Commonwealth v. Green
168 A.3d 173
| Pa. Super. Ct. | 2017Background
- On Sept. 27, 2011, Philly officers observed Green in a high‑drug area; he bent between curb and a parked car, grabbed his waistband, and entered a store; officers followed and, after ordering him to show his hands, saw a gun in his waistband.
- Green was charged with firearm offenses, moved to suppress the gun, lost the suppression motion, then proceeded to a stipulated bench trial and was convicted.
- Sentenced Nov. 29, 2012 to 2–4 years (plus probation); no direct appeal was filed.
- Green filed a pro se PCRA petition (Nov. 3, 2013); counsel was appointed and amended petitions were filed; PCRA court denied relief after an evidentiary hearing and Green appealed.
- Central legal question: whether trial counsel was constitutionally ineffective under Roe v. Flores‑Ortega for failing to adequately consult about filing a direct appeal (nunc pro tunc) despite preserving a suppression issue.
Issues
| Issue | Green's Argument | Commonwealth/PCRA Court Argument | Held |
|---|---|---|---|
| Whether counsel had a duty to consult about an appeal | Counsel had a duty because a rational defendant would want to appeal a preserved suppression issue | No duty because Green was told of appellate rights and PCRA court credited counsel’s general testimony about discussing appeals | Duty to consult existed: preservation of the suppression issue made appeal rational |
| Whether consultation occurred and was adequate under Flores‑Ortega | Consultation was inadequate — counsel only discussed issue preservation, not advantages/disadvantages of appealing | Consultation occurred; Green was informed of appellate rights and counsel said he discusses appeals with clients | Consultation was inadequate as a matter of law because it did not advise on merits/advantages and did not reasonably discover Green’s wishes |
| Whether counsel’s failure prejudiced Green (would have appealed) | Prejudice shown because a nonfrivolous suppression issue was preserved and could lead to suppression of the gun | Suppression issue lacked merit, so no prejudice/appeal would be irrational | Prejudice established: nonfrivolous preserved issue satisfies Flores‑Ortega showing that but for deficient consultation Green would have appealed |
| Remedy — reinstatement of appellate rights nunc pro tunc | Reinstatement is appropriate to allow direct review of preserved suppression issue | Opposed based on PCRA denial | Court reversed PCRA denial and remanded for reinstatement of direct appeal rights |
Key Cases Cited
- Roe v. Flores‑Ortega, 528 U.S. 470 (2000) (establishes counsel’s duty to consult about appeal when defendant’s wishes unclear and outlines prejudice standard)
- Commonwealth v. Markowitz, 32 A.3d 706 (Pa. Super. 2011) (discusses adequacy of consultation and non‑frivolous issue standard)
- Commonwealth v. McDermitt, 66 A.3d 810 (Pa. Super. 2013) (articulates Flores‑Ortega test as duty where rational defendant would want to appeal or defendant demonstrated interest)
- Commonwealth v. Brown, 996 A.2d 473 (Pa. 2010) (suppression issues reviewed de novo)