Com. v. Fairman, S. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAUN CASEY FAIRMAN
Appellant No. 1834 WDA 2016
Appeal from the PCRA Order Dated November 15, 2016
In the Court of Common Pleas of Indiana County
Criminal Division at No(s): CP-32-CR-0001275-2012
BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 22, 2017
Appellant Shaun Casey Fairman appeals from the order of the PCRA
court reinstating his direct appeal rights and denying all other claims raised
under the Post Conviction Relief Act, 42 Pa. C.S. §§ 9541-9546. We vacate
and remand.
The PCRA court summarized the factual and procedural history as
follows:
At the time of [Appellant’s] arrest he was estranged from his
wife, Jessica Fairman, who continued to stay at their marital
home. Late in the evening of June 2, 2012, [Appellant] returned
to the marital residence where Mrs. Fairman and her parents,
Richard E. Shotts and Candice Shotts, were also present. Upon
[Appellant’s] arrival, he was highly intoxicated and proceeded to
approach the house, pound on the kitchen door, and demand to
see his wife. When this occurred, a confrontation ensued
between [Appellant] and Richard Shotts, who denied [Appellant]
entry to the home. After Shotts denied [Appellant] entry,
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* Former Justice specially assigned to the Superior Court.
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[Appellant] attempted to force his way into the home and fired a
gun into the kitchen door. Following this unsuccessful attempt
at entry, [Appellant] fired through the kitchen window, fatally
striking Shotts, and then gained entry via the broken window.
Once inside, [Appellant] went upstairs and was shot twice in the
shoulder by his estranged wife, who then called the Pennsylvania
State Police.
Following a jury trial, [Appellant] was found guilty of the
offenses of Murder of the second degree; Aggravated Assault –
Causing Serious Bodily Injury, a felony of the first degree;
Burglary of an Occupied Structure When a Person Was Present, a
felony of the first degree; and Aggravated Assault – Bodily
Injury Caused With a Deadly Weapon, a felony of the second
degree. For the offense of Murder of the Second Degree,
[Appellant] was sentenced to incarceration for the rest of his
natural life without parole. As to the offense of Aggravated
Assault – Causing Serious Bodily Injury, [Appellant] was
sentenced to incarceration for a period of not less than five (5)
years nor more than twenty (20) years; for the offense of
Burglary, [Appellant] was sentenced to incarceration of not less
than three and a half (3½) years nor more than twenty (20)
years; and for the offense of Aggravated Assault – Bodily Injury
Caused with a Deadly Weapon, [Appellant] was sentenced to
incarceration for not less than sixteen (16) months nor more
than ten (10) years, with the sentences running concurrently.
PCRA Court Opinion, 11/15/16, at 1-2. Appellant filed a direct appeal on
July 11, 2013, and this Court affirmed his judgment of sentence.
Commonwealth v. Fairman, 97 A.3d 797 (Pa. Super. 2014) (unpublished
memorandum).
On February 27, 2015, Appellant filed a petition for post-conviction
relief. The PCRA court1 appointed counsel on March 27, 2015. Counsel filed
an amended petition on January 4, 2016. The PCRA court held a hearing on
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1The Honorable William J. Martin, sitting as the PCRA court, also presided at
Appellant’s jury trial.
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the petition on July 6, 2016. On November 15, 2016, the PCRA court issued
an opinion and order in which it denied relief with respect to two issues
raised by Appellant regarding alleged ineffective assistance by his trial
counsel — the failure to file a motion to suppress statements made to the
police, and the failure to argue case law when his plea agreement was
rejected. However, the court granted Appellant relief on Appellant’s third
issue — that his “appellate counsel was ineffective for failing to argue that
the convictions for murder of the second degree and burglary were against
the weight of the evidence.” PCRA Court Opinion, 11/15/16, at 2, 4-5. The
PCRA court explained:
At the [PCRA] hearing . . ., the parties stipulated to the fact that
this [weight of the evidence issue] was not raised. The parties
also stipulated to the fact that [Appellant] was not notified by
appellate counsel of the Superior Court decision affirming his
conviction until approximately eight (8) months after it was
entered. Finding that [Appellant] did not receive adequate
notice of the status of his appeal, the Court finds it proper to
reinstate his appellate rights.
Id. at 4-5.
The Commonwealth did not appeal from the PCRA court’s
reinstatement of Appellant’s appellate rights so that he could raise the
weight of the evidence issue.
Appellant filed a timely appeal on November 28, 2016. On January 9,
2017, the PCRA court adopted its November 15, 2016 opinion as its
Pa.R.A.P. 1925(a) opinion. On appeal, Appellant raises two issues, which we
repeat verbatim:
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1. Was the weight of the evidence in favor of [Appellant] on the
charges of Murder in the Second Degree and Burglary?
2. Was Defense Counsel ineffective counsel when they failed to
file a suppression motion to exclude any prejudicial/damaging
statements [Appellant] made to the arresting officers, including
his confession, while [Appellant] was intoxicated, [and] suffering
the effects of blood loss and mental illness?
Appellant’s Brief at 4.
Weight of the Evidence
In his first issue, Appellant challenges the weight of the evidence
supporting his second degree murder and burglary convictions. That issue is
not properly before us, and we therefore do not address it.
Appellant’s counsel failed to raise the weight issue following
Appellant’s conviction. The PCRA court agreed with Appellant that his
counsel was ineffective in failing to raise the weight issue,2 and it therefore
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2 Our review of the record reveals that following Appellant’s conviction, trial
counsel did not preserve the weight claim pursuant to Pa.R.Crim.P. 607(A)
by asserting it in a motion for a new trial. Appellate counsel then was
ineffective in failing to present the weight claim on appeal. Counsel did
include the issue in a Rule 1925(b) Statement, which caused the trial court
then to address the issue in a Rule 1925(a) opinion, but a failure to preserve
a weight claim in a Rule 607(A) motion is fatal to the claim, regardless of
any later discussion of the issue in Rule 1925 filings. Commonwealth v.
Sherwood, 982 A.2d 483, 494 (Pa. 2009). On appeal, Appellant’s counsel
failed to include the weight issue in the statement of questions in his
appellate brief, and, as a result, this Court did not address it in our
memorandum affirming Appellant’s judgment of sentence on direct appeal.
See Fairman (unpublished memorandum). In reinstating Appellant’s right
to present this issue in a new appeal, the PCRA court’s discussion focused on
the ineffectiveness of appellate counsel. The PCRA court found
ineffectiveness in failing to pursue the weight issue, and, as noted in the
text, the Commonwealth does not contest that ruling or the PCRA court’s
reinstatement of Appellant’s right to raise the weight issue.
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reinstated Appellant’s right to assert the weight issue in a new appeal. But
an appeal raising a weight issue seeks review of the trial court’s exercise of
discretion in denying an appellant’s motion for a new trial; we do not
consider weight issues de novo and do not review the underlying question of
whether the verdict is against the weight of the evidence. Commonwealth
v. Brown, 648 A.2d 1177, 1189 (Pa. 1994). Here, the trial court has not
exercised its discretion regarding whether to grant Appellant a new trial in
light of his weight claim because Appellant has not made a post-trial motion
presenting that claim to the trial court.3 We therefore have no decision on
the weight issue to review. We cannot address the weight of the evidence
until the trial court has first had a proper opportunity to do so.
Commonwealth v. Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015);
see Commonwealth v. Romberger, 378 A.2d 283, 286 (Pa. 1977).
Because Appellant improperly filed a direct appeal raising his weight
issue without first raising that issue with the trial court, 4 we must remand
this case to the trial court to determine whether Appellant may now raise the
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3 Although the trial court discussed the weight issue in its Rule 1925(a)
opinion preceding Appellant’s direct appeal following his conviction in 2013,
it did not rule on a motion properly presenting that issue because no such
motion was filed under Rule 607(A).
4 Because the PCRA court did not expressly state whether it was restoring
Appellant’s right to file a post-trial motion, we do not deem Appellant’s
failure to do so prior to filing his appeal a waiver of his rights regarding this
issue.
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weight issue there and, if so, for the trial court to then decide the weight
issue.
Although the filing of a Rule 607(A) post-trial motion is an essential
prerequisite to presentation of a weight issue on appeal, see Pa.R.Crim.P.
607(A), the PCRA court did not explicitly state whether it was restoring
Appellant’s right to file such a motion. We acknowledge that the PCRA
court’s restoration of Appellant’s right to present his weight issue on appeal
would make little sense unless the PCRA court also intended to restore
Appellant’s right to raise the weight issue in a new post-trial motion, and we
expect that this is what the PCRA court intended. However, in view of the
Supreme Court’s instruction in Commonwealth v. Liston, 977 A.2d 1089,
1093 (Pa. 2009), that restoration of a right to file a post-trial motion is not
automatic, we vacate the PCRA court’s order and remand for the PCRA court
to clarify whether it intended to restore Appellant’s right to file a post-trial
motion raising the weight claim.5
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5 In Liston, the Pennsylvania Supreme Court held that reinstatement of a
defendant’s direct appeal rights does not automatically reinstate a
defendant’s right to file post-trial motions nunc pro tunc. 977 A.2d at 1093.
In a footnote, the Court added:
Our holding should not be construed as prohibiting a PCRA court
from reinstating a defendant’s right to file post-sentence motions
nunc pro tunc. If a defendant successfully pleads and proves
that he was deprived of the right to file and litigate said motions
as a result of the ineffective assistance of counsel, a PCRA court
is free to grant such relief. Presumably, since post-sentence
motions are optional, see Pa.R.Crim.P. 720(B), rarely will
counsel be deemed to have been ineffective for failing to file
(Footnote Continued Next Page)
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If, on remand, the PCRA court reinstates Appellant’s right to file a
post-trial motion raising the weight claim, Appellant may then file such
motion and, if that motion is denied, Appellant may file a direct appeal
raising the weight claim. Only then may this Court address whether the trial
court abused its discretion in ruling on the claim.
Failure To Move To Suppress Statements to Police
In his second issue, Appellant argues that trial counsel was ineffective
for failing to file a motion to suppress statements he made to police after the
shooting because the statements, which were made while he was legally
intoxicated, “in pain due to being shot,” and “extremely depressed,” were
prejudicial. Appellant’s Brief at 32-35. We conclude that the PCRA court
lacked jurisdiction to rule on the merits of this claim, and thus we also lack
jurisdiction to consider its merits.
This Court has explained:
[W]e may sua sponte consider whether we have jurisdiction to
consider the merits of the claims presented. When a PCRA court
lacks jurisdiction to consider the merits of a petition, we likewise
lack jurisdiction to consider an appeal from disposition of the
petition. A PCRA court lacks jurisdiction to consider a PCRA
petition when a petitioner’s judgment is not final. Once the
(Footnote Continued) _______________________
them except, for example, when the claim involves the
discretionary aspects of sentence or a challenge to a verdict
on weight of the evidence grounds, claims which must be
raised in the trial court to be preserved for purposes of
appellate review.
Id. at 1094 n.9 (emphasis added and some citations omitted). This case
appears to fall within the class of cases anticipated by the Court in its
footnote.
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PCRA court granted [the petitioner] the right to seek further
review nunc pro tunc, [the petitioner’s] sentence was no longer
final and the PCRA court lacked jurisdiction to rule on [the
petitioner’s] other requests for relief. Accordingly, until [the
petitioner’s] judgment of sentence becomes final in accordance
with the procedural mechanisms recognized in 42 Pa.C.S.A. §
9545(b)(3), we lack jurisdiction to consider the merits of [the
petitioner’s] remaining ineffective assistance of counsel claims.
Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super. 2015) (citations
omitted). The Court in Harris noted that its ruling was “without prejudice to
[the petitioner] in PCRA proceedings that may commence after [the
petitioner’s] judgment of sentence becomes final.” Id. at 6 n.4. Moreover,
the Court noted that if the petitioner commenced PCRA proceedings after his
judgment of sentence became final, the PCRA court could then use the
evidentiary record developed in the prior PCRA proceeding. Id.
In light of Harris, we vacate that portion of the PCRA court’s order
denying Appellant’s claim that his counsel was ineffective for failing to move
to suppress his statements. If, after Appellant’s judgment of sentence
becomes final, Appellant files a PCRA petition raising ineffectiveness claims,
the PCRA court may consider the evidentiary record already developed in
relation to these claims, and may supplement the record if necessary.
Order vacated. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2017
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