J-S29018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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




____________________________________________

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).



____________________________________________
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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