J-S74035-16

*

Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ERICK FINNEGAN

Appellant No. 3841 EDA 2015

Appeal from the PCRA Order November 23, 2015

in the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-0001211-2013

BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 03, 2016

Erick Finnegan (Appellant) appeals from the November 23, 2015 order 

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

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

Following a bench trial in July of 2013, the court found Appellant guilty 

of retail theft.1 Appellant was sentenced to four to twenty-three months’ 

incarceration with a term of eighteen months’ probation to be served 

consecutively. Appellant filed a motion to modify and reconsider sentence, 

which was denied in July of 2013. No direct appeal was filed. In September 

____________________________________________

1See 18 Pa.C.S. § 3929(a)(1).
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2013, Appellant untimely mailed a notice of appeal to the PCRA court.2 The 

PCRA court returned the notice to Appellant, informing him that his appeal 

was untimely and noting that no notice of appeal was on file with the Bucks 

County Clerk of Courts. 

Appellant pro se filed a timely PCRA petition in October of 2013, 

alleging ineffective assistance of trial counsel. Thereafter, counsel was 

appointed and filed an amended petition on Appellant’s behalf. Specifically, 

Appellant alleged trial counsel was ineffective for (1) failing to file a direct 

appeal, (2) preventing Appellant from testifying in his own defense, and (3) 

allowing Appellant to unknowingly and unintelligently waive his right to a 

jury trial, as Appellant was intoxicated. In October of 2015, the PCRA court 

held an evidentiary hearing, at which Appellant and trial counsel testified. 

At the evidentiary hearing, Appellant testified that in a conversation 

with trial counsel following the denial of his motion to reconsider sentence, 

he requested that counsel file an appeal on his behalf. N.T., 10/23/15, at 

48-51. Appellant further stated that he attempted to request same through 

three, interoffice green slips and a letter sent to trial counsel. Id. at 51-69. 

Trial counsel categorically denied that Appellant requested him to file an 

appeal and further testified that he never received any of the 

aforementioned correspondence. Id. at 104-06, 110-11.

____________________________________________

2 The Honorable Albert J. Cepparulo presided over both the trial and PCRA in 

the instant case. See Notes of Testimony (N.T.), 7/8/13; N.T. 10/23/15.
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Appellant suggested the outcome of trial may have been different if he 

had given his version of events and insisted that he never discussed with 

counsel the impact his prior convictions for crimen falsi offenses would have 

on the fact-finder. Id. at 43-46. Trial counsel testified about the multiple 

concerns he shared with Appellant about testifying and stated that the 

ultimate decision not to testify was Appellant’s. Id. at 93-97, 101-04, 116-

18,120-23.

Appellant testified that he was high on heroin when he waived his jury 

trial and proceeded to a waiver trial that same day. Id. at 21-24. Appellant 

described a conversation between him and counsel on the day of trial that 

evinced counsel knew he was “on drugs,” but Appellant was uncertain if he 

specifically stated that he was on heroin. Id. at 21-24, 34-36. Counsel 

refuted this testimony by maintaining that if he suspected Appellant was 

under the influence and could not understand the proceedings, he would not 

have allowed the trial to move forward. Id. at 84-91. Further, counsel 

observed that Appellant was able understand and appropriately respond to 

the questions posed to him by counsel and by the trial court. Id. at 118-20.

The PCRA court held the matter under advisement, and in November 

of 2015, the court dismissed Appellant’s petition by order and opinion. In 

the opinion, the PCRA court analyzed the “completely contradictory” 

testimony of Appellant and counsel and found trial counsel wholly credible 

while it found the Appellant incredible. PCRA Court Opinion, 11/23/15, at 

12-13. Appellant timely appealed and filed a court-ordered Pa.R.A.P. 
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1925(b) statement. In February of 2016, the trial court issued an opinion 

incorporating its prior opinion.

Appellant presents the following questions for our review:

1. Did the lower [c]ourt err when it refused to grant 

[Appellant] nunc pro tunc relief when extraordinary 

circumstances involving a [breakdown] in the administrative and 

judicial process interfered with [Appellant’s] ability to 

communicate with his attorney and file a timely appeal?

2. Did the PCRA court err by not reinstating [Appellant’s] 

appellate rights nunc pro tunc when trial counsel failed to file a 

timely direct appeal as directed?

3. Was trial counsel ineffective when he interfered with 

[Appellant’s] right to testify?

4. Was trial counsel ineffective when he allowed [Appellant] to 

enter an [unknowing] and [involuntary] waiver [of] his right to a 

jury trial while he was under the influence of a controlled 

substance?

Appellant’s Brief at 3.

We review an order denying a petition under the PCRA to determine 

whether the findings of the PCRA court are supported by the evidence of 

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 

1170 (Pa. 2007). We afford the court’s findings deference unless there is no 

support for them in the certified record. Commonwealth v. Brown, 48 

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 

995 A.2d 1184, 1189 (Pa. Super. 2010)).

Allowance of appeal nunc pro tunc is within the sound discretion of the 

trial court, and our standard of review of a decision of whether to permit an 
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appeal nunc pro tunc is limited to a determination of whether the trial court 

has abused its discretion or committed an error of law. Commonwealth v. 

Yohe, 641 A.2d 1210, 1211 (Pa. Super. 1994) (quoting Commonwealth v. 

Nicholas, 592 A.2d 98, 99 n.3 (Pa. Super. 1991), appeal denied, 602 A.2d 

858 (Pa. 1992)). The remedy of a nunc pro tunc appeal is intended to 

vindicate the appellant's right to appeal in certain extraordinary situations 

where that right to appeal has been lost. Commonwealth v. Stock, 679 

A.2d 760, (Pa. 1996).

In his first issue, Appellant contends that the trial court should have 

granted his right to appeal nunc pro tunc where a breakdown in 

communication between him, trial counsel, and the trial court constituted 

extraordinary circumstances. Appellant’s Brief at 16-22. We disagree.

As an initial matter, we note that this claim is not properly preserved 

for our review, as it was not included in Appellant’s PCRA petition. 

Accordingly we deem Appellant’s first issue waived. Commonwealth v. 

Keefer, 367 A.2d 1082, 1086 (Pa. 1976); see also Pa.R.A.P.. 302(a) 

(issues not raised in the lower court are waived and cannot be raised for the 

first time on appeal). Nevertheless, to the extent that testimony at the 

evidentiary hearing implied this issue to some extent, we note that the PCRA 

court found Appellant’s evidence pertaining to a breakdown in 

communication between the Appellant, trial counsel and the PCRA court not 

credible. PCRA Court Opinion 12-13. As such, we conclude this claim is 

without merit. 
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Appellant next claims that the PCRA court erred by not reinstating his 

appellate rights when trial counsel failed to file a timely direct appeal as 

requested. Appellant’s Brief at 22-25.

We presume counsel is effective. Commonwealth v. Washington, 

927 A.2d 586, 594 (Pa. 2007). To overcome the presumption and establish 

ineffective assistance of counsel, a PCRA petitioner must prove, by a 

preponderance of the evidence: “(1) the underlying legal issue has arguable 

merit; (2) counsel’s actions lacked an objective reasonable basis; and (3) 

actual prejudice befell the petitioner from counsel’s act or omission.” 

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations 

omitted). “A petitioner establishes prejudice when he demonstrates that 

there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Id. A claim 

will be denied of the petitioner fails to meet any one of these requirements. 

Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008) 

(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007)); 

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). The 

unjustified failure to file a requested direct appeal is ineffective assistance of 

counsel per se, and an appellant need not show that he likely would have 

succeeded on appeal in order to meet the prejudice prong of the test for 

ineffectiveness. Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super. 

2006).
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At the evidentiary hearing, Appellant submitted documents and 

testified in an attempt to establish that he requested that trial counsel file an 

appeal and trial counsel failed to do so.3 The PCRA court determined that 

Appellant was not entitled to nunc pro tunc appeal because his exhibits and 

testimony were not credible:

[W]e only consider whether evidence presented at [Appellant’s] 

PCRA hearing was sufficient to prove that he requested an 

appeal and Mr. Haag failed to act upon that request. The 

relevant testimony of [Appellant] and Mr. Haag relating to the 

issue of a request for a direct appeal are completely 

contradictory. According to [Appellant], he told Mr. Haag that he 

could serve his sentence “standing on [his] head” and then 

allegedly said[,] “let’s get the appeal. My sentence will be done 

by the time the appeal goes through, and if I lose the appeal, 

the time will be done.” Mr. Haag, on the other hand, related to 

this [c]ourt that when he visited [Appellant] at the prison after 

his conviction [Appellant] told him “he did not want to file an 

appeal at that time, that he could do the amount of time he had 

standing on his head.” We also noted that Mr. Haag testified 

that [Appellant] was concerned about the effect this conviction 

would have on the parole or probation he was serving from a 

prior conviction.

In the instant matter, this [c]ourt as fact-finder found Mr. Haag, 

who is a reputable and experienced Public Defender and an 

officer of the court, to be wholly credible. We found completely 

credible Mr. Haag’s assertion that he had consulted with the 

[Appellant] after the Motion for Reconsideration was denied, and 

that [Appellant] indicated at that time that he did not want to 

pursue an appeal.

____________________________________________

3 Appellant testified that he sent three, interoffice green slips to trial counsel 

and a letter in an attempt to have counsel perfect his appeal. N.T., 

10/23/15, at 53-59, 62-69, 74-79; see also Appellant’s PCRA Exhibits P1-

P4. Appellant had no proof that any of these items were sent via the 

interoffice process or mailed. Id. at 53-54, 69, 74-77.
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On the other hand, we did not find [Appellant’s] testimony 

credible. We found [Appellant’s] assertions that he had 

consistently requested Mr. Haag to file a direct appeal to be 

incredible, unsupported by the circumstances, and most likely 

improperly motivated by his concerns about the effects on the 

sentence he received from a prior conviction, particularly after 

having been provided with the opportunity to reflect on his 

situation while incarcerated after his conviction in this matter. 

We also observed that while [Appellant] recalled with some 

clarity that he had advised defense counsel that he could serve 

his sentence “standing on his head” while allegedly requesting a 

direct appeal, he could not recall with any specificity how 

defense counsel responded to that request.

PCRA Court Opinion at 12-13.

Our review of the record, including Appellant's PCRA petition, the 

evidentiary hearing and exhibits, supports the PCRA court's conclusion that 

Appellant has failed to establish the he requested trial counsel to file a direct 

appeal. The PCRA court credited the testimony of Mr. Haag over the 

testimony and evidence presented by Appellant at the hearing. N.T., 

10/23/15, 104-24 (Mr. Haag’s testimony). Absent an abuse of discretion, 

we cannot disturb this determination. See Commonwealth v. Battle, 883 

A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility determinations 

are solely within the province of the PCRA court). Accordingly, we discern 

no error.

In his third claim, Appellant baldly claims trial counsel rendered 

ineffective assistance by interfering with his right to testify. Appellant’s Brief 

at 25-27. The PCRA court concluded that Appellant failed to meet his 

burden under Johnson, supra, because he could not establish that 
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counsel’s actions lacked a reasonable basis. PCRA Court Opinion, 14-16. 

We agree with this analysis. The PCRA court reasoned:

Mr. Haag’s advice [that Appellant not testify] was reasonably 

based upon [Mr. Haag’s] attempts to suppress or preclude 

additional evidence which related to the return of stolen 

merchandise to a completely different store for monetary refund 

and [Appellant’s] prior criminal history. 

The admission of [this evidence] had the obvious potential to 

further prejudicially affect the perception of [Appellant’s] 

innocence or guilt.

PCRA Court Opinion at 14-26.

Had Appellant declined counsel’s advice and testified, he would have 

been subject to cross-examination on incriminating evidence possessed by 

the Commonwealth which trial counsel had successfully suppressed as 

hearsay. N.T., 7/8/13, at 46-49; N.T., 10/23/15, at 93, 121-22. Thus, 

based on our review, the findings of the PCRA court are supported by the 

evidence of record, namely, the suppressed evidence and Appellant’s 

criminal record. N.T., 7/8/13, at 46-49; N.T., 10/23/15, at 73, 117-18. 

This claim is without merit. See Springer, 961 A.2d at 1267.

Finally, Appellant avers he was under the influence of a controlled 

substance when he waived his right to a jury trial, which rendered the 

waiver unknowing and involuntary. Appellant’s Brief at 27-30. Appellant 

further asserts trial counsel knew he was intoxicated and counsel’s actions in 

allowing the bench trial to commence evinced ineffective assistance. Id.
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The Pennsylvania Rules of Criminal Procedure provide in pertinent 

part:

In all cases, the defendant and the attorney for the 

Commonwealth may waive a jury trial with approval by a judge 

of the court in which the case is pending, and elect to have the 

judge try the case without a jury. The judge shall ascertain from 

the defendant whether this is a knowing and intelligent waiver, 

and such colloquy shall appear on the record. The waiver shall 

be in writing, made a part of the record, and signed by the 

defendant, the attorney for the Commonwealth, the judge, and 

the defendant's attorney as a witness.

Pa. R. Crim. P. 620.

In addressing Appellant’s final issue, the PCRA court outlined the 

waiver colloquy conducted with the Appellant at the waiver trial, shared its 

own recollection of Appellant’s appropriate responses, and referenced the 

testimony of counsel. PCRA Court Opinion at 16-20. Here, the PCRA court 

determined that Appellant’s claim was meritless based on the 

aforementioned evidence and its own credibility determinations. We may 

not disturb this finding, as it is supported by the record. See N.T., 7/8/13, 

4-6; N.T., 10/23/15, 87, 118-20. 

For the above reasons, we discern no error in the PCRA court's 

decision to dismiss Appellant’s petition. Appellant’s claims are without merit. 

He is entitled to no relief. 

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/3/2016