Com. v. Harris, D. ( 2015 )

J-S07023-15
2015 Pa. Super. 68
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DANIEL T. HARRIS,
Appellee No. 952 MDA 2014
Appeal from the Order of May 12, 2014
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000707-2009
BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.
OPINION BY OLSON, J.: FILED APRIL 07, 2015
Appellant, the Commonwealth of Pennsylvania (“the Commonwealth”),
appeals from the order entered on May 12, 2014, granting relief on a
petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546, filed by Appellee, Daniel T. Harris (“Appellee”). Upon review,
we affirm in part and vacate in part.
We summarize the facts and procedural history of this case as follows.
On November 14, 2008, at Adam Auto Sale in Lebanon County, a vehicle
was stolen and twelve other vehicles were entered into and damaged,
resulting in $55,404.08 of total damages. On December 11, 2009, a jury
convicted Appellee of theft, criminal conspiracy to commit theft, and criminal
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mischief.1 On February 17, 2010, the trial court imposed an aggregate term
of three to seven years of imprisonment. Appellee filed a post-sentence
motion on February 25, 2010. On May 4, 2010, the trial court issued an
order denying Appellee’s post-sentence motion for failure to file a brief.
Appellee appealed to this Court on June 2, 2010. By per curiam order
entered on October 29, 2010, this Court quashed Appellee’s appeal for
failure to file an appellate brief.
On March 15, 2013, Appellee filed a pro se PCRA petition raising claims
of trial counsel ineffectiveness. On March 18, 2013, the PCRA court
appointed counsel to represent Appellee. On December 4, 2013, counsel for
Appellee filed an amended PCRA petition. On December 10, 2013, the PCRA
court held a hearing to determine the timeliness of the PCRA petition. 2 On
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1
18 Pa.C.S.A. §§ 3921, 903, and 3304, respectively.
2
Upon review of the record, the PCRA court heard testimony that trial
counsel abandoned Appellee and it was discovered that Appellee’s file, held
in the Public Defender’s Office, had unopened correspondence from Appellee
directing trial counsel to file an appeal. N.T., 12/10/2013, at 19. After the
Public Defender’s Office notified Appellee that his appeal had been
dismissed, Appellee immediately filed a pro se PCRA petition requesting
relief. Id. at 13, 31. Thus, the PCRA court properly deemed Appellee’s
petition timely. See Commonwealth v. Bennett, 930 A.2d 1264 (Pa.
2007) (identifying limited exception to the rule barring ineffective assistance
of counsel claim as newly discovered facts exception, where counsel
abandoned petitioner on appeal, abandonment was unknown to petitioner,
and petitioner filed for PCRA relief within sixty days of learning of counsel's
abandonment).
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January 20, 2014 and January 30, 2014, the PCRA court held an evidentiary
hearing.
By order entered on May 12, 2014, the PCRA court granted Appellee’s
PCRA petition, vacated his sentence, and awarded him a new trial. In the
opinion accompanying the order, the PCRA court determined that trial
counsel failed to file an appellate brief with this Court on direct appeal.
PCRA Court Opinion, 5/12/2014, at 11-12. More specifically, the PCRA court
made credibility determinations and concluded, “trial counsel’s failure to file
an appellate brief was a result of her oversight and not of [Appellee’s]
wishes.” Id. at 12 (capitalization omitted). However, instead of reinstating
Appellee’s direct appeal rights nunc pro tunc, the PCRA court went on to
examine Appellee’s remaining ineffective assistance of counsel claims
because “[t]rial [c]ounsel’s ineffectiveness was so egregious that to simply
reinstate [Appellee’s] appellate rights nunc pro tunc would never fully
remedy [Appellee’s] constitutional infringements.” Id. at 14.
Thereafter, the PCRA court also concluded that trial counsel was
ineffective for failing to cross-examine the co-defendants properly and for
failing to introduce video surveillance recovered from the scene of the crime.
Id. at 13-18. More specifically, the PCRA court noted that the owner of the
car dealership testified at trial that there was a surveillance video recording
of the incident, but the video was not clear enough to identify the
perpetrators; however, it was clear that four individuals were present on the
night in question. Id. at 2. The PCRA court further noted that co-defendant
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Jeffrey Zombro, Jr., who initially admitted to police that four individuals were
involved in the crimes, did not name Appellee. Id. at 2. In a second
interview with police, Zombro named three of the same individuals, but
identified another individual who was not Appellee. Id. at 3. In a third
police interview, Zombro claimed that he, Appellee, and co-defendant James
Jeter, perpetrated the crimes at Adams Auto Sale, but that Zombro, Jeter
and a third man drove the stolen vehicle to New York City. Id. at 3-4.
When interviewed by police, Jeter claimed that he, Zombro, and Appellee
were the only three individuals at Adams Auto Sale on the night in question.
Id. at 3. Both co-defendants testified at trial that three individuals
participated in the crimes – Appellee, Zombro, and Jeter. Id. at 4. The
PCRA court concluded that the testimony of the co-defendants was the key
evidence presented against Appellee. Id. at 13. Thus, the PCRA court
opined that the outcome of trial would have been different if trial counsel
had presented the video surveillance and cross-examined the co-defendants
on their inconsistencies to show that their accusations were not credible.
Id. Thus, the PCRA court vacated Appellee’s sentence and awarded him a
new trial on these additional claims.
Finally, the PCRA court rejected Appellee’s claim that trial counsel was
ineffective for failing to call two witnesses at trial, i.e., Appellee’s mother
and girlfriend. Id. at 8. The PCRA court found their PCRA testimony
regarding proffered alibis for Appellee not credible. Id. at 9-10.
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The Commonwealth filed a timely appeal. On appeal, the
Commonwealth presents one issue for our review:
Did the PCRA court err in granting [Appellee’s] PCRA
petition and subsequently vacating his sentence and
granting him a new trial?
Commonwealth’s Brief at 4 (complete capitalization omitted).
Initially, the Commonwealth contends:
In this case, once the PCRA [c]ourt concluded that
[Appellee] was denied his right of direct appeal the proper
course would have been to reinstate [Appellee’s] appellate
rights nunc pro tunc. It was not within the discretion of the
PCRA [c]ourt, or [to accommodate Appellee’s request] to
determine whether the rest of his claims [sh]ould be
addressed by the PCRA [c]ourt. By proceeding forward and
addressing [Appellee’s] remaining substantive
ineffectiveness claims on their merits, the PCRA [c]ourt
essentially acted without subject matter jurisdiction.
Subsequently, the Commonwealth requests that this
Honorable Court reverse the PCRA [c]ourt’s [o]rder dated
May 12, 2014, vacating [Appellee’s] sentence and awarding
him a new trial. Additionally, the Commonwealth requests
that this Court remand the case reinstating [Appellee’]s
appellate rights nunc pro tunc.[3]
Id. at 17-18.
We agree. “In addressing the grant or denial of post-conviction relief,
an appellate court will consider whether the PCRA court's conclusions are
supported by record evidence and are free of legal error.” Commonwealth
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3
We note that the Commonwealth does not challenge the PCRA court’s
finding that Appellee was entitled to nunc pro tunc restoration of his direct
appeal rights.
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v. Keaton, 82 A.3d 419, 425 (Pa. 2013) (citation omitted). In
Commonwealth v. Pate, 617 A.2d 754 (Pa. Super. 1992) we determined
that “once a PCRA court determines that a petitioner’s right to direct appeal
has been violated, the PCRA court is precluded from reaching the merits of
other issues raised in the petition.” Pate, 617 A.2d at 757, citing
Commonwealth v. Hoyman, 561 A.2d 756 (Pa. Super. 1989). “Rather,
once the PCRA court finds that the petitioner’s appellate rights have been
abridged, it should grant leave to file a direct appeal and end its inquiry
there.” Id. (citation omitted).
In Commonwealth v. Wright, 832 A.2d 1104 (Pa. Super. 2003),
however, this Court allowed for review of additional ineffective assistance of
counsel claims even after the PCRA court determined that counsel failed to
file an appellate brief. In that case, Wright filed a PCRA petition alleging
that prior counsel was ineffective for failing to file a direct appeal and failing
to move for suppression. The PCRA court granted him relief on his claim
that counsel failed to file a direct appeal and reinstated his rights nunc pro
tunc. On direct appeal, Wright renewed his claim that counsel was
ineffective for failing to move for suppression. Our Court reviewed the
claim, opining:
[Wright] also claims that trial counsel was ineffective for
failing to move to suppress appellant's statement to police
prior to trial. Although this issue was fully litigated at the
PCRA hearing, the PCRA court did not rule on the issue,
instead granting [Wright] his request for an appeal nunc pro
tunc. In declining to resolve the suppression issue, the trial
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court relied on a body of case law directing that “once the
PCRA court finds that the petitioner's appellate rights have
been abridged, it should grant leave to file a direct appeal
and end its inquiry there.” Commonwealth v. Pate, 617
A.2d 754, 757-758 (Pa. Super. 1992). The logic underlying
the rule in Pate is that “a defendant [who] establishes that
counsel's ineffective assistance denied him entirely his right
to a direct appeal ... is entitled to a direct appeal nunc pro
tunc without regard to his ability to establish merit of the
issues which he seeks to raise on direct appeal.”
Commonwealth v. Franklin, 823 A.2d 906, 909 (Pa.
Super. 2003) (citation omitted). The PCRA court's role
under these circumstances does not include reviewing any
of the defendant's claims for legal sufficiency; rather it is,
“limited to fact-finding, which becomes particularly valuable
to our eventual review of an appellant's claims.” Id. at 910-
11. Unlike the Pate line of cases, however, here the
evidence presented at the PCRA hearing was not limited to
whether appellant was denied his right of appeal; it also
included complete testimony on the suppression issue.
Recently, in Commonwealth v. Grant, 813 A.2d 726
(Pa. 2002), our Supreme Court directed that ineffectiveness
claims should await collateral review rather th[a]n be
addressed on direct appeal. One of the primary reasons
underlying Grant is that on direct appeal the record from
the trial court typically is insufficient for appellate resolution
of an ineffectiveness claim. “Ineffectiveness claims [often]
are based on omissions, which, by their very nature, do not
appear of record and thus, require further fact-finding,
extra-record investigation, and where necessary, an
evidentiary hearing.” Id. at 736. In keeping with Grant, we
regularly dismiss claims of ineffectiveness raised for the first
time on direct appeal without prejudice to the appellant's
right to raise the same claim in a subsequent PCRA petition.
Commonwealth v. Rosendary, 818 A.2d 526 (Pa. Super.
2003).
Here, however, there is an adequate record upon
which we can assess this ineffectiveness claim because
there was a full evidentiary hearing on the issue at which
trial counsel appeared and testified. Further, dismissal of
this claim pursuant to Grant would be judicially inefficient
as a subsequent claim on collateral review would merely
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prompt a hearing identical to the one that already occurred
below.
* * *
Further, in Commonwealth v. Bomar, 826 A.2d 831
(Pa. 2003), the Pennsylvania Supreme Court recognized
certain exceptions to Grant's general rule and created an
additional exception. The Bomar Court held that in those
cases where an ineffectiveness claim has been fully
developed in the trial court, the Grant rule of deferral is not
applicable. Id. at 853. We recognize that this case differs
from Bomar because in that case, the trial court not only
held an evidentiary hearing on the issues of ineffectiveness,
but also ruled upon those issues. However, the only
question with which we are confronted here is whether
counsel had a strategic basis for his actions and whether
that strategy was reasonable. The certified record provides
a clear answer to both questions, making dismissal of the
ineffectiveness claim under Grant unnecessary.
As in Bomar, the certified record in this case insures
that “there is no danger of engaging in appellate fact finding
in the form of speculation concerning the strategy actually
pursued by trial counsel.” Id. at 854. Rather, the record
provides us with an opportunity to “review trial counsel's
strategy from the ‘horse's mouth.’” Id.
We believe that the rationale in Bomar permits our
assessment of [Wright’s] ineffectiveness claim. Thus, we
proceed to consider and resolve the claim on the record
before us.
Commonwealth v. Wright, 832 A.2d 1104, 1108-1110 (Pa. Super. 2003).
Since Wright, however, our Supreme Court recognized limitations to
the exception created by Bomar, as discussed above. The Supreme Court
has stated, “[i]n practice, the Bomar exception has operated as an extra
round of collateral attack for certain defendants, unauthorized by the
General Assembly, and subject to no review rationale except beyond the
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discretion of the trial court.” Commonwealth v. Holmes, 79 A.3d 562,
576 (Pa. 2013). In Holmes, our Supreme Court declared that “[t]his state
of affairs cannot continue because of its inherently uneven application, the
complication that it poses for later PCRA review, and the obvious tension
between that practice and the intended role of the PCRA in providing a
single, full collateral proceeding as of right to all defendants eligible to seek
collateral relief.” Id. Our Supreme Court determined that, absent certain
circumstances, “claims of ineffective assistance of counsel are to be deferred
to PCRA review; trial courts should not entertain claims of ineffectiveness
upon post-verdict motions; and such claims should not be reviewed upon
direct appeal.” Id. (footnote omitted).
The Holmes Court noted two exceptions to the general rule of
deferring ineffective assistance of counsel claims until PCRA review. First,
“there may be an extraordinary case where the trial court, in the exercise of
its discretion, determines that a claim (or claims) of ineffectiveness is both
meritorious and apparent from the record so that immediate
consideration or relief is warranted.” Id. at 577 (emphasis added). Second,
our Supreme Court determined that in cases where “prolix” claims of
ineffectiveness are raised, “unitary review, if permitted at all, should only
proceed where accompanied by a knowing, voluntary, and express waiver of
PCRA review.” Id. at 578.
Here, Appellee’s ineffective assistance of counsel claims pertaining to
the cross-examination of his co-defendants and failure to introduce
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surveillance footage were not claims that were apparent solely from the
record. Moreover, Appellee did not expressly waive his rights to PCRA
review. Thus, we conclude that by determining Appellee was entitled to
nunc pro tunc relief, the PCRA court overstepped its bounds by substantively
reaching the remaining ineffective assistance of counsel claims.
Moreover, we may sua sponte consider whether we have jurisdiction to
consider the merits of the claims presented. See Commonwealth v.
James, 69 A.2d 180, 184 (Pa. 2013) (citation omitted). 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.
Commonwealth v. Hernandez, 79 A.3d 649, 654 (Pa. Super. 2013)
(citation omitted). A PCRA court lacks jurisdiction to consider a PCRA
petition when a petitioner’s judgment is not final. See Commonwealth v.
Taylor, 65 A.3d 462, 464 (Pa. Super. 2013) (citation omitted). Once the
PCRA court granted Appellee the right to seek further review nunc pro tunc,
Appellee’s sentence was no longer final and the PCRA court lacked
jurisdiction to rule on Appellee’s other requests for relief. See
Commonwealth v. Donaghy, 33 A.3d 12, 14 n.5 (Pa. Super. 2011); see
also Holmes supra. Accordingly, until Appellant’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
Appellee’s remaining ineffective assistance of counsel claims.
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We therefore affirm the PCRA court’s order with respect to
reinstatement of Appellee’s direct appeal rights nunc pro tunc. We vacate
the remainder of the PCRA court’s order.4
Order affirmed in part and vacated in part. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2015
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4
Our ruling is without prejudice to Appellee in PCRA proceedings that may
commence after Appellant’s judgment of sentence becomes final. Moreover,
we note that PCRA court already held hearings on Appellee’s remaining PCRA
claims. “The law in this area recognizes that although the PCRA court may
not properly review the merits of [the] substantive claims when [] direct
appeal rights have been violated, that court’s review will serve the
evidentiary purpose of completing the record for appellate review.” Pate,
617 A.2d at 759. Thus, after his direct appeal rights have been exhausted
or extinguished and his judgment of sentence becomes final, Appellee may
seek collateral relief on grounds previously raised; the PCRA court may use
the already developed evidentiary record and may supplement that record
as it sees fit.
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