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                                  2015 PA Super 262



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

BRYAN PERRY

                            Appellant                 No. 265 MDA 2015


                 Appeal from the Order of November 18, 2013
               In the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-CR-0002139-2011


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

BRYAN PERRY

                            Appellee                  No. 420 MDA 2015


              Appeal from the Order Entered on February 4, 2015
               In the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-CR-0002139-2011


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

OPINION BY WECHT, J.:                             FILED DECEMBER 14, 2015

       The Commonwealth appeals the February 4, 2015 order granting

Bryan Perry’s petition for relief pursuant to the Post Conviction Relief Act
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*
       Retired Senior Judge assigned to the Superior Court.
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(“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.
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1
     18 Pa.C.S. §§ 901(a), 2702(a)(1), 6106(a)(1), 6105(a)(5), and 2705,
respectively.



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      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


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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 (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

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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

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      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 (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, 971 A.2d 1216, 1221 (Pa. 2005) (citing

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)).               A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.   Commonwealth v. Martin, 5 A.3d 165, 177 (Pa. 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



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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, 15 A.3d 345, 380 (Pa. 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


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2
       Even if the record supported a finding that appellate counsel was
ineffective, the PCRA court should have vacated Perry’s judgment of
sentence instead of granting Perry nunc pro tunc relief. Although an
appellant is entitled to reinstatement of his direct appeal rights when counsel
fails entirely to perfect an appeal, see Commonwealth v. Halley, 870 A.2d
795, 801 (Pa. 2005), “the reinstatement of direct appeal rights is not the
proper remedy when appellate counsel perfected a direct appeal but simply
failed to raise certain claims.” Commonwealth v. Mikell, 968 A.2d 779,
781 (Pa. Super. 2009). In those circumstances, an appellant must proceed
under the auspices of the PCRA, and the court must apply the traditional
three-prong test for determining whether counsel was ineffective. Id. at
782.



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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

irrelevant.    Trial counsel had no idea why appellate counsel neglected to

raise the unmarked evidence issue.               Trial counsel simply pronounced

appellate counsel’s ineffectiveness based upon the former’s review of the

trial transcript.

       Our Supreme Court has cautioned that, “[a]s a general rule, a lawyer

should not be held ineffective without first having an opportunity to address

the accusation in some fashion.”           Commonwealth v. Koehler, 36 A.3d

121, 132 (Pa. 2012).        “The ultimate focus of an ineffectiveness inquiry is

always upon counsel, and not upon an alleged deficiency in the abstract.”

Id.    Stated simply, the record before us is devoid of any evidence to

overcome the presumption that counsel was effective.            Perry’s failure to

demonstrate that appellate counsel had no reasonable basis for her actions

is fatal to his IAC claim.3          See Rathfon, supra (stating that a PCRA

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3
      Perry also failed to demonstrate that he suffered prejudice as a result
of counsel’s performance. Because the transcript does not disclose, and the
(Footnote Continued Next Page)


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petitioner bears the burden of pleading and proving each of the Pierce

factors by a preponderance of the evidence).

      Because the PCRA court’s decision is unsupported by the certified

record, we reverse the February 4, 2015 order granting Perry’s petition for

relief and reinstating his direct appeal rights nunc pro tunc.4         As a
                       _______________________
(Footnote Continued)

trial court cannot remember, what unmarked evidence the jury had with it in
the deliberation room, we fail to understand how the PCRA court concluded
that appellate counsel’s failure to raise the unmarked evidence issue caused
Perry prejudice. Confusingly, in response to Perry’s assertion that the trial
court erred by not informing the parties that the jury had unmarked
evidence in the deliberation room, the court explained that the unspecified
evidence was not prejudicial. See Trial Court Opinion, 3/20/2015, at 9-10
(“[H]ad the evidence that the jury saw been prejudicial, we would have
immediately informed counsel of the issue rather than merely tak[ing] the
evidence from the jury room.         Perhaps we erred in judgment in not
informing counsel, but as it did not appear to be a highly prejudicial event
we chose not to.”). This conclusion should have led the PCRA court to
dismiss Perry’s PCRA petition. See Reed, 971 A.2d at 1221 (holding that a
petitioner alleging IAC must demonstrate that he “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”).
4
       As noted by the learned Dissent, we previously remanded this matter
and ordered “the PCRA court to conduct an evidentiary hearing on the issue
of whether [appellate counsel] rendered ineffective assistance.”          See
Commonwealth v. Perry, 917 MDA 2014, slip op. at 7 (Pa. Super. Dec. 30,
2014). We explained that our decision was based upon the PCRA court’s
failure to address Perry’s ineffectiveness claim. Id. (“Where a petitioner has
presented a claim to the PCRA court and that court has not addressed it, a
remand is appropriate where the claim cannot be resolved on the record.”).
Upon remand, the PCRA court conducted an evidentiary hearing and granted
Perry’s petition for relief. Because the PCRA court held a hearing and
rendered a decision, we decline to remand this matter yet again as
advocated by the learned Dissent. The fact that PCRA counsel did not
subpoena the necessary witnesses or develop an adequate factual record
does not entitle Perry to a third bite at the apple.



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consequence, Perry’s appeal at 265 MDA 2015, which arises from that order,

is moot.

     Order reversed. Jurisdiction relinquished.

     Judge Panella joins the opinion.

     Judge Strassburger files a concurring/dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




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