Commonwealth v. Parrish, M., Aplt.

[J-75-2021]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 791 CAP

:

Appellee : Appeal from the Order entered on

: September 22, 2020 in the Court of

: Common Pleas, Monroe County,

v. : Criminal Division at No. CP-45-CR-

: 0001137-2009.

:

MICHAEL JOHN PARRISH, : SUBMITTED: September 14, 2021

:

Appellant :

OPINION

JUSTICE DONOHUE DECIDED: April 28, 2022

In this capital appeal, Appellant Michael John Parrish challenges the order of the

Court of Common Pleas of Monroe County dismissing his petition for relief filed pursuant

to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (“PCRA”). On appeal to this

Court, Parrish raises numerous claims of error, including a layered ineffectiveness claim

in connection with the failure of trial counsel to file a notice of appeal after his conviction

and death sentence.1 The first layer of this claim is his contention that trial counsel were

1 Based upon our disposition of this issue, we will not address the remaining eighteen

claims at this time. As set forth below in further detail, in his third amended PCRA petition

and Corrected Rule 1925(b) Statement, Parrish raised numerous collateral claims

including the layered claim addressed here, which seeks the reinstatement of his direct

appeal rights. As we stated when reviewing claims after a reinstatement of direct appeal

rights in Commonwealth v. Holmes, 79 A.3d 562, 571 (Pa. 2013), “once appellee secured

ineffective for not consulting with him regarding his appellate rights before failing to file a

notice of appeal, and in so doing, violated a constitutional duty established in Roe v.

Flores-Ortega, 528 U.S. 470 (2000).2 In this regard, Parrish asserts that if trial counsel

had consulted with him, he would have instructed that a notice of appeal be filed on his

behalf. The second layer of this claim is Parrish’s assertion that his initial PCRA counsel’s

stewardship of the failure to consult claim before the PCRA court was deficient, in that

initial PCRA counsel failed to present any evidence or legal argument to substantiate the

failure to consult claim. In his brief filed with this Court, Parrish identifies the evidence and

legal theory that his initial PCRA counsel should have presented to the PCRA court.

Parrish raised the second layer of this claim for the first time before this Court in this

appeal, and we conclude that he was permitted to do so without a finding of waiver based

upon our recent decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021).

Accordingly, for the reasons set forth herein, we remand for the introduction of evidence

reinstatement of his direct appeal, he had no obligation or right to pursue, and the court

had no obligation to indulge, claims of ineffective assistance of counsel and unitary

review.” Likewise, should Parrish succeed in securing reinstatement of his direct appeal

rights, there would be no basis for the court to address his remaining collateral claims until

collateral review.

2 As explained later in this opinion, there are two types of ineffective assistance of counsel

claims that may result from counsel’s failure to file a notice of appeal. First, it has long

been the law that counsel is ineffective per se if he fails to file a notice of appeal that his

client requested be filed. See, e.g., Rodriquez v. United States, 395 U.S. 327 (1969).

Second, in Flores-Ortega, the United States Supreme Court announced that counsel is

ineffective for failing to file a notice of appeal when it is established that counsel had a

constitutional obligation to consult with his client regarding the client’s appellate rights but

failed to do so and where the client would have requested that an appeal be filed on his

behalf after consultation. Flores-Ortega, 528 U.S. at 470, 484.

[J-75-2021] - 2

and legal argument so that the PCRA court may issue a decision on the merits of Parrish’s

layered failure to consult claim.

This Court summarized the facts of record regarding the murder of Petitioner’s

girlfriend, Victoria Adams (“Victoria”), and their nineteen month-old-son, Sidney Parrish

(“Sidney”), in Commonwealth v. Parrish, 224 A.3d 682 (Pa. 2020).

[Parrish], Victoria, and Sidney lived in a Monroe County

apartment, and, on the day of the murders, [Parrish] remained

at the apartment with Sidney while Victoria spent the day with

family and friends. As the day proceeded into evening,

[Parrish] became worried that Victoria would not return home

in time to give Sidney certain medications he required, a task

[Parrish] did not know how to perform. [Parrish] was

additionally concerned that Victoria might be pursuing a

romantic relationship with someone else. That night, [Parrish]

made a series of increasingly frequent and agitated calls to

Victoria’s mobile phone, which she initially answered, but later

ignored. Later in the evening, Victoria and her companions

went to a bar, where Victoria disclosed to them that [Parrish]

was abusive and that she wished to end their relationship.

Victoria asked three of her companions — her brother, Keith

Adams, her cousin, James Ahern, and a friend, Christopher

Ramos — to accompany her to the apartment, so that she

could retrieve Sidney and her personal belongings, and end

the relationship.

The three men agreed, and the group drove to the apartment.

Victoria went inside while her brother Keith, Ahern, and Ramos

waited in the car. Initially, [Parrish] emerged from the

apartment brandishing a handgun and threatening Ahern with

it, but, after Ahern lied that he, too, was armed, [Parrish]

retreated inside. Shortly thereafter, gun flashes and gunshots

emanated from the apartment. The three men attempted to

enter the apartment to assist Victoria, but, as they approached

the apartment, [Parrish] retrieved a shotgun and began firing

at them, prompting them to flee and contact emergency

services. Ultimately, [Parrish] vacated the apartment, and,

approximately 30 to 40 minutes later, the men returned to the

apartment, performed a cursory search, and found nothing

amiss.

[J-75-2021] - 3

Nearly an hour later, Pennsylvania State Police arrived and

entered the apartment, and, during a search of the premises,

discovered Victoria’s and Sidney’s bodies in a back bedroom.

Each had been shot multiple times. [Parrish] became the

object of a multi-state manhunt, and he left Pennsylvania. He

was later arrested in New Hampshire, where he was subjected

to a search that yielded a .357 Glock semi-automatic handgun,

which forensic tests revealed to have been consistent with the

firearm that fired the 13 spent cartridge casings recovered from

the crime scene. While being questioned by police, [Parrish]

waived his Miranda[3] rights and confessed to killing Victoria

and Sidney, indicating that the events of the evening provoked

him into such a rage that he fired a warning shot at the ceiling

to get Victoria’s attention. However, he recalled that he was

so angry that he then “lost it” and shot Victoria while she was

holding Sidney, inadvertently striking him, which caused

[Parrish] to become even more furious such that he began to

“spray” bullets at Victoria and Sidney, firing alternating series

of shots at both until he ran out of ammunition.

Id. at 684-85 (citing Commonwealth v. Parrish, 77 A.3d 557, 560 (Pa. 2013) (automatic

review opinion)).

Prosecutors charged Parrish with two counts of first-degree murder, 18 Pa.C.S. §

2502(a). Parrish was represented by two attorneys with the Monroe County Public

Defender’s Office, the chief public defender of Monroe County Public Defender’s Office,

attorney Wieslaw Niemoczynski, Esq. for the guilt phase and James Gregor, Esq. for the

penalty phase. Parrish, 77 A.3d at 686.

On August 18, 2009, the Commonwealth filed notice of intent to seek the death

penalty. Although Parrish initially entered a guilty plea, before trial he withdrew his guilty

plea and asserted his innocence. Motion to Withdraw Guilty Plea, 9/26/2011, at 1-2;

3 Miranda v. Arizona, 384 U.S. 436 (1966).

[J-75-2021] - 4

Order, 9/26/2011. The case proceeded to a jury trial. The Commonwealth presented

evidence consistent with this Court’s summary of events set forth above, including forensic

evidence showing that the victims were repeatedly shot at close range in vital organs of

their bodies. Trial Court Opinion, 10/10/2012, at 16. Parrish did not dispute that he killed

the victims, but at the guilt phase Attorney Niemoczynski presented a defense that Parrish

did not act with a specific intent to kill because he “blacked out.” Id. The jury convicted

him on both counts of first-degree murder. Attorney Gregor represented Parrish at the

penalty phase. The jury found two aggravating circumstances4 and multiple mitigating

circumstances.5 The jury determined that the aggravating circumstances outweighed the

mitigating circumstances and recommended the imposition of the death penalty.

At the hearing before the trial court for the imposition of sentence, Attorney

Niemoczynski first called Parrish, who made a statement regarding his religious beliefs.

N.T., 5/12/2012, at 4. Attorney Niemoczynski then told the court that he was presenting a

letter written by Parrish having “to do with some procedure.” Id. at 5. The letter, which

4 The jury found the existence of the following aggravating circumstances with regard to

both murders: Parrish was convicted of another offense that qualified for imposition of a

sentence of life imprisonment or death, 42 Pa.C.S. § 9711(d)(10); and Parrish was

convicted of another murder at the time of the offense at issue, 42 Pa.C.S.. § 9711(d)(11).

Sentencing Verdict Slips, 4/3/2012, at 3.

5 The jury found several mitigating circumstances, including that Parrish had no significant

history of prior criminal convictions, 42 Pa.C.S. § 9711(e)(1); that Parrish was under the

influence of extreme mental or emotional disturbance, 42 Pa.C.S. § 9711(e)(2); and

multiple instances of “catchall” mitigators, namely that Parrish suffered from Obsessive

Compulsive Disorder, Obsessive Compulsive Personality Disorder, and had a history of

suffering from obsessions, that he had a family history of mental illness, that he had a

history of suffering from multiple significant traumas through his lifetime, and that he was

under enormous stress stemming from the birth of his seriously ill child, 42 Pa.C.S. §

9711(e)(8).

[J-75-2021] - 5

was admitted into the record but not read aloud or discussed, stated that, “in the event that

an appeal is filed on my behalf concerning my sentence without my written and verbal

consent, I would like it to be known that the appeal should be considered unauthorized

and I ask that it be made null and void. I do not give anyone authorization to file any

appeals or motions on my behalf.” N.T., 5/15/2012, at 12 (admitting defense Exhibit 1,

Parrish letter to Judge Worthington, 5/15/2012, at 1). Parrish did not testify with respect

to the letter, and counsel did not question him regarding his intention in writing it. Based

upon the jury’s recommendation, the trial court imposed a sentence of death. Sentencing

Order, 5/15/2012, at 1.

Following imposition of sentence, the trial court advised Parrish of his appeal rights,

explaining that, “because this is a death sentence, it is subject to automatic review by the

Pennsylvania Supreme Court” and that “[p]ursuant to Title 42, Section 9711, [the

Pennsylvania Supreme Court] must review the record of the death penalty case and the

death sentence.” N.T., 5/15/2012, at 10-11. The trial court then advised Parrish that he

also had the right to file post-sentence motions within ten days and to appeal the denial of

post-sentence motions directly to the Pennsylvania Supreme Court within thirty days from

the date of the denial of post-sentence motions. Id. The trial court indicated that Parrish’s

appointed counsel – Attorneys Niemoczynski and Gregor – would remain his counsel for

purposes of appeal. Id.

Matters involving the imposition of the death penalty have a two-track appeal

process. On the first track, a sentence of death is subject to automatic review by this Court.

42 Pa.C.S. § 9711(h)(1); Commonwealth v. Towles, 106 A.3d 591, 597 (Pa. 2014).

Pursuant to section 9711(h)(1),

[J-75-2021] - 6

(h) Review of death sentence.--

* * *

(3) The Supreme Court shall affirm the sentence of

death unless it determines that:

(i) the sentence of death was the product of

passion, prejudice or any other arbitrary factor;

or

(ii) the evidence fails to support the finding of at

least one aggravating circumstance specified in

subsection (d).

42 Pa.C.S. § 9711(h)(3)(i)-(ii). Pennsylvania Rule of Appellate Procedure 1941(a) sets

forth the procedure by which the trial court initiates the Section 9711(h) automatic review

process:

Upon entry of a sentence subject to 42 Pa.C.S. § 9711(h)

(review of death sentence) the court shall direct the official

court reporter and the clerk to proceed under this chapter as if

a notice of appeal had been filed [twenty] days after the date

of entry of the sentence of death, and the clerk shall

immediately give written notice of the entry of the sentence to

the Supreme Court Prothonotary Office[.]

Pa.R.A.P. 1941(a).

As part of the automatic review, this Court evaluates, inter alia, the evidence to

determine whether the record is sufficient to support the first-degree murder conviction.

See Towles, 106 A.3d at 597 (“In all cases in which the death penalty is imposed it is this

Court’s duty to review the record to ensure the evidence sufficiently supports the first

degree murder conviction[.]”) (internal citation omitted); Commonwealth v. Baumhammers,

960 A.2d 59, 68 (Pa. 2008); Commonwealth v. Blakeney, 946 A.2d 645, 651 n.3 (Pa.

[J-75-2021] - 7

2008); Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003).6 According to the note to

Pa.R.A.P. 1941, the statutory procedure for automatic review of capital cases has been

interpreted to “permit an independent review of the sufficiency of the evidence in such

cases.” Pa.R.A.P. 1941, note.

Thus, on the first track, this Court automatically reviews the sufficiency of the

evidence to sustain the first-degree murder conviction; the sufficiency of the evidence to

support the finding of at least one aggravating circumstance; and it reviews the imposition

of the sentence of death, to ensure that it was not the product of passion, prejudice, or any

other arbitrary factor. See Commonwealth v. Brown, 987 A.2d 699, 705 (Pa. 2009) (“In all

cases in which the death penalty is imposed, it is this Court's duty to review the record to

ensure the evidence sufficiently supports the first degree murder conviction and the finding

of aggravating circumstances, and that the sentence was not the product of passion,

prejudice, or other arbitrary factors.”).

6 The automatic review of the sufficiency of the evidence was originally mandated by

statute. Act of February 15, 1870, P.L. 15, no. 6 § 2 (“In all cases of murder in the first

degree, … it shall be the duty of the judges [of the Supreme Court] to review both the law

and the evidence, and to determine whether the ingredients necessary to constitute

murder in the first degree shall have been proved to exist; and if not so proved, then to

reverse the judgment and send the same back for a new trial, or to enter such judgment

as the laws of this commonwealth require.”). However, the General Assembly repealed

the Act via the Judiciary Act Repealer Act (Act of 1978-53, P.L. 253) and replaced it with

a new statutory provision for automatic review. See Act of March 26, 1974, P.L. 213, § 3.

Although the present iteration of automatic statutory review, codified in section 9711(h),

does not explicitly require the Court to address the sufficiency of the evidence, 42 Pa.C.S.

§9711(h), the Court has continued in the tradition of the Act of February 15, 1870.

Specifically, the “Court performs a self-imposed duty to review the sufficiency of the

evidence underlying the first-degree murder conviction in all capital direct appeals,

regardless of whether the appellant has raised the issue.” Commonwealth v. Freeman,

827 A.2d 385, 402 (Pa. 2003) (citing Commonwealth v. Zettlemoyer, 454 A.2d 937, 942

n.3 (Pa. 1982)).

[J-75-2021] - 8

On the second track, counsel may seek to preserve claims other than those

specifically identified in Section 9711(h) by filing a timely notice of appeal. Pa.R.A.P. 902.

“[F]iling a notice of appeal is, generally speaking, a simple, nonsubstantive act that is within

the defendant’s prerogative.” Garza v. Idaho, 139 S. Ct. 738, 746 (2019). This Court has

repeatedly held that if capital counsel fails to file a notice of appeal, all claims not included

in the Section 9711(h) automatic review are not preserved for appeal and cannot be raised

during the automatic review process. See Commonwealth v. Hairston, 985 A.2d 804, 808

(Pa. 2009) (“Because Appellant’s counsel did not file a timely appeal, claims unassociated

with our automatic review of capital cases have not been preserved and are not properly

before this Court.”); Commonwealth v. Dick, 978 A.2d 956, 958-59 (Pa. 2009) (citing

Commonwealth v. Freeman, 827 A.2d 385, 402 (Pa. 2003) (“[A]s a general rule on capital

direct appeals, claims that were not properly raised and preserved in the trial court are

waived and unreviewable.”)).

In this case, neither of Parrish’s two trial counsel filed a notice of appeal. Instead,

they filed only a motion to initiate the statutory automatic review process as set forth in

Rule 1941, which had not occurred within the twenty days prescribed by that rule. Upon

receipt of this motion, the trial court began the automatic review process by issuing orders

directing the clerk of courts to proceed pursuant to Rule 1941.

Although trial counsel had not filed a notice of appeal, the trial court nevertheless

ordered trial counsel to file a concise statement of the errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure Rule 1925(b). On July 25, 2012,

Attorney Gregor filed a concise statement raising three issues. First, he claimed that the

Commonwealth’s cross-examination of his mitigation expert regarding Parrish’s alleged

[J-75-2021] - 9

abuse of his first wife inflamed the passions of the jury. Rule 1925(b) statement,

7/25/2012, at 1. Second, he asserted that the questioning regarding prior abusive

relationships allowed the Commonwealth to imply the existence of an aggravating factor

not authorized by statute under 42 Pa.C.S. § 9711(d). Id. Third, he complained that the

mitigation expert’s report was erroneously admitted into evidence and published to the jury

without complete redaction of all references to Parrish having previously entered a guilty

plea to the charges in question. Id.

Attorney Gregor subsequently filed an appellate brief in this Court in support of

these three issues. Attorney Gregor attempted to present these issues as if they fell under

the automatic statutory review, arguing that they demonstrated that the sentence of death

was the product of passion, prejudice, or any arbitrary factor. Parrish’s Brief, 11/27/2012,

at 6 (citing 42 Pa.C.S. § 9711(h)(3)).

This Court rejected Attorney Gregor’s attempt and found all three claims to have

been waived, stating as follows:

On July 25, 2012, [Parrish] filed his Rule 1925(b) concise

statement, raising various claims of prosecutorial misconduct

and ineffective assistance of counsel. Nevertheless, because

[Parrish] did not file an appeal, his claims unassociated with

our automatic review of capital cases have not been

preserved, and our review is thus limited to our independent

evaluation of the sufficiency of the evidence and a statutory

review of his death sentence.

Parrish, 77 A.3d at 561.

This Court completed the automatic review of Parrish’s death sentence in

accordance with Section 9711(h). In addressing the sufficiency of the evidence, the Court

conducted an independent evaluation of the record, finding that Parrish’s convictions were

supported by the evidence. Id. at 561-62. We also concluded that the sentence of death

[J-75-2021] - 10

was not the product of passion, prejudice or any arbitrary factor, and that the evidence

was sufficient to enable the jury to find the existence of both aggravating circumstances

beyond a reasonable doubt. Id. at 562. Parrish petitioned for writ of certiorari to the United

States Supreme Court, which was denied. Parrish v. Pennsylvania, 572 U.S. 1123 (2014).

On August 29, 2014, Parrish filed a timely pro se PCRA petition. On November 14,

2014, the PCRA court appointed Attorney Robert A. Saurman, Esq. (hereinafter “initial

PCRA counsel”) as counsel. On February 17, 2015, an amended counseled PCRA

petition was filed, in which Parrish asserted numerous allegations of ineffectiveness of trial

counsel, none of which involved the failure of trial counsel to file a notice of appeal.

Separately, on April 20, 2015, Parrish filed a petition for writ of habeas corpus in federal

court and a motion to stay the federal habeas proceedings to allow counsel to exhaust the

habeas claims in state court. Parrish v. Wetzel, 2015 WL 3441965, at *2 (M.D. Pa. May

28, 2015). The United States District Court for the Middle District of Pennsylvania

determined that a stay was not available because Parrish did not show good cause for

failing to exhaust his habeas claims first in state court. Id. at *3. It dismissed his petition

for writ of habeas corpus without prejudice. Id. at *4.

The PCRA court scheduled a PCRA evidentiary hearing for July 27, 2015. On the

date of this hearing, initial PCRA counsel filed a second amended PCRA petition. The

second amended PCRA petition attached and attempted to incorporate by reference the

claims in Parrish’s petition for writ of habeas corpus filed in federal court, including, for the

first time in state court, a claim that both trial counsel were ineffective for failing to file a

notice of appeal. Second Amended PCRA Petition, 7/27/2015, at 3. The PCRA court

dismissed this attempt to incorporate the federal habeas pleading by reference, and

instead instructed initial PCRA counsel to raise the issues from the federal habeas

pleading in a third amended PCRA petition. N.T., 7/27/2015, at 184.

[J-75-2021] - 11

At the PCRA evidentiary hearing on July 27, 2015, initial PCRA counsel made only

superficial inquiries of both trial counsel regarding their failure to file a notice of appeal.

Attorney Niemoczynski indicated that Attorney Gregor “was responsible for the appeal[,]”

and that, to his knowledge, there was no determination by the Public Defender’s Office not

to pursue an appeal. Id. at 100-01. Initial PCRA counsel likewise posed only a few

questions to Attorney Gregor regarding the direct appeal. Id. at 160. Attorney Gregor

indicated that an appeal is automatic. Id. at 160-61. In response to follow-up questions,

Attorney Gregor continued to focus on the procedure of the automatic review and

suggested that no separate notice of appeal needed to be filed to preserve claims for

appellate review, stating:

As I recall, there were no post-sentence motions filed. The

immediate appeal to the Supreme Court for some reason didn’t

quite procedurally happen, as I recall, the way it was supposed

to happen, and that was – it was a matter of correcting it on the

record to make sure it had gone up.

For some reason, I think the case didn’t go up directly to the

Supreme Court. There was a holdup, I believe, in our clerk of

courts office for some momentary reason. And I recall reading

the rule again, and I believe I contacted the clerk’s office and

said, “We need to get this – this has to go up. We can’t just sit

here until somebody files it.”

In other words, as I recall, somebody usually files a notice of

appeal, and they wait for that to happen before they will send

it up. I believe in death penalty cases, if I recall, it’s supposed

to go up automatically, and it was laying there and not going

up.

Id. at 161. Initial PCRA counsel did not ask any further questions regarding trial counsel’s

failure to file a notice of appeal or present evidence to demonstrate that Parrish had

requested that a notice of appeal be filed. He also did not ask either trial counsel any

questions regarding whether they had consulted with Parrish about filing a notice of

[J-75-2021] - 12

appeal. The PCRA court then continued the evidentiary hearing until November 3, 2015.

Id. at 185.

Prior to the resumption of the hearing, on September 21, 2015, initial PCRA counsel

filed a third amended PCRA petition on Parrish’s behalf, presenting many of the claims set

forth in the federal habeas petition. He alleged that trial counsel’s performances were

deficient for failing to file a notice of appeal, and he contended that numerous meritorious

issues that had been preserved for direct appeal were waived when trial counsel failed to

file a notice of appeal. Third Amended PCRA Petition, 9/21/2015, ¶ 487. Initial PCRA

counsel asserted that Parrish was “constructively denied counsel on appeal,” and argued

that prejudice should be presumed. Id. ¶ 488 (citing United States v. Cronic, 466 U.S.

648, 654 (1984)). Alternatively, initial PCRA counsel asserted that prejudice was proven

from trial counsel’s deficient performances in failing to meaningfully consult with Parrish

during the appeal regarding his appellate rights. Id. ¶¶ 489-490. He alleged that if trial

counsel had consulted with Parrish, Parrish would have instructed that he wished for a

notice of appeal to be filed. Id. ¶¶ 492-493. Finally, he requested restoration of his

appellate rights and permission to file a direct appeal from his conviction nunc pro tunc.

Id. ¶¶ 493, 497.

At the continued PCRA evidentiary hearing, initial PCRA counsel did not present

any evidence to support these claims relating to the failure to file a notice of appeal. Initial

PCRA counsel did not recall trial counsel to testify about their communications with Parrish

regarding his appellate rights, including whether they consulted with Parrish regarding the

advantages and disadvantages of filing a notice of appeal and/or whether they made a

reasonable effort to discern Parrish’s wishes. Parrish was likewise not asked any

questions regarding whether trial counsel consulted with him regarding whether he wanted

a notice of appeal to be filed or what his response would have been if he had been so

[J-75-2021] - 13

consulted. In sum, initial PCRA counsel did not present any evidence to support Parrish’s

claims that trial counsel were ineffective for failing to consult with him regarding the filing

of a notice of appeal.

Following the evidentiary hearing, initial PCRA counsel filed a brief in which he

asserted (without citation to any evidence of record) the ineffectiveness of trial counsel for

failing to file a notice of appeal. In this regard, initial PCRA counsel premised his

arguments solely on trial counsel’s unjustified failure to file a requested direct appeal,

though he did not contend (or cite to any evidence of record) that Parrish had in fact

requested that a notice of appeal be filed. Parrish’s Brief, 2/5/2016, at unnumbered page

12. He further argued, again without any evidentiary support, that trial counsel “did not

work with Parrish in preparing an appeal” and “failed to file a full and comprehensive

appeal.” Id. He asserted that it was “readily evident that counsel was ineffective for the

manner in which they handled Parrish’s appeal[.]” Id.

The PCRA court issued an opinion and order denying relief on all claims. PCRA

Court Order, 7/14/2016, at 1. With respect to Parrish’s assertion that trial counsel were

ineffective for failing to file a direct appeal, the PCRA court viewed the claim solely as a

failure to file a requested appeal claim, consistent with initial PCRA counsel’s brief. The

court observed that Parrish had the burden of proving that he requested an appeal and

that counsel disregarded his request, and found that Parrish did not meet that burden.

PCRA Court Opinion, 7/14/2016, at 15-16. The PCRA court observed that the trial court

had informed Parrish of his post-sentencing rights, and that, based on the letter Parrish’s

trial counsel submitted at the sentencing hearing,7 Parrish was aware of his right to appeal

and was able to contact his attorneys. Id.

7 As cited above, the letter stated that, “in the event that an appeal is filed on my behalf

concerning my sentence without my written and verbal consent, I would like it to be known

that the appeal should be considered unauthorized and I ask that it be made null and void.

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Initial PCRA counsel filed a notice of appeal with this Court and a Pa.R.A.P. 1925(b)

statement raising trial counsel’s ineffectiveness in very general terms. In view of the

unspecific claims asserted in the Rule 1925(b) statement, we retained jurisdiction and

remanded for the appointment of new counsel and directed the filing of supplemental

briefing to address the consequences of the filing of the vague Rule 1925(b) statement.

Parrish, 224 A.3d at 690. On remand, the PCRA court appointed Attorney Robert

Patterson, Esq. (“present PCRA counsel”). Following supplemental briefing, this Court

concluded that initial PCRA counsel’s performance (in filing a vague Rule 1925(b)

statement) was so deficient that it “completely forfeited [Parrish’s] right to appellate review

of all of his collateral claims,” and “constitute[d] ineffective assistance of counsel per se.”

Parrish, 224 A.3d at 701-02. We remanded the matter for the preparation of a new Rule

1925(b) statement nunc pro tunc, with instructions to the PCRA court to then file a new

Rule 1925(a) opinion in response. Id. at 701.

On July 6, 2020, present PCRA counsel filed a Corrected Rule 1925(b) Statement

(“Corrected 1925(b) Statement”) raising nineteen issues, including ineffectiveness claims

relating to the failure to file a notice of appeal.8 In this regard, present PCRA counsel

I do not give anyone authorization to file any appeals or motions on my behalf.” N.T.,

5/15/2012, at 12 (admitting defense Exhibit 1, Parrish letter to Judge Worthington,

5/15/2012, at 1).

8 Other claims include:

 violation of his right to conflict-free counsel;

 trial counsel failed to investigate and present evidence at trial;

 the prosecution withheld material exculpatory evidence;

 trial and appellate counsel were ineffective for failing to preserve and raise

challenges to defective jury instructions;

 trial and appellate counsel were ineffective for failing to object to irrelevant,

highly prejudicial evidence;

[J-75-2021] - 15

asserted, for the first time, the layered claim that initial PCRA counsel was ineffective for

failing to present any evidence in support of the failure to consult claim.9

 penalty phase counsel was ineffective for failing to investigate, develop and

present mitigating evidence;

 trial counsel were ineffective for failing to advise Parrish regarding his right

against self-incrimination and failing to object to the admission of his statements

obtained in violation of his right against self-incrimination;

 penalty phase counsel was ineffective for failing to object to inaccurate penalty-

phase instructions;

 trial counsel were ineffective for failing to seek a change of venue or venire;

 trial counsel were ineffective for failing to object to prosecutorial misconduct;

and

 penalty phase counsel was ineffective for failing to object to unconstitutional

victim impact evidence.

Parrish’s Brief at ii-iv.

9 The Dissenting Justice writes that the “failure-to-consult PCRA counsel ineffectiveness

claim remanded by the Majority is not included in Parrish’s Corrected 1925(b) statement.”

Dissenting Op. at 5. In its view, by framing this issue in terms of trial counsel’s failure to

file a notice of appeal, Parrish was limiting his claim to one of failure to file a requested

appeal, and Parrish thus waived his arguments regarding the inadequacy of consultation.

This position overlooks that a failure to consult argument, at base, must assert that counsel

failed to file an appeal that would have been requested. See Flores-Ortega, 528 U.S. at

473 (framing issue as “ineffective assistance of counsel claim, based on counsel’s failure

to file a notice of appeal without respondent’s consent.”). Parrish’s framing of the issue in

paragraph seventeen adequately encompasses the present claim. Each error identified

in a Rule 1925(b) statement “will be deemed to include every subsidiary issue that was

raised in the trial court[.]” Pa.R.A.P. 1925(b)(4)(v).

Parrish’s assertion that trial counsel failed to file an appeal was supplemented by his

assertion in paragraph 17 of his 1925(b) statement referencing PCRA counsel’s

ineffectiveness for failing to develop the evidence and law to support nunc pro tunc

reinstatement of appellate rights and his citation to Count XVII of the third amended PCRA

Petition, wherein he argued that counsel failed to consult with him regarding an appeal

which he would have requested if consulted. Rule 1925(b)(4) allows an appellant to cite

to the record to identify where the basis for the challenge may be found. Pa.R.A.P. 1925

(b)(4), Note.

[J-75-2021] - 16

On September 22, 2020, the PCRA court issued an opinion and order denying

Parrish any relief. PCRA Court Opinion, 9/22/2020, at 2. The PCRA court observed that

it had previously disposed of seven of the issues on the merits, including the failure to file

a requested direct appeal. Id. It further stated that the twelve issues it had not addressed

were “without merit.” Id. The PCRA court did not address Parrish’s failure to consult issue,

which, as noted above, was raised superficially in the third amended PCRA petition, but

initial PCRA counsel did not present evidence to support the claim and did not develop the

claim beyond the initial assertions in the third amended PCRA petition.

Arguments of the Parties

In this appeal from the PCRA court’s order, Parrish alleges, inter alia, that initial

PCRA counsel was ineffective for failing to present readily-available evidence to prove that

trial counsel failed to meaningfully consult with him regarding his right to appeal. Parrish’s

Brief at 44-48. He points out that initial PCRA counsel raised this claim in the third

amended PCRA petition by averring that there was a lack of consultation, but then

confused the record and the legal requirements for presenting a failure to consult claim

and failed to present any evidence or legal argument to substantiate this claim. Id. at 46-

47. Parrish insists that on remand, he would demonstrate that trial counsel’s post-

sentence communications were limited to mailing him documents that had already been

filed with the courts, with little or no explanation of their legal significance, the status of

proceedings, or his appeal options. Id. at 47-48. He further avers that in response to

receiving a copy of the Rule 1925(b) statement filed on direct appeal, Parrish wrote to trial

counsel requesting further explanation of the appeal process. Id. at 48. Parrish asserts

that if he had been adequately consulted, he would have expressed his wish to appeal his

In consideration of the fact that an assertion that counsel deficiently failed to file an appeal

encompasses arguments regarding deficient consultation, and in light of the entirety of

paragraph seventeen, Parrish has properly presented this issue for review.

[J-75-2021] - 17

conviction and sentences. Id. at 46. Because initial PCRA counsel failed to introduce this

letter and other evidence corroborating trial counsel’s failure to adequately consult Parrish

regarding the appeal process, he seeks a remand for a new evidentiary hearing to present

evidence demonstrating that trial counsel failed to adequately and effectively consult with

him. Id. at 48.

In its brief, the Commonwealth states that Parrish cannot raise new claims aimed

at the representation of initial PCRA counsel for the first time on appeal. Commonwealth’s

Brief at 8. As to Parrish’s arguments regarding trial counsel’s deficient stewardship on

appeal, the Commonwealth asserts that “Parrish does not highlight any available issue

that he submits appellate counsel failed to raise on appeal or the potential for relief upon

such claim.” Id. at 23. The Commonwealth takes the position that the failure to identify

issues that would have been raised on direct appeal is fatal to Parrish’s claim. Id.

Analysis

1. Raising an Ineffectiveness Claim on Appeal

Initially, we address the Commonwealth’s assertions that Parrish improperly raised

the ineffectiveness of initial PCRA counsel for the first time in his Corrected Rule 1925(b)

Statement. Commonwealth’s Brief at 8. The Commonwealth correctly observes that

previously claims of PCRA counsel’s ineffectiveness could not be raised for the first time

after a notice of appeal has been filed from the underlying PCRA matter. See, e.g.,

Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012) (holding that petitioner was

not permitted to raise ineffectiveness of initial PCRA counsel for the first time in a 1925(b)

statement).10

10Likewise, when the PCRA court addressed the Corrected Rule 1925(b) Statement, we

had not established a mechanism to address the ineffective assistance of post-conviction

[J-75-2021] - 18

Recently, this Court rejected that principle in favor of “allowing a PCRA petitioner

to raise claims of ineffective PCRA counsel at the first opportunity to do so, even if on

appeal.” Commonwealth v. Bradley, 261 A.3d 381, 405 (Pa. 2021). We recognized that

the structure of appeal and collateral review “places great importance on the competency

of initial PCRA counsel[,]” and reasoned that “it is essential that a petitioner possess a

meaningful method by which to realize his right to effective PCRA counsel.” Id. at 401.

We stated that “this approach best recognizes a petitioner’s right to effective PCRA

counsel while advancing equally legitimate concerns that criminal matters be efficiently

and timely concluded.” Id. at 405. We further explained:

In some instances, the record before the appellate court will be

sufficient to allow for disposition of any newly-raised

ineffectiveness claims. [Commonwealth v.] Holmes, 79 A.3d

[562, 577 (Pa. 2013)]. However, in other cases, the appellate

court may need to remand to the PCRA court for further

development of the record and for the PCRA court to consider

such claims as an initial matter. Consistent with our prior case

law, to advance a request for remand, a petition would be

required to provide more than mere ‘boilerplate assertions of

PCRA counsel’s ineffectiveness,’ [Commonwealth v.] Hall, 872

A.2d [1177, 1182 (Pa. 2005)]; however, where there are

‘material facts at issue concerning [claims challenging

counsel’s stewardship] and relief is not plainly unavailable as

a matter of law, the remand should be afforded,’

[Commonwealth v.] Grant, 813 A.2d [726, 740 n.2 (Pa.

2002)](Saylor, J., concurring).

counsel, and thus the PCRA court did not address the substance of the new claim.

Instead, the PCRA court noted that present PCRA counsel recognized that the specific

claims were “not properly before this [c]ourt,” but that with the pendency of a case

addressing the potential establishment of such a mechanism in this Court, see generally,

Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), “he raises same to preserve the

issue on appeal.” PCRA Court Opinion, 9/22/2020, at 4 n.13 (citing Corrected 1925(b)

Statement, ¶ 1 n.1).

[J-75-2021] - 19

Id. at 402. We also stated that Rule 302(a), which provides that “[i]ssues not raised in the

trial court are waived and cannot be raised for the first time on appeal[,]” Pa.R.A.P. 302(a),

“does not pertain to these scenarios.” Id. at 405.

Parrish adequately raised and preserved his layered claim of the ineffective

assistance of trial and initial PCRA counsel by raising it at the first opportunity to do so,

specifically in his Corrected 1925(b) Statement and in his brief filed with this Court in this

appeal. In both his Corrected Rule 1925(b) Statement and his brief, he observed that he

has the right to effective PCRA counsel, enforceable on PCRA appeal. Corrected 1925(b)

Statement, 7/6/2020, ¶ 1 n.1; Parrish’s Brief at 29. He cited the well-established principle

that the right to counsel includes the right to effective assistance of counsel, and therefore,

the rule-based right to post-conviction counsel includes the right to the effective assistance

of post-conviction counsel. Corrected 1925(b) Statement, 7/6/2020, ¶ 1 n.1; (citing

Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998) (finding that Rule 1504 of the

Pennsylvania Rules of Criminal Procedure “requires an enforceable right to effective post-

conviction counsel”)); Parrish’s Brief at 29 (same).

Parrish then raised the claim we now address. He asserted that initial “PCRA

counsel was ineffective for failing to present all available evidence and law in support of

Mr. Parrish’s right to reinstatement of his direct appeal rights nunc pro tunc.” Corrected

1925(b) Statement, 7/6/2020, ¶ 17. In his brief filed with this Court, present PCRA counsel

asserted that initial PCRA counsel “confused the trial record and legal contours of the

claim” and mistakenly presented a failure to file a requested appeal claim, when he should

have presented a failure to consult claim. Parrish’s Brief at 46-47.

[J-75-2021] - 20

In Bradley, we expressly stated that the previous requirements were untenable and

therefore do not apply and that a PCRA petitioner may raise claims of ineffective PCRA

counsel at the first opportunity to do so, “even if on appeal.” Bradley, 261 A.3d at 405. In

so holding, we recognized that traditional issue preservation principles do not apply where

they would make it impossible for a petitioner to timely raise a claim of initial PCRA

counsel’s ineffectiveness. Id. at 404-05 (citing Commonwealth v. Ligons, 971 A.2d 1125,

1139 (Pa. 2009) (plurality)). For instance, in this case, to hold Parrish to traditional issue

preservation principles would mean that he was required to raise initial PCRA counsel’s

ineffectiveness before the PCRA court even issued its 1925(a) opinion which conclusively

found that Parrish was not entitled to relief. Moreover, under traditional issue preservation

principles, Parrish would have been required to raise initial PCRA counsel’s

ineffectiveness while he was still represented by initial PCRA counsel, since Parrish did

not obtain present PCRA counsel until a notice of appeal was filed. Id. at 405 (citing

Commonwealth v. Shaw, 247 A.3d 1008, 1015-16 (Pa. 2021) (noting the general rule

against counsel challenging their own performance)). In Bradley, we stated that “it would

be unreasonable to penalize a PCRA petitioner” by imposing such a requirement. Id. at

404; see also Shaw, 247 A.3d at 1015 (stating that it would be “unreasonable to apply

issue preservation requirements to penalize a post-conviction petitioner because his

attorney didn’t recognize and raise a claim of his own ineffectiveness contemporaneously

with the lawyer’s own misstep”). For these reasons, we conclude that Parrish raised this

claim at the first opportunity to do so, and that, pursuant to Bradley, it has not been waived.

2. Remand on the Failure to Consult Claim

[J-75-2021] - 21

In contrast to the argument advanced before the PCRA court by initial PCRA

counsel, Parrish (through present PCRA counsel) does not claim that he actually

requested his trial counsel to file a notice of appeal on his behalf. Instead, he now avers

that trial counsel did not consult with him regarding his appellate rights, which the United

States Supreme Court held in Roe v. Flores-Ortega, 528 U.S. 470 (2000) may be

constitutionally required in some circumstances. Id. at 480. As such, Parrish’s

ineffectiveness claim11 is that trial counsel failed to consult with him to advise him with

respect to his appellate rights, and that initial PCRA counsel failed to present available

evidence to prove that counsel failed to consult with him and that, if he had been consulted,

he would have instructed trial counsel to file a notice of appeal.

In Flores-Ortega, the High Court first reviewed the law relating to ineffective

assistance of counsel for the failure to file a requested appeal:

We have long held that a lawyer who disregards specific

instructions from the defendant to file a notice of appeal acts in

a manner that is professionally unreasonable. See Rodriquez

v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340

(1969); cf. Peguero v. United States, 526 U.S. 23, 28, 119 S.Ct.

961, 143 L.Ed.2d 18 (1999) (“[W]hen counsel fails to file a

requested appeal, a defendant is entitled to [a new] appeal

without showing that his appeal would likely have had merit”).

This is so because a defendant who instructs counsel to initiate

an appeal reasonably relies upon counsel to file the necessary

11 It is well-established that to succeed on a claim asserting the of ineffective assistance

of counsel, the petitioner must plead and prove, by a preponderance of the evidence, three

elements: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis

for his or her action or inaction; and (3) the petitioner suffered prejudice as a result of

counsel’s action or inaction. Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987).

If a petitioner fails to satisfy any of the three prongs of the ineffectiveness inquiry, his claim

fails. Commonwealth v. Brown, 196 A.3d 130, 150-51 (Pa. 2018). Where a petitioner

alleges multiple layers of ineffectiveness, he is required to plead and prove, by a

preponderance of the evidence, each of the three prongs of ineffectiveness relevant to

each layer of representation. Commonwealth v. McGill, 832 A.2d 1014, 1022-23 (Pa.

2003).

[J-75-2021] - 22

notice. Counsel's failure to do so cannot be considered a

strategic decision; filing a notice of appeal is a purely

ministerial task, and the failure to file reflects inattention to the

defendant's wishes. At the other end of the spectrum, a

defendant who explicitly tells his attorney not to file an appeal

plainly cannot later complain that, by following his instructions,

his counsel performed deficiently. See Jones v. Barnes, 463

U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)

(accused has ultimate authority to make fundamental decision

whether to take an appeal).

Flores-Ortega, 528 U.S. at 470. As indicated, a showing that counsel failed to file a

requested appeal is ineffectiveness per se, and prejudice is presumed without the need

for proof because the circumstances are “so likely to prejudice the accused that the cost

of litigating their effect in a particular case is unjustified.” United States v. Cronic, 466 U.S.

648, 658 (1984).

The Court in Flores-Ortega faced a circumstance in which the defendant had not

instructed his counsel to file an appeal, but also, had not instructed his counsel not to file

an appeal. The Court thus acknowledged that the case “lies between th[e] poles” of cases

in which the defendant instructed counsel (one way or the other) with respect to the filing

of an appeal, and thus the appropriate question is whether counsel is “deficient for not

filing a notice of appeal when the defendant has not clearly conveyed his wishes one way

or the other?” Flores-Ortega, 528 U.S. at 477.

The Court identified the requisite antecedent question, namely, “whether counsel in

fact consulted with the defendant about an appeal.” Id. at 478 (emphasis added).

In those cases where the defendant neither instructs counsel

to file an appeal nor asks that an appeal not be taken, we

believe the question whether counsel has performed

deficiently by not filing a notice of appeal is best answered by

first asking a separate, but antecedent, question: whether

counsel in fact consulted with the defendant about an appeal.

We employ the term “consult” to convey a specific meaning-

[J-75-2021] - 23

advising the defendant about the advantages and

disadvantages of taking an appeal, and making a reasonable

effort to discover the defendant's wishes. If counsel has

consulted with the defendant, the question of deficient

performance is easily answered: Counsel performs in a

professionally unreasonable manner only by failing to follow

the defendant's express instructions with respect to an appeal.

See supra, at 1034 and this page. If counsel has not consulted

with the defendant, the court must in turn ask a second, and

subsidiary, question: whether counsel's failure to consult with

the defendant itself constitutes deficient performance. That

question lies at the heart of this case: Under what

circumstances does counsel have an obligation to consult with

the defendant about an appeal?

Id.

As the Court explained, the term “consult” in this context requires a finding that

counsel did or did not “advis[e] the defendant about the advantages and disadvantages of

taking an appeal, and ma[de] a reasonable effort to discover the defendant’s wishes.” Id.

The Court explained that when counsel consults with the defendant, the question of

deficient performance is easily answered. Knowing the defendant’s wishes as to whether

he wants an appeal to be filed, counsel performs in a professionally unreasonable manner

if he fails to follow the defendant’s express instructions. Id. On the other hand, “[i]f counsel

has not consulted with the defendant, the court must in turn ask a second, and subsidiary

question: whether counsel’s failure to consult with the defendant itself constitutes deficient

performance.” Id. The Court rejected a bright-line rule requiring counsel to always consult

with the defendant, holding instead that

[c]ounsel has a constitutionally imposed duty to consult with

the defendant about an appeal when there is reason to think

either (1) that a rational defendant would want to appeal (for

example, because there are nonfrivolous grounds for appeal),

or (2) that this particular defendant reasonably demonstrated

to counsel that he was interested in appealing.

[J-75-2021] - 24

Id. at 480. To make this determination, lower courts should consider “all the information

counsel knew or should have known.” Id. One highly relevant factor in this regard is

whether the conviction follows a trial or guilty plea, because a guilty plea reduces the scope

of potential issues for appeal and suggests that the defendant wanted to end judicial

proceedings. Id.

If a petitioner establishes that counsel had a constitutional duty to consult regarding

the filing of an appeal and failed to do so, the next question is whether the defendant

suffered prejudice. Unlike cases involving a failure to file a requested appeal for which

prejudice is presumed, a failure to consult with the defendant does not constitute

ineffectiveness per se. Instead, where the defendant shows that counsel failed to consult

regarding an appeal, “a defendant must demonstrate that there is a reasonable probability

that, but for counsel’s deficient failure to consult with him about an appeal, he would have

timely appealed.” Id. at 484.

The Court observed that the lower court had presumed prejudice because Flores-

Ortega did not consent to counsel’s failure to file a notice of appeal. Id. at 487. On the

record before it, the Court was unable to determine whether the attorney had a duty to

consult, whether she satisfied her obligations and, if she did not, whether Flores-Ortega

was prejudiced. Therefore, it vacated the judgment of the Court of Appeals and remanded

the case for further proceedings.12 Id.

12 While we did so by a per curiam order rather than by a formal opinion, on one occasion

this Court likewise remanded a case to the lower court for further evidentiary findings

related to a Flores-Ortega failure to consult claim. Our order provided in relevant part as

follows:

[J-75-2021] - 25

To address the merits of Parrish’s claim that initial PCRA counsel was ineffective

for not advancing his (Parrish’s) claim that trial counsel were ineffective for failing to

consult with Parrish regarding his appellate rights, we apply the framework set forth in

Flores-Ortega. To be entitled to a remand, Parrish must provide more than mere

boilerplate assertions of PCRA counsel’s ineffectiveness. That is, he must establish that

there are issues of material facts concerning claims challenging counsel’s stewardship

and that relief may be available. Bradley, 261 A.3d at 402 (citing Grant, 813 A.2d at 740

n.2) (Saylor, J., concurring)).

Here, Parrish has established issues of material fact, which, if proven by a

preponderance of the evidence, would entitle him to reinstatement of his direct appeal

rights. Parrish points to potential evidence that he claims was readily-available to initial

PCRA counsel but not presented at the PCRA evidentiary hearing to show that trial

counsel let the time for filing the appeal lapse without consulting him on whether he wanted

AND NOW, this 16th day of July 2012, the Petition for

Allowance of Appeal is GRANTED, the order of the Superior

Court is VACATED, and the matter is REMANDED to the Court

of Common Pleas of Venango County to determine whether

petitioner would have wished to file a direct appeal had counsel

consulted him. See Roe v. Flores–Ortega, 528 U.S. 470, 480,

120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (counsel has

constitutionally imposed duty to consult with defendant when

there is reason to think rational defendant would want to

appeal or that particular defendant reasonably demonstrated

to counsel he was interested in appealing); id., at 484, 120

S.Ct. 1029 (to show prejudice, petitioner must demonstrate

reasonable probability that, but for counsel's deficient failure to

consult with him about appeal, he would have timely

appealed)[.]

Commonwealth. v. Vanistendael, 48 A.3d 1220, 1221 (Pa. 2012).

[J-75-2021] - 26

to appeal his conviction and death sentence. Parrish’s Brief at 47-48. According to

Parrish, this evidence will show that Attorney Niemoczynski had assigned the appeal to

Attorney Gregor, who did not realize he was responsible for filing a notice of appeal (as

opposed to relying on the automatic Section 9711(h) appeal). As such, Attorney Gregor

believed that he had no reason to consult with Parrish, even though by letter Parrish had

specifically requested additional information regarding the appeal process. Id. Because

initial PCRA counsel did not introduce any evidence of this at the PCRA evidentiary

hearings and failed to offer any legal argument in his subsequent brief, a remand is

required for further development of the evidentiary record.

Parrish has also presented colorable arguments that trial counsel had a

constitutional duty to consult with him regarding his appeal. See Flores-Ortega, 528 U.S.

at 480. Parrish’s conviction came as the result of a trial, not a guilty plea.13 Moreover, the

issues trial counsel attempted to raise on direct appeal support Parrish’s contention that a

rational defendant in his shoes would have sought to appeal. Parrish’s Brief at 46; see

also Flores-Ortega, 528 U.S. at 480 (providing that a defendant may show that counsel

had a duty to consult by showing “that a rational defendant would want to appeal (for

example, because there are nonfrivolous grounds for appeal)”). Furthermore, the severity

and finality of the punishment of death itself may be reason to believe that a rational

13 In Flores-Ortega, the Court recognized that entering a guilty plea would be “highly

relevant” to the determination of whether counsel knew or should have known that the

defendant would want to appeal, because a guilty plea reduces the scope of appealable

issues. Flores-Ortega, 528 U.S. at 480; see similarly, Pitcher v. Huffman, 65 F. App’x.

979, 982-83 (6th Cir. 2003) (finding that the contested conviction came as the result of a

trial and not a guilty plea was “highly relevant” to determining whether a rational defendant

would want to appeal).

[J-75-2021] - 27

defendant would want to appeal. Simply put, Parrish had “nothing to lose” by filing an

appeal.

Lastly, to demonstrate prejudice as required by Flores-Ortega, Parrish has alleged

that “[i]f counsel had consulted with [Parrish] and informed him of these issues, [he] would

have told them that he wished to appeal his convictions and death sentences.” Parrish’s

Brief at 46. The Commonwealth’s focus on whether Parrish raised any available issue

that appellate counsel failed to raise on appeal is misplaced. Commonwealth’s Brief at

23. The question with respect to prejudice is not whether Parrish has identified any

meritorious issues for appeal, but rather whether there is a reasonable probability that he

would have advised trial counsel to file a notice of appeal had he been consulted. Flores-

Ortega, 528 U.S. at 484. The Supreme Court in Flores-Ortega expressly stated that it

would be unfair to require a defendant “to demonstrate that his hypothetical appeal might

have had merit” and therefore, the defendant must only “demonstrate that, but for

counsel’s deficient conduct, he would have appealed.” Id. at 487.

Parrish is entitled to a remand to present evidence and argument to substantiate

his claim that he is entitled to reinstatement of his direct appeal rights nunc pro tunc. Upon

the PCRA court’s grant or denial of this relief, if either Parrish or the Commonwealth appeal

that determination, the PCRA court should file a supplemental 1925(a) opinion to address

that decision. Parrish’s ineffectiveness claims raised in the appeal from the PCRA court’s

denial of his previously-filed PCRA petitions will then be considered.

Jurisdiction relinquished.

Chief Justice Baer and Justices Todd and Wecht join the opinion.

[J-75-2021] - 28

Justice Dougherty files a dissenting opinion in which Justices Mundy and Brobson

join.

[J-75-2021] - 29