Com. v. Peterson, Z. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZAKEE PETERSON :
:
Appellant : No. 931 EDA 2019
Appeal from the Judgment of Sentence Entered November 9, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0009181-2017.
BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 15, 2020
Zakee Peterson appeals from a judgment of sentence, which the trial
court imposed after a jury convicted him of murder of the second degree,
carrying a firearm in the City of Philadelphia, and possessing an instrument of
crime.1 Upon review, we find Peterson’s 1925(b) statement is so deficient
that it precludes merit review of all appellate issues. Because such a
statement constitutes per se ineffective assistance of counsel, we remand for
appointment of new counsel and further proceedings.
Due to the representational shortcomings of Peterson’s counsel, only a
brief discussion of the case is required here. A jury convicted Peterson of
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2502(b), 18 Pa.C.S.A. § 6108, and 18 Pa.C.S.A § 907,
respectively.
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shooting and killing Alvin Williams, while Peterson attempted to rob Mr.
Williams at gunpoint in his barbershop. The trial court imposed a mandatory
sentence of life imprisonment.
This timely appeal followed, and the trial court ordered Peterson to file
a 1925(b) statement. The court stated that, “issues not contained in a Concise
Statement of Errors Complained of on Appeal that is both timely filed of record
with the [trial] court and timely served on the trial judge in accordance with
the terms of this ORDER will be deemed waived.” March 27, 2019 Order
(citing Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005)).
Peterson presents two issues in his appellate brief. They are:
1. Whether the Superior Court should remand this case
for an evidentiary hearing to determine if the
disgraced homicide detective inappropriately touched
the co-defendant ultimately effecting his testimony at
[Peterson’s] trial causing him substantial harm and
undue prejudice.
2. Whether the verdict was against the sufficiency of the
evidence when the robbery count and other felonies
were dismissed at the preliminary hearing, but
[Peterson] was convicted of murder of the second
degree, felony murder, based on perpetration of a
felony, causing him substantial harm and undue
prejudice.
Peterson’s Brief at 4.
Before we may address the merits of either issue, we must determine
whether Peterson properly preserved them for appellate review. To do so, we
turn to his 1925(b) Statement of Matters Complained of on Appeal. Peterson
listed the following two issues in that statement:
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1. The verdict is against the sufficiency of the evidence.
The video compilation of the Commonwealth was not
clear and distinct but fuzzy. The testimonies of
Commonwealth witnesses, co-defendant, Raekwan
Moore; his intended wife, Brittany Square; and
eyewitness, Jeremy McKnight, are suspect, since each
had a motive to fabricate.
2. Detective Philip Nordo: There was a great deal of
dialogue between the court and the parties about
what would be admissible regarding this disgraced
Homicide Detective. Ultimately, there was a
stipulation between the parties. The question is what
traumatic effect Detective Nordo had on the testimony
of co-defendant Raekwan Moore. Did the Detective’s
improper touching of co-defendant have such an
effect that psychologically it caused Mr. Moore to lie
to the jury about [Peterson’s] involvement in the
homicide and intended robbery of Mr. Al Williams on
12/10/2015?
Peterson’s 1925(b) Statement.
Upon reviewing Peterson’s 1925(b) statement, the trial court concluded
he had waived both of these issues, due to his failure to provide that court
with specific grounds of error, as Pa.R.A.P. 1925(b)(4)(ii) mandates. Under
that Rule:
(ii) The Statement shall concisely identify each error that
the appellant intends to assert with sufficient detail to
identify the issue to be raised for the judge . . .
(vii) Issues not included in the Statement and/or not raised
in accordance with the provisions of this paragraph (b)(4)
are waived.
Pa.R.A.P. 1925(b)(4) (emphasis added). See Commonwealth v. Lord, 719
A.2d 306, 309 (Pa. 1998) (stating that “from this date forward, in order to
preserve their claims for appellate review, appellants must comply whenever
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the trial court orders them to file a Statement of Matters Complained of on
Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement
will be deemed waived.”), reaffirmed Castillo, supra.
Applying Pa.R.A.P. 1925 and its accompanying precedents, the trial
court opined as follows:
A. Sufficiency of the Evidence . . .
The Superior Court has said the following:
In order to preserve a challenge to the sufficiency of
the evidence on appeal, an appellant’s Rule 1925(b)
statement must state with specificity the element or
elements upon which the appellant alleges that the
evidence was insufficient. Such specificity is of
particular importance in cases where, as here, the
appellant was convicted of multiple crimes each of
which contains numerous elements that the
Commonwealth must prove beyond a reasonable
doubt.
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super.
2013). Here, [Peterson’s] sufficiency claim fails to specify
any elements of any of the offenses that [he] believes to be
unsupported by sufficient evidence. Rather, [Peterson]
alleges that there was poor video quality and that the
testimony of several . . . witnesses was incredible, because
each witness “had a motive to fabricate.” Statement of
Errors at 1. However, a claim premised upon video quality
and the credibility of witnesses challenges the weight, not
the sufficiency, of the evidence. Commonwealth v. Palo,
24 A.3d 1050, 1055 (Pa.Super. 2011), appeal denied, 34
A.3d 828 (Pa. 2011). Accordingly, the [trial court] was
given no valid grounds for relief regarding the sufficiency of
the evidence. Therefore, this claim is waived.
* * * * *
B. Detective Philip Nordo . . .
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The [trial court] is unable to discern a claim from this
paragraph [of Peterson’s 1925(b) statement]. [Peterson]
does not allege trial court error, nor allege that [he] was
somehow denied any constitutional or statutory rights. It
seems to simply raise a question about the veracity of a
witness. Because this [trial court] cannot glean a claim from
this paragraph of the statement . . . any claims he intended
to assert therein has been waived. See Commonwealth
v. Cannon, 954 A.2d 1222, 1228 (Pa.Super. 2008), appeal
denied, 964 A.2d 893 (Pa. 2009) (where [appellant] makes
a vague and generalized objection on appeal that leaves the
trial court to guess at his or her claims, those claims are
deemed to have been waived).
Trial Court Opinion, 6/12/19, at 5, 12.
We agree with the learned trial court’s waiver analysis and adopt it as
our own. Whenever “a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review.” Commonwealth v.
Dowling, 778 A.2d 683, 687 (Pa.Super. 2001). Peterson’s attorney so poorly
apprised the trial court of the claims of error that Peterson planned to appeal
that he left the trial court to guess as to what grounds of error he planned to
assert in this Court. We therefore must dismiss his appellate issues as waived
at this time, because no meaningful review is possible.
Pursuant to recent precedent from the Supreme Court of Pennsylvania,
we also conclude that Peterson’s counsel was per se ineffective in representing
him. Our High Court held that, in criminal matters, “counsel’s filing of a
woefully deficient [Rule 1925(b)] statement . . . which precludes merits review
of all appellate issues, constitutes ineffective assistance of counsel per se,
warranting reinstatement of [the] right to file a Rule 1925(b) statement nunc
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pro tunc.” Commonwealth v. Parrish, ___ A.3d ___, ___, 2020 WL 355016,
at *1 (Pa. 2020).
We therefore remand this matter to the trial court for appointment of
new counsel within 14 days of the issuance of this Memorandum. While we
would normally issue a schedule for the filing of a new 1925(b) statement,
1925(a) opinion, and briefs from the parties, we are reluctant to issue a
specific timeline given the COVID-19 pandemic. Instead, we relinquish panel
jurisdiction at this time so that the parties and the trial court may begin the
appellate process anew, and direct the court and the parties to comply with
the standard timing requirements as much as possible.
Case remanded with instructions. Panel jurisdiction relinquished.
Judge Strassburger joins the memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/20
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