findings and credibility 

determinations when there is record support. Both Attorney Reibsome and 
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Attorney Toms testified that they discussed a PCRA petition with Stitely 

because his issues revolved around Attorney Reibsome’s alleged failure to 

object at trial, failure to call witnesses at trial, failure to conduct a pre-trial 

investigation, and failure to file pre-trial motions.3 Stitely admitted that he 

spoke with both attorneys about appellate options. He also admitted that he 

never sent a letter requesting that a direct appeal be filed. After a careful 

review of the record, we concluded that there is sufficient support in the 

record for the court’s findings and determinations. 

To support his alternative argument, Stitely relies upon 

Commonwealth v. Robinson, 410 A.2d 744 (Pa. 1980). In Robinson, the 

appellant filed a petition pursuant to the pre-cursor to the PCRA, the Post 

Conviction Hearing Act. Id. at 745. In his petition, he alleged that his 

counsel was ineffective for failing to file a direct appeal. However, our 

Supreme Court held that the record established that the appellant had 

presented no evidence to overcome the presumption that “a failure to appeal 

a ruling . . . is a knowing and understanding waiver of the defendant’s right 

to appeal.” Id. at 745 (internal citations omitted). In so holding, the Court 

____________________________________________

3 Stitely raised these issues in his pro se PCRA petition. However, they 

were not litigated at the PCRA hearing and have not been included in his 

Rule 1925(b) statement or in his brief. Therefore, we find these issues have 

been abandoned, and we will not address them. See, e.g., 

Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002)

(“[A]n issue identified . . . but not developed in the appellant’s brief is 

abandoned and, therefore, waived.”).
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considered that the appellant provided no evidence that he requested an 

appeal or that he did not understand his appellate rights as conveyed by the 

sentencing court. Finally, the Court noted that the appellant did not 

“suggest any difficulty in communicating with counsel during the period in 

which an appeal would have been filed.” Id.

It is this last consideration that Stitely cites in support of his 

alternative argument that his inability to communicate with counsel while in 

intake at SCI-Camp Hill is sufficient to reinstate his appellate rights. 

However, at best, the Robinson Court considered the lack of such a claim 

as one piece in the totality of the circumstances in demonstrating that the 

appellant failed to provide evidence of his request for a direct appeal. It is 

clear that Robinson uses this as an example of the appellant’s failure to 

provide evidence rather than a suggestion that communication difficulties 

alone suffice to merit a reinstatement of appellate rights. Robinson does 

not provide the support Stitely wishes.4 Further, Stitely does not contend 

that he out of touch with counsel during the entire appeal period. He had 

two consultations with Attorney Toms during the appeal period. Even if 

____________________________________________

4 The PCRA court provides an alternative analysis of this claim, finding 

that it should have been raised pursuant to 42 Pa.C.S.A. § 9543(a)(2)(iv) 

(improper obstruction by government officials), rather than 42 Pa.C.S.A. 

§ 9543(a)(2)(ii) (ineffective assistance of counsel). The PCRA court found 

that Stitely would not have met his burden of proof under subsection 

(a)(2)(iv), that any government official acted improperly or that a 

meritorious appealable issue existed. P.C.O. at 8. As Stitely has not raised 

this issue in his appeal, we do not address it.
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Robinson stood for the proposition Stitely suggests, under the facts of this 

case, it would not provide relief.

After review, we conclude that the PCRA court’s decision is supported 

by the record. We find no error and affirm the court’s September 12, 2014 

order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/12/2015