Com. v. Perez, T. ( 2017 )

J-S45038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYRIK PEREZ, :
:
Appellant : No. 1638 EDA 2016
Appeal from the PCRA Order April 25, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012874-2009
BEFORE: GANTMAN, P.J., PANELLA, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 11, 2017
Tyrik Perez (Appellant) appeals from the order dismissing his petition
filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
We affirm.
On July 18, 2011, Appellant was sentenced to an aggregate term of
17½ to 35 years in prison following his conviction for the crimes of
attempted murder, aggravated assault, conspiracy, carrying a firearm
without a license, carrying a firearm on a public street in Philadelphia, and
possession of an instrument of crime. These charges arose out of an
unsuccessful murder attempt made by Appellant against a member of a rival
street gang. On July 2, 2012, this Court affirmed Appellant’s conviction, and
on December 4, 2012, the Pennsylvania Supreme Court denied Appellant’s
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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petition for allowance of appeal. Commonwealth v. Perez, 55 A.3d 122
(Pa. Super. 2012) (unpublished memorandum), appeal denied, 57 A.3d 69
(Pa. 2012).
On February 27, 2013, Appellant timely filed a PCRA petition. Counsel
was appointed and, after some delay and a change in counsel, on March 8,
2015, an amended petition was filed. A supplemental PCRA petition followed
on October 16, 2015. On February 22, 2016, the PCRA court held an
evidentiary hearing, following which, on April 25, 2016, the court denied
Appellant’s petition. This appeal followed.1 Both Appellant and the PCRA
court complied with the mandates of Pa.R.A.P. 1925.
On appeal, Appellant raises the following claims for our review.
[I.] Can Appellant raise claims of ineffectiveness of first PCRA
counsel claims on appeal from the denial of that PCRA?
[II.] Was PCRA counsel ineffective because he failed to allege
trial counsel’s ineffectiveness for (1) not preserving the hearsay
claim for review on direct appeal; and (2) for not citing the
controlling authority of [Commonwealth v. Farris, 380 A.2d
486 (Pa. Super. 1977) and Commonwealth v. Thomas, 539
A.2d 829 (Pa. Super. 1988)] when arguing Detective Jenkins’[s]
testimony was inadmissible hearsay?
[III.] Was direct appellate counsel ineffective because he
ineffectively raised the hearsay claim which had no chance of
winning because it was not preserved, and also because he failed
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1
As becomes relevant herein, Appellant is represented on appeal by Norris
E. Gelman, Esq. and Margeaux Cigainero, Esq. Attorneys Gelman and
Cigainero were hired to replace PCRA counsel, Stephen O’Hanlon, Esq., who
represented Appellant during the PCRA proceedings before the lower court.
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to cite [Farris and Thomas] which were binding controlling
decisions as to the hearsay claim?
Appellant’s Brief at 6 (unnecessary capitalization omitted).
We begin with the applicable legal principles.
Our standard of review of a trial court order granting or denying
relief under the PCRA requires us to determine whether the
decision of the PCRA court is supported by the evidence of
record and is free of legal error. The PCRA court’s findings will
not be disturbed unless there is no support for the findings in the
certified record.
Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014) (internal
citation and quotation marks omitted).
In his first issue, Appellant questions whether he can, for the first time
on appeal following the denial of his PCRA petition, raise claims of former
PCRA counsel’s ineffectiveness. Appellant’s Brief at 12-15. In support of his
position, Appellant relies upon Commonwealth v. Pursell, 724 A.2d 293
(Pa. 1999). In Pursell, our Supreme Court held that claims of PCRA
counsel’s ineffectiveness not raised in the court below may, nonetheless, be
addressed by the reviewing court in the first instance because, procedurally,
this was the first opportunity for a PCRA petitioner to address the issue.
Pursell and its progeny were decided prior to Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002), wherein our Supreme Court ruled that
ineffective assistance of counsel claims did not always have to be raised at
the first available instance. This Court addressed the procedural dilemma
facing petitioners seeking to raise claims of PCRA counsel ineffectiveness
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post-Grant in Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012).
This Court concluded that “absent recognition of a constitutional right to
effective collateral review counsel, claims of PCRA counsel
ineffectiveness cannot be raised for the first time after a notice of
appeal has been taken from the underlying PCRA matter.” Ford, 44
A.3d at 1195–201 (emphasis added). See also Commonwealth v. Henkel,
90 A.3d 16, 20 (Pa. Super. 2014) (same). Accordingly, the answer to
Appellant’s first question on appeal is that he cannot raise a claim of PCRA
counsel ineffectiveness at this juncture and; therefore, we are unable to
review Appellant’s second issue which raises, for the first time on appeal,
claims of PCRA counsel ineffectiveness.
Appellant’s remaining claim, that direct appeal counsel was ineffective
for failing to present effectively his hearsay argument, is waived. As the
PCRA court explained, this issue was not raised in Appellant’s PCRA petition,
addressed at the evidentiary hearing in this matter, nor included in
Appellant’s 1925(b) statement of errors complained of on appeal. PCRA
Court Opinion, 9/1/2016, at 4-7. “Issues not included in the [1925(b)
s]tatement … are waived.” Pa.R.A.P. 1925(b)(4)(vii). Moreover,
[w]e have stressed that a claim not raised in a PCRA petition
cannot be raised for the first time on appeal. We have reasoned
that [p]ermitting a PCRA petitioner to append new claims to the
appeal already on review would wrongly subvert the time
limitation and serial petition restrictions of the PCRA. The proper
vehicle for raising this claim is thus not the instant appeal, but
rather is a subsequent PCRA petition.
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Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004).
For all of the forgoing reasons, we affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2017
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