The opinion
J-S22035-23
2023 PA Super 128
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HENRY CHARLES AGNEW : No. 1408 WDA 2022
Appeal from the PCRA Order Entered November 18, 2022
In the Court of Common Pleas of Blair County
Criminal Division at CP-07-CR-0000586-2016
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
OPINION BY MURRAY, J.: FILED: July 21, 2023
The Commonwealth of Pennsylvania appeals the order of the Post
Conviction Relief Act (PCRA)1 court, which reinstated, nunc pro tunc, the direct
appeal rights of the petitioner, Henry Charles Agnew (Agnew). We reverse.
The PCRA court recounted the relevant procedural history as follows:
After [a] jury trial, [Agnew] was convicted of multiple crimes
related to drug trafficking on August 19, 2016, including three
counts of Possession with Intent to Deliver/Delivery and Criminal
Use of a Communication Facility.2 [Agnew] was sentenced … on
October 28, 2016 to an aggregate sentence of 33-66 months [in
prison]. His trial counsel was Attorney Robert S. Donaldson.
Attorney Donaldson filed a Notice of Appeal on December 2,
2016. [Attorney Donaldson thereafter filed a timely Pa.R.A.P.
1925(b) concise statement.] The Pennsylvania Superior Court
ultimately dismissed the appeal due to Attorney Donaldson’s
failure to file a brief.
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
2 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 7512(a).
J-S22035-23
[Agnew] timely filed a PCRA petition on March 9, 2018[,]
and Attorney Paul M. Puskar was appointed as PCRA counsel on
June 13, 2018. A PCRA hearing was held on May 24, 2019[,] and
per Order dated June 6, 2019 by [the PCRA court], the PCRA
petition was granted and [Agnew’s] direct appeal rights were
reinstated. Attorney Douglas J. Keating was then appointed as
appellate counsel.
Attorney Keating filed a Notice of Appeal on July 12, 2019,
beyond the thirty (30) day period provided in … [the] Order of
June 6, 2019. Therefore, the Pennsylvania Superior Court
quashed the appeal as untimely and directed Attorney Keating to
seek reinstatement of the appeal at the Court of Common Pleas
level. Attorney Keating filed a Motion to Reinstate Direct Appeal
Rights on August 30, 2019, and on October 10, 2019, [the PCRA
court] entered an Order reinstating the direct appeal rights.
Attorney Keating filed a Notice of Appeal Nunc Pro Tunc on
October 16, 2019. While the direct appeal was still pending,
Agnew filed a pro se PCRA Petition on November 4, 2019. The
Pennsylvania Superior Court ultimately denied the direct appeal
by Memorandum dated September 17, 2020. [See
Commonwealth v. Agnew, 240 A.3d 939 (Pa. Super. 2020)
(unpublished memorandum).]
[Agnew] filed another pro se PCRA Petition on October 19,
2020[,] and [the PCRA court] entered an Order on January 4,
2021 appointing Attorney Matthew McGregor as PCRA counsel.
Attorney McGregor filed an Amended PCRA Petition on March 4,
2021. … The hearing was rescheduled for July 22, 2021. Attorney
McGregor filed a Motion to Continue on July 20, 2021, due to a
conflict within his professional schedule. At the same time, he
also filed a Motion to Withdraw as Counsel.
After a hearing held July 26, 2021, [the PCRA court] granted
Attorney McGregor’s motion to withdraw. By Order entered
August 3, 2021, [the court] appointed Attorney Kristen L. Anastasi
as new PCRA counsel. Attorney Anastasi filed an Amended PCRA
Petition on December 8, 2021 ….
PCRA Court Opinion, 12/14/22, at 1-3 (footnote added).
-2-
J-S22035-23
In his amended PCRA petition, Agnew asserted ineffectiveness claims
against all prior counsel. Agnew claimed:
Attorney Donaldson was ineffective for failing to object and/or
request a mistrial when [Agnew’s] rights to the Confrontation
Clause[3] were violated.
Amended PCRA Petition, 12/8/21, ¶24(F) (footnote added). Agnew further
claimed Attorney Puskar rendered ineffective assistance by failing to amend
Attorney Donaldson’s Pa.R.A.P. 1925(b) concise statement to include the
Confrontation Clause issue (related to admission at trial of text messages from
the confidential informant (CI)). Id. ¶ 24(G).
The PCRA court held an evidentiary hearing on Agnew’s petition. On
November 18, 2022, the PCRA court granted Agnew relief, reinstating his
direct appeal rights nunc pro tunc. PCRA Order, 11/18/22. The PCRA court
limited Agnew’s appeal to the issue of
whether trial counsel was ineffective in failing to object to the
admission of the text messages from the deceased [CI] to [the
Commonwealth] into evidence as a violation of the Confrontation
Clause and/or whether the trial court erred in allowing such
evidence at the time of trial….
____________________________________________
3 The Sixth Amendment to the United States Constitution provides:“In all
criminal prosecutions, the accused shall enjoy the right … to have the
Assistance of Counsel for his defen[s]e.” U.S. Const. amend. VI.
-3-
J-S22035-23
Id. (footnote added).4 The PCRA court permitted consideration of Agnew’s
ineffectiveness claim by nunc pro tunc direct appeal given Appellant’s short
sentence; the court opined: “any appellate review should occur in a timely
manner, especially for an issue of constitutional magnitude.” PCRA Court
Opinion, 12/14/22, at 5. The Commonwealth thereafter filed the instant
timely appeal. The Commonwealth and PCRA court have complied with
Pa.R.A.P. 1925.5
The Commonwealth presents the following issues:
I. Whether the PCRA court erred in granting a nunc pro tunc
direct appeal where prior counsel were not ineffective?
II. Whether the PCRA court erred in granting relief under
Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013),
where the Holmes conditions were not met and that relief
was never requested by [Agnew]?
Commonwealth Brief at 3.
In reviewing these issues, our standard of review “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citation and internal
____________________________________________
4 Due to the unavailability of the deceased CI, the Commonwealth introduced
text messages between the CI and Agnew to explain police officers’ course of
conduct. See N.T., 8/19/16, at 48-50.
5 Counsel for Agnew filed his nunc pro tunc direct appeal at No. 1493 WDA
2022. On February 10, 2023, this Court stayed that appeal pending
disposition in the instant case.
-4-
J-S22035-23
quotation marks omitted). “The PCRA court’s factual findings are binding if
the record supports them, and we review the court’s legal conclusions de
novo.” Commonwealth v. Prater, 256 A.3d 1274, 1282 (Pa. Super. 2021).
The Commonwealth’s issues implicate Agnew’s claims of his prior
attorneys’ ineffectiveness. In addressing ineffectiveness claims:
[W]e begin, as we must, with the presumption that counsel acted
effectively. To prove otherwise, a petitioner must satisfy the
performance and prejudice standard set forth in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), by a preponderance of the evidence. This Court has
applied the Strickland test by requiring a petitioner to establish
three elements: (1) the underlying claim has arguable merit; (2)
no reasonable basis existed for counsel’s action or failure to act;
and (3) the petitioner suffered prejudice because of
counsel’s error, with prejudice measured by whether there
is a reasonable probability the result of the proceeding
would have been different absent the error.
….
If a petitioner’s claim fails under any required element of
the Strickland test, the claim may be dismissed on that basis. A
court is not required to analyze the elements of an ineffectiveness
claim in any order of priority; if a claim fails under any necessary
element, the court may proceed to that element first.…
Commonwealth v. Johnson, 289 A.3d 959, 979-80 (Pa. 2023) (emphasis
added; quotation marks and most citations omitted).
The Commonwealth first argues the PCRA court erred in concluding
Attorney Keating rendered ineffective assistance by not seeking leave to
amend Agnew’s previously filed Pa.R.A.P. 1925(b) concise statement.
Commonwealth Brief at 17. The Commonwealth asserts:
-5-
J-S22035-23
The PCRA court erred because it did not analyze all three prongs
of the ineffectiveness test. The PCRA court further erred because
it did not find that there was a reasonable probability that a new
trial would have been granted had Attorney Donaldson and/or
Attorney Keating preserved the Confrontation Clause issue on
direct appeal.
Id. The Commonwealth emphasizes:
The PCRA court did not analyze whether there was a reasonable
probability that Agnew would have succeeded had he raised the
Confrontation Clause on direct appeal.
Id. at 20.
Further, the Commonwealth maintains Agnew’s challenge to the
admissibility of the CI’s text messages would not have merited relief on direct
appeal. Id. at 21. The Commonwealth asserts:
[T]he PCRA court erred because it did not explain how any text
messages would be considered testimonial evidence that could be
excluded under the Confrontation Clause. The Commonwealth
explained at trial that the text messages were not offered into
evidence for their truth. … Since the text messages were not
offered for their truth, the PCRA court erred where there was not
a meritorious basis to object to the text messages….
Id. at 22.
The PCRA court deemed Attorney Keating ineffective for not requesting
permission to amend Agnew’s Rule 1925(b) concise statement. PCRA Court
Opinion, 11/17/22, at 12. The PCRA court opined:
Attorney Keating could have, and in fact should have, filed a
petition seeking leave of the trial court to file a supplemental or
amended Rule 1925(b) Statement. If the trial court granted such
leave, this would have provided Attorney Keating an opportunity
to raise any appellate issues that he deemed appropriate,
including the alleged violation of the Confrontation Clause based
upon admission of the deceased CI’s text messages into evidence.
-6-
J-S22035-23
….
[The court] believes this issue has merit and should properly
be raised and pursued on appeal. [The court] find[s] that
[Agnew] was prejudiced by not being provided the
opportunity to raise this issue on appeal….
Id. (emphasis added; citation omitted).
The PCRA court appears to presume prejudice from Attorney Keating’s
failure to preserve an issue for appeal. See id. However, prejudice is
presumed only in instances where counsel’s ineffectiveness completely
forecloses review:
[T]here have been only three circumstances under which this
Court determined that counsel’s conduct constituted a
constructive denial of counsel warranting a presumption of
prejudice: (1) where counsel failed to file a requested direct
appeal, see [Commonwealth v.] Lantzy, [736 A.2d 564 (Pa.
1999)]; (2) where counsel failed to file a statement of matters
complained of on appeal, see [Commonwealth v.] Halley[, 870
A.2d 795, 801 (Pa. 2005)]; and (3) where counsel failed to file a
requested petition for allowance of appeal thereby depriving the
client of the right to seek discretionary
review, see Commonwealth v. Liebel, [825 A.2d 630, 635-36
(Pa. 2003)].
Commonwealth v. Reed, 971 A.2d 1216, 1225 (Pa. 2009).
“[I]n certain limited circumstances, including the actual or constructive
denial of counsel, prejudice may be so plain that the cost of litigating the issue
of prejudice is unjustified, and a finding of ineffective assistance of counsel
per se is warranted.” Commonwealth v. Rosado, 150 A.3d 425, 430-31
(Pa. 2016). However, prejudice is not presumed where counsel’s action or
inaction only narrows the ambit of appeal. See Reed, 971 A.2d at 1226
-7-
J-S22035-23
(concluding “the filing of an appellate brief, deficient in some aspect or
another, does not constitute a complete failure to function as a client’s
advocate” to establish a claim of ineffectiveness per se). In Commonwealth
v. Reaves, 923 A.2d 1119 (Pa. 2007), our Supreme Court rejected conflation
of the loss of a single appellate issue with the complete loss of the right to
appeal. Id. at 1128-32. The Supreme Court emphasized: “The difference in
degree between failures that completely foreclose appellate review, and those
which may result in narrowing its ambit, justifies application of the
presumption [of prejudice] in the more extreme instance.”6 Id. at 1128
(citation omitted).
Here, prior counsel’s failure to petition for leave to amend Agnew’s
concise statement “did not operate to entirely foreclose appellate review …
but at most ‘narrowed the ambit’ of the appeal [] counsel pursued.” Reed,
971 A.2d at 1225 (citation omitted). Under these circumstances, we conclude
the PCRA court erred in not analyzing Agnew’s ineffectiveness claim under the
actual prejudice standard. See Johnson, 289 A.3d at 979 (requiring
determination of “whether there is a reasonable probability the result of the
proceeding would have been different,” absent counsel’s action/inaction).
____________________________________________
6 In Reaves, our Supreme Court concluded that counsel’s failure to file for
sentencing reconsideration did not entirely foreclose appellate review of a
revocation decision. Id. at 1128-29. Therefore, the petitioner was required
to demonstrate actual prejudice. Id. at 1129.
-8-
J-S22035-23
We do not conclude our review at this point. Whether the admission of
evidence violated an accused’s rights under the Confrontation Clause is a
question of law, for which our standard of review is de novo and our scope of
review is plenary. Commonwealth v. Brown, 185 A.3d 316, 324 (Pa. 2018).
The Confrontation Clause applies to witnesses against the accused — in
other words — those who bear testimony. See Crawford v. Washington,
541 U.S. 36, 54 (2004) (defining testimonial statements as, inter alia, “ex
parte in-court testimony or its functional equivalent”). The focus of the
Confrontation Clause is testimonial hearsay. Crawford, 541 U.S. at 51-
52. The Crawford Court made clear that the use of testimonial statements
is not barred by the Confrontation Clause “for purposes other than establishing
the truth of the matter asserted.” Id. In fact, this Court has long-recognized:
“A statement admitted for a purpose other than establishing the truth of the
matter asserted — such as, in this case, the investigating officers’ course of
conduct — does not violate the Confrontation Clause.” Commonwealth v.
Dargan, 897 A.2d 496, 500 (Pa. Super. 2006).
At trial, the Commonwealth presented testimony from Altoona Police
Sergeant Christopher Moser (Sergeant Moser). N.T., 8/19/16, at 32.
Sergeant Moser explained:
On these four purchases … , on each instance we were able to
observe [] Agnew meet with the CI.
….
-9-
J-S22035-23
[W]e were able to see [] Agnew and the CI on each and every one
of these purchases. The CI was strip[-]searched before and after.
Before[, the CI] had no drugs on him and no money other than
the money I provided him. After he met with [] Agnew[,] we were
able to observe on each purchase that [Appellant] was the only
person [the CI] had contact with or met, other than the police
officers. He came back with cocaine and I believe on the last
purchase he returned with $20 of our money.
Id. at 47.
The Commonwealth then presented text messages between the CI and
Agnew to explain Sergeant Moser’s course of conduct. Id. at 51. Although
Agnew’s counsel objected on hearsay grounds, the trial court overruled the
objection, stating: “I think the Jury is getting the background of how [the
message] was taken off the phone[.]” Id. at 52. Significantly, in Agnew’s
prior appeal, both the trial court and this Court agreed the case “was tried
without the [CI’s] credibility coming into question in any significant respect.”
Agnew, 240 A.3d 939 (Pa. Super. 2020) (unpublished memorandum at 4)
(quoting Trial Court Opinion, 11/16/17, at 3).
Because the texts were admitted, not for their truth, but to explain
Sergeant Moser’s course of conduct, Agnew’s claim of a Confrontation Clause
violation would merit no relief. See Dargan, 897 A.2d at 500 (holding that
evidence offered to explain course of conduct is not excluded by hearsay rule
nor barred by Confrontation Clause). Consequently, Agnew cannot establish
actual prejudice resulting from prior counsel’s failure to seek the addition of
this issue to Agnew’s concise statement. See Johnson, 289 A.3d at 979-80.
Agnew’s ineffectiveness claim does not merit relief. See id.
- 10 -
J-S22035-23
Based on the foregoing, we conclude the PCRA court erred in granting
Agnew relief and reinstating his direct appeal rights nunc pro tunc.7 We
therefore reverse the order granting PCRA relief and dismiss Agnew’s nunc
pro tunc direct appeal at No. 1493 WDA 2022.
Order reversed. Appeal at No. 1493 WDA 2022 dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2023
____________________________________________
7 Based on this determination, we do not address the Commonwealth’s
remaining issue.
- 11 -