J-S24037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALPHONSO REED

Appellant No. 1483 MDA 2015

Appeal from the Judgment of Sentence January 23, 2013

In the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0001482-2011

BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED MAY 04, 2016

Appellant, Alphonso Reed, purports to appeal nunc pro tunc from the 

judgment of sentence entered in the Lebanon County Court of Common 

Pleas, following his convictions for delivery of a controlled substance, 

criminal use of communication facility, and two counts of criminal 

conspiracy.1 For the following reasons, we conclude the PCRA court erred in 

reinstating Appellant’s post-sentence motion and direct appeal rights nunc 

pro tunc. Accordingly we reverse the order granting this relief and remand 

the case to the PCRA court for further proceedings. 

In its opinion, the PCRA/trial court set forth the relevant facts of this 

____________________________________________

1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 7512(a) and 903(a)(1), 

respectively. 
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case as follows: 

On or about June 2, 2011, Detectives Ryan Mong [“Det. 

Mong”] and Adam Saul [“Det. Saul”] were conducting 

surveillance of an alleged drug sale between an unknown 

individual and an undercover officer, Sergeant Brent 

Hopkins [“Sgt. Hopkins”]. A confidential informant 

arranged for [Sgt. Hopkins] to meet an individual identified 

as Charles Holloway [“Mr. Holloway”]. After meeting Sgt. 

Hopkins, [Mr.] Holloway made a phone call and a short 

time later an unidentified individual came onto the scene. 

Det. Mong described him as an older man with a graying 

beard. This individual handed an item to [Mr.] Holloway 

who then turned and immediately handed a bag of crack 

cocaine to [Sgt. Hopkins]. After the transaction was 

complete, the [detectives] followed the individual on foot 

until they lost sight of him. That individual remained

unknown and was identified in [the case report] as merely 

“Juan Doe.” 

On or about August 19, 2011, at approximately 7:30 p.m., 

[Appellant] was walking along the 800 block of Chestnut 

Street, Lebanon, PA, when [Det.] Mong and [Det.] Saul 

drove by in an unmarked vehicle. Det. Mong recognized 

[Appellant] as the “Juan Doe” with the graying beard from 

the June 2, 2011 incident. Det. Mong and [Det.] Saul 

approached [Appellant] in order to determine his name. 

The [d]etectives had their badges in plain view and Det. 

Mong identified himself to [Appellant]. Det. Mong testified 

that he did not intend on arresting [Appellant] at that 

time. Det. Saul stood slightly behind Det. Mong during the 

interaction with [Appellant], close enough to hear the 

conversation and to assist Det. Mong if needed. Det. Mong 

asked [Appellant] for some identification. [Appellant] 

handed a Pennsylvania Identification Card to Det. Mong, 

who radioed the information to dispatch to determine if 

there were any outstanding warrants for [Appellant]. Det. 

Mong told [Appellant] that they had stopped him because 

they recognized his as a person who had sold drugs to an 

undercover officer. Det. Mong returned [Appellant’s] 

identification. Dispatch notified Det. Mong that there were 

no outstanding warrants for [Appellant]. Det. Mong 

testified that he could not recall if he had returned 

[Appellant’s] identification before stating that [Appellant] 
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was stopped because of the sale of drugs. 

Det. Mong asked [Appellant] if he had any drugs or 

weapons on his person, to which [Appellant] replied in the 

negative. Det. Mong then asked [Appellant] if he would 

consent to a search of his person, which [Appellant] 

replied in the affirmative. This search produced thirteen 

(13) bags of crack cocaine, two [cellphones], and money. 

After the search, [Appellant] was arrested and read his 

[Miranda] warnings. 

(Trial Court Opinion, filed September 11, 2015, at 2-4). 

Procedurally, on November 11, 2011, the Commonwealth charged 

Appellant at docket # CP-38-CR-0001482-2011, with delivery of a controlled 

substance, criminal use of communication facility, and two counts of criminal 

conspiracy in connection with the June 2, 2011 drug transaction. The 

Commonwealth also charged Appellant at docket # CP-38-CR-0001483-

2011, with possession with intent to deliver a controlled substance (“PWID”), 

possession of a controlled substance, and possession of drug paraphernalia 

in connection with the August 19, 2011 search of Appellant’s person. On 

December 23, 2011, Appellant filed a pre-trial motion in which he sought the 

suppression of all evidence seized during the August 19, 2011 interaction 

with police. Specifically, Appellant challenged whether the police had 

reasonable suspicion to subject Appellant to an investigative detention and 

whether he gave valid consent to the search of his person. The court 

conducted a hearing on January 25, 2012, and partially granted Appellant’s 

suppression motion on May 23, 2012. The court determined the August 19, 

2011 investigative detention of Appellant was lawful but Appellant’s consent 
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to the search was invalid. As a result, the court dismissed all of the charges 

against Appellant at docket # CP-38-CR-0001483-2011. 

On November 15, 2012, Appellant proceeded to a bench trial for the 

June 2, 2011 charges at docket # CP-38-CR-0001482-2011. At trial, the 

Commonwealth presented various witnesses including Det. Mong, who 

testified that on August 19, 2011, he immediately recognized Appellant as 

the unidentified suspect involved in the June 2, 2011 drug transaction with 

Sgt. Hopkins. Following trial, the court convicted Appellant of delivery of a 

controlled substance, criminal use of communication facility, and two counts 

of criminal conspiracy. The court deferred sentencing pending the 

preparation of a pre-sentence investigation (“PSI”) report. On January 23, 

2013, the court sentenced Appellant to concurrent terms of four (4) to ten 

(10) years’ imprisonment for the delivery of a controlled substance 

conviction, twenty-seven (27) months to ten (10) years for the conspiracy to 

deliver a controlled substance conviction, and eighteen (18) months to seven 

(7) years for the criminal use of communication facility conviction. The court 

imposed a mandatory minimum sentence for Appellant’s conviction of 

delivery of a controlled substance because the offense took place in a school 

zone. 

Appellant timely filed a notice of appeal on January 29, 2013. On 

February 14, 2013, the court ordered Appellant to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant 
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timely complied on March 4, 2013. In his concise statement, Appellant 

raised challenges to the sufficiency of the evidence and the weight of the 

evidence. This Court affirmed Appellant’s judgment of sentence on 

November 25, 2013. See Commonwealth v. Reed, No. 244 MDA 2013, 

unpublished memorandum (Pa.Super. filed November 25, 2013) (concluding 

sufficiency of evidence issue lacked merit and weight of evidence issue was 

waived for failing to preserve it in timely post-sentence motion). 

On March 17, 2014, Appellant timely filed a pro se petition pursuant to 

the Post Conviction Relief Act (“PCRA”).2 The court appointed counsel, who 

filed an amended petition on August 15, 2014, and a second amended 

petition on October 3, 2014. In the second amended PCRA petition, 

Appellant claimed prior counsel was ineffective for failing to: (1) preserve 

Appellant’s challenge to the weight of the evidence; (2) preserve Appellant’s 

challenge to the court’s partial denial of Appellant’s suppression motion; and 

(3) challenge the court’s imposition of a mandatory minimum sentence for 

Appellant’s delivery of a controlled substance conviction under Alleyne v. 

United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). 

The PCRA court held an evidentiary hearing on April 27, 2015. On May 29, 

2015, the PCRA court granted relief by reinstating Appellant’s post-sentence 

motion and direct appeal rights nunc pro tunc, limited to Appellant’s 

____________________________________________

2 42 Pa.C.S.A. §§ 9541-9546.
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challenges to the weight of the evidence and the partial denial of Appellant’s 

suppression motion. Appellant immediately filed a notice of appeal nunc pro 

tunc. On June 2, 2015, the court ordered Appellant to file a Rule 1925(b) 

statement, and Appellant complied. On June 25, 2015, with the court’s 

permission, Appellant withdrew his notice of appeal and filed a nunc pro tunc 

post-sentence motion. In his nunc pro tunc post-sentence motion, Appellant 

raised challenges to the weight of the evidence, the partial denial of his pretrial suppression motion, and the imposition of the mandatory minimum 

sentence for his delivery of a controlled substance conviction. On August 

11, 2015, the court denied Appellant’s post-sentence motion and did not 

address Appellant’s sentencing issue. On August 31, 2015, Appellant filed 

his “reinstated” notice of appeal nunc pro tunc. That same day, the court 

ordered Appellant to file a Rule 1925(b) statement, and Appellant complied 

on September 10, 2015. 

Appellant raises the following issues for our review: 

WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF 

THE EVIDENCE PRESENTED AT THE TRIAL? 

WHETHER THE TRIAL COURT ERRED WHEN IT DENIED [] 

APPELLANT’S PRE-TRIAL MOTION CHALLENGING THE 

REASONABLE SUSPICION FOR THE STOP AND THE INITIAL 

PROBABLE CAUSE FOR THE ARREST OF [] APPELLANT? 

(Appellant’s Brief at 6).

Before we can address the merits of the issues presented on appeal, 

we must determine whether this appeal is properly before us, where 
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Appellant previously had a counseled direct appeal and this Court affirmed 

the judgment of sentence on November 25, 2013. In other words, we must 

determine if reinstatement of Appellant’s direct appeal rights was the proper 

remedy under the circumstances of this particular case. 

“[A]n accused who is deprived entirely of his right of direct appeal by 

counsel’s failure to perfect an appeal is per se without the effective 

assistance of counsel, and is entitled to reinstatement of his direct appellate 

rights.” Commonwealth v. Grosella, 902 A.2d 1290, 1293 (Pa.Super. 

2006) (quoting Commonwealth v. Johnson, 889 A.2d 620, 622 (Pa.Super. 

2005)). Importantly, there are very few circumstances where counsel’s 

conduct warrants a presumption of prejudice and the reinstatement of a 

petitioner’s direct appeal rights nunc pro tunc. Commonwealth v. Adam 

Reed, 601 Pa. 257, 272, 971 A.2d 1216, 1225 (2009). These circumstances 

include: (1) where counsel failed to file a requested direct appeal; (2) where 

counsel failed to file a concise statement of errors claimed of on appeal; or 

(3) where counsel failed to file a requested petition for allowance of appeal. 

Id. at 272-73, 971 A.2d at 1225. “In those extreme circumstances, where 

counsel has effectively abandoned his...client and cannot possibly be acting 

in the client’s best interests, our Supreme Court has held that the risk 

should fall on counsel, and not on his client.” Commonwealth v. West, 

883 A.2d 654, 658 (Pa.Super. 2005). 

On the other hand, “the reinstatement of direct appeal rights is not the 
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proper remedy when appellate counsel perfected a direct appeal but simply 

failed to raise certain claims.” Grosella, supra at 1293. Significantly:

Where a petitioner was not entirely denied his right to a 

direct appeal and only some of the issues the petitioner 

wished to pursue were waived, the reinstatement of the 

petitioner’s direct appeal rights is not a proper remedy. In 

such circumstances, the [petitioner] must proceed under 

the auspices of the PCRA, and the PCRA court should apply 

the traditional three-prong test for determining whether 

appellate counsel was ineffective. 

Id. at 1293-94 (internal citations and parentheticals omitted). 

Instantly, appellate counsel actually filed and perfected a direct appeal 

on Appellant’s behalf in 2013, in which counsel raised challenges to the 

sufficiency of the evidence and the weight of the evidence. This Court 

addressed the sufficiency of the evidence issue on the merits, disposed of 

the weight of the evidence issue on the basis of waiver, and affirmed the 

judgment of sentence on November 25, 2013. Thus, counsel did not 

completely foreclose appellate review but simply “narrowed its ambit.” See 

id. (distinguishing between cases where counsel’s failure extinguished 

defendant’s right to direct appeal and cases where counsel might have 

waived or abandoned some but not all issues on direct appeal). Therefore, 

we conclude the PCRA court erred in reinstating Appellant’s post-sentence 

motion and direct appeal rights nunc pro tunc. Instead, the PCRA court 

should have considered Appellant’s ineffective assistance of counsel claims 

under the auspices of the PCRA and applied the traditional three-prong 

ineffective assistance of counsel test. Id. 
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For the foregoing reasons, we reverse the order reinstating Appellant’s 

post-sentence motion and direct appeal rights nunc pro tunc and remand 

this matter to the PCRA court to address Appellant’s claims under the 

auspices of the PCRA and the traditional test for ineffective assistance of 

counsel. In like manner, the PCRA court must address Appellant’s 

sentencing claim. Accordingly, we remand this case to the PCRA court for 

proceedings consistent with this decision. 

Case remanded to PCRA court with instructions for further PCRA 

proceedings. Jurisdiction is relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/4/2016