Commonwealth v. Perry

• Decision Date: 14 December 2015
• Docket Number: Nos. 265 MDA 2015,s. 265 MDA 2015
• Citation: 128 A.3d 1285
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Bryan PERRY, Appellant. Commonwealth of Pennsylvania, Appellant v. Bryan Perry, Appellee.
• Court: Pennsylvania Superior Court

128 A.3d 1285

COMMONWEALTH of Pennsylvania, Appellee

v.Bryan PERRY, Appellant.

Commonwealth of Pennsylvania, Appellant

v.Bryan Perry, Appellee.

Nos. 265 MDA 2015

Superior Court of Pennsylvania.

Submitted Sept. 14, 2015.

Filed Dec. 14, 2015.

Jennifer E. Tobias, Stewartstown, for Perry.

Joseph P. Cardinale, Assistant District Attorney, Harrisburg, for Commonwealth.

BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.^*

OPINION BY WECHT, J.:

The Commonwealth appeals the February 4, 2015 order granting Bryan Perry's petition for relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 –46, and reinstating Perry's direct appellate rights nunc pro tunc. Also before this Court is Perry's direct appeal, which he has filed nunc pro tunc pursuant to the PCRA court's February 4, 2015 order. Because we conclude that the PCRA court erred in granting Perry's petition in the first instance, we reverse that order and dismiss Perry's contemporaneous direct appeal as moot.

On November 15, 2011, a jury convicted Perry of criminal attempt to commit homicide, aggravated assault, carrying a firearm without a license, persons not to possess firearms, and recklessly endangering another person.¹ The trial court sentenced Perry to an aggregate term of twenty-five to fifty years' imprisonment. After his conviction, Perry reviewed his trial transcript and discovered that the jury had unmarked evidence with it in the deliberation room. Although the record does not identify with precision the evidence that the jury mistakenly received, the following ex parte communication between the trial judge and the jury appears in the transcript.

(The following occurred at 12:17 p.m. in the jury deliberation room, outside the presence of counsel and the defendant.)

The Court: Instead of dragging you all down, I figured I'd come up. I have your request to see both 9–1–1 transcripts. You have a copy?

A voice: No. This is the only thing we got.

The Court: You weren't even supposed to get that. They weren't marked as part of the evidence. So whatever's marked as evidence comes up to you. Otherwise, you have to just use your recollection and recall based on the trial. So that's the answer. All right? Thank you, ladies and gentlemen.

(Deliberations resumed at 12:19 p.m.)

Notes of Testimony ("N.T."), 11/15/2011, at 164. The trial court did not inform defense counsel or the Commonwealth that the jury had unmarked evidence with it in the deliberation room.

According to Perry, he pointed out the above-quoted exchange to his appellate counsel after reviewing the transcript, and asked her to pursue the issue on direct appeal. Nevertheless, counsel filed an appeal challenging only the discretionary aspects of Perry's sentence. On December 20, 2012, in an unpublished memorandum decision, this Court affirmed Perry's judgment of sentence. See Commonwealth v. Perry, 656 MDA 2012 (Pa.Super. Dec. 20, 2012).

On November 8, 2013, Perry filed a timely PCRA petition. Therein, Perry alleged various instances of ineffective assistance of trial and appellate counsel. Relevant to this appeal, Perry alleged that his appellate counsel was ineffective for failing to challenge on direct appeal the jury's receipt of unmarked evidence. On April 16, 2014, the PCRA court held a hearing on Perry's petition. Appellate counsel did not testify at that hearing.

On May 16, 2014, the PCRA court entered an order and opinion dismissing Perry's petition. Notwithstanding the fact that Perry raised the issue of appellate counsel's ineffectiveness in his petition for relief, the PCRA court did not address that claim in its opinion. On December 30, 2014, this Court vacated the PCRA court's order dismissing Perry's petition and remanded the matter for an evidentiary hearing on the issue of whether appellate counsel had rendered ineffective assistance by failing to challenge on direct appeal the jury's receipt of unmarked evidence. See Commonwealth v. Perry, 917 MDA 2014, 2014 WL 10558055 (Pa.Super. Dec. 30, 2014).

On February 4, 2015, the PCRA court held an evidentiary hearing. Perry did not subpoena appellate counsel, and she did not attend the hearing. Frustrated by appellate counsel's absence, the PCRA court took a brief recess "to make a phone call." N.T., 2/4/2015, at 4. When the hearing resumed, the PCRA court called to the stand and questioned appellate counsel's colleague (who also served as Perry's trial counsel) from the Dauphin County Public Defender's Office.

According to trial counsel, appellate counsel was never given notice of the PCRA hearing and was unavailable to testify because she was out of the state due to a family emergency.Id. at 7. Unsurprisingly, trial counsel could not provide any insight into appellate counsel's failure to assert on appeal that the jury was given unmarked evidence. Trial counsel testified only that the trial transcript indicates that the jury was given unmarked evidence and that appellate counsel did not raise the issue on direct appeal. She then purported to concede on behalf of the public defender's office that appellate counsel was ineffective. See id. ("[I]t appears that—it would be my opinion, I believe the opinion of my superiors as well, that we would concede [appellate counsel's] ineffectiveness for not raising the issue because it's in the transcript[.]"). At the conclusion of the hearing, the PCRA court granted Perry's petition and reinstated his direct appeal rights nunc pro tunc.

On February 11, 2015, the Commonwealth filed a notice of appeal. On February 19, 2015, the PCRA court issued an order directing the Commonwealth to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.1925(b). The Commonwealth timely complied. On April 22, 2015, the PCRA court filed an opinion pursuant to Pa.R.A.P.1925(a).

The Commonwealth presents one issue for our consideration: "Whether the PCRA court erred in finding [Perry's] appellate attorney ineffective when [Perry's] appellate attorney was not presented as a witness at his PCRA evidentiary hearing and no testimony was offered from [Perry's] appellate attorney to be considered in the court's determination of appellate counsel's effectiveness [.]" Brief for Commonwealth (420 MDA 2015) at 4 (capitalization modified).

This Court analyzes PCRA appeals "in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super.2012). Our "review is limited to the findings of the PCRA court and the evidence of record" and we do not "disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error." Id. Similarly, "[w]e grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions." Id. (citations omitted). "[W]here the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary." Finally, we "may affirm a PCRA court's decision on any grounds if the record supports it." Id.

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.Super.2014).

Pennsylvania has recast the two-factor inquiry regarding the effectiveness of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as the following three-factor inquiry:

[I]n order to obtain relief based on [an ineffective assistance of counsel ("IAC") ] claim, a petitioner must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) petitioner suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.

Commonwealth v. Reed, 601 Pa. 257, 971 A.2d 1216, 1221 (2009) (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987) ). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. Commonwealth v. Martin, 607 Pa. 165, 5 A.3d 177 (2010). Trial counsel is presumed to be effective, and a PCRA petitioner bears the burden of pleading and proving each of the three factors by a preponderance of the evidence. Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa.Super.2006).

The PCRA court granted Perry's petition and reinstated his direct appeal rights nunc pro tunc. On appeal, the Commonwealth maintains that the record does not support the PCRA court's conclusion that appellate counsel was ineffective. We agree.²

When evaluating ineffectiveness claims, judicial scrutiny of counsel's performance must be highly deferential. Counsel will not be deemed ineffective where the strategy employed had some reasonable basis designed to effectuate his or her client's interests. See Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 380 (2011) ("Generally, where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interests."). Instantly, Perry failed to demonstrate that appellate counsel lacked a reasonable basis for failing to assert on appeal that Perry was entitled to a new trial because the jury had access to unmarked evidence during its deliberations. Because appellate counsel was not present at the evidentiary hearing, the PCRA court was left to speculate as to whether counsel declined to pursue this issue as a matter of strategy, or, by contrast, whether counsel negligently overlooked it.

In its 1925(a) opinion, the PCRA court does not discuss or analyze any of the Pierce factors. See Trial Court Opinion, 4/22/2015, at 3. Instead, the court relies entirely upon trial counsel's testimony at the PCRA hearing, wherein trial counsel purported to concede that appellate counsel was ineffective. Trial counsel's opinion of her colleague's effectiveness is...