Com. v. Cox, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARCUS COX :
:
Appellant : No. 342 EDA 2021
Appeal from the PCRA Order Entered December 17, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013269-2012
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED DECEMBER 16, 2022
Marcus Cox (“Cox”) appeals from the order dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). 1 We remand with
instructions.
In light of our disposition, we briefly summarize the factual background
of this appeal. In the evening of October 6, 2012, Glen Gibson (“Gibson”)
was walking his dog when Cox approached him. Cox accused Gibson of
stealing a bicycle and threatened to shoot Gibson’s dog. Cox followed Gibson
home and managed to enter Gibson’s apartment. Gibson showed Cox a
“Redline” bicycle, and Cox took the bicycle and Gibson’s cellphone and rode
away from the scene. Gibson got the attention of a passing police car.
Approximately twenty minutes later, police officers took Gibson to the area
where he first encountered Cox, and Gibson identified Cox and his bike. The
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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Commonwealth charged Cox with robbery, burglary, and persons not to
possess firearms. A jury found Cox guilty of robbery,2 and the trial court
sentenced him to ten to twenty years of imprisonment.
A convoluted procedural history followed. Cox, who had been
represented by trial counsel, filed a pro se post-sentence motion. After the
trial court denied Cox’s post-sentence motion, Cox did not file an appeal. Cox
then filed a PCRA petition seeking the reinstatement of his direct appeal rights,
which the court granted.3 Cox filed a notice of appeal through his appointed
direct appeal counsel. This Court dismissed Cox’s appeal in January 2019 due
to counsel’s failure to file a brief.
Cox then filed a pro se petition for writ of habeas corpus in July 2019,
and a timely pro se PCRA petition in December 2019.4 The court appointed
new PCRA counsel, who filed an amended PCRA petition, technically Cox’s first
PCRA petition. See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa.
Super. 2013) (explaining that “when a PCRA petitioner’s direct appeal rights
are reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA
petition will be considered a first PCRA petition for timeliness purposes”).
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2The jury found Cox not guilty of burglary, and the trial court found him not
guilty of persons not to possess firearms.
3 An order granting reinstatement of Cox’s direct appeal rights is not contained
in the certified record.
4 Cox’s pro se petition of writ of habeas corpus and PCRA petition sought relief
based on alleged “new evidence” based on various documents purporting to
indicate that there were no bicycles associated with the serial number of the
“Redline” bicycle.
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Therein, Cox asserted that trial counsel was ineffective for failing to
investigate discrepancies in the evidence concerning the serial number of the
“Redline” bicycle and failing to discover that the manufacturer or distributors
of the bike could not locate the bike’s serial number in their databases.5 The
PCRA court issued a notice of its intent to dismiss the petition as meritless,
see Pa.R.Crim.P. 907, and Cox did not respond. The PCRA court dismissed
the amended PCRA petition in December 2020, and Cox, who was still
represented by new PCRA counsel, filed a pro se notice of appeal. Because
new PCRA counsel was still Cox’s attorney of record, this Court remanded the
matter to determine if new PCRA counsel had abandoned Cox and to appoint
new counsel if necessary.
Upon remand, the PCRA court granted new PCRA counsel leave to
withdraw and appointed present counsel. The PCRA court issued an order
directing Cox to file a Rule 1925(b) statement. Present counsel, based on his
mistaken belief, that the PCRA court had reinstated Cox’s direct appeal rights
filed a Rule 1925(b) statement challenging the sufficiency of the evidence and
raising a claim of prosecutorial misconduct. See Cox’s Brief at 12. The PCRA
court prepared a Rule 1925(a) opinion addressing the Cox’s direct appeal
issues on their merits. See PCRA Court Opinion, 7/29/21, at 9 (requesting
that this Court affirm the verdict). Present counsel then filed in this Court a
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5 Cox’s new PCRA counsel attached to the amended PCRA petition documents
similar to those Cox had attached to his pro se petition for writ of habeas
corpus and PCRA petition.
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motion for remand based on after-discovered evidence citing documents
already attached to the amended PCRA petition. This Court denied the motion
for remand without prejudice to Cox’s right to raise the issue before this panel.
Cox presents the following issues on appeal:
1. Whether . . . trial counsel committed ineffective assistance of
counsel by failing to conduct any pretrial investigation [of the
serial numbers of the “Redline” bicycle].
2. Whether the evidence was insufficient to convict [Cox] of
robbery . . . [when information regarding the serial numbers
was not made a part of the record].
3. Whether the prosecutor who argued this case committed
prosecutorial misconduct by referring to [Cox] as a “Muslim.”
Cox’s Brief at 3. Cox’s related arguments pertain to his request for a remand
to consider after-discovered evidence, and he presents a mixture of
ineffectiveness and direct appeal claims, as well as a direct appeal claim
related to the prosecutor’s apparent use of the term “Muslim” when
questioning Gibson at trial.6
Initially, we consider whether present counsel’s Rule 1925(b) statement
preserved any issues for review. Rule 1925(b)(4)(vii) states that “[i]ssues . .
. not raised in accordance with the provisions of this paragraph (b)(4) are
waived.” Pa.R.A.P. 1925(b)(4)(vii). If a counseled Rule 1925(b) statement
in a PCRA appeal is so flawed that it fails to preserve any issues for appellate
review, this Court may remand the matter for the appointment of new counsel,
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6 Although present counsel cites to the trial transcript, we note that the trial
transcripts are not in the certified record transmitted to this Court.
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the filing of a Rule 1925(b) statement nunc pro tunc, and a new opinion from
the PCRA court. See Commonwealth v. Parrish, 224 A.3d 682, 702 (Pa.
2020) (noting that “whenever post-conviction counsel’s performance is so
deficient that it has entirely denied the post-conviction petitioner the right to
appeal, remand to the lower court is the appropriate remedial action so that
new counsel can take the necessary steps to restore that right”); see also
Pa.R.A.P. 1925(c)(3).
Here, as stated above, the appeal before this Court arises from the
dismissal of Cox’s amended PCRA petition asserting trial counsel’s
ineffectiveness related to the serial numbers of the “Redline” bicycle.
However, present counsel’s Rule 1925(b) statement asserted:
1. . . . [T]here was insufficient evidence for the jury to conclude
that: . . . [Cox] ever placed the complainant in fear of serious
bodily injury; and . . . [Cox] ever possessed a firearm; . . ..
2. The prosecutor committed prosecutorial misconduct when she
referred to [Cox] as a Muslim in violation of his constitutional
rights. . . ..
Rule 1925(b) Statement, 7/7/21, at 1-2. Present counsel’s Rule 1925(b)
statement failed to challenge any issue of trial counsel’s ineffectiveness raised
in the PCRA court. By present counsel’s own admission, he was unaware of
the procedural posture of the appeal. See Cox’s Brief at 12. Based on this
record, we conclude that present counsel’s Rule 1925(b) statement has
waived any cognizable issue regarding the ineffective assistance of trial
counsel.
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We next consider whether present counsel has entirely deprived Cox of
his right to a PCRA appeal. We conclude that he has. See Parrish, 224 A.3d
at 702. Present counsel attempted to, and continues to attempt to, raise
claims as if on direct appeal. See Cox’s Brief at 19-22. Even if such claims
had been preserved in Cox’s amended PCRA petition (which they were not),
they would not be cognizable under the PCRA. See Commonwealth v.
Sepulveda, 55 A.3d 1108, 1138 (Pa. 2012) (noting that an appellant’s claim
sounding in prosecutorial misconduct was waived for PCRA purposes because
the claim could have been raised at trial or in a direct appeal);
Commonwealth v. Bell, 706 A.2d 855, 861 (Pa. Super. 1998) (rejecting an
appellant’s attempt to raise a sufficiency of the evidence claim in a PCRA
appeal). Furthermore, present counsel’s attempt to reframe his arguments in
terms of a motion for remand based on after-discovered evidence
misconstrues the record, as the information he claims is new had already been
placed before the PCRA court as attachments to Cox’s amended PCRA petition.
See Cox’s Brief at 18.
In sum, we conclude that present counsel has rendered ineffective
assistance of counsel in the preparation and litigation of this PCRA appeal. We
further find that present counsel has completely deprived Cox of his right to a
meaningful appeal from the dismissal of his first PCRA petition. Thus, we
remand this matter to the PCRA court for the appointment of new counsel,
who shall, within twenty-one days of the appointment, file and serve on the
PCRA court a Rule 1925(b) statement nunc pro tunc concerning the dismissal
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of Cox’s amended PCRA petition alleging trial counsel’s ineffective assistance
of counsel. The PCRA court shall file a new Rule 1925(a) opinion within thirty
days of the filing of the Rule 1925(b) statement nunc pro tunc. We also direct
the Prothonotary to set a new briefing schedule upon receipt of the PCRA
court’s new Rule 1925(a) opinion.
Case remanded with instructions. Panel jurisdiction retained.
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