J-S24018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FRANKIE ROSADO, 

Appellant No. 2474 EDA 2014

Appeal from the PCRA Order entered July 18, 2014,

in the Court of Common Pleas of Monroe County,

Criminal Division, at No(s): CP-45-CR-0000018-2012

BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.: FILED APRIL 17, 2015

Frankie Rosado (“Appellant”) appeals from the order denying his first 

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 

42 Pa.C.S.A. §§ 9541-46. We affirm.

The PCRA court summarized the pertinent facts and discussed in detail 

the procedural history as follows:

On May 9, 2012, a jury convicted [Appellant] of 

Indecent Assault, Unlawful Contact with a Minor, and 

Corruption of a Minor. On August 22, 2012, we sentenced 

[Appellant] to incarceration of not less than thirty-three 

months nor more than ninety-six months.

Up through sentencing, [Appellant] was represented by 

an attorney (“Trial Counsel”) in the Office of the Monroe 

County Public Defender. Shortly after [Appellant] was 

sentenced, a private attorney (“Appellate Counsel”) 

entered an appearance on behalf of [Appellant]. Appellate 

Counsel represented [Appellant] up through his direct 

appeal to Superior Court.
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Appellate Counsel first filed a Motion to Modify Sentence 

with this Court. Apparently because he was not trial 

counsel and had not yet requested transcripts, Appellate 

Counsel used a shotgun approach framing the motion in 

which he challenged the discretionary aspects of the 

sentence, asserted that there was insufficient evidence to 

support the verdict, and alleged juror impropriety. The 

motion requested that we reduce the aggregate sentence 

to a “‘low end’ standard range sentence . . . and/or 

arresting judgment, for a new trial or, in the alternative, 

enter a judgment of acquittal based on the evidence 

adduced at trial.” On September 10, 2012, we entered an 

order denying the motion.

Appellate Counsel filed an appeal (“Direct Appeal”). In 

response to our order requiring the filing of an appeal 

statement, Appellate Counsel filed a two-count [Pa.R.A.P.] 

Rule 1925(b) statement that again invoked the shotgun 

approach to pleading.

The first portion of the filing was styled as a 

“preliminary” Rule 1925(b) statement. Employing a 

construct that he had used before, Appellate Counsel 

attached and incorporated into the preliminary statement 

the Motion for Modification of Sentence that he had 

previously filed on behalf of [Appellant]. In addition, the 

preliminary statement specifically alleged that we abused 

our discretion in sentencing [Appellant], that we erred in 

precluding evidence that the victim had made prior claims 

of sexual abuse against her father, and that a juror had 

committed fraud on this Court. As discussed below, these 

assignments of error were later strategically abandoned.

The second portion of Appellate Counsel’s filing was a 

petition that requested additional time within which to file 

a “final” statement after he received a transcript he had 

requested. The petition was based, in part, on the 

erroneous assertion that Appellate Counsel had paid for 

the transcript when, in actuality, payment had not yet 

been tendered. In response, we issued an order that 

directed [Appellant] to pay for the transcript within five 

days and granted him fifteen days from receipt of the 

transcript within which to file a supplemental Rule 1925(b) 

statement if full payment was made within the five[-]day 

period. Payment was timely rendered and Appellate 
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Counsel was promptly given the transcript he requested. 

However, no supplemental or “Final” statement was filed. 

Accordingly, we treated the “preliminary” statement as 

[Appellant’s] only appeal statement.

On November 20, 2012, we issued an appeal opinion 

(“Prior Appeal Opinion”) in which we found that the three 

claims specifically raised in [Appellant’s] Rule 1925(b) 

statement were without merit and indicated our belief that 

[Appellant] waived any challenge to the weight or 

sufficiency of the evidence that he may be deemed to have 

raised. []

After Appellate Counsel had the opportunity to review 

the transcript he had previously requested, as well as 

others that were generated during the pendency of the 

appeal, he made the strategic decision to brief [on appeal] 

only the challenge to the sufficiency of the evidence that 

he believed had been properly raised by attaching and 

incorporating the Motion to Modify Sentence into 

[Appellant’s] Rule 1925(b) statement. He abandoned the 

three issues that had been specifically listed in the 

statement because, on reflection and review of the record, 

he believed they were meritless. In addition, Appellate 

Counsel’s prior experience had been that raising one good 

issue - - in his mind at the time the sufficiency of the 

evidence claim - - was better strategy than shot gunning 

multiple claims that had little to no chance of succeeding.

On July 23, 2013, the Superior Court issued a 

memorandum opinion in the Direct Appeal affirming the 

judgment of sentence. [Commonwealth v. Rosado, 82 

A.3d 1075 (Pa. Super. 2013).] In its opinion, the Superior 

Court found that the sufficiency of the evidence claim had 

been waived. []

On February 21, 2014, [Appellant] filed a pro se PCRA 

petition alleging that both Trial Counsel and Appellate 

Counsel had been ineffective. Specifically, he alleged that 

Trial Counsel was ineffective for failing to raise the fact 

that the victim had previously accused her father of 

sexually abusing her and then recanted the accusations. 

Second, he alleged that Appellate Counsel was ineffective 

for failing to raise or preserve appeal issues, including the 

failure to brief the issues specifically raised in the Rule 
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1925(b) statement. The second allegation of 

ineffectiveness ended with a request for “reinstatement of 

appellate rights as to the weight and sufficiency of the 

evidence claims.”

[Appellant’s] current attorney (“PCRA Counsel”) was 

appointed to represent [Appellant] in the PCRA 

proceedings. In the appointment order, PCRA [C]ounsel 

was granted leave to file an amended petition if necessary. 

After reviewing and discussing the matter with [Appellant], 

PCRA Counsel did not file an amended petition.

On July 18, 2014, we convened a PCRA hearing. At the 

hearing, [Appellant] called both Trial Counsel and 

Appellate Counsel. Trial Counsel testified that she was 

aware of the previous accusations of molestation made by 

the victim, that the accusations were the crux of her 

theory for [Appellant’s] defense at trial, that she fought to 

have the evidence of these accusations admitted and that 

evidence was, in fact, admitted. Appellate Counsel 

testified as to why he raised only the issues he listed in the 

Rule 1925(b) statement filed in the Direct Appeal and why 

he later abandoned several issues on appeal. After 

reviewing transcripts and the law, Appellate Counsel 

believed that the issues specifically raised in the statement 

were meritless. He felt the same way about a weight of 

the evidence claim. He pursued only the sufficiency of the 

evidence claim because he felt that it was the only issue 

that stood any chance on appeal. Appellate Counsel also 

testified that he raised the sufficiency of the evidence 

claim by attaching the Motion for Modification of Sentence 

[to the Rule 1925(b) statement] because he had used that 

construct in prior appeals without issue and was unaware 

of any rule that prohibited the procedure. At the 

conclusion of the hearing, we issued an order denying the 

PCRA petition, summarizing our reasons for doing so on 

the record. []

PCRA Court Opinion, 10/31/14, at 1-5 (citations omitted). This timely 

appeal followed. Both Appellant and the PCRA court have complied with 

Pa.R.A.P. 1925.
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Appellant raises the following issue on appeal:

A. DID THE PCRA COURT ERR AND ABUSE ITS 

DISCRETION BY NOT ALLOWING [APPELLANT] TO FILE A 

NUNC PRO TUNC APPEAL TO THE PENNSYLVANIA 

SUPERIOR COURT WHERE THE RECORD CLEARLY SHOWED 

THAT [APPELLANT] WAS DENIED HIS RIGHT TO 

APPELLATE REVIEW AS A RESULT OF [APPELLATE] 

COUNSEL NOT BRIEFING THE ISSUES RAISED IN THE 

INITIAL [RULE] 1925[(B)] STATEMENT PRESENTED TO 

THE COURT AND WHERE COUNSEL WAS THEREFORE [PER] 

SE INEFFECTIVE IN HIS REPRESENTATION OF [] 

APPELLANT?

Appellant’s Brief at 4.

This Court may only overturn a PCRA court’s dismissal of a PCRA 

petition based on an error of law or an abuse of discretion. 

Commonwealth v. Johnson, 841 A.2d 136, 140 (Pa. Super. 2003), appeal 

denied, 858 A.2d 109 (Pa. 2004). “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. Daniels, 

947 A.2d 795, 798 (Pa. Super. 2008) (citation omitted). 

In support of his issue, Appellant argues:

Despite the rights provided him under the Pennsylvania 

Constitution and case law, Appellant was denied his right 

to direct appeal following a criminal conviction. The denial 

was the result of the actions of prior counsel in failing to 

properly prosecute his appellate rights by making 

appropriate filings with the Superior Court. Specifically, 

counsel filed a 1925(b) statement, as well as an Appellate 

brief, which addressed wholly different issues, such that 

Appellant’s [] appeal was dismissed for failure to argue or 

preserve any issues raised on appeal.
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Under Federal and Pennsylvania case law, the actions of 

counsel in failing to prosecute Appellant’s initial appeal 

resulted in [per] se ineffective representation, such that 

Appellant is entitled to re-file such appeal now on a nunc 

pro tunc basis. While the [PCRA] court focuses on the 

merits of Appellant’s initial appeal and inaccurately 

[analyzes] this matter under the ruling of 

Commonwealth v. Reed[, 971 A.2d 1216 (Pa. 2009),] 

(only limited appellate review provided rather than none as 

here), the more appropriate legal analysis focuses on 

cases where, as here, Appellant was provided no appellate 

review of any kind as a result of the actions or inactions of 

counsel. Appellant in the instant case, is entitled to file a 

nunc pro tunc appeal of the trial issues which have yet to 

be heard on appeal.

Appellant’s Brief at 7. We disagree.

In rejecting Appellant’s claim, the PCRA court astutely noted:

There are two types of ineffective assistance of counsel. 

The first is ineffectiveness under Strickland v. 

Washington, 466 U.S. 668 (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. In cases where the Strickland/Pierce test 

applies, the analysis begins with the presumption that 

counsel rendered effective assistance. To obtain relief on a 

claim of ineffective assistance of counsel, a petitioner must 

rebut that presumption and demonstrate that counsel’s 

performance was deficient, and that such performance 

prejudiced him. In our Commonwealth, we have 

rearticulated the Strickland Court’s performance and 

prejudice inquiry as a three-prong test. Specifically, a 

petitioner must show: 1) the underlying claim is of 

arguable merit; 2) no reasonable basis existed for 

counsel’s action or inaction; and 3) counsel’s error caused 

prejudice such that there is a reasonable probability that 

the result of the proceeding would have been different 

absent such error.

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) 

[(citations omitted)]. Also, counsel cannot be found 
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ineffective for failing to pursue a baseless or meritless 

claim. Commonwealth v. Harvey, 812 A.2d 1190, 1199 

(Pa. 2002).

The second type of ineffectiveness of counsel is 

ineffectiveness per se under United States v. Cronic, 466 

U.S. 648 (1984), decided the same day as Strickland, in 

which the United States Supreme 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.

PCRA Court Opinion, 10/31/14, at 6-7.

The PCRA court then quoted extensively from the Brown decision, 

including the following:

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. Leibel, 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 defendants 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 
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(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”); . . . 

Commonwealth v. Reaves, 592 A.2d 134, 923 A.2d 

1119 (2007) (narrowing ambit of reviewable issues on 

appeal does not constitute per se ineffectiveness)[.]

PCRA Court Opinion, 10/31/14, at 8-9 (quoting Brown, 18 A.3d at 1156).

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 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 
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a client’s advocate so as to warrant a presumption of prejudice under 

Cronic”). Rather, in order to demonstrate Appellate counsel’s 

ineffectiveness, Appellant must establish each prong of the tripartite 

Strickland/Pierce test for ineffectiveness as to each claim he wished to 

raise on appeal. 

Neither at the PCRA hearing, nor within his brief, does Appellant 

provide such analysis with regard to any claim he wished to raise on appeal. 

Thus, we need not consider his undeveloped claims of ineffectiveness 

further. See Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981) 

(explaining that claims of trial counsel’s ineffectiveness are not self-proving).

In sum, because Appellant is not entitled to a finding of per se 

ineffectiveness, we affirm the PCRA court’s order denying him postconviction relief. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/2015