Commonwealth v. Rosado

150 A.3d 425
CourtSupreme Court of Pennsylvania
DecidedNovember 22, 2016
DocketNo. 92 MAP 2015
StatusPublished
Cited by93 cases

This text of 150 A.3d 425 (Commonwealth v. Rosado) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Rosado, 150 A.3d 425 (Pa. 2016).

Opinions

OPINION

JUSTICE TODD

In this appeal, we consider whether filing an appellate brief which abandons all preserved issues in favor of unpreserved ones constitutes ineffective assistance of [426]*426counsel per se.1 After careful review, we hold that it does, and so we vacate the Superior Court’s order and remand to that court for further proceedings.

The factual and procedural. history of this matter is straightforward. In 2012, Appellant Frankie Rosado was accused of sexually abusing his former girlfriend’s teenage daughter, whereupon he was charged with one count each of indecent assault, corruption of minors, and unlawful contact with minor.2 Appellant, then represented by a public defender, proceeded to trial, whereafter he was convicted of the aforementioned offenses and later sentenced to an aggregate term of 33 to 69 months imprisonment.

. Appellant hired new counsel (hereinafter “Appellate Counsel”) to represent him at the post-sentencing and appellate stages of his case. Appellate Counsel filed a post-sentence motion raising, as relevant here, a sufficiency-of-the-evidence claim, but the trial court denied relief. Appellate Counsel then filed a notice of appeal to the Superi- or Court, whereupon the trial court issued an order directing him to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellate Counsel filed a document styled as a “preliminary” concise statement, wherein he raised three issues: (1) whether Appellant’s sentence was “an abuse of discretion”; (2) whether the trial court erred in excluding evidence that the alleged victim had previously accused her father of sexual abuse; and (3) whether a juror fraudulently concealed bias during voir dire. Appellate Counsel also attached a copy of his post-sentence motion to the “preliminary” concise statement, erroneously believing that doing so would preserve the claims raised therein for purposes of appeal, and requested additional time to file a “final” concise statement, which the trial court granted.3 However, Appellate Counsel never filed a revised concise statement, and, accordingly, the trial court considered the three claims raised in the extant concise statement, and issued a Pa.R.A.P. 1925(a) opinion rejecting those claims. Appellate Counsel then filed an appellate brief with the Superior Court, in which, deciding to abandon the three claims raised in his concise statement and addressed by the trial court, he raised as his sole appellate issue the unpreserved sufficiency claim.

In an unpublished memorandum opinion, the Superior Court, while noting the three issues preserved in Appellant’s concise statement, found the sufficiency claim to be waived, as it was not included therein. Commonwealth v. Rosado, No. 2754 EDA 2012, 2013 WL 11259105 (Pa. Super, filed Jul. 23, 2013). Accordingly, the court did not address any of Appellant’s preserved claims or his sufficiency claim, and, as a result, it summarily affirmed.

Appellant later filed a Post Conviction [427]*427Relief Act (“PCRA”)4 petition asserting, inter alia, that Appellate Counsel’s above-detailed conduct constituted ineffective assistance of counsel per se, and thus seeking reinstatement of his appellate rights nunc pro tunc. The PCRA eourt held an eviden-tiary hearing, at which Appellate Counsel testified that he believed that attaching his post-sentence motion to his concise statement was- sufficient to preserve the claims raised for purposes of appeal, and that he abandoned the three preserved claims in an effort to more persuasively argue his sufficiency claim. Ultimately, the PCRA court found that Appellate Counsel’s conduct did not amount to ineffectiveness per se, and, accordingly, denied relief. Appellant appealed to the Superior Court.

In an unpublished memorandum opinion, the Superior Court affirmed. Commonwealth v. Rosado, No. 2474 EDA 2014, 2015 WL 7352584 (Pa. Super, filed Apr. 17, 2015). The eourt first quoted extensively from the PCRA court’s Rule 1925(a) opinion regarding the doctrine of ineffective assistance of counsel per se as it applies to appeals in Pennsylvania:

There are two types of ineffective assistance of counsel. The first is ineffectiveness under, Strickland v. Washington, 466 U.S. 668[, 104 S.Ct. 2052, 80 L.Ed.2d 674] (1984), as adopted in Pennsylvania by Commonwealth v. Pierce, [515 Pa. 153, ]527 A.2d 973 (Pa. 1987), which requires the defendant to demonstrate that he was prejudiced by an act or omission of his attorney,
⅜⅜⅜
The second type of ineffectiveness of counsel is ineffectiveness per se under United States v. Cronic, 466 U.S. 648[, 104 S.Ct. 2039, 80 L.Ed.2d 657] (1984), decided the same day as Strickland, in which the United States • Supreme Court categorized circumstances where prejudice will be presumed and need not be proven. The presumption is based on the High Court’s recognition that there are “some circumstances so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” (Id. at 658[, 104 S.Ct. 2039]).
In Commonwealth v. Brown, 18 A.3d 1147 (Pa. Super. 2011), our Superior Court collected cases that outline the various situations .where counsel has been held to be ineffective per se and analyzed the differences between a Cronic violation and a Strickland/Pierce allegation of ineffective assistance of counsel.
[[Image here]]
The recognized instances of per se ineffectiveness entitling a defendant to automatic relief are extremely narrow. Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795 (2005) (counsel did not file a Pa.R.A.P. 1925(b) statement and waived all issues, thereby denying the defendant his constitutional right to direct appeal); Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (2003) (attorney did not file a petition for allowance of appeal, as requested by the defendant, and denied his client the right to seek discretionary review with our Supreme Court); Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564, 572 (1999) (lawyer did not file a direct appeal, despite defendant's request); see also Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009) (filing of an untimely 1925(b) statement); Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007) (not filing an appellate brief so [428]*428defendant did not obtain direct review).
On the other hand, the types of actions or inactions that are not subject to Cronic are legion. E.g. Commonwealth v. Reed, 601 Pa. 257, 971 A.2d 1216

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Martinez, L.
Superior Court of Pennsylvania, 2025
Com. v. Green, L.
Superior Court of Pennsylvania, 2025
Com. v. Pacheco, D.
2025 Pa. Super. 131 (Superior Court of Pennsylvania, 2025)
Com. v. Burke, S.
Superior Court of Pennsylvania, 2025
Com. v. Lynwood, R.
Superior Court of Pennsylvania, 2024
Com. v. Tuck, H.
Superior Court of Pennsylvania, 2024
Com. v. Johnson, D.
Superior Court of Pennsylvania, 2024
Com. v. Tassa, B.
Superior Court of Pennsylvania, 2024
Com. v. Harris, D.
Superior Court of Pennsylvania, 2024
Commonwealth v. Drayton, L., Aplt.
Supreme Court of Pennsylvania, 2024
Com. v. Branthafer, A.
2024 Pa. Super. 67 (Superior Court of Pennsylvania, 2024)
Com. v. Burton, L.
Superior Court of Pennsylvania, 2023
Com. v. Agnew, H.
2023 Pa. Super. 128 (Superior Court of Pennsylvania, 2023)
Com. v. Sanchez, J.
Superior Court of Pennsylvania, 2023
Com. v. Delgado, C.
Superior Court of Pennsylvania, 2023
Com. v. Drayton, L.
Superior Court of Pennsylvania, 2023
Com. v. Chestnut, W.
Superior Court of Pennsylvania, 2023
Com. v. Hosler, H.
Superior Court of Pennsylvania, 2023
Com. v. Hart, W.
Superior Court of Pennsylvania, 2022
Com. v. Hipps, D.
2022 Pa. Super. 76 (Superior Court of Pennsylvania, 2022)

Cite This Page — Counsel Stack

Bluebook (online)
150 A.3d 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-rosado-pa-2016.