J-S24018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

FRANKIE ROSADO

Appellant

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IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2474 EDA 2014

Appeal from the PCRA Order 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, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 19, 2017

Appellant, Frankie Rosado, is before us upon remand from the 

Pennsylvania Supreme Court with regard to his appeal from the Monroe 

County Court of Common Pleas’ order that dismissed his first petition filed 

under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. For the following reasons, we reverse and remand with instructions. 

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

In 2012, Appellant...was accused of sexually abusing his

former girlfriend’s teenage daughter, whereupon he was 

charged with one count each of indecent assault, 

corruption of minors, and unlawful contact with minor. 

Appellant, then represented by a public defender, 

proceeded to trial, whereafter he was convicted of the 

aforementioned offenses and later sentenced to an 

aggregate term of 33 to 69 months’ imprisonment. 
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Appellant hired new counsel (...“Appellate Counsel”) to 

represent him at the post-sentencing and appellate stages 

of his case. Appellate Counsel filed a post-sentence 

motion raising, as relevant here, a sufficiency-of-theevidence claim, but the trial court denied relief. Appellate 

Counsel then filed a notice of appeal to the Superior Court, 

whereupon the trial court issued an order directing him to 

file a concise statement of [errors] complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). Appellate Counsel 

filed a document styled as a “preliminary” concise 

statement, wherein he raised three issues: (1) whether 

Appellant’s sentence was “an abuse of discretion”; (2) 

whether the trial court erred in excluding evidence that the 

alleged victim had previously accused her father of sexual 

abuse; and (3) whether a juror fraudulently concealed bias 

during voir dire. Appellate Counsel also attached a copy of 

his post-sentence motion to the “preliminary” concise 

statement, erroneously believing that doing so would 

preserve the claims raised therein for purposes of appeal, 

and requested additional time to file a “final” concise 

statement, which the trial court granted. However, 

Appellate Counsel never filed a revised concise statement, 

and, accordingly, the trial court considered the three 

claims raised in the extant concise statement, and issued a 

Pa.R.A.P. 1925(a) opinion rejecting those claims. 

Appellate Counsel then filed an appellate brief with the 

Superior Court, in which, deciding to abandon the three 

claims raised in his concise statement and addressed by 

the trial court, he raised as his sole appellate issue the 

unpreserved sufficiency claim. 

In an unpublished memorandum opinion, the Superior 

Court, while noting the three issues preserved in 

Appellant’s concise statement, found the sufficiency claim 

to be waived, as it was not included therein. 

Commonwealth v. Rosado, No. 2754 EDA 2012, 2013 

WL 11259105 (Pa.Super. filed July 23, 2013). 

Accordingly, the court did not address any of Appellant’s 

preserved claims or his sufficiency claim, and, as a result, 

it summarily affirmed. 

Appellant later filed a [PCRA] petition asserting, inter alia, 

that Appellate Counsel’s above-detailed conduct 

constituted ineffective assistance of counsel per se, and 
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thus seeking reinstatement of his appellate rights nunc pro 

tunc. The PCRA court held an evidentiary hearing, at 

which Appellate Counsel testified that he believed that 

attaching his post-sentence motion to his concise 

statement was sufficient to preserve the claims raised for 

purposes of appeal, and that he abandoned the three 

preserved claims [in the Rule 1925(b) statement] in an 

effort to more persuasively argue his sufficiency claim. 

Ultimately, the PCRA court found that Appellate Counsel’s 

conduct did not amount to ineffectiveness per se, and, 

accordingly, denied relief. Appellant appealed to the 

Superior Court. 

Commonwealth v. Rosado, ___ A.3d ___, 2016 WL 7008042, at *1-*2

(Pa. Nov. 22, 2016). On appeal, this Court labored to determine which of 

two types of ineffective assistance of counsel claims Appellant was pursuing: 

(1) a claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984), as adopted in Pennsylvania by 

Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), which 

requires the defendant to demonstrate counsel’s act or omission prejudiced 

the defendant or (2) a claim under United States v. Cronic, 466 U.S. 648, 

104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), decided the same day as 

Strickland, in which the United States Supreme Court distinguished those 

circumstances where counsel’s act or omission is so inherently damaging to 

the defendant that prejudice can be presumed, i.e., per se ineffective 

assistance of counsel. Ultimately, we concluded appellate counsel’s acts and 

omissions at issue were subject to the Strickland test, rather than the 

Cronic per se ineffective assistance of counsel category. Thus, we required 
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Appellant to demonstrate prejudice, which he had failed to do. At that point, 

we affirmed the PCRA court’s decision to deny relief. 

Appellant timely sought review with our Supreme Court, which granted 

allowance of appeal to consider whether the filing of an appellate brief that 

abandons all issues properly preserved for direct appeal, in favor of pursuing 

unpreserved issues, constitutes per se ineffective assistance of counsel. Our 

Supreme Court held: “[T]he filing of an appellate brief which abandons all 

preserved issues in favor of unpreserved ones constitutes ineffective 

assistance of counsel per se.” Rosado, supra at *8. The Court deemed 

counsel’s acts and omissions a “complete default,” which precluded litigation 

of Appellant’s direct appeal and the functional equivalent of no appeal at all. 

Id. at *9. The Rosado Court vacated this Court’s judgment and remanded 

the case to us for further action. 

Given the Supreme Court’s holding, we now decide the best resolution 

of this matter is to put Appellant in a position that will fully restore his direct 

appeal rights. Because the foundation for his direct appeal was laid by 

counsel who has since been deemed ineffective per se, we remand the case 

and direct current counsel to communicate with Appellant about the issues 

he wants to pursue on appeal and take steps to preserve the issues 

properly. Counsel’s efforts on Appellant’s behalf shall include the filing of 

new post-sentence motions nunc pro tunc. Following disposition of the postsentence motions nunc pro tunc, either party will have the opportunity to file 
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a timely appeal. Any subsequent Rule 1925(b) statement must articulate 

clearly and concisely the issues to be raised on appeal, without any 

“incorporation by reference” of earlier filings. Finally, the trial court shall 

address all issues in a new trial court opinion. Accordingly, we reverse the 

order denying PCRA relief and remand for further action consistent with this 

disposition. 

Order reversed; case remanded with instructions. Jurisdiction is 

relinquished. 

Judge Allen did not participate in the consideration or decision of this 

case. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/19/2017