J-S36004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

RASHEED TAWAN LAWRENCE

Appellant No. 1285 EDA 2015

Appeal from the PCRA Order December 5, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005731-2009

BEFORE: PANELLA, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J. FILED JULY 13, 2017

In an action under the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541-9546, trial counsel’s unjustified failure to file a requested 

direct appeal constitutes prejudice per se and the petitioner’s direct appeal 

rights must be reinstated nunc pro tunc. To be entitled to relief, however, 

the petitioner must plead and prove this allegation. And the proof very often 

turns on a credibility determination made by the PCRA court after an 

evidentiary hearing—did the petitioner really request the filing of a direct 

appeal? The PCRA court often makes this determination after hearing two 

opposing testimonies: the petitioner’s (“I requested a timely appeal.”) and 

trial counsel’s (“Petitioner made no such request.”). 

That is what happened here. And the PCRA court resolved the 

conflicting testimony in trial counsel’s favor. In this appeal from the order 
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denying Appellant Rasheed Tawan Lawrence’s PCRA petition, counsel, John 

Belli, Esquire, has filed a petition to withdraw and an Anders brief.1 The 

brief identifies Lawrence’s claim, that the PCRA court erred in denying his 

request to have his direct appeal rights reinstated, and explains why it is 

without merit, given that the PCRA court’s credibility determinations are 

unassailable. We affirm and grant the petition to withdraw. 

In April 2011, the trial court sentenced Lawrence to an aggregate term 

of imprisonment of six to twelve years for his convictions of rape and 

corruption of minors. Lawrence filed, pro se, a timely PCRA petition. The 

petition alleged that, after discussing his options, trial counsel, Michael 

Graves, Esquire, assured Lawrence he would file a post-sentence motion 

and, if necessary, a direct appeal and that Attorney Graves did neither. The 

PCRA court appointed counsel who later filed an amended petition mirroring 

the claims made in the pro se petition. The PCRA court held an evidentiary 

hearing on October 3, 2014. 

____________________________________________

1 The dictates of Anders v. California, 385 U.S. 738 (1967), apply only on 

direct appeal, not on collateral review. Counsel files an Anders brief on 

direct appeal when he determines the appeal is “wholly frivolous.” Id., at 

744. When counsel seeks to withdraw from representation on collateral 

appeal, the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en 

banc), apply and counsel files a “no-merit” letter. We, however, may accept 

an Anders brief in lieu of a Turner/Finley “no-merit” letter because an 

Anders brief provides greater protection to a defendant. See, e.g.,

Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014). We 

will regard the Anders brief as a Turner/Finley brief.
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At the hearing, Lawrence related that immediately after sentencing he 

requested Attorney Graves to “send in a direct appeal right away” and 

counsel further assured him “he would take care of everything for me.” N.T., 

PCRA Evidentiary Hearing, 10/3/14, at 7. Attorney Graves testified he 

discussed the possibility of an appeal with Lawrence, but cautioned him “that 

there hadn’t been any errors in the trial,” “that the sentence was within the 

guideline range,” and that the case came down to credibility determinations 

“that, unfortunately, ... didn’t go our way.” Id., at 17. In short, there were 

no appealable issues. Attorney Graves further explained that Lawrence 

“listened to that, and I didn’t hear back from [him] within that 30 day 

period.” Id., at 19. He noted that he never told Lawrence he “would take 

care of everything.” Id., at 23. And he “would have filed” an appeal if 

requested to do so. Id., at 26. But there was no such request. 

The court subsequently denied the PCRA petition. Thirty days passed 

after the filing of the order and Lawrence failed to file an appeal. On 

February 4, 2015, PCRA counsel filed a PCRA petition seeking the right to 

appeal the order denying the petition nunc pro tunc. In the petition, PCRA 

counsel explained the failure to file an appeal was his mistake. The PCRA 

court then entered an order reinstating the appeal rights. This nunc pro tunc 

appeal followed.

As noted, Attorney Belli has petitioned for permission to withdraw. He 

has complied with the mandated procedure for withdrawing as counsel. See 

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009) (setting forth 
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Turner/Finley requirements). Lawrence has not filed a response to 

counsel’s petition to withdraw. 

Attorney Belli has identified just one issue in the Turner/Finley brief 

Lawrence believes entitles him to relief: The PCRA court erred in denying his 

request to have his direct appeal rights reinstated. We now independently 

review this claim to ascertain whether it entitles him to relief. It does not.

We review an order dismissing a petition under the PCRA 

in the light most favorable to the prevailing party at the PCRA 

level. This review is limited to the findings of the PCRA court and 

the evidence of record. We will not disturb a PCRA court’s ruling 

if it is supported by evidence of record and is free of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal 

citations omitted). Important to the resolution of this case, “we are bound by 

the PCRA court’s credibility determinations where there is record support for 

those determinations.” Commonwealth v. Santiago, 855 A.2d 682, 694 

(Pa. 2004) (citation omitted).

As mentioned, Lawrence’s claim is that trial counsel rendered 

ineffective assistance by failing to file a requested direct appeal. To succeed 

on this claim, Lawrence must establish, by pleading and proving, that the 

underlying issue has arguable merit; that counsel’s actions lacked an 

objective reasonable basis; and that actual prejudice resulted from counsel’s 

act or failure to act. See Commonwealth v. Rykard, 55 A.3d 1177, 1190 

(Pa. Super. 2012). 
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“Generally, if counsel ignores a defendant’s request to file a direct 

appeal, the defendant is entitled to have his appellate rights restored.” 

Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006) (citing 

Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999)). This is because 

“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 such failing constitutes prejudice per se. 

Lantzy, 736 A.2d at 572 (footnote omitted). However, “relief is only 

appropriate where the petitioner pleads and proves that a timely appeal was 

in fact requested and that counsel ignored that request.” Spencer, 892 A.2d 

at 842 (citation omitted).

Here, Lawrence pled this particular ineffective assistance claim in his 

amended PCRA petition. And he attempted to prove this claim at the 

evidentiary hearing. Indeed, he testified, as set forth in detail above, that he 

requested the filing of a direct appeal. But trial counsel testified, also as set 

forth in detail above, that he consulted with Lawrence about the prospects of 

an appeal—and Lawrence never requested the filing of a direct appeal. 

The PCRA court resolved this conflicting testimony in favor of trial 

counsel and against Lawrence. There is record support for the PCRA court’s 

credibility determinations. Provided this support, we defer to those 

determinations. See, e.g., Santiago, 855 A.2d at 694; Commonwealth v. 

Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015) (en banc). 
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Since the record contradicts Lawrence’s assertion that trial counsel 

ignored his timely request to file a direct appeal, we affirm the PCRA court’s 

order dismissing his PCRA petition and we grant Attorney Belli’s petition to 

withdraw as counsel. Our independent review of the certified record does not 

reveal any other meritorious issues.

Order affirmed. Petition to withdraw as counsel granted.

President Judge Emeritus Ford Elliott joins in the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/13/2017