Com. v. Price, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SAMIR PRICE :
:
Appellant : No. 2372 EDA 2019
Appeal from the PCRA Order Entered August 12, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001148-2017
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED JULY 22, 2020
Appellant Samir Price appeals from the order denying his timely first
Post Conviction Relief Act1 (PCRA) petition. Appellant argues that the PCRA
court erred by denying his petition to reinstate his direct appeal rights nunc
pro tunc after the Commonwealth allegedly breached a term of the negotiated
plea agreement. We affirm.
The underlying facts of this matter are well known to the parties. Briefly,
Appellant was charged with murder and related offenses after he shot a
fourteen-year-old victim in the spine during a robbery. On May 30, 2018,
Appellant entered a negotiated guilty plea to third-degree murder and two
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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violations of the Uniform Firearms Act (VUFA).2 In exchange, the
Commonwealth agreed to withdraw the remaining charges and recommend a
sentence of twenty five to fifty years’ incarceration. See Written Guilty Plea
Colloquy, 5/30/18, at 1. Ultimately, the trial court accepted Appellant’s plea
and imposed the agreed-upon sentence. Appellant did not file post-sentence
motions or a direct appeal.
On February 25, 2019, the PCRA court docketed Appellant’s timely pro
se PCRA petition. Therein, Appellant argued that trial counsel was ineffective
for (1) advising him to enter a guilty plea; (2) promising “the release of [his]
valued cell phone from [the] district attorney upon acceptance of a guilty
plea;” and (3) failing to file a requested direct appeal. Pro Se PCRA Pet.,
2/25/19, at 4. The PCRA court appointed counsel (PCRA counsel), who filed
a Turner/Finley3 no merit letter addressing Appellant’s claims relating to his
guilty plea and requesting to withdraw from representation. Appellant did not
file a response to the Turner/Finley letter.
Before addressing PCRA counsel’s Turner/Finley letter, the PCRA court
scheduled an evidentiary hearing to resolve the issue of whether trial counsel
abandoned Appellant during the thirty-day direct appeal period.4 At the
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2 18 Pa.C.S. §§ 2502(c), 6106(a)(1), and 6108, respectively.
3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4Specifically, the PCRA court indicated that it “reviewed [PCRA counsel’s] no
merit letter and [the court] determined that [it] would need to have an
evidentiary hearing to determine or to take evidence on [Appellant’s] claim
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hearing, PCRA counsel stated that Appellant was “withdrawing the claim for
ineffectiveness as it relate[d] to [trial counsel] abandoning him during the
[appeal] period.” N.T. PCRA Hr’g, 8/12/19, at 5. PCRA counsel explained that
Appellant was “essentially conceding that he did not ask [trial counsel] to file
an appeal on his behalf.” Id. The PCRA court then proceeded to address
Appellant’s claims that trial counsel unlawfully induced him to plead guilty and
that trial counsel was ineffective for telling Appellant that he would get his
phone back if he did not file a direct appeal. Id. at 15-16. PCRA counsel
reiterated his conclusion that Appellant’s claims were meritless. Id.
At the conclusion of the hearing, the PCRA court dismissed Appellant’s
PCRA petition. PCRA counsel indicated that because he “drafted a Finley
letter and found no merits,” he could not represent Appellant on appeal. See
N.T. PCRA Hr’g at 61. The trial court removed PCRA counsel and subsequently
appointed current counsel, who filed a timely notice of appeal on Appellant’s
behalf. The trial court issued a Pa.R.A.P. 1925(a) opinion summarizing its
findings from the evidentiary hearing and addressing the claims raised by
Appellant in his pro se PCRA petition.5
On appeal, Appellant raises the following issue:
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whether or not trial [counsel] was ineffective for abandoning Appellant . . . for
purposes of appeal.” N.T. PCRA Hr’g, 8/12/19, at 4.
5 The trial court did not order Appellant to file a Rule 1925(b) statement.
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Whether the PCRA court erred and abused its discretion when the
court dismissed the PCRA petition and did not reinstate Appellant’s
appellate rights nunc pro tunc.
Appellant’s Brief at 5.6
In support of his claim, Appellant argues:
[Appellant] and the Commonwealth entered into an oral
agreement. The prosecutor told [trial] counsel that, if [Appellant]
did not pursue a direct appeal, the Commonwealth would return a
cell phone, which it had confiscated. Appellant accepted the
Commonwealth’s offer and performed his duty—he did not file a
direct appeal. The Commonwealth did not fulfill its promise and
return the phone.
As a result of the Commonwealth’s failure to perform, i.e., its
breach, [Appellant] acted promptly and timely filed a pro se PCRA
petition, which sought the equitable remedy of reinstatement of
his rights of direct appeal, i.e., rescission. Rescission was the
proper remedy, because it would restore the parties to their
original position.
Appellant’s Brief at 13.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA
court’s credibility determinations, when supported by the record, are binding
on this Court; however, we apply a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257,
1265 (Pa. 2014) (citation omitted).
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6 The Commonwealth did not file a brief.
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It is well settled that “issues, even those of constitutional dimension,
are waived if not raised in the trial court. A new and different theory of relief
may not be successfully advanced for the first time on appeal.”
Commonwealth v. Santiago, 980 A.2d 659, 666 n. 6 (Pa. Super. 2009)
(citations omitted, some formatting altered); see also Pa.R.A.P 302(a)
(stating that “[i]ssues not raised in the lower court are waived and cannot be
raised for the first time on appeal”).
Here, Appellant’s instant claim is distinct from the issues that he raised
in his pro se PCRA petition and at the evidentiary hearing. In his pro se PCRA
petition, Appellant claimed that trial counsel was ineffective for promising that
the Commonwealth would return Appellant’s cell phone if he pled guilty. See
Pro Se PCRA Pet. at 3-4. At the evidentiary hearing, Appellant stated that
trial counsel advised him to refrain from filing a direct appeal in order to ensure
the Commonwealth’s timely return of his phone. See N.T. PCRA Hr’g at 7.
Here, however, Appellant claims that the Commonwealth breached a
term of the negotiated plea agreement by failing to return his cell phone. This
issue is distinct from Appellant’s prior claims of trial counsel’s ineffectiveness
in connection with his decision to file a direct appeal. Compare 42 Pa.C.S. §
9543(a)(2) (enumerating cognizable issues under the PCRA, including
ineffective assistance of counsel) with Commonwealth v. Kerns, 220 A.3d
607, 611-12 (Pa. Super. 2019) (stating that “a collateral petition to enforce a
plea agreement is regularly treated as outside the ambit of the PCRA and
under the contractual enforcement theory of specific performance.” (citations
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omitted)). Therefore, because Appellant raises his instant claim for the first
time on appeal, it is waived. See Pa.R.A.P. 302(a); see also Santiago 980
A.2d at 666 n. 6.
In any event, even if properly preserved, Appellant would not be entitled
to relief. In its Rule 1925(a) opinion, the PCRA court found that trial counsel
testified credibly regarding the circumstances surrounding the plea. See Trial
Ct. Op. at 3. Specifically, the PCRA court noted that “the cell phone was not
part of the negotiated plea deal, and if it had been, trial counsel would have
ensured it was made part of the written guilty plea colloquy form.” Id.
Further, our review of the record confirms that the written plea agreement did
not contain any terms relating to the return of Appellant’s cell phone, nor was
there any indication that Appellant waived his right to file a direct appeal. See
Written Guilty Plea Colloquy, 5/30/18, at 1-6. Therefore, because the trial
court concluded that the return of Appellant’s phone was not part of the
parties’ plea agreement, Appellant would not be entitled to relief on this basis.
See Kerns, 220 A.3d at 613 (reiterating that when an alleged term is part of
the parties’ plea agreement, the defendant is entitled to “the benefit of his
bargain through specific performance”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2020
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