J-S77015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GREGORY STEVEN RIVERA-MOREL,

Appellant No. 421 MDA 2016

Appeal from the PCRA Order entered January 12, 2016

In the Court of Common Pleas of Dauphin County

Criminal Division, at No(s): CP-22-CR-0002952-2013 

 CP-22-CR-0003366-212 

 CP-22-CR-0006033-2013 

BEFORE: PANELLA, J., OLSON, J., PLATT, J.

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 22, 2016

Gregory Steven Rivera-Morel (“Appellant”) appeals from the order 

denying his first petition for relief filed under the Post Conviction Relief Act 

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

The pertinent facts and procedural history are as follows. On March 10, 

2014, Appellant entered a negotiated guilty plea at three separate dockets 

to various charges including robbery, simple assault, a firearm violation, and 

intimidation of a witness. On June 25, 2014, the trial court sentenced 

Appellant, in accordance with the plea agreement, to an aggregate term of 

____________________________________________

 Retired Senior Judge assigned to the Superior Court.
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seven to fourteen years of imprisonment. Appellant filed neither a postsentence motion nor a direct appeal.

On March 23, 2015, Appellant filed a timely pro se PCRA. The PCRA 

court appointed counsel and PCRA counsel later filed a supplemental PCRA 

petition requesting the reinstatement of Appellant’s direct appeal rights nunc 

pro tunc. The PCRA court held an evidentiary hearing. Appellant presented 

his own testimony and rebuttal testimony from his mother. Appellant’s trial 

counsel also testified. At the conclusion of the hearing, the PCRA court took 

the matter under advisement. The PCRA court ultimately dismissed 

Appellant’s PCRA petition. This timely appeal follows. 

Appellant raises one issue for our review: “Whether [trial] counsel 

provided deficient performance when counsel failed to file a Notice of Appeal, 

even though Appellant plead guilty, effectively denying Appellant his 

Constitutional right to direct appeal.” Appellant’s Brief at 3. 

Our scope and standard of review is well settled:

In PCRA appeals, our scope of review is limited to the findings of 

the PCRA court and the evidence on the record of the PCRA 

court's hearing, viewed in the light most favorable to the 

prevailing party. Because most PCRA appeals involve questions 

of fact and law, we employ a mixed standard of review. We defer 

to the PCRA court’s factual findings and credibility 

determinations supported by the record. In contrast, we review 

the PCRA court's legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 

2015) (internal citations and quotations omitted).
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It is well settled that

[t]o plead and prove ineffective assistance of counsel a 

petitioner must establish: (1) that the underlying issue has 

arguable merit; (2) counsel’s actions lacked an objective 

reasonable basis; and (3) actual prejudice resulted from 

counsel's act or failure to act.

Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012) 

(citation omitted). 

Appellant claims that he is entitled to the reinstatement of his direct 

appeal rights because he twice asked trial counsel to file an appeal, but was 

told that, by entering a negotiated guilty plea, he forfeited his appellate 

rights. As this Court has summarized:

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. Lantzy, 558 Pa. 214, 736 A.2d 

564 (1999). In Lantzy, our Supreme Court held that an 

unjustified failure to file a direct appeal upon request is prejudice 

per se, and if the remaining requirements are satisfied, a 

defendant does not have to demonstrate his innocence or the 

merits of the issue he would have pursued on appeal to be 

entitled to relief. However, such relief is only appropriate where 

the petitioner plead and proves that a timely appeal was in fact 

requested and that counsel ignored that request. 

Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa. Super. 

1999). A mere allegation will not suffice to prove that counsel 

ignored a petitioner’s request to file an appeal.

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

In the present case, the PCRA court heard the testimony from 

Appellant and his mother in support of his claim that he timely requested 

trial counsel to file appeal and that trial counsel told him he forfeited his 

right to do so because he entered a negotiated guilty plea. Conversely, trial 
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counsel testified that Appellant never made such a request and that she 

never told him he forfeited his appellate rights by pleading guilty. The PCRA 

court resolved this matter of credibility against Appellant:

This [c]ourt finds that [Appellant’s] veracity is in question 

in light of his admission that he failed to read his guilty plea 

colloquy and failed to question counsel or the court on any 

matters he did not understand. It is quite clear from the record 

that his appeal rights were presented to him orally by [trial 

counsel] prior to and during his court appearance to plead guilty 

and in the written plea colloquy. Further, this [c]ourt finds [trial 

counsel’s] testimony credible that she discharged her duty to 

inform [Appellant] of his appeal rights on multiple occasions but 

he failed to request that an appeal be filed. Furthermore, had 

[Appellant] forgotten to make such a request during his 

sentencing hearing, [trial counsel] followed up with a letter 

outlining his rights and met with his mother on more than one 

occasion which presented additional opportunities during which 

he could have sent a message to counsel regarding his desire [to 

file an appeal].

In conclusion, this [c]ourt finds that [Appellant’s] claim of 

ineffective assistance of counsel is without merit. Trial counsel 

did not fail to file a direct appeal; rather, the evidence shows 

that [Appellant] did not request that counsel take such action. 

Therefore, the instant Petition should be dismissed.

PCRA Court’s Opinion 1/12/16, at 5-6.

There is record support for the PCRA court’s credibility determinations. 

Where there is such support, “we, as a reviewing court, are bound by those 

determinations.” Commonwealth v. Abu-Jamal, 720 A.2d 70, (Pa. Super. 

1998) (citation omitted). See also Reyes-Rodriguez, 111 A.3d at 779; 

Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999).
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016