In the Interest of A.P.

617 A.2d 764, 421 Pa. Super. 141, 1992 Pa. Super. LEXIS 4146

• Court: Superior Court of Pennsylvania
• Decided: December 7, 1992
• Docket: 1413
• Status: Published

Opinions

HUDOCK, Judge:

The question which brings this matter to this Court en banc is: What means, if any, are available to a juvenile to perfect his constitutional right to appellate review of a disposition order when his counsel was ineffective in failing to file a direct appeal, and relief is unavailable under the Post Conviction Relief Act? ¹

This appeal comes to us as an appeal from an order denying Appellant’s (A.P.’s) motion to appeal nunc pro tunc. A.P. was adjudicated a delinquent following a hearing on February 26, 1990, concerning charges that he possessed sixty-four vials of crack cocaine. He was placed on probation at the conclusion of the hearing. A.P.’s counsel filed post-trial motions² which were denied on April 16, 1990. On May 4, 1990, counsel³ filed a motion for leave to appeal within thirty (30) days (the nunc pro tunc motion). This motion was denied on May 9, 1990. A.P.’s trial counsel then filed a notice of appeal from the denial of post-trial motions on May 11, 1990,⁴ and a notice of appeal from the denial of the motion for nunc pro tunc appeal was filed May 17, 1990.

A.P. frames the issues as follows:

1. Did not the lower court err by refusing to grant appellant leave to file an appeal nunc pro tunc where the failure to timely file [a] notice of appeal was due to ineffective assistance of counsel that was apparent on this record?

2. Did not the lower court err by refusing to suppress a controlled substance found during a search incident to an arrest where the arrest was made solely because appellant was an Hispanic male, about 5'8" in height, seen exiting a house where a homicide had occurred five days earlier and the suspect in the homicide was “possibly” an Hispanic male about 5'8" in height?

Appellant’s Substituted Brief at p. 2. We will discuss the issues in the order presented above.

A.P. claims that he has been denied his right to a direct appeal because of the trial court’s denial of his motion for a nunc pro tunc appeal. He claims that because he is a juvenile, a nunc pro tunc appeal is his only means for challenging the stewardship of his trial counsel who, he claims, caused him to lose his appeal rights. We agree.

We note, initially, that both juveniles and adults alike have a right to appeal from a court of record. Pennsylvania Constitution, Article V, § 9 reads:

There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.

Because juvenile court is a court of record, the right of appeal attaches. We also note that juveniles are entitled to the assistance of counsel, In re Gault, 387 U.S. 1, 87 S.Ct. 1428,18 L.Ed.2d 527 (1967); 42 Pa.C.S.A. § 6337 (Purdon 1982),⁵ which includes the right to effective assistance of counsel. As we recently held:

To assume that what is meant by assistance of counsel does not include the concept of able, effective representation is to ascribe to the statute a ludicrous result, that is, that such counsel need not be able to perform appropriately, or indeed at all, to fulfill the legislative mandate. The right to counsel prescribed by the Juvenile Act must be read in pari materia with the Rule of Statutory Construction, 1 Pa.C.S.A. § 1922(1), which specifies that:

In ascertaining the intent of the General Assembly in the enactment of a statute, the following presumptions, among others, may be used.

(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.

See also, Gruver v. Gruver, 372 Pa.Super. 194, 539 A.2d 395 (1988).

In The Matter of Brandon Smith, 393 Pa.Super. 39, 43, 573 A.2d 1077, 1079 (1990) (en banc). Therefore, A.P. was not only' entitled to the assistance of counsel, but to the effective assistance of counsel in the proceedings against him.

Unlike the review necessary for ordinary claims of ineffectiveness where we would first determine if appellant’s ineffectiveness claim is of arguable merit, see generally, Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988), counsel’s failure to properly effectuate an appellant’s constitutional right to appeal, unless expressly waived by an appellant,⁶ is ineffective per se. See Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980) (“[The] requirement that counsel protect the appellate right of an accused extends even to circumstances where the appeal is ‘totally without merit.’ ”). Once it is determined that an appellant was denied his or her constitutional right of direct appeal, the proper course of action is to grant the appellant leave to file a direct appeal nunc pro tunc. Commonwealth v. Hoyman, 385 Pa.Super. 439, 561 A.2d 756 (1989). Because counsel is ineffective per se for failing to protect this right, the appellant is entitled to a direct appeal nunc pro tunc without considering the ability to establish the merit of the issues sought to be raised on direct appeal. Commonwealth v. Hoyman, supra (citing Commonwealth v. Ciotto, 382 Pa.Super. 458, 555 A.2d 930 (1989)).

As stated above, following the denial of post-verdict motions, new counsel for A.P., realizing that the time for appeal from the disposition order had already run, filed a motion for permission to appeal nunc pro tunc. In this motion, he raised trial counsel’s ineffectiveness in failing to file a timely notice of appeal. Without reference to the claim of ineffectiveness, the trial court found that, because fraud or breakdown in the courts was not alleged or proven, it could not enlarge the time in which A.P. could file an appeal. Pa.R.A.P. 903(a) (Purdon 1990). This was error.

While we agree that generally the trial court’s discretion in granting a nunc pro tunc appeal is limited to a finding of fraud or a breakdown in the processes of the court, see Commonwealth v. Englert, 311 Pa.Super. 78, 457 A.2d 121 (1983), because A.P. was denied his constitutional right to appeal his juvenile disposition due to trial counsel’s ineffectivenessi the proper course to be taken is to grant the right to appeal nunc pro tunc. Commonwealth v. Hoyman, supra. A.P. has no other means of redress; a nunc pro tunc appeal is the only means by which a juvenile can challenge the stewardship of his trial counsel because the Post Conviction Relief Act; supra, which would be the remedy for an adult, is not available to a juvenile. See In the Interest of DelSignore, 249 Pa.Super. 149, 375 A.2d 803 (1977); Brandon Smith, supra. If the constitutional right to appellate review is to have any meaning under these circumstances, it must be protected through a nunc pro tunc appeal.

Because we find that A.P. was denied his constitutional right to appeal the disposition order, we reverse the trial court and find that A.P.’s motion for nunc pro tunc appeal should have been granted. “However, it is not necessary for us to remand the case to the trial court. Because the substantive issues appellant seeks to have considered on direct appeal have been briefed and argued by the parties, and, the record is complete, we may consider them at this time in the context of a nunc pro tunc direct appeal.” Commonwealth v. Hoyman 385 Pa.Super. at 444, 561 A.2d at 759. While the Commonwealth here has not briefed the suppression issue, asserting that the appeal raising the issue has been quashed and therefore not before us, we find the Commonwealth’s reasons for ignoring the issue sophistic. Appellant’s brief makes it clear that he sought to raise the issue, whatever the technical propriety of so doing. The Commonwealth knew, or should have known, that if this Court decided the issue of the nunc pro tunc appeal in A.P.’s favor, judicial economy would dictate that this Court address the only substantive issue raised—the'suppression issue—rather than order a remand to allow the- filing of a new appeal with the resultant waste of time and judicial resources. In short, we hold the Commonwealth declined to address the issue at its peril. We therefore turn to A.P.’s second issue involving the suppression of evidence seized from him at the time of his arrest.

Our standard for reviewing the denial of a motion to suppress evidence is well-established:

Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Jackson, 359 Pa.Super. 433, 435, 519 A.2d 427, 429 (1986), citing Commonwealth v. Cavalieri, 336 Pa.Super. 252, 254-55, 485 A.2d 790, 791 (1984).

The trial court found the following facts in reaching its decision to deny Appellant’s motion to suppress:

The Commonwealth presented the testimony of Police Officer James Gallagher who testified that on February 7, 1990 at approximately 4:00 a.m. he was investigating a homicide that had occurred on February 2, 1990 at 1452 Ithan Street. The officer had been given a description of the perpetrator which described a male “approximately five foot eight inches (5'8") [tall], light skinned, possibly hispanic with a full face.” (N.T., February 26, 1990, pgs. 4-5).

When Officer Gallagher arrived at the location he observed the defendant and another male coming down the steps of 1452 Ithan Street. Officer Gallagher stopped the two males and patted them down for his own protection. [2. Officer Gallagher was informed that the perpetrator of the homicide was carrying a gun. (N.T., p. 7).] He took note that the defendant was an hispanic male in a black neighborhood and further observed that he fit the rest of the description. At that point he put handcuffs on the defendant and let the other male go upon finding no weapons. (N.T., pgs. 7-8).

Officer Gallagher subsequently searched the defendant and found sixty-four vials of what he believed to be crack cocaine (N.T., p. 9). Six of those vials were later analyzed and tested positive for the presence of cocaine.

Trial Court Opinion at pp. 2-3. We find that after a review of the transcript from the suppression hearing, the record supports the facts found by the trial court. Because we find that the record supports the factual findings, we must turn to the conclusions of law drawn by the trial court from these facts.

The parties do not dispute that the police made a valid investigatory stop, initially, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellant argues that although the officer had the requisite reasonable suspicion to stop Appellant initially, the officer did not have probable cause to arrest him. We agree. “The established test for determining whether an officer had sufficient probable cause to legally justify a warrantless arrest involves looking at the facts and circumstances confronting the officer at the time of the arrest.” Commonwealth v. Ellis, 354 Pa.Super. 11, 17, 510 A.2d 1253, 1256 (1986).

[w]hen we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element.... We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might.... Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same “beyond-a-reasonable-doubt” standard which we apply in determining guilt or innocence at trial.

Commonwealth v. Ellis at 17, 510 A.2d at 1256, citing Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1234 (1982), quoting Commonwealth v. Devlin, 221 Pa.Super. 175, 178, 289 A.2d 237, 239 (1972) (emphasis in original).

In Commonwealth v. Ellis, supra, we found that probable cause did exist to arrest the defendant because the police had received a radio broadcast concerning a burglary of an industrial equipment company and the theft of two yellow Chevrolet pickup trucks with the company name printed on the side. The police observed one such truck in a residential driveway approximately fifteen minutes later. Three individuals were in the process of unloading the truck. Upon seeing the police officers they fled, but one was successfully apprehended a short time later. We found that, taken together, the evidence was sufficient to establish probable cause.

Appellant cites Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969) in support of his position that probable cause did not exist to arrest him. Hicks, however, involves the threshold question of whether reasonable suspicion exists to make a Terry stop. In fact, the Supreme Court noted that the parties did not contend there was probable cause to arrest at the inception of the seizure. In agreeing that such a contention was meritless, the court stated:

The Commonwealth does not now contend, nor has it ever contended, that the police officers had probable cause to arrest Hicks at the inception of the seizure. This is understandable. At the time of the seizure, the police were seeking, as the perpetrator of the Lloyds’ attempted burglary, a mustached negro in his thirties, of a certain height and weight, wearing a brown coat. Hicks was not wearing a brown coat, did not have a mustache, and there was nothing in the record to indicate that he was of the approximate height and weight of the individual sought. In short, the only manner in which Hicks fit the description of the individual the police were seeking, as far as the record discloses, is that he was a negro in his thirties. This, in itself, was clearly not sufficient to establish probable cause.

Commonwealth v. Hicks at 158, 253 A.2d at 279-280. The Court also found that the evidence did not support reasonable suspicion to stop the defendant. Appellant offers Hicks to show that the general description to which the defendant did fit would not support even a reasonable suspicion to stop, let alone probable cause to arrest.

Likewise, Appellant cites Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970), which also involved the criteria for a Terry stop. Here again, the Supreme Court found that the initial stop was not justified by a reasonable suspicion because:

The policemen had no reason to connect them with the reported shooting, except that they were walking near the area; that one was a negro and the other was a Puerto Rican, who wore clothing of the general color reportedly being worn by those involved. The policemen had no information of the physical make-up or characteristics of the men they were seeking, and hence, did not know if Berrios and his companion were of the same description. If the policemen were constitutionally justified in searching Berrios under these circumstances, then every Puerto Rican wearing light clothing and walking with a negro in this area could likewise be validly searched. This, we cannot accept.

Commonwealth v. Berrios 437 Pa. at 341, 263 A.2d at 344.

Finally, both Appellant and the trial court cite Commonwealth v. Anderson, 360 Pa.Super. 466, 520 A.2d 1184 (1987). In Anderson, we cited several cases in which certain factors were significant in making the determination of whether probable cause existed:

In Commonwealth v. Woodson, [342 Pa.Super. 392, 493 A.2d 78 (1985) ], we held that the defendant’s proximity to the scene of the crime, the correspondence of his appearance to the victim’s detailed description of the intruder, his attempt to evade the police, and his unsubstantiated explanation for his presence in the alley behind the victim’s house, taken together provided the police officer with probable cause to arrest. Id. at 396, 493 A.2d at 80. In Commonwealth v. Williams, 317 Pa.Superior Ct. 456, 465, 464 A.2d 411, 415 (1983), we held that the defendant’s matching of the description given by the victim, his proximity to the scene of the crime both in time and place and his attempt to flee all provided the police with probable cause to arrest. See also Commonwealth v. Derrick, 322 Pa.Superior Ct. 517, 532, 469 A.2d 1111, 1119 (1983) (flight in and of itself is not sufficient to establish probable cause, but flight coupled with some other fact may be sufficient); Commonwealth v. Bridgeman, 310 Pa.Superior Ct. 441, 447, 456 A.2d 1017, 1020 (1983) (officer’s observance of goods in defendant’s car matching description of stolen goods, defendant’s failure to produce owner’s card for the car or a reasonable explanation for its absence constituted probable cause for arrest); Commonwealth v. Ryan, 253 Pa.Superior Ct. 92, 100, 384 A.2d 1243, 1246 (1978) (the defendant’s proximity to the scene of the crime both in time and place, and his fast paced walking away were insufficient to provide probable cause for arrest).

Commonwealth v. Anderson 360 Pa.Super. at 469-471, 520 A.2d at 1186-1187. After citing those cases, we concluded that:

Here, appellant matched the general description provided by the complainant. He did stand over 5'9" tall and wore a blue sweatshirt with a zipper up the front and red stripes down the sleeves. N.T. August 3, 1983 at 32. He was observed standing on a street corner two blocks away from the scene of the crime over two hours after it had occurred. Id. at 33. There is, however, no evidence that appellant was acting suspiciously or that he tried to flee or evade the police. Unlike those cases cited above where we have found facts sufficient to establish probable cause, the only basis for such a determination in this case was appellant’s similarity to the general description provided by the victim. We hold that this similarity, taken by itself, was not enough to provide the police with sufficient facts establishing probable cause to arrest.

Id. at 471, 520 A.2d at 1187.

More recently, we found probable cause to arrest existed for the following seemingly general description:

The arresting officer received a radio broadcast from his partner stating that the partner had just purchased narcotics from a black man in a blue shirt at a particular street corner.

Commonwealth v. Chase, 394 Pa.Super. 168, 172, 575 A.2d 574, 576 (1990) alloc. den., 527 Pa. 608, 590 A.2d 295. But the facts further showed that when the officer arrived at the particular street corner and saw two black men wearing blue shirts, he yelled “police” and one man (the defendant, Chase) fled. The element of flight, combined with the other information the officer possessed, was sufficient to provide the needed probable cause. Our present case does not involve any suspicious behavior by A.P. and is, therefore, distinguishable from Chase, supra.

While we agree that, based on the circumstances known by the police officer at the time he stopped Appellant, there was the required reasonable suspicion to support the Terry stop, we do not find the evidence supports the probable cause to arrest Appellant after the officers patted Appellant down in search of weapons. The evidence discloses that Appellant was immediately handcuffed and searched after the initial pat-down. There is no record evidence that the officer asked any questions of Appellant or had other evidence which would support a finding of probable cause. The officer’s justification for the arrest was that Appellant met the general description of the person under suspicion, and that Appellant was present at the same address where the homicide had occurred five days earlier. We do not find that the presence of an Hispanic male in a predominantly black neighborhood, taken together with the other information known by the police officer, is sufficient to support a finding of probable cause to arrest. We, therefore, reverse the trial court’s denial of the motion to suppress, vacate the disposition order, and remand for further proceedings consistent with this opinion.

Order reversed and remanded. Jurisdiction relinquished.

POPOVICH, J., concurs in the result. CHULLO, J., files a dissenting opinion. JOHNSON, J., files a dissenting opinion in which OLSZEWSKI, J., joins.

1 . 42 Pa.C.S. §§ 9541-9546 (Purdon Supp.1992).

2 . The trial court stated in its opinion that the use of post-trial motions was recently approved by this Court in In The Matter of Brandon Smith, 393 Pa.Super. 39, 43, 573 A.2d 1077, 1079 (1990) (en banc). We note, however, that on this issue the vote was 6 to 3 against implementing a post-trial motions procedure in juvenile proceedings. We express no opinion on the propriety of the use of post-trial motions in the present case, as the issue is not before us.

3 . New counsel, also with the same public defender's office, filed this motion. Although we recognize the general rule that counsel may not argue the ineffectiveness of other counsel within the same public defender’s office, Commonwealth v. Fetzner, 372 Pa.Super. 469, 539 A.2d 890 (1988), alloc. den., 520 Pa. 602, 553 A.2d 965, we also recognize the exception for reversible error which is apparent from the record. Fetzner, supra.

4 . The post-trial motion appeal at No. 1370 Philadelphia 1990 was quashed as untimely on January 31, 1991, having been filed more than thirty (30) days after the dispositional order placing A.P. on probation.

5 . § 6337. Right to counsel

Except as otherwise provided under this chapter a party is entitled to representation by legal counsel at all stages of any proceeding under this chapter [The Juvenile Act] and if he is without financial resources or otherwise unable to employ counsel, to have the court provide counsel for him. If a party appears without counsel the court shall ascertain whether he knows of his right thereto and to be provided with counsel by the court if applicable. The court may continue the proceeding to enable a party to obtain counsel. Counsel must be provided for a child unless his parent, guardian, or custodian is present in court and affirmatively waive it. However, the parent, guardian, or custodian may not waive counsel for a child when their interest may be in conflict with the interest or interests of the child. If the interests of two or more parties may conflict, separate counsel shall be provided for each of them.

6 . There is no indication in the present record that A.P. did not desire to appeal the disposition order.

6 The record can be read as indicating Wilkerson waived his right to file post-verdict motions, but his claim that he was advised he could be convicted of murder of the first degree could serve to show any such waiver was not effective. But, in any event, an appeal could have raised the validity of the sentence despite the failure to file post-verdict motions if as alleged he asked counsel to file an appeal.