J-A01028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellant

                        v.

    MARTIN C. FINSTERBUSH,

                             Appellee                  No. 689 EDA 2017


                 Appeal from the Order Entered January 18, 2017
                in the Court of Common Pleas of Delaware County
                Criminal Division at No.: CP-23-CR-0007449-2015


BEFORE: LAZARUS, J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 11, 2018

        The Commonwealth appeals from the order granting the oral motion for

extraordinary relief of Appellee, Martin C. Finsterbush,1 and vacating his

conviction of numerous sexual offenses committed against two of his

granddaughters. We reverse and remand.

        On September 23, 2016, after a bench trial, the court convicted

Appellant of all charges, five charges of indecent assault and one charge of

corruption of minors, against two minor granddaughters.         On January 18,

2017, the trial court judge (the same judge who presided over the waiver

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*   Retired Senior Judge assigned to the Superior Court.

1   Appellee’s name is also spelled “Finsterbusch” in the record before us.
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trial), granted new defense counsel’s oral motion for extraordinary relief

pursuant to Pa.R.Crim.P. 704(B).2 The judge found that defense trial counsel’s

performance was “wholly inadequate” and that “the normal appellate process”

for post-conviction relief, would be “unduly burdensome” and “a waste of

judicial resources.” (Order, 1/18/17). This timely appeal followed the trial

court’s denial of the Commonwealth’s motion for reconsideration.

       The application of a rule of criminal procedure under our caselaw

presents a pure question of law for which our standard of review is de novo,

and our scope of review is plenary. See Commonwealth v. Cooper, 27 A.3d

994, 998 (Pa. 2011). Our Supreme Court has recently reaffirmed that since

2002, the general rule under Commonwealth v. Grant, 813 A.2d 726, 738

(Pa. 2002), is that ineffective assistance of counsel claims are deferred until

collateral review pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546.          See Commonwealth v. Delgros, No. 27 WAP

2017, 2018 WL 1959478, at *1 (Pa. filed April 26, 2018), citing Grant, supra.

       The defense and the trial court have failed to establish either of the

narrow exceptions identified in Commonwealth v. Holmes, 79 A.3d 562,

563–64 (Pa. 2013), or the new exception adopted in Delgros, supra. Our

Supreme      Court     reaffirmed     in   Holmes   that,   absent   extraordinary



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2 Although the order is dated as of January 19, 2017, we follow the official file
date stamp and the consistent docket entry, which both confirm the date of
the order as January 18, 2017.

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J-A01028-18


circumstances, such as issues of “primary constitutional magnitude,” claims

of ineffective assistance of counsel should still be deferred until collateral

review, as previously held in Grant.     “[W]e reaffirm Grant and hold that,

absent the circumstances we address below, claims of ineffective assistance

of counsel are to be deferred to PCRA review; trial courts should not entertain

claims of ineffectiveness upon post-verdict motions; and such claims should

not be reviewed upon direct appeal. Holmes, supra at 576.

            “[C]ounsel is presumed effective, and [appellant] bears the
      burden of proving otherwise.” To prevail on an ineffectiveness
      claim, appellant must establish:

               (1) the underlying claim has arguable merit; (2) no
         reasonable basis existed for counsel’s actions or failure to
         act; and (3) [appellant] 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.

      Failure to prove any       prong   of   this   test   will   defeat   an
      ineffectiveness claim.

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). Furthermore,

            [Pa.R.Crim.P. 704(B)] is intended to allow the trial judge the
      opportunity to address only those errors so manifest that
      immediate relief is essential. This Court has repeatedly held that
      we will not allow such motions as a “substitute vehicle” for raising
      a matter that should be raised in a post-sentence motion. More
      particularly, this Court has determined that claims of
      ineffectiveness of counsel, as raised herein, should be raised via
      a post-sentence motion. See Commonwealth v. Celestin, 825
      A.2d 670, 674 (Pa.Super.2003), appeal denied, 577 Pa. 686, 844
      A.2d 551 (2004) (claims of ineffectiveness of counsel improperly
      raised as motion for extraordinary relief).

Commonwealth v. Grohowski, 980 A.2d 113, 115–16 (Pa. Super. 2009).


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J-A01028-18


      Accordingly, we are constrained to reverse and remand so that the

proper procedure may be followed. We direct the trial court to reinstate the

verdict of conviction, and to proceed with sentencing.

      Order reversed. Case remanded for further proceedings consistent with

this decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/18




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