Commonwealth v. Rigg, PICS Case No. 14-0176 (Pa. Super. Jan. 27, 2014) Fitzgerald, J. (6 pages).

SUPERIOR COURT

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CRIMINAL LAW

Appellate • Frivolous Appeal

Commonwealth v. Rigg, PICS Case No. 14-0176 (Pa. Super. Jan. 27, 2014) Fitzgerald, J. (6 pages).

Where defendant's counsel refused to file a direct appeal to the Pennsylvania Supreme Court, intermediate court should not inquire into the merits of the appeal in evaluating defendant's per se ineffectiveness claim.

Judge Fitzgerald concurred in part and dissented in part from the Superior Court's decision to deny defendant's appeal from the instant court's decision affirming his sentence on the basis of claims of ineffective counsel and per se ineffectiveness. Judge Fitzgerald concurred with the court that defendant had already waived his claim of ineffective counsel raised for the first time on the instant appeal.

However, Judge Fitzgerald dissented from the majority's opinion finding against defendant's claim of per se ineffectiveness arising from his counsel's failure to honor Rigg's request to file a petition for allowance of appeal in the Pennsylvania Supreme Court, concluding that defendant properly pleaded a per se ineffectiveness claim under the standard established in Commonwealth v. Liebel.

In Liebel, the Pennsylvania Supreme Court held that when a defendant seeks to vindicate his right to assistance of counsel through discretionary appeal to the Pennsylvania Supreme Court on direct appeal by claiming ineffectiveness based on counsel's failure to file a petition for appeal, he is not required to show that his claims were such that they would warrant review. However, the Liebel court also added a qualifier that appellate counsel believe that the petitioner's claims would not be completely frivolous.

In Commonwealth v. Ellison, the Superior Court applied Liebel to consider whether counsel's failure to file would be justified if petitioner's claims were completely frivolous. However, a concurring opinion in Ellison noted that requiring a defendant to show that his claims were not completely frivolous was contrary to the pronouncement in Liebel that a petitioner is not required to demonstrate the merits of the issues that he would have raised on appeal.

In this case, Judge Fitzgerald noted that there was no dispute that defendant requested his counsel file an appeal, and that counsel refused that request. Therefore, interpreting Liebel, Judge Fitzgerald would not inquire into the merits of the appeal, which was based on a challenge to the discretionary aspect of his sentence, despite 42 Pa.C.S. §9781(f) that bars an appeals of discretionary aspects of a sentence beyond the appellate court with initial jurisdiction. Although Judge Fitzgerald conceded the statutory limitation, he concluded that the instant majority's inquiry into whether defendant's appeal was statutorily barred was improper under Liebel.