J-S51041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEMIER THOMPSON,

Appellant No. 364 EDA 2015

Appeal from the PCRA Order January 16, 2015

in the Court of Common Pleas of Philadelphia County

Criminal Division at Nos.: CP-51-CR-0010863-2008

CP-51-CR-0013718-2008

CP-51-CR-0009938-2008

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED AUGUST 21, 2015

Appellant, Jemier Thompson, appeals from the order dismissing his 

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546. We affirm.

This Court previously summarized the factual and procedural history of 

this case as follows:

On June 6, 2008, [A]ppellant committed a robbery at 

gunpoint at the intersection of 37th and Hamilton Streets in 

Philadelphia. Two days later, on June 8, 2008, [A]ppellant 

committed a second robbery at 37th and Baring Streets; and on 

June 28, 2008, [A]ppellant committed robbery of two men at the 

intersection of 36th and Baring Streets. Shortly after the 

robberies on June 28th, police found [A]ppellant, and the June 

28th victims properly identified [A]ppellant as the robber.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Appellant was charged with a variety of offenses including 

robbery and possession of an instrument of crime. The four 

instances of robbery were consolidated for trial. Appellant 

waived a jury trial. On June 16, 2010, [A]ppellant was found 

guilty of four counts of robbery with threat of immediate serious 

bodily injury, three counts of theft by unlawful taking of movable 

property, three counts of receiving stolen property, three counts 

of possessing instruments of crime with criminal intent, two 

counts of terroristic threats with intent, three counts of simple 

assault, and three counts of reckless endangerment.[1]

A sentencing hearing was held on August 4, 2010 where 

the Commonwealth invoked the mandatory minimum sentence 

of five years of incarceration for the robberies to which 

[A]ppellant stipulated. Appellant did not make an objection 

throughout the sentencing hearing. Appellant was sentenced to 

an aggregate term of eight to sixteen years’ imprisonment.

Appellant filed a motion for reconsideration of [the 

discretionary aspects of] sentence on August 16, 2010 and an 

amended motion on August 26, 201[0]. . . . The judge denied 

[A]ppellant’s motion on December 6, 2010. [The timely direct] 

appeal followed [on January 5, 2011].

(Commonwealth v. Thompson, No. 55 EDA 2011, unpublished 

memorandum at *1-3 (Pa. Super. filed March 13, 2012)) (footnote omitted).

This Court concluded that Appellant waived his challenge to the 

discretionary aspects of his sentence because he failed to (1) object during 

the sentencing hearing or raise it in his post-trial motion and (2) include a 

Rule 2119(f) statement in his brief. (See id. at *4-6); see also Pa.R.A.P. 

____________________________________________

1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3921(a), 3925(a), 907(a), 2706(a)(1), 

2701(a), and 2705, respectively.
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2119(f) (requiring separate concise statement of reasons challenging 

discretionary aspects of sentence).

On January 8, 2013, Appellant timely filed a pro se PCRA petition. The 

PCRA court appointed counsel who filed an amended PCRA petition on March 

21, 2014 requesting that Appellant’s post sentence rights be reinstated nunc 

pro tunc because of appellate counsel’s ineffectiveness in failing to file a Rule 

2119(f) statement in the brief.

On July 29, 2014, the Commonwealth filed a motion to dismiss the 

PCRA petition. On December 15, 2014, the PCRA court notified Appellant of 

its intention to dismiss his PCRA petition without a hearing pursuant to 

Pennsylvania Rule of Criminal Procedure 907. See Pa.R.Crim.P. 907. 

Appellant filed a pro se response on December 19, 2014.

The PCRA court granted the Commonwealth’s motion and dismissed 

Appellant’s petition on January 16, 2015. Appellant timely appealed on 

January 29, 2015.2

Appellant raises the following question for our review: “Did the [PCRA] 

court err in not reinstating [A]ppellant’s right to file an appeal nunc pro tunc

from the judgment of sentence due to ineffective assistance of appellate 

defense counsel who waived all appeal issues?” (Appellant’s Brief, at 2).

____________________________________________

2

Pursuant to the PCRA court’s order, Appellant filed a timely Rule 1925(b) 

statement on March 4, 2015. The court entered its Rule 1925(a) opinion on 

March 23, 2015. See Pa.R.A.P. 1925.
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Our standard of review is well-settled:

[A]n appellate court reviews the PCRA court’s findings of 

fact to determine whether they are supported by the record, and 

reviews its conclusions of law to determine whether they are free 

from legal error. The scope of review is limited to the findings of 

the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the trial level.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014) 

(citation omitted).

A PCRA petitioner is eligible for relief if the claim is cognizable under 

the PCRA. See 42 Pa.C.S.A. § 9543(a). Cognizable claims include those 

that allege ineffectiveness of counsel that undermined the truth-determining 

process. See 42 Pa.C.S.A. § 9543(a)(2)(ii).

We also note that a PCRA petitioner is not automatically 

entitled to an evidentiary hearing. We review the PCRA court’s 

decision dismissing a petition without a hearing for an abuse of 

discretion.

[T]he right to an evidentiary hearing on a postconviction petition is not absolute. It is within the 

PCRA court’s discretion to decline to hold a hearing if 

the petitioner’s claim is patently frivolous and has no 

support either in the record or other evidence. It is 

the responsibility of the reviewing court on appeal to 

examine each issue raised in the PCRA petition in 

light of the record certified before it in order to 

determine if the PCRA court erred in its 

determination that there were no genuine issues of 

material fact in controversy and in denying relief 

without conducting an evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations 

omitted).
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It is well-settled that “[a] criminal defendant has the right to effective 

counsel . . . .” Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 

2006) (citation omitted). Further, counsel is presumed effective, and an 

appellant bears the burden to prove otherwise. See Commonwealth v. 

Bennett, 57 A.3d 1185, 1195 (Pa. 2012).

To succeed on an ineffective assistance of counsel claim, a petitioner 

must overcome the presumption that counsel is effective and demonstrate 

that counsel’s deficient performance prejudiced him. See Strickland v. 

Washington, 466 U.S. 668, 687 (1984). Pennsylvania has further refined 

the Strickland test into a three-prong inquiry. An appellant must 

demonstrate that: (1) his underlying claim is of arguable merit; (2) counsel 

had no reasonable strategic basis for his action or inaction; and (3) the 

appellant suffered actual prejudice as a result. See Commonwealth v. 

Pierce, 527 A.2d 973, 975 (Pa. 1987). A failure to satisfy any prong of the 

Pierce test will require rejection of the claim. See Commonwealth v. 

Spotz, 84 A.3d 294, 311 (Pa. 2014).

Here, Appellant asserts that “counsel failed to [properly] raise the 

[discretionary aspects of sentence] issues that were preserved in post[-] 

verdict motions [by] fail[ing] to file a [Rule] 2119(f) [s]tatement.” 

(Appellant’s Brief, at 6) (citations omitted). Therefore, “[Appellant] does not 

have to show prejudice because appellate counsel (sic) representation was 

totally deficient.” (Id. at 6-7) (citations omitted). We disagree.
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Appellant’s reliance on United States v. Cronic, 466 U.S. 648, 659 

(1984) (prejudice presumed where counsel’s failure is complete); 

Commonwealth v. Halley, 870 A.2d 795, 801 (Pa. 2005) (finding per se

ineffectiveness where counsel failed to file court-ordered Rule 1925(b) 

statement); and Commonwealth v. Grosella, 902 A.2d 1290, 1294 (Pa. 

Super. 2006) (holding counsel’s failure to raise all requested appeal issues 

not per se ineffectiveness), is misplaced. (See Appellant’s Brief, at 7).

Our Supreme Court has stated:

. . . [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 Halley, supra; 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 

([Pa.] 2003).

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

Here, our independent review of the record reveals that counsel’s 

failure to raise the issues that were preserved in Appellant’s post-verdict 

motion and file a Rule 2119(f) statement “did not operate to entirely 

foreclose appellate review . . . but at most ‘narrowed the ambit’ of the 

appeal [] counsel pursued.” Id. (citation omitted). Further, “the filing of an 

appellate brief, deficient in some aspect or another, does not constitute a 
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complete failure to function as a client’s advocate so as to warrant a 

presumption of prejudice under Cronic.” Id. at 1226.

The PCRA court noted that:

. . . [I]n neither his petitions nor present [Rule] 1925(b) 

[s]tatement did [Appellant] make any attempt to demonstrate 

what issues his appellate counsel should have raised or 

preserved in the appeal, that they would have merit, or that the 

outcome of his appeal would have been different.

* * *

Nor did he present an offer of proof setting forth what 

facts there are that are not already in the record that would 

show that his counsel was ineffective for not raising or 

preserving them and therefore there was no need for the court 

to conduct a hearing.

(PCRA Court Opinion, 3/23/15, at 6-7). Upon review, we agree and 

conclude that the record supports the PCRA court’s dismissal of Appellant’s 

PCRA petition without a hearing where he is not entitled to the benefit of a 

presumption of prejudice. See Miller, supra at 992. Accordingly, 

Appellant’s issue does not merit relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/21/2015