J-S29026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMERE QUINCE CHRISTIAN

Appellant No. 1534 WDA 2014

Appeal from the PCRA Order August 14, 2014

In the Court of Common Pleas of Cambria County

Criminal Division at No(s): CP-11-CR-0002132-2012

BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.: FILED JULY 15, 2015

Appellant, Jamere Quince Christian, appeals from the August 14, 2014 

order dismissing his petition for relief filed pursuant to the Post Conviction 

Relief Act (PCRA) 42 Pa.C.S.A. §§ 9541-9546. After careful review, affirm.

We summarize the relevant procedural background of this case as 

follows. On May 14, 2013, following a bench trial, Appellant was convicted 

of two counts of aggravated assault and one count each of simple assault 

and recklessly endangering another person (REAP).1 On July 2, 2013, the 

trial court imposed an aggregate sentence of seven and one-half to 20 years’ 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4), 2701(a)(3), and 2705 

respectively. 
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imprisonment.2 On July 9, 2013, Appellant, pro se, filed a premature 

petition for PCRA relief, challenging the effectiveness of trial counsel, 

Maribeth Schaffer, Esquire (Attorney Schaffer).3 On July 26, 2013, the trial 

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2 Specifically, on the first count of aggravated assault, the trial court 

imposed a sentence of seven and one-half to 20 years’ imprisonment; on the 

second aggravated assault charge, the trial court imposed a sentence of two 

years and three months to ten years’ imprisonment, to run concurrent to the 

sentence at count one; on the simple assault and REAP counts, the trial 

court imposed no further penalty. 

3 Thereafter, on July 17, 2013, Attorney Schaffer filed an untimely postsentence motion on Appellant’s behalf. Attorney Schaffer did not seek leave 

to file the motion nunc pro tunc. Although on October 31, 2013, the trial 

court denied said untimely post-sentence motion on its merits, it did not 

expressly grant leave to file the motion nunc pro tunc. Trial Court Order, 

10/31/13. Therefore, the filing of the motion did not toll the 30-day appeal 

period. See Pa.R.A.P. 903(c); see also Commonwealth v. Capaldi, 112 

A.3d 1242, 1244 (Pa. Super. 2015) (holding an untimely post-sentence 

motion cannot toll the 30-day appeal period unless the trial court grants 

leave to file said motion nunc pro tunc upon good cause shown even if the 

trial court addresses the merits of the motion). In any event, no direct 

appeal was filed.

Notwithstanding the pendency of his PCRA petition, Appellant, on July 

22, 2013, filed a pro se “Motion to Appeal Sentence and Conviction.” As 

Appellant was represented by counsel, his pro se filings carried no legal 

significance. See Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 

1993) (discussing the effect of pro se filings and holding, “there is no 

constitutional right to hybrid representation either at trial or on appeal.”) 

(citation omitted). Therefore, because Appellant was represented, the Clerk 

of Courts noted the motion in the docket and forwarded it to Attorney 

Schaffer pursuant to Pennsylvania Rule of Criminal Procedure 576. See 

Pa.R.Crim.P. 576(A)(4) (providing the clerk of courts, when presented with a 

pro se filing by a represented defendant, shall receive and time-stamp the 

filing, and “[a] copy of the time stamped document shall be forwarded to the 

defendant’s attorney and the attorney for the Commonwealth within 10 days 

of receipt[]”).
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court denied Appellant’s premature petition for post-conviction relief without 

prejudice for “[Appellant] to file a new petition once the [p]ost-sentence 

[m]otions and any subsequent appeal[s] have been ruled on.” Trial Court 

Order, 7/26/13.4 

On May 5, 2014, Appellant filed the instant, timely pro se PCRA 

petition. The PCRA court appointed counsel on May 8, 2014. On August 14, 

2014, the PCRA court held a hearing on Appellant’s petition, which it denied 

that day. On September 11, 2014, Appellant filed a timely notice of appeal.5

On appeal, Appellant raises the following three issues for our 

consideration.

[I.] Whether trial counsel provided ineffective 

assistance by failing to file [a] direct appeal from the 

judgment of sentence?

[II.] Whether trial counsel provided ineffective 

assistance by failing to file a motion to suppress the 

victim’s written statement in view of the fact that 

she was intoxicated when she provided the 

statement to Officer Huber, and did not sign it in the 

officer’s presence[?]

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4 Appellant filed a pro se appeal of the trial court order on September 4, 

2013, and this Court quashed the appeal on December 4, 2013, as the 

appeal was untimely. Superior Court Order, 1435 WDA 2013, 12/4/13.

5 Appellant filed a pro se notice of appeal on September 8, 2014, which was 

forwarded to his counsel per Rule 576(A)(4). Counsel then filed the instant, 

timely appeal. 

Appellant and the PCRA court have complied with Pennsylvania Rule of 

Appellate Procedure 1925. 
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[III.] Whether trial counsel provided ineffective 

assistance by failing to advise [Appellant], prior to 

nonjury trial, of the mandatory sentencing guidelines 

as the two charged counts of aggravated assault and 

impact of weapons enhancement guidelines?

Appellant’s Brief at 3.6

Our standard of review in PCRA matters is well settled. “In reviewing 

the denial of PCRA relief we examine whether the PCRA court’s 

determination is supported by the record and free of legal error.” 

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (internal 

quotation marks and citation omitted). “[O]ur 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.” 

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

2015) (en banc), quoting Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 

2008). Further, “[w]e grant great deference to the factual findings of the 

PCRA court and will not disturb those findings unless they have no support in 

the record.” Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) 

(en banc) (citation omitted), appeal denied, 101 A.3d 785 (Pa. 2014). 

Though we defer to the factual findings and credibility determinations of the 

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6 Appellant’s brief contains one issue with three, distinct sub-parts. For 

clarity and ease of discussion, we have slightly amended the format to 

reflect the three questions Appellant raises. 
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PCRA court, “we review the PCRA court’s legal conclusions de novo.” 

Reyes-Rodriguez, supra (citation omitted). 

In order to be eligible for PCRA relief, a petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

arose from one or more of the errors listed at Section 9543(a)(2) of the 

PCRA. 42 Pa.C.S.A. § 9543(a)(2). One such error, which provides a 

potential avenue for relief, is ineffective assistance of counsel. Id. 

§ 9543(a)(2)(ii). The issues raised must be neither previously litigated nor 

waived. Id. § 9543(a)(3). 

In all of his issues on appeal, Appellant challenges the effectiveness of 

trial counsel. “In order to obtain relief on a claim of ineffectiveness, a PCRA 

petitioner must satisfy the performance and prejudice test set forth in 

Strickland v. Washington, 466 U.S. 668 (1984).” Commonwealth v. 

Reid, 99 A.3d 427, 436 (Pa. Super. 2014). In Pennsylvania, adherence to 

the Strickland test requires a PCRA petitioner to establish three prongs. 

Id. Specifically, the petitioner must demonstrate “(1) the underlying claim 

has arguable merit; (2) no reasonable basis existed for counsel’s actions or 

failure to act; and (3) the petitioner suffered prejudice as a result of 

counsel’s error[.]” Id. (citation omitted). Moreover, we presume counsel 

has rendered effective assistance. Commonwealth v. Rivera, 108 A.3d 

779, 789 (Pa. Super. 2014). In general, if counsel’s particular course of 

action had some reasonable basis toward effectuating her client’s interests, 
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counsel has provided constitutionally effective assistance. Commonwealth 

v. Spotz, 84 A.3d 294, 311 (Pa. 2014). With regard to counsel’s strategic 

choices, “[a] finding that a chosen strategy lacked a reasonable basis is not 

warranted unless it can be concluded that an alternative not chosen offered 

a potential for success substantially greater than the course actually 

pursued.” Id. at 312 (citation omitted). For a petitioner to prove prejudice, 

he must demonstrate that “there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceedings would have 

been different.” Id. (citation omitted). “[I]f a claim fails under any required 

element of the Strickland test, the court may dismiss the claim on that 

basis.” Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014) 

(citation omitted). 

Appellant first challenges counsel’s stewardship by contending she 

provided ineffective assistance of counsel by “failing to file [a] direct appeal 

when specifically directed to by her client.” Appellant’s Brief at 10. 

In Commonwealth v. Lantzy, 736 A.2d 564, (Pa. 1999), our 

Supreme Court considered whether counsel’s failure to file a direct appeal 

entitles a petitioner seeking reinstatement of appeal rights nunc pro tunc to 

that relief under the PCRA. In concluding that such relief was available 

under the PCRA, the High Court highlighted, “the failure to perfect a 

requested appeal is the functional equivalent of having no representation at 

all[.]” Id. at 571 (citation omitted). Moreover, because “Article V, Section 9 
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of the Pennsylvania Constitution guarantees a direct appeal as of right ... a 

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

to constitute prejudice per se.” Id. (citations omitted). Accordingly, our 

Supreme Court held the following.

[W]here there is an unjustified failure to file a 

requested direct appeal, the conduct of counsel falls 

beneath the range of competence demanded of 

attorneys in criminal cases, denies the accused the 

assistance of counsel guaranteed by the Sixth 

Amendment to the United States Constitution and 

Article I, Section 9 of the Pennsylvania Constitution, 

as well as the right to direct appeal under Article V, 

Section 9, and constitutes prejudice for the purposes 

of Section 9543(a)(2)(ii). Therefore, in such 

circumstances, and where the remaining 

requirements of the PCRA are satisfied, the petitioner 

is not required to establish his innocence or 

demonstrate the merits of the issue or issues which 

would have been raised on appeal.

Id. at 572 (footnote omitted). “The remedy for the deprivation of this 

fundamental right of appeal is its restoration.” Commonwealth v. Haun, 

32 A.3d 697, 700 (citation omitted) (Pa. 2011). Therefore, in order to be 

entitled to relief, Appellant had the burden of proving, by a preponderance of 

the evidence, that he requested Attorney Schaffer to file an appeal on his 

behalf. See 42 Pa.C.S.A. § 9543(a)(2)(ii); Lantzy, supra.

At the PCRA hearing, Appellant testified as follows regarding his desire 

to seek direct review.

[PCRA counsel]:

Q. Did you ask Ms. Schaffer to file a direct appeal 

regarding your conviction?
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[Appellant]:

A. Yes, sir.

Q. Were you advised of your due process rights to 

file an appeal?

A. I don’t believe so, no.

Q. Well, [the trial court] usually advises people at 

the time they are sentenced. My notes indicate that 

on July 2, 2013 when you were being sentenced at 

page 6 you asked the judge ... [‘]when can I file an 

appeal[?’] Do you recall asking the judge that?

A. I believe he said 10 days. I do remember that 

now.

...

Q. It’s my understanding a direct appeal on the 

merits of the trial was never filed. Is that correct?

A. No, sir.

N.T., 8/14/14, at 15. Although Attorney Schaffer was present at the hearing 

and testified, Appellant did not question her at all with respect to her 

representation of Appellant on direct appeal, nor did Appellant ask her 

whether he indeed requested that she file an appeal on his behalf. See 

generally id. at 24-34. 

The PCRA court supports its decision as follows. 

 The only evidence [Appellant] presented on 

this issue is his own self-serving testimony that he 

requested [Attorney] Schaffer to file an appeal. The 

record reveals no communication from [Appellant] 

directing [Attorney] Schaffer to file an appeal on his 
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behalf[,] and [Attorney] Schaffer was not questioned 

at the PCRA hearing on this issue. 

The record does reveal that [Appellant] was 

aware of his appeal rights and was aware of the 

process to file a pro se appeal[,] as he filed an 

untimely one on September 2, 2013, from this 

[c]ourt’s July 26, 2013 denial of his first PCRA 

[petition] in this matter .... The testimony of 

[Appellant] on this issue is insufficient to overcome 

the presumption of effectiveness in light of the 

record. Further, it is the [c]ourt’s experience that 

defense counsel who has failed to file an appeal 

when directed by their former client will admit the 

error during PCRA proceedings and request that the 

appeal rights be reinstated in order to obtain 

appellate review for their former client. Here 

[Attorney] Schaffer did not make such an admission 

nor was she questioned on this issue resulting in 

[Appellant] being unable to meet his burden.

Accordingly, there is no merit to this allegation 

of error.

PCRA Court Opinion, 11/6/13, at 5-6 (citations omitted). We conclude the 

PCRA court did not err in denying relief on this basis.

As the PCRA court observed, the only evidence presented to 

demonstrate Appellant requested that his counsel file a direct appeal was his 

own testimony. The PCRA court found Appellant’s testimony “self-serving” 

and determined that he presented no evidence on which it could conclude 

that Appellant in fact requested such appeal. Id. Because the evidence on 

the record at the PCRA court hearing supports the PCRA court’s finding, we 
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will not disturb its ruling on this issue. See Reyes-Rodriguez, supra; 

Henkel, supra.

7

Next, Appellant contends counsel was ineffective for failing to file a 

motion to suppress a written statement of the victim. Appellant’s Brief at 

11. Specifically, Appellant argues that counsel should have moved for the 

suppression of the statement because the victim made the statement while 

under the influence of alcohol, and it was “neither signed nor adopted by the 

victim at the time it was written.” Id. at 12. The PCRA court summarized 

Attorney Schaffer’s reasons for not filing the motion as follows.

[Attorney] Schaffer testified that she did not 

file the requested motion for a variety of reasons: 

she felt there was no legal basis for it; she felt it 

would have bolstered the Commonwealth’s case by 

providing the uncooperative witness to testify once 

on the record; that [Appellant’s] overall strategy was 

premised on the victim not testifying and creating an 

opportunity for her to testify would be counter to 

that; and that she believed a better trial strategy 

was to use the victim’s intoxication at the time of the 

incident and statement to undermine her credibility 

at trial.

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7 We, however, disagree with the PCRA court’s legal conclusion that 

Appellant’s knowledge of the process to file a direct appeal pro se is relevant 

to the issue of whether his counsel provided ineffective assistance of 

counsel. Regardless of Appellant’s knowledge of the process of filing an 

appeal, he has the right to the effective assistance of counsel and the right 

to file a direct appeal of his conviction. Lantzy, supra at 572. 

Nevertheless, as the PCRA court did not credit Appellant’s testimony that he 

requested a direct appeal, we agree Appellant has failed to establish a right 

to relief. 
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PCRA Court Opinion, 11/6/13, at 7; accord N.T., 8/14/14, at 27-28, 31-34. 

Instantly, we agree with Attorney Schaffer’s assessment that there is no 

legal basis for the suppression of this statement. N.T., 8/14/14, at 27. 

Hence, this issue is without arguable merit. Pennsylvania Rule of Criminal 

Procedure 581 governs motions to suppress and provides that a defendant 

may file “a motion to the court to suppress any evidence alleged to have 

been obtained in violation of the defendant’s rights.” Pa.R.Crim.P. 581(A); 

see also Commonwealth v. Enimpah, 106 A.3d 695, 698 (Pa. 2014) 

(noting that pursuant to Rule 581, a defendant’s own constitutional rights 

must have been infringed in order to have standing to pursue a suppression 

motion, subject to exceptions not applicable in the instant case). Here, 

Appellant argues the statement of another should have been the subject of a 

motion to suppress based on the declarant not signing the statement and 

her alleged intoxication; however, Appellant does not assert this statement 

was obtained in violation of his own constitutional rights. Therefore, he has 

failed to demonstrate this issue is of arguable merit. Consequently, Attorney 

Schaffer was not ineffective for not pursuing a motion to suppress. See 

Reid, supra.

Finally, Appellant argues that trial counsel was ineffective for not 

advising him that he could receive a sentence higher than a term of five to 

ten years’ imprisonment. Appellant’s Brief at 10. The PCRA court credited 

Attorney Schaffer’s testimony that she always informs clients of their 
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potential exposure to imprisonment. PCRA Court Opinion, 11/6/13, at 9; 

N.T., 8/14/14, at 30. As the record supports this credibility determination, 

we defer to the PCRA court’s finding and conclude Appellant’s issue is 

without merit. See Henkel, supra. Alternatively, Appellant does not argue 

that had he been advised of his potential sentence, there is a reasonable 

probability that the outcome of the proceedings would have been different. 

See generally Appellant’s Brief at 13-14. Therefore, Appellant has failed to 

demonstrate that he was prejudiced by Attorney Schaffer’s alleged 

ineffectiveness. See Spotz, supra. Accordingly, Appellant’s final challenge 

fails.

Based on the foregoing discussion, we conclude the PCRA court did not 

err in dismissing Appellant’s PCRA petition. Thus, we affirm the PCRA court’s 

August 14, 2014 order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/15/2015