Com. v. Smith, R., 3559 EDA 2015

Appellant Robert P. Smith was convicted after a waiver (bench) trial of aggravated assault, simple assault, recklessly endangering another person, and terroristic threats; sentenced May 8, 2012 to 5–10 years incarceration plus five years probation.
Smith did not file post-sentence motions or a timely direct appeal; filed a pro se PCRA petition Oct. 2, 2012 seeking reinstatement of appellate rights nunc pro tunc.
Counsel Lenora Clayton was appointed and submitted amended PCRA petitions; a PCRA hearing was held Nov. 24, 2015 where both Smith and Clayton testified.
Smith testified he asked Clayton at sentencing to file an appeal and later wrote letters and left voicemail messages; he produced no records or copies of those communications.
Clayton testified she never received any request to file an appeal, would have marked the file and routed it to the appellate unit if asked, and had replied to letters from Smith’s supervisors denying any such request.
The PCRA court credited Clayton’s testimony, found Smith’s allegations unsupported and self-serving, denied relief, and this appeal challenges that credibility determination.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for failing to file a direct appeal, entitling Smith to reinstatement of appellate rights nunc pro tunc	Smith: He requested Clayton file an appeal at sentencing and followed up by letter/phone; counsel ignored request	Commonwealth/Counsel: Clayton never received any request; had she been asked she would have documented and forwarded the file to the appellate unit	Court: Denied relief — PCRA court credited counsel’s testimony; Smith failed to meet burden to prove request was made

Commonwealth v. Fears, 86 A.3d 795 (Pa. 2014) (standards for reviewing PCRA denials)
Commonwealth v. Spotz, 84 A.3d 294 (Pa. 2014) (scope of review limited to PCRA court findings and record viewed in favor of prevailing party)
Commonwealth v. Harmon, 738 A.2d 1023 (Pa. Super. 1999) (defendant must prove he requested an appeal and counsel disregarded it to show ineffectiveness for failing to file an appeal)
Commonwealth v. Collins, 687 A.2d 1112 (Pa. 1996) (petitioner must present facts and supporting evidence for each PCRA claim)