[J-79-2016]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

FRANKIE ROSADO,

Appellant

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No. 92 MAP 2015

Appeal from the Order of the Superior 

Court dated April 17, 2015 at 2474 EDA 

2014 affirming the PCRA Order of the 

Court of Common Pleas of Monroe 

County, Criminal Division, dated July 

18, 2014 at CP-45-CR-0000018-2012 

SUBMITTED: June 8, 2016

OPINION

JUSTICE TODD DECIDED: November 22, 2016

In this appeal, we consider whether filing an appellate brief which abandons all 

preserved issues in favor of unpreserved ones constitutes ineffective assistance of 

counsel per se.

1

 After careful review, we hold that it does, and so we vacate the 

Superior Court’s order and remand to that court for further proceedings.

The factual and procedural history of this matter is straightforward. In 2012, 

Appellant Frankie Rosado 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.

2

 Appellant, then represented by 

 

1 As detailed below, an accused seeking relief on the basis of ineffective assistance of 

counsel must typically demonstrate that his counsel's errors caused him prejudice; 

however, in certain limited circumstances, he may alternatively demonstrate that his 

counsel's errors are so plainly egregious as to amount to a constructive denial of 

counsel, which constitutes ineffective assistance of counsel per se. See Strickland v. 

Washington, 466 U.S. 668, 692-94 (1984); United States v. Cronic, 466 U.S. 648, 659 

(1984).

2

18 Pa.C.S. §§ 3126, 6301, and 6318, respectively.
[J-79-2016] - 2

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.

Appellant hired new counsel (hereinafter “Appellate Counsel”) to represent him at 

the post-sentencing and appellate stages of his case. Appellate Counsel filed a postsentence motion raising, as relevant here, a sufficiency-of-the-evidence 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 matters 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.3 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 

 

3

In the “preliminary” concise statement, Appellate Counsel refers to or incorporates the 

post-sentence motion only in two respects: with respect to the procedural background 

set forth therein, and with respect to the claim that the trial court abused its discretion in 

sentencing Appellant.
[J-79-2016] - 3

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 (Pa. Super. filed Jul. 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 Post Conviction Relief Act (“PCRA”)

4

petition asserting, 

inter alia, that Appellate Counsel’s above-detailed conduct constituted ineffective 

assistance of counsel per se, and 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 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.

In an unpublished memorandum opinion, the Superior Court affirmed. 

Commonwealth v. Rosado, No. 2474 EDA 2014 (Pa. Super. filed Apr. 17, 2015). The 

court first quoted extensively from the PCRA court’s Rule 1925(a) opinion regarding the 

doctrine of ineffective assistance of counsel per se as it applies to appeals in 

Pennsylvania:

 

4

42 Pa.C.S. §§ 9541 et seq.
[J-79-2016] - 4

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.

* * *

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 Court 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.

* * *

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. Liebel, 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 

defendant[‘]s 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, 
[J-79-2016] - 5

930 A.2d 1264 (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”); . . . [sic] 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)[.]

Rosado, No. 2474 EDA 2014 at 6-8 (quoting PCRA Court Opinion, 10/31/14, at 6-9). 

The Superior Court then rejected Appellant’s claim that Appellate Counsel’s conduct 

constituted ineffective assistance of counsel per se:

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 [Reed, 971 A.2d at 1226] (“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”).
[J-79-2016] - 6

Id. at 8-9. Accordingly, the court concluded that Appellant was required to demonstrate 

that Appellate Counsel’s errors caused him prejudice, and, finding he had not done so, 

affirmed the PCRA court’s denial of relief.

Appellant timely sought, and this Court granted, allowance of appeal to consider 

whether filing an appellate brief which abandons all preserved issues in favor of 

unpreserved ones constitutes ineffective assistance of counsel per se. Commonwealth 

v. Rosado, 129 A.3d 1237 (Pa. 2015) (order).

Before us, the parties’ arguments essentially offer two views of our jurisprudence 

in this area. Appellant contends that the Superior Court erred in rejecting his claim 

because it ignored “clear similarities” between the attorneys’ conduct in Lantzy, Halley, 

Bennett, and Liebel – i.e., the failure to file a requested appeal, concise statement, 

appellate brief, and petition for allowance of appeal, respectively – and Appellate 

Counsel’s conduct herein. Appellant’s Brief at 8. Specifically, Appellant submits that 

Appellate Counsel’s filing of a brief containing no preserved issue is functionally

equivalent to not filing a brief – as was the case in Bennett – and, in any event, 

Appellate Counsel’s actions caused the complete forfeiture of merits review – as was 

the case in each of the aforementioned cases. Thus, Appellant views our earlier 

decisions in this area as drawing a distinction between attorney errors which cause 

complete deprivation of appellate review – which constitute ineffective assistance of 

counsel per se – and attorney errors causing partial deprivation of appellate review –

which do not.5

 

5 Appellant also presents a single-paragraph argument that, even if Appellate Counsel's 

conduct does not constitute ineffective assistance of counsel per se, he has established 

that Appellate Counsel's conduct caused him prejudice, and, thus, is entitled to relief 

under the Strickland/Pierce framework. Appellant’s claim in this regard is outside the 

scope of our grant of allowance of appeal, which was limited to the issue of whether 

Appellate Counsel was ineffective per se.
[J-79-2016] - 7

The Commonwealth, by contrast, advances a competing view, consistent with 

the Superior Court’s reasoning below, that this Court’s decisions in Lantzy and its 

progeny apply only where counsel fails to file a document necessary to preserve review, 

and that, once those documents are properly filed, any defects therein are governed by 

Reed’s holding that merely filing a brief which is deficient in some way does not give 

rise to a claim of ineffective assistance of counsel per se. See Commonwealth’s Brief at 

10. Moreover, the Commonwealth echoes our concern, expressed in Reed, that 

extending Lantzy to the context of defective appellate briefs would “transform the 

exception” of ineffective assistance of counsel per se “into a rule,” as, in its view, “[t]o 

delve into the substance of the actual content [of a brief] in order to make a finding of 

per se ineffectiveness would in practice, do away with the Strickland/Pierce standard.”

Id. at 11-12.

The Sixth Amendment to the United States Constitution provides that “[i]n all 

criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of 

Counsel for his defence.” U.S. Const. amend. VI.6 The right to counsel is not a mere 

hollow formality satisfied by “trial alongside . . . a person who happens to be lawyer,”

but, instead, “is the right to the effective assistance of counsel.” Strickland, 466 U.S. at 

685-66 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)) 

(emphasis added); see also Commonwealth v. Albert, 561 A.2d 736, 738 (Pa. 1989) (“It 

is axiomatic that the right to counsel includes the concomitant right to effective 

assistance of counsel.”).

 

6 Appellant’s claim is based on the Sixth Amendment's right to counsel, which applies, 

via the Fourteenth Amendment's guarantee of due process, to state proceedings 

carrying a potential sentence of imprisonment. See Argersinger v. Hamlin, 407 U.S. 25 

(1972).
[J-79-2016] - 8

Generally, an accused asserting that he has been denied his constitutional right 

to effective assistance of counsel must demonstrate that counsel engaged in errors 

which caused him prejudice – i.e., that “there is a reasonable probability that, but for 

counsel’s . . . errors, the result of the proceeding would have been different.” Strickland, 

466 U.S. at 694. In Pennsylvania, we have set forth the Strickland standard as a threepart test, requiring an accused to show that (1) his underlying claim is of arguable merit; 

(2) counsel’s action or inaction lacked a reasonable strategic basis; and (3) but for 

counsel’s conduct, there is a reasonable probability that the outcome of the proceedings 

would have been different. See Pierce, supra. However, in certain limited 

circumstances, including the actual or constructive denial of counsel, prejudice may be

so plain that the cost of litigating the issue of prejudice is unjustified, and a finding of 

ineffective assistance of counsel per se is warranted. See Cronic, 466 U.S. at 658-59 

(“There are . . . circumstances that are so likely to prejudice the accused that the cost of 

litigating their effect in a particular case is unjustified. Most obvious, of course, is the 

complete denial of counsel.” (footnote omitted)); Strickland, 466 U.S. at 692 (“Actual or 

constructive denial of the assistance of counsel altogether is legally presumed to result 

in prejudice.”); Lantzy, 736 A.2d at 571 (“[A]ctual or constructive denial of the assistance 

of counsel falls within a narrow category of circumstances in which prejudice is legally 

presumed.”).

7

 

This Court has considered claims that an accused’s attorney’s errors amounted 

to a constructive denial of counsel in the context of appeals, and has done so with 

 

7

Ineffectiveness per se may also be shown, inter alia, where (1) the state interferes with 

the assistance of counsel; (2) counsel fails to subject the prosecution’s case to 

meaningful adversarial testing; or (3) counsel’s representation is affected by his or her 

representation of adverse interests. See Strickland, 466 U.S. at 691-93; Cronic, 466 

U.S. 658-62; Bell v. Cone, 535 U.S. 685, 695-96 (2002).
[J-79-2016] - 9

special solicitude for an accused’s Pennsylvania constitutional right to appeal. See Pa. 

Const. art. V, § 9; Commonwealth v. Wilkerson, 416 A.2d 477, 479 (Pa. 1980) (“[A]n 

accused has an absolute right to appeal . . . and counsel can be faulted for allowing that 

right to be waived”). In Lantzy, we addressed an accused’s claim that his counsel’s 

failure to perfect an appeal constituted ineffective assistance of counsel per se.

8

 In an 

opinion authored by then-Justice, now-Chief Justice Saylor, we held that counsel’s 

errors were so egregious as to amount to a constructive denial of counsel, and therefore 

constituted ineffective assistance of counsel per se:

Strickland . . . expressly acknowledges that actual or 

constructive denial of the assistance of counsel falls within a 

narrow category of circumstances in which prejudice is 

legally presumed. Strickland, 466 U.S. at 692. Since the 

failure to perfect a requested appeal is the functional 

equivalent of having no representation at all, Strickland, on 

its own terms, establishes the right to relief. Additionally, . . . 

since Article V, Section 9 of the Pennsylvania Constitution 

guarantees a direct appeal as of right, see [Wilkerson], a 

failure to file or perfect such an appeal results in a denial so 

fundamental as to constitute prejudice per se. 

Lantzy, 736 A.2d at 571 (some citations omitted).

 

8

Therein, Lantzy pled guilty to theft and related offenses, and was sentenced 

accordingly, whereupon counsel filed post-sentence motions seeking to withdraw the 

plea or modify his sentence, as well as a notice of appeal. Lantzy, 736 A.2d at 555.

The trial court did not expressly grant reconsideration, but nevertheless entertained the 

motions, and, in the interim, Lantzy's time to file his appellate brief lapsed. Id. at 555-

56. Meanwhile, Lantzy and the Commonwealth reached an agreement whereby Lantzy 

would abandon his appeal in exchange for a lesser sentence, and the trial court 

approved the same, issuing an order modifying his sentence, and permitting counsel to 

withdraw his appearance. Id. at 556. Lantzy, now pro se, filed another set of postsentence motions, which the trial court denied, and a notice of appeal. Id. The Superior 

Court, reasoning that Lantzy's initial appeal had lapsed and that the trial court's failure 

to grant reconsideration divested it of jurisdiction to issue its order modifying his 

sentence, quashed the appeal and reinstated the original sentence, leaving Lantzy with 

no way to appeal. Id.
[J-79-2016] - 10

Subsequently, in Liebel, we considered an accused’s challenge to his counsel’s 

failure to file a requested petition for allowance of appeal to this Court. We held that this 

error, too, amounted to a constructive denial of counsel and constituted ineffective 

assistance of counsel per se:

In Lantzy, . . . [w]e reasoned that counsel’s unjustified failure 

to perfect a requested appeal is the functional equivalent of 

having absolutely no representation at all on direct appeal, a 

clear violation of the federal and state constitutional right to 

counsel .

* * *

[W]e find the reasoning of Lantzy equally persuasive in the 

circumstances presented by this case. Here, appellate 

counsel . . . simply failed to file a [petition for allowance of 

appeal] on [the accused’s] behalf. . . . Such a failure cannot 

be regarded as anything less than providing [the accused] 

with no representation at all on that [petition for allowance of 

appeal], a clear violation of [the accused’s] rule-based right 

to counsel.

Liebel, 825 A.2d at 635.

Next, in Halley, we addressed an accused’s claim that his counsel’s failure to file 

a court-ordered Pa.R.A.P. 1925(b) statement, which resulted in waiver of all his claims 

for purposes of appeal,9constituted ineffective assistance of counsel per se. In another

opinion authored by now-Chief Justice Saylor, we concluded that extending Lantzy was 

“but a modest and incremental step”:

Lantzy’s reasoning expressly subsumed not only the 

unjustified failure to file a requested direct appeal, but also, 

the failure to perfect the appeal. See Lantzy, 736 A.2d at 571 

(indicating that “a failure to file or perfect such an appeal 

results in a denial so fundamental as to constitute prejudice 

per se” (emphasis added)). Since . . . the submission of a 

court-ordered Rule 1925(b) statement is a prerequisite to 

 

9 See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).
[J-79-2016] - 11

appellate merits review, the Rule 1925(b) statement (when 

directed) is elemental to an effective perfection of the 

appeal. See Black’s Law Dictionary 1173 (8th ed. 2004) 

(defining the act of perfecting as “tak[ing] all [the] legal steps 

necessary to complete, secure, or record a claim, right, or 

interest”). Thus, Lantzy’s reasoning applies by its terms to 

counsel’s dereliction in this case, which left Appellant without 

an ability to challenge his conviction and sentence by means 

of the direct appeal.

Halley, 870 A.2d at 800 (some citations omitted and emphasis and alterations original). 

We distinguished counsel’s failure to file a Pa.R.A.P. 1925(b) statement, occasioning 

waiver of all claims for purposes of appeal, from a failure to preserve particular claims; 

we held the first constitutes ineffectiveness per se, while the second does not:

[I]t is well established that the decision whether to presume 

prejudice or to require an appellant to demonstrate actual 

prejudice “turns on the magnitude of the deprivation of the 

right to effective assistance of counsel.” As we observed in 

Lantzy, the failure to perfect a requested direct appeal is the 

functional equivalent of having no representation at all. . . . 

The difference in degree between failures that completely 

foreclose appellate review, and those which may result in 

narrowing its ambit, justifies application of the presumption in 

the more extreme instance.

Id. at 801 (citations omitted and emphasis added). Additionally, we found that 

maintaining the distinction between errors causing waiver of all claims and those failing 

to preserve particular claims appropriately prevented the exceptional doctrine of 

ineffective assistance of counsel per se from engulfing the general rule that an accused 

must demonstrate that counsel’s errors caused him prejudice. Id. (“[T]he limiting 

principle arising from the recognition of such difference in degree addresses the . . . 

concern that the presumption should not extend to every circumstance in which a 

defendant may claim no effective appeal.” (citations omitted)).
[J-79-2016] - 12

Our subsequent decisions have maintained Halley’s distinction between errors 

which completely foreclose merits review and those which merely “narrow its ambit.” 

Thus, in Reaves, we held an attorney’s failure to file a post-sentence motion preserving 

a particular sentencing claim “did not operate to entirely foreclose appellate review,” but 

merely “waive[d] . . . those claims subject to issue preservation requirements which 

were not otherwise properly preserved.” Reaves, 923 A.2d at 1128-29. By contrast, in

Bennett, wherein an accused’s counsel failed to file an appellate brief, we explained that 

the claim emanated from Lantzy and Halley, as counsel’s failure to file a brief was not a 

“situation . . . in which counsel has narrowed the ambit of appellate review” but, rather, 

“has failed to file an appeal at all.” Bennett, 930 A.2d at 1273. In Commonwealth v. 

Mallory, 941 A.2d 686 (Pa. 2008), we held that counsel’s failure to object that his client 

was not afforded a jury trial waiver colloquy was “unlike the presumed prejudice 

scenarios found in Lantzy and Halley, where counsel’s lapse caused the complete 

default of direct appeals requested by the client.” Id. at 197. Similarly, in 

Commonwealth v. Steele, 961 A.2d 786 (Pa. 2008), we held that an attorney who, at the 

penalty phase of his client’s capital murder case, gave a cursory argument and then 

exited the courtroom, leaving co-counsel in place, had not “entirely failed to function as 

[the client’s] advocate.” Id. at 810-12.

Finally, and of particular importance herein, in Reed, we considered whether 

filing a deficiently composed appellate brief warranted a finding of ineffective assistance 

of counsel per se. Therein, the accused was convicted at a bench trial of murder and 

related offenses, and sentenced to life imprisonment; he appealed, raising an 

evidentiary claim that the admission of certain prior bad acts evidence had undermined 

his extant diminished capacity defense. Id. at 1217-19. The Superior Court concluded 
[J-79-2016] - 13

that the accused had waived his claims by failing to adequately prepare his appellate 

brief and certified record:

We have examined the record in light of these standards, 

and conclude that [Reed] is not entitled to relief for several 

reasons. First, [Reed’s] argument is not developed 

sufficiently for us to conduct meaningful appellate review. 

Failure to provide argument with appropriate citation to 

authority results in waiver of the issue.

Second, [Reed’s] brief refers to evidence in the notes of 

testimony, but the notes of testimony are not included in the 

certified record. Thus, we are unable to read the testimony 

and evaluate [Reed’s] argument.

It is an appellant’s duty to ensure that the certified record is 

complete for purposes of review. We decline to review this 

issue with an incomplete record, and consider the issue to 

be waived.

971 A.2d at 1219 (quoting Commonwealth v. Reed, No. 2909 EDA 2003, unpublished 

memorandum at 7-9 (Pa. Super. filed June 9, 2005)). Nevertheless, assuming 

arguendo that the accused had not waived his claim, the court rejected it, reasoning: (1) 

his argument was undermined by the fact that he was convicted at a bench trial, where 

the presiding judge is presumed not to be influenced by exposure to prejudicial 

evidence; and (2) the evidence was admissible under the rule that prior bad acts 

evidence may be introduced to show Reed’s degree of preparation and, more generally, 

the res gestae of the case. Id.

The accused subsequently filed a PCRA petition challenging his appellate 

attorney’s failure to develop his brief as ineffective assistance of counsel per se, and the 

lower courts denied relief. On appeal to this Court, we reviewed some of the foregoing 

authorities, and rejected his claim:
[J-79-2016] - 14

[W]e . . . conclude that the filing of 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. Unlike the 

case in Lantzy, Halley, and Liebel, . . . Reed’s direct appeal 

counsel’s conduct in the instant case did not deprive Reed of 

his constitutional right to appeal. Significantly, Reed’s direct 

appeal counsel filed a timely notice of appeal, which was 

docketed with the prothonotary. Although the Superior Court 

. . . opined that counsel’s failure to provide appropriate 

citation to authority and a copy of the notes of testimony 

resulted in waiver of Reed’s argument, the court did not 

quash Reed’s appeal. Indeed, the issues apparently were 

sufficiently presented to allow the court to address the merits 

of Reed’s arguments, as the court indicated that it reviewed 

the evidence and the record. . . . At most, the Superior 

Court’s review of Reed’s arguments on the record before it 

may be viewed as a “narrowing of the ambit” of Reed’s 

appeal. Moreover, to extend the [doctrine of ineffective 

assistance of counsel per se] to cases involving a defect in 

an appellate brief essentially would transform the exception 

into a rule, as many appellate briefs contain at least one 

arguable defect.

Id. at 1226-27 (citations omitted).

10

Upon review of these cases, we conclude that Appellant’s interpretation of our 

jurisprudence in this area is correct. As demonstrated supra, this Court has, since 

Halley, held that errors which completely foreclose appellate review amount to a 

constructive denial of counsel and thus ineffective assistance of counsel per se, 

whereas those which only partially foreclose such review are subject to the ordinary 

Strickland/Pierce framework. Moreover, contrary to the suggestion of the lower courts 

 

10 Notably, now-Chief Justice Saylor dissented, opining that Reed's attorney's failure to 

develop his brief had “foreclose[d] effective merits review,” that such error was “the 

functional equivalent of having no counsel at all,” and that the distinction between 

undeveloped briefs that completely foreclosed merits review and those that did not was 

a sufficient limiting principle. Reed, 971 A.2d at 1227 (Saylor, J., dissenting).
[J-79-2016] - 15

and the Commonwealth, Reed did not modify this analytical approach, but, rather, 

confirmed it. Indeed, as detailed above, Reed involved an appellate brief which, 

although the Superior Court opined was so deficiently developed as to warrant a finding 

of waiver, was “apparently . . . sufficiently presented to allow the court to address the 

merits of Reed’s arguments.” Reed, 971 A.2d at 1226. In light of Halley’s distinction 

between errors completely foreclosing review and those merely “narrowing the ambit” of 

appellate review, this fact was critical, as this Court reasoned, noting that, “[a]t most, the 

Superior Court’s review of Reed’s arguments on the record before it may be viewed as 

a ‘narrowing of the ambit’ of Reed’s appeal.” Id. at 1226-27. In other words, the brief in 

Reed was not so underdeveloped as to completely foreclose appellate review, but, 

rather, presented a less robust version of Reed’s underlying evidentiary claim, which the 

Superior Court reviewed on its merits, precluding a finding that his attorney’s errors 

caused a complete deprivation of merits review.

11

Moreover, the filing of a brief that raises only waived issues, while technically 

distinct, is nonetheless akin to failing to file documents perfecting an appeal. There is 

no meaningful difference between an attorney who fails to file a notice of appeal, Rule 

1925(b) statement, brief, or petition for allowance of appeal – thereby forfeiting his 

 

11 Indeed, we observe that the Superior Court has itself noted the distinction between a 

brief so poor as to warrant a finding of waiver, which gives rise to a claim of ineffective 

assistance of counsel per se, and one which is merely deficient in some aspect or 

another. See Commonwealth v. Franklin, 823 A.2d 906 (Pa. Super. 2003) (finding that 

filing a brief so underdeveloped as to waive all claims for purposes of appeal constitutes 

ineffective assistance of counsel per se); Commonwealth v. Mikell, 968 A.2d 779 (Pa. 

Super. 2009) (relying on Halley to conclude that a brief that waived some claims for 

purposes of appeal did not give rise to a claim of ineffective assistance of counsel per 

se); Commonwealth v. Fink, 24 A.3d 426 (Pa. Super. 2011) (noting that filing a brief so 

underdeveloped as to waive all claims for purposes of appeal constituted ineffective 

assistance of counsel per se, and distinguishing Reed on the basis that the Superior 

Court therein was able to conduct merits review, in some measure, of Reed’s 

evidentiary claim).
[J-79-2016] - 16

client’s right to appeal – and one who makes all necessary filings, but does so relative 

solely to claims he has not preserved for appeal, producing the same end. In both 

situations, counsel has forfeited all meaningful appellate review. 

Furthermore, although the Commonwealth’s view that its proposed limitation on 

Lantzy and its progeny is more judicially administrable because it draws a clear 

distinction between claims of ineffective assistance of counsel per se and those subject 

to the Strickland/Pierce framework is well-taken, we do not view it as significantly more 

advantageous in this context than the rule in Halley. Particularly where, as herein, an 

attorney has matter-of-factly forfeited all preserved claims of error in favor of 

unpreserved ones, it is a straightforward matter for an appellate court to conclude the

claims are waived. Indeed, unlike in Reed, where the Superior Court was required to 

contemplate the degree to which review could be performed despite counsel’s errors, 

and could consider the merits of issues from the arguments made with respect to them 

in the brief, here, no such analysis was required: due to counsel’s actions, the only 

claim raised, by virtue of its omission from the Rule 1925(b) statement, was manifestly 

waived. Moreover, as we indicated in Halley, the distinction between errors causing 

complete deprivation of review and those causing only partial deprivation of review 

plainly “addresses the . . . concern that the presumption should not extend to every 

circumstance in which a defendant may claim no effective appeal.” Halley, 870 A.2d at 

801. Accordingly, we hold that the filing of an appellate brief which abandons all 

preserved issues in favor of unpreserved ones constitutes ineffective assistance of 

counsel per se.

Here, although preserving three claims of trial court error in his Rule 1925(b) 

statement, Appellate Counsel completely abandoned those claims on appeal and, 

instead, raised an unpreserved sufficiency-of-the-evidence challenge, occasioning a 
[J-79-2016] - 17

complete waiver of all merits review. In light of this complete default, we find the 

Superior Court’s observations that “Appellant’s appeal was timely filed, a Pa.R.A.P. 

1925(b) statement was filed, and [the Superior Court] acknowledged the claim 

[Appellate Counsel] chose to raise on appeal” of little value. Rosado, No. 2474 EDA 

2014 at 8 (Pa. Super. filed Apr. 17, 2015). Nor do we agree with the Superior Court’s 

characterization that Appellate Counsel “litigated Appellant’s direct appeal.” Id. On the 

contrary, Appellate Counsel’s errors herein precluded litigation of Appellant’s direct 

appeal. 

Thus, we vacate the Superior Court’s order affirming Appellant’s judgment of 

sentence, and we remand to that court for further proceedings consistent with this 

opinion.

Jurisdiction relinquished.

Justices Baer, Donohue and Dougherty join the opinion.

Chief Justice Saylor files a concurring opinion in which Justices Wecht and 

Mundy join.