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- S22035

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2023 PA Super 128

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

HENRY CHARLES AGNEW :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1408 WDA 2022

Appeal from the PCRA Order Entered November 18, 2022

In the Court of Common Pleas of Blair County

Criminal Division at CP

- 07

- CR

- 0000586

- 2016

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

OPINION BY MURRAY, J.: FILED: July 21, 2023

The Commonwealth of Pennsylvania appeals the order of the Post

Conviction Relief Act (PCRA) 1 court, which reinstated

, nunc pro tunc

, the direct

appeal rights of the petitioner, Henry Charles Agnew ( Agnew ) . We reverse

.

The PCRA court recounted the relevant procedural history as follows :

After [a] jury trial, [Agnew] was convicted of multiple crimes

related to drug trafficking on August 19, 2016, including three

counts of Possession with Intent to Deliver/Delivery and Criminal

Use of a Communi cation Facility. 2 [Agnew] was sentenced

... on

October 28, 2016 to an aggregate sentence of 33

- 66 months [in

prison]

. His trial counsel was Attorney Robert S. Donaldson.

Attorney Donaldson filed a Notice of Appeal on December 2,

2016. [Attorney Donaldson thereafter filed a timely Pa.R.A.P.

1925(b) concise statement.] The Pennsylvania Superior Court

ultimately dismissed the appeal due to Attorney Donaldson ’ s

failure to file a brief.

_________________ __________ ______ ____ _______

1 42 Pa.C.S.A. §§ 9541

- 9546.

2 35 P.S. § 780

- 113(a)(30 ); 18 Pa.C.S.A. § 7512(a).J

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- 2

- [Agnew] timely filed a PCRA petition on March 9, 2018 [,]

and Attorney Paul M. Puskar was appointed as PCRA counsel on

June 13, 2018. A PCRA hearing was held on May 24, 2019 [,] and

per Order dated June 6, 2019 by [the PCRA court] , the PCRA

petition was granted and [Agnew ’ s] direct appeal rights were

reinstat ed. Attorney Douglas J. Keating was then appointed as

appellate counsel.

Attorney Keating filed a Notice of Appeal on July 12, 2019,

beyond the thirty (30) day period provided in ... [the] Order of

June 6, 2019. Therefore, the Pennsylvania Superior Court

quashed the appeal as untimely and directed Attorney Keating to

seek reinstatement of the appeal at the Court of Common Pleas

level. Attorney Keating filed a Motion to Reinstate Direct Appeal

Rights on August 30, 2019

, and on October 10, 2019, [the PCRA

court] entered an Order reinstating the direct appeal rights.

Attorney Keating filed a Notice of Appeal Nunc Pro Tunc on

October 16, 2019. While the direct appeal was still pending,

Agnew filed a pro se PCRA Petition on Novem ber 4, 2019. The

Pennsylvania Superior Court ultimately denied the direct appeal

by Memorandum dated September 17, 2020. [ See

Commonwealth v. Agnew

, 240 A.3d 939 (Pa. Super. 2020)

(unpublished memorandum).]

[Agnew] filed another pro se PCRA Petition on October 19,

2020 [ ,] and [the PCRA court] entered an Order on January 4,

2021 appointing Attorney Matthew McGregor as PCRA counsel.

Attorney McGregor filed an Amended PCRA Petition on March 4,

2021.

... The hearing was rescheduled for July 22, 2021. Attorney

McGregor filed a Motion to Continue on July 20, 2021

, due to a

conflict within his professional schedule. At the same time, he

also filed a Motion to Withdraw as Counsel.

After a hearing held July 26, 2021, [the PCRA court] granted

Attorney McGregor ’ s motion to withdraw. By Order entered

August 3, 2021, [the court] appointed Attorney Kristen L. Anastasi

as new PCRA counsel. Attorney Anastasi filed an Amended PCRA

Petition on December 8, 2021

....

PCRA Court Opinion, 12/14/22, at 1

- 3 (footnote added)

.J

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- 3

-

In his a mended PCRA petition , Agnew asserted ineffectiveness claims

against all prior counsel. Agnew claimed:

Attorney Donaldson was ineffecti ve for failing to object and/or

request a mistrial when [Agnew’s] rights to the Confrontation

Clause [ 3 ] were violated.

Amended PCRA Petition, 12/8/21, ¶24(F) (footnote added). Agnew further

claimed Attorney Puskar rendered ineffective assistance by fail ing to amend

Attorney Donaldson’s Pa.R.A.P. 1925(b) concise statement to include the

Confrontation Clause issue (related to admission at trial of text messages from

the confidential informant (CI ) )

. Id. ¶ 24(G).

The PCRA court hel d an evidentiary hearing on Agnew’s petition. On

November 18, 2022, the PCRA court granted Agnew relief, reinstating his

direct appeal rights nunc pro tunc . PCRA Order, 11/18/22. The PCRA court

limited Agnew ’ s appeal to the issue of

whether trial counsel was ineffective in failing to object to the

admission of the text messages from the deceased [CI] to [the

Commonwealth] into evidence as a violation of the Confrontation

Clause and/or whether the trial court erred in allowing such

evi dence at the time of trial....

_________________ __________ ______ ____ _______

3 The Sixth Amendment to the United States Constitution provides : “ I n all

criminal prosecutions, the accused shall enjoy the right

... to have the

Assistance of Counsel for his defen [s] e. ” U.S. Const. amend. VI.J

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-

Id. (footnote added). 4 T he PCRA court permitte d consideration of Agnew’s

ineffectiveness claim by nunc pro tunc direct appeal given Appellant’s short

sentence ; the court opin ed : “any appellate review should occur in a timely

manner, especially for an issue of constitutional magnitude.” PCRA Court

Opinion, 12/14/22, at 5. The Commonwealth thereafter filed the instant

timely appeal

. The Commonwealth and PCRA court have complied with

Pa.R.A.P. 1925. 5

The Commonwealth presents the following issues:

I. Whether the PCRA court erred in granting a nunc pro tunc

direct appeal where prior counsel were not ineffective?

II. Whether the PCRA court erred in granting relief under

Commonwealth v. Holmes , 79 A.3d 562 (Pa. 2 013),

where the Holmes conditions were not met and that relief

was never requested by [Agnew] ?

Commonwealth Brief at 3.

In reviewing these issues , our standard of review “ is limited to

examining whether the PCRA court ’ s determination is supported by the

evidence of record and whether it is free of legal error. ” Commonwealth v.

Sandusky

, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citation and internal

_________________ __________ ______ ____ _______

4 D ue to the unavailability of the deceased CI, t he Commonwealth introduced

text messages between the CI and Agnew to explain police officers’ course of

conduct

. See N.T., 8/19/16, at 48

- 50

.

5 Counsel for Agnew filed his nunc pro tunc direct appeal at No. 1493 WDA

2022. On February 10, 2023, this Cou rt stayed that appeal pending

disposition in the instant case.J

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- 5

-

quotation marks omitted). “ The PCRA court ’ s factual findings are binding if

the record supp orts them, and we review the court ’ s legal conclusions de

novo

. ” Commonwealth v. Prater

, 2 56 A.3d 1274, 1282 (Pa. Super. 2021)

.

The Commonwealth’s issues implicate Agnew’s claim s of his prior

attorneys’ ineffective ness

. In addressing ineffectiveness claims :

[W] e begin, as we must, with the presumption that counsel acted

effectively. To prove otherwise, a petitioner must satisfy the

performance and prejudice standard set forth in Strickland v.

Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984), by a preponderance of the evidence. This Court has

applied the Strickland test by requiring a petitioner to establish

three elements: (1) the underlying claim has arguable merit; (2)

no reasonable basis existed for counsel ’ s action or failure to act;

and (3) the petitioner suffered prejudice because of

counsel’s error, with prejudice measured by whether there

is a reasonable probability the result of the proceeding

would have been different absent the error.

....

If a petitioner ’ s claim fails under any required element of

the Strickland test, the claim may be dismissed on that basis. A

court is not required to analyze the elements of an ineffectiveness

claim in any order of priority; if a claim fails under any necessar y

element, the court may proceed to that element first.

...

Commonwealth v. Johnson

, 289 A.3d 959, 979

- 80 (Pa. 2023) ( emphasis

added; quotation marks and most citations omitted).

T he Commonwealth first argues the PCRA court erred in concluding

Attorney Keating rendered ineffective assistance by not seeking leave to

amend Ag new’s previously filed Pa.R.A.P. 1925(b) concise statement

.

Commonwealth Brief at 17. The Commonwealth assert s:J

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The PCRA court erred because it did not analyze all three prongs

of the ineffectiveness test. The PCRA court further erred because

it did not find that there was a reasonable probability that a new

trial would have been granted had Attorney Donaldson a nd/or

Attorney Keating preserved the Confrontation Clause issue on

direct appeal.

Id. T he Commonwealth emphasizes :

The PCRA court did not analyze whether there was a reasonable

probability that Agnew would have succeeded had he raised the

Confrontation Clause on direct appeal.

Id. at 20.

Further, t he Commonwealth maintains Agnew ’ s challenge to the

admissibility of the CI ’ s text messages would not have merited relief on direct

appeal. Id. at 21. The Commonwealth asserts:

[T]he PCRA court erred because it did not explain how any text

messages would be considered testimonial evidence that could be

excluded under the Confrontation Clause. The Commonwealth

explained at trial that the te x t messages were not offered into

evidence for thei r truth.

... Since the text messages were not

offered for their truth, the PCRA court erred where there was not

a meritorious basis to object to the text messages....

Id. at 22.

T he PCRA court deemed Attorney Keating ineffective for not requesting

permission to amend Agnew’s Rule 1925(b) concise statement. PCRA Court

Opinion, 11/17/22, at 12. The PCRA court opined:

Attorney Keating could have, and in fact should have, filed a

pet ition seeking leave of the trial court to file a supplemental or

amended Rule 1925(b) Statement. If the trial court granted such

leave, this would have provided Attorney Keating an opportunity

to raise any appellate issues that he deemed appropriate,

incl uding the alleged violation of the Confrontation Clause based

upon admission of the deceased CI’s text messages into evidence.J

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-

....

[The court] believe s this issue has merit and should properly

be raised and pursued on appeal. [ The court ] find [ s ] that

[ A gnew ] was prejudiced by not being provided the

opportunity to raise this issue on appeal....

Id. ( emphasis added; citation omitted).

T he PCRA court app e ar s to presume prejudice from Attorney Keating’s

failure to preserve a n issue for appeal

. See id. However, prejudice is

presumed only in instances where counse l’s ineffectiveness completely

forecloses review :

[T]here have been only three circumstances under which this

Court determined that counsel ’ s conduct constituted a

constructive denial of counsel warranting a presumption of

prejudice: (1) where counsel failed to file a requested direct

appeal, see [ Commonwealth v. ] Lantzy

, [736 A.2d 564 (Pa.

1999)]; (2) where counsel failed to file a statement of matters

complained of on appeal, see [ Commonwealth v. ] Halley [

, 870

A.2d 795, 801 (Pa. 2005) ]; and (3) where counsel failed to file a

requested petition for allowance of appeal thereby depriving the

client of the right to seek discretionary

review, see Commonwealth v. Liebel

, [ 825 A.2d 630

, 635

- 36

(Pa. 2003)]

.

Commonwealth v. Reed , 971 A.2d 1216, 1225 (Pa. 2009)

.

“[I]n 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. ” Commonwealth v. Rosado

, 150 A.3d 425, 430

- 31

(Pa. 2016)

. However, p rejudice is not presumed where counsel’s action or

inaction only narrows the ambit of appeal. See Reed , 971 A.2d at 1226J

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-

(concluding “ 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 ” to establish a claim of ineffectiveness per se ) . In Commonwealth

v. Reaves , 923 A.2d 1119 (Pa. 2007) , our Supreme Court rejected conflation

of the loss of a single appellate issue with the complete loss of the right to

appeal. Id. at 1128

- 32. The Supreme Court emphasized : “ The difference in

degree between failures that completely foreclose appellate review, and those

whic h may result in narrowing its ambit, justifies application of the

presumption [of prejudice] in the more extreme instance. ” 6 Id. at 1 1 28

(citation omitted)

.

Here, prior counsel’s failure to petition for leave to amend Agnew’s

concise statement “ did not operate to entirely foreclose appellate review

...

but at most ‘ narrowed the ambit ’ of the appeal [] counsel pursued. ” Reed

,

971 A.2d at 1225 (citation omitted). Under these circumstances, we conclude

the PCRA court erred in not analyzing Agnew’s ineffectiveness claim under the

actual prejudice standard. See Johnson

, 289 A.3d at 979 ( requiring

determination of “ whether there is a reasonable probability the result of the

proceeding would ha ve been different ,” absent counsel’s action/ inaction)

.

_________________ __________ ______ ____ _______

6 I n Reaves , our Supreme Court concluded th at counsel’s failure to file for

sentencing reconsideration did not entirely foreclose appellate review of a

revocation decision. Id. at 11 28

- 29. Therefore, the petitioner was required

to demonstrate actual prejudice

. Id. at 1129.J

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We do not conclude our review at this point. Whether the admission of

evidence vio lated an accused’s rights under the Confrontation Clause is a

question of law, for which our standard of review is de novo and our scope of

review is plenary. Commonwealth v. Brown

, 185 A.3d 316, 324 (Pa. 2018).

The Confrontation Clause applies to witnesses against the accused

— i n

other words

— those who bear testimony. See Crawford v. Washington

,

541 U.S. 36, 54 (2004) (defining testimonial statements as, inter alia

, “ ex

parte in

- court testimony or its functional equivalent ” ). The focus of the

Confrontation Clause is testimonial hearsay. Crawford

, 541 U.S. at 51

-

52. T he Crawford Court ma de clear that the use of testimonial s tatements

is not barred by the Confrontation Clause “ for purposes other than establishing

the truth of the matter asserted. ” Id. In fact, this Cour t has long

- recognized:

“ A statement admitted for a purpose other than establishing the truth of the

matter asserte d

— such as, in this case, the investigating officers ’ course of

conduc t

— does not violate the Confrontation Clause. ” Commonwealth v.

Dargan

, 897 A.2d 496, 500 (Pa. Super. 2006)

.

A t trial, the Commonwealth presented testimony from Altoona Police

Sergeant Christopher Moser (Sergeant Moser). N.T., 8/19/16, at 3 2

.

Sergeant Moser explained:

On these four purchases ... , on each instance we were able to

observe [] Agnew meet with the CI.

....J

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[W]e were able to see [] Agnew and the CI o n each and every one

of these purchases. The CI was strip [

- ] searched before and after.

Before [, the CI] had no drugs on him and no money other than

the money I provided him. After he met with [] Agnew[ ,] we were

able to observe on each purchase that [ Appellant ] was the only

person [the CI] had contact with or met

, other than the police

officers. He came ba c k with cocaine and I believe on the last

purchase he returned with $20 of our money.

Id. at 47.

The Commonwealth the n presented text messages between the CI and

Agnew to explain Sergeant Moser ’ s course of conduct

. Id. at 51. Although

Agnew ’ s counsel objected on hearsay grounds , the trial court overruled the

objection, stating : “ I think the Jury is getting the background of how [the

message] was taken off the phone[.] ” Id. at 52. Significantly

, in Agnew ’ s

prior appea l, both the trial court and this Court agreed the case “ was tried

without the [CI ’ s] credibility coming into question in any s ignificant respect. ”

Agnew

, 240 A.3d 939 (Pa. Super. 2020) (unpublished memorandum at 4)

(quoting Trial Court Opinion, 11/16/17, at 3 ).

Because the texts were admitted

, not f or their truth, but to explain

Sergeant Moser ’ s course of conduct, Agnew ’ s claim of a Confrontation Clause

violation would merit no relief. See Dargan

, 897 A.2d at 500 (holding that

evidence offered to explain course of conduct is not excluded by hearsay rule

nor barred by Confrontation Clause )

. Con sequently, Agnew cannot establish

actual prejudice resulting from prior counsel’s failure to seek the addition of

this issue to Agnew’s concise statement. See Johnson

, 289 A.3d at 979

- 80

.

Agnew’s ineffectiveness claim does not merit relief. See id.J

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Based on the foregoing, we conclude the PCRA court erred in granting

Agnew relief and reinstating his direct appeal rights nunc pro tunc

. 7 We

therefore reverse the order granting PCRA relief and dismiss Agnew ’ s nunc

pro tunc direct appeal at No. 1493 WDA 2022.

Order reversed . Appeal at No. 1493 WDA 2022 dismissed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2023

_________________ __________ ______ ____ _______

7 Based on this d eterm ina ti on

, we do not address the Commonwealth’s

remaining issue.