Commonwealth v. Perry , 128 A.3d 1285 ( 2015 )

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2015 Pa. Super. 262
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
BRYAN PERRY
Appellant No. 265 MDA 2015
Appeal from the Order of November 18, 2013
In the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0002139-2011
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
BRYAN PERRY
Appellee No. 420 MDA 2015
Appeal from the Order Entered on February 4, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0002139-2011
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
OPINION BY WECHT, J.: FILED DECEMBER 14, 2015
The Commonwealth appeals the February 4, 2015 order granting
Bryan Perry’s petition for relief pursuant to the Post Conviction Relief Act
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*
Retired Senior Judge assigned to the Superior Court.
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(“PCRA”), 42 Pa.C.S. §§ 9541-46, and reinstating Perry’s direct appellate
rights nunc pro tunc. Also before this Court is Perry’s direct appeal, which
he has filed nunc pro tunc pursuant to the PCRA court’s February 4, 2015
order. Because we conclude that the PCRA court erred in granting Perry’s
petition in the first instance, we reverse that order and dismiss Perry’s
contemporaneous direct appeal as moot.
On November 15, 2011, a jury convicted Perry of criminal attempt to
commit homicide, aggravated assault, carrying a firearm without a license,
persons not to possess firearms, and recklessly endangering another
person.1 The trial court sentenced Perry to an aggregate term of twenty-five
to fifty years’ imprisonment. After his conviction, Perry reviewed his trial
transcript and discovered that the jury had unmarked evidence with it in the
deliberation room. Although the record does not identify with precision the
evidence that the jury mistakenly received, the following ex parte
communication between the trial judge and the jury appears in the
transcript.
(The following occurred at 12:17 p.m. in the jury deliberation
room, outside the presence of counsel and the defendant.)
The Court: Instead of dragging you all down, I figured I’d
come up. I have your request to see both 9-1-1
transcripts. You have a copy?
A voice: No. This is the only thing we got.
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1
18 Pa.C.S. §§ 901(a), 2702(a)(1), 6106(a)(1), 6105(a)(5), and 2705,
respectively.
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The Court: You weren’t even supposed to get that. They
weren’t marked as part of the evidence. So
whatever’s marked as evidence comes up to
you. Otherwise, you have to just use your
recollection and recall based on the trial. So
that’s the answer. All right? Thank you, ladies
and gentlemen.
(Deliberations resumed at 12:19 p.m.)
Notes of Testimony (“N.T.”), 11/15/2011, at 164. The trial court did not
inform defense counsel or the Commonwealth that the jury had unmarked
evidence with it in the deliberation room.
According to Perry, he pointed out the above-quoted exchange to his
appellate counsel after reviewing the transcript, and asked her to pursue the
issue on direct appeal. Nevertheless, counsel filed an appeal challenging
only the discretionary aspects of Perry’s sentence. On December 20, 2012,
in an unpublished memorandum decision, this Court affirmed Perry’s
judgment of sentence. See Commonwealth v. Perry, 656 MDA 2012 (Pa.
Super. Dec. 20, 2012).
On November 8, 2013, Perry filed a timely PCRA petition. Therein,
Perry alleged various instances of ineffective assistance of trial and appellate
counsel. Relevant to this appeal, Perry alleged that his appellate counsel
was ineffective for failing to challenge on direct appeal the jury’s receipt of
unmarked evidence. On April 16, 2014, the PCRA court held a hearing on
Perry’s petition. Appellate counsel did not testify at that hearing.
On May 16, 2014, the PCRA court entered an order and opinion
dismissing Perry’s petition. Notwithstanding the fact that Perry raised the
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issue of appellate counsel’s ineffectiveness in his petition for relief, the PCRA
court did not address that claim in its opinion. On December 30, 2014, this
Court vacated the PCRA court’s order dismissing Perry’s petition and
remanded the matter for an evidentiary hearing on the issue of whether
appellate counsel had rendered ineffective assistance by failing to challenge
on direct appeal the jury’s receipt of unmarked evidence. See
Commonwealth v. Perry, 917 MDA 2014 (Pa. Super. Dec. 30, 2014).
On February 4, 2015, the PCRA court held an evidentiary hearing.
Perry did not subpoena appellate counsel, and she did not attend the
hearing. Frustrated by appellate counsel’s absence, the PCRA court took a
brief recess “to make a phone call.” N.T., 2/4/2015, at 4. When the hearing
resumed, the PCRA court called to the stand and questioned appellate
counsel’s colleague (who also served as Perry’s trial counsel) from the
Dauphin County Public Defender’s Office.
According to trial counsel, appellate counsel was never given notice of
the PCRA hearing and was unavailable to testify because she was out of the
state due to a family emergency. Id. at 7. Unsurprisingly, trial counsel
could not provide any insight into appellate counsel’s failure to assert on
appeal that the jury was given unmarked evidence. Trial counsel testified
only that the trial transcript indicates that the jury was given unmarked
evidence and that appellate counsel did not raise the issue on direct appeal.
She then purported to concede on behalf of the public defender’s office that
appellate counsel was ineffective. See id. (“[I]t appears that—it would be
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my opinion, I believe the opinion of my superiors as well, that we would
concede [appellate counsel’s] ineffectiveness for not raising the issue
because it’s in the transcript[.]”). At the conclusion of the hearing, the PCRA
court granted Perry’s petition and reinstated his direct appeal rights nunc
pro tunc.
On February 11, 2015, the Commonwealth filed a notice of appeal. On
February 19, 2015, the PCRA court issued an order directing the
Commonwealth to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). The Commonwealth timely complied. On
April 22, 2015, the PCRA court filed an opinion pursuant to Pa.R.A.P.
1925(a).
The Commonwealth presents one issue for our consideration:
“Whether the PCRA court erred in finding [Perry’s] appellate attorney
ineffective when [Perry’s] appellate attorney was not presented as a witness
at his PCRA evidentiary hearing and no testimony was offered from [Perry’s]
appellate attorney to be considered in the court’s determination of appellate
counsel’s effectiveness[.]” Brief for Commonwealth (420 MDA 2015) at 4
(capitalization modified).
This Court analyzes PCRA appeals “in the light most favorable to
the prevailing party at the PCRA level.” Commonwealth v.
Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). Our “review is
limited to the findings of the PCRA court and the evidence of
record” and we do not “disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error.” Id.
Similarly, “[w]e grant great deference to the factual findings of
the PCRA court and will not disturb those findings unless they
have no support in the record. However, we afford no such
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deference to its legal conclusions.” Id. (citations omitted).
“[W]here the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary.” Finally,
we “may affirm a PCRA court’s decision on any grounds if the
record supports it.” Id.
Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).
Pennsylvania has recast the two-factor inquiry regarding the
effectiveness of counsel set forth by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984), as the following three-
factor inquiry:
[I]n order to obtain relief based on [an ineffective assistance of
counsel (“IAC”)] claim, a petitioner must establish: (1) the
underlying claim has arguable merit; (2) no reasonable basis
existed for counsel’s actions or failure to act; and (3) petitioner
suffered prejudice as a result of counsel’s error such that there is
a reasonable probability that the result of the proceeding would
have been different absent such error.
Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). A failure to
satisfy any prong of the test for ineffectiveness will require rejection of the
claim. Commonwealth v. Martin, 5 A.3d 165, 177 (Pa. 2010). Trial
counsel is presumed to be effective, and a PCRA petitioner bears the burden
of pleading and proving each of the three factors by a preponderance of the
evidence. Commonwealth v. Rathfon, 899 A.2d 365, 369
(Pa. Super. 2006).
The PCRA court granted Perry’s petition and reinstated his direct
appeal rights nunc pro tunc. On appeal, the Commonwealth maintains that
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the record does not support the PCRA court’s conclusion that appellate
counsel was ineffective. We agree.2
When evaluating ineffectiveness claims, judicial scrutiny of counsel’s
performance must be highly deferential. Counsel will not be deemed
ineffective where the strategy employed had some reasonable basis
designed to effectuate his or her client’s interests. See Commonwealth v.
Lesko, 15 A.3d 345, 380 (Pa. 2011) (“Generally, where matters of strategy
and tactics are concerned, counsel’s assistance is deemed constitutionally
effective if he chose a particular course that had some reasonable basis
designed to effectuate his client’s interests.”). Instantly, Perry failed to
demonstrate that appellate counsel lacked a reasonable basis for failing to
assert on appeal that Perry was entitled to a new trial because the jury had
access to unmarked evidence during its deliberations. Because appellate
counsel was not present at the evidentiary hearing, the PCRA court was left
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2
Even if the record supported a finding that appellate counsel was
ineffective, the PCRA court should have vacated Perry’s judgment of
sentence instead of granting Perry nunc pro tunc relief. Although an
appellant is entitled to reinstatement of his direct appeal rights when counsel
fails entirely to perfect an appeal, see Commonwealth v. Halley, 870 A.2d
795, 801 (Pa. 2005), “the reinstatement of direct appeal rights is not the
proper remedy when appellate counsel perfected a direct appeal but simply
failed to raise certain claims.” Commonwealth v. Mikell, 968 A.2d 779,
781 (Pa. Super. 2009). In those circumstances, an appellant must proceed
under the auspices of the PCRA, and the court must apply the traditional
three-prong test for determining whether counsel was ineffective. Id. at
782.
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to speculate as to whether counsel declined to pursue this issue as a matter
of strategy, or, by contrast, whether counsel negligently overlooked it.
In its 1925(a) opinion, the PCRA court does not discuss or analyze any
of the Pierce factors. See Trial Court Opinion, 4/22/2015, at 3. Instead,
the court relies entirely upon trial counsel’s testimony at the PCRA hearing,
wherein trial counsel purported to concede that appellate counsel was
ineffective. Trial counsel’s opinion of her colleague’s effectiveness is
irrelevant. Trial counsel had no idea why appellate counsel neglected to
raise the unmarked evidence issue. Trial counsel simply pronounced
appellate counsel’s ineffectiveness based upon the former’s review of the
trial transcript.
Our Supreme Court has cautioned that, “[a]s a general rule, a lawyer
should not be held ineffective without first having an opportunity to address
the accusation in some fashion.” Commonwealth v. Koehler, 36 A.3d
121, 132 (Pa. 2012). “The ultimate focus of an ineffectiveness inquiry is
always upon counsel, and not upon an alleged deficiency in the abstract.”
Id. Stated simply, the record before us is devoid of any evidence to
overcome the presumption that counsel was effective. Perry’s failure to
demonstrate that appellate counsel had no reasonable basis for her actions
is fatal to his IAC claim.3 See Rathfon, supra (stating that a PCRA
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3
Perry also failed to demonstrate that he suffered prejudice as a result
of counsel’s performance. Because the transcript does not disclose, and the
(Footnote Continued Next Page)
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petitioner bears the burden of pleading and proving each of the Pierce
factors by a preponderance of the evidence).
Because the PCRA court’s decision is unsupported by the certified
record, we reverse the February 4, 2015 order granting Perry’s petition for
relief and reinstating his direct appeal rights nunc pro tunc.4 As a
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(Footnote Continued)
trial court cannot remember, what unmarked evidence the jury had with it in
the deliberation room, we fail to understand how the PCRA court concluded
that appellate counsel’s failure to raise the unmarked evidence issue caused
Perry prejudice. Confusingly, in response to Perry’s assertion that the trial
court erred by not informing the parties that the jury had unmarked
evidence in the deliberation room, the court explained that the unspecified
evidence was not prejudicial. See Trial Court Opinion, 3/20/2015, at 9-10
(“[H]ad the evidence that the jury saw been prejudicial, we would have
immediately informed counsel of the issue rather than merely tak[ing] the
evidence from the jury room. Perhaps we erred in judgment in not
informing counsel, but as it did not appear to be a highly prejudicial event
we chose not to.”). This conclusion should have led the PCRA court to
dismiss Perry’s PCRA petition. See Reed, 971 A.2d at 1221 (holding that a
petitioner alleging IAC must demonstrate that he “suffered prejudice as a
result of counsel’s error such that there is a reasonable probability that the
result of the proceeding would have been different absent such error”).
4
As noted by the learned Dissent, we previously remanded this matter
and ordered “the PCRA court to conduct an evidentiary hearing on the issue
of whether [appellate counsel] rendered ineffective assistance.” See
Commonwealth v. Perry, 917 MDA 2014, slip op. at 7 (Pa. Super. Dec. 30,
2014). We explained that our decision was based upon the PCRA court’s
failure to address Perry’s ineffectiveness claim. Id. (“Where a petitioner has
presented a claim to the PCRA court and that court has not addressed it, a
remand is appropriate where the claim cannot be resolved on the record.”).
Upon remand, the PCRA court conducted an evidentiary hearing and granted
Perry’s petition for relief. Because the PCRA court held a hearing and
rendered a decision, we decline to remand this matter yet again as
advocated by the learned Dissent. The fact that PCRA counsel did not
subpoena the necessary witnesses or develop an adequate factual record
does not entitle Perry to a third bite at the apple.
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consequence, Perry’s appeal at 265 MDA 2015, which arises from that order,
is moot.
Order reversed. Jurisdiction relinquished.
Judge Panella joins the opinion.
Judge Strassburger files a concurring/dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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