J-S61026-15
J-S61027-15

                                 2015 PA Super 262

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                      Appellee            :
                                          :
                 v.                       :
                                          :
BRYAN PERRY,                              :
                                          :
                      Appellant           :    No. 265 MDA 2015

    Appeal from the Judgment of Sentence Entered November 18, 2013,
             in the Court of Common Pleas of Dauphin County,
            Criminal Division at No(s): 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 PCRA Order Entered on February 4, 2015,
             in the Court of Common Pleas of Dauphin County,
           Criminal Division at No(s): CP-22-CR-0002139-2011


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

CONCURRING AND DISSENTING OPINION BY STRASSBURGER, J.:

                                                 FILED DECEMBER 14, 2015

     For the reasons that follow, I respectfully dissent to the result reached

by the learned Majority at Docket Number 420 MDA 2015 and concur in the

result reached by the learned Majority at Docket Number 265 MDA 2015.




* Retired Senior Judge assigned to the Superior Court.
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      As to Docket Number 420 MDA 2015, the PCRA court originally denied

Perry’s PCRA petition in an order entered on May 16, 2014, and Perry

appealed that order. As a result of that appeal, this Court vacated the PCRA

court’s order and remanded for an evidentiary hearing. This Court offered

the following discussion in support of our decision:

             []Perry’s claim that [appellate counsel] was ineffective for
      failing to raise, on direct appeal, the jury’s receipt of unmarked
      evidence cannot be resolved on the certified record.            As
      recognized by the PCRA court, this issue was not pursued or
      addressed at the evidentiary hearing. Our review of the certified
      record discloses that [appellate counsel] did not testify at the
      evidentiary hearing, and the record is devoid of her response to
      Perry’s claim that he had informed her of the jury’s receipt of
      unmarked evidence.            Nevertheless, the PCRA [c]ourt
      acknowledged that this claim was addressed in Perry’s briefs
      following the evidentiary hearing.

              To enable appellate review, PCRA courts are required to
      provide a legally robust discussion, complete with clear findings
      of fact where required. A factfinding court should support its
      holding with sufficient explanations of the facts and law to
      facilitate appellate review. 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. [P]articularly in close cases, a developed post-conviction
      record accompanied by specific factual findings and legal
      conclusions is an essential tool necessary to sharpen the issues.
      Thus, we vacate the [o]rder of the PCRA court and remand this
      matter to the PCRA court to conduct an evidentiary hearing on
      the issue of whether [appellate counsel] rendered ineffective
      assistance by failing to raise, on direct appeal, the jury’s receipt
      of unmarked evidence.

Commonwealth v. Perry, 917 MDA 2014 (Pa. Super. Dec. 30, 2014)

(unpublished memorandum at 6-7) (citations and quotation marks omitted).




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      Thus, this Court vacated the PCRA court’s order and remanded the

matter, specifically directing the PCRA court to conduct an evidentiary

hearing to determine whether appellate counsel was ineffective by failing to

raise on direct appeal the issue regarding the jury’s receipt of unmarked

evidence.    In my view, this Court’s Memorandum clearly spelled out that

appellate counsel’s testimony was required at the hearing.

      At    the   evidentiary   hearing    on   remand,   the   PCRA   court   was

immediately made aware of the fact that appellate counsel was not present

for the hearing because, inter alia, she had a family emergency.          At that

point, the PCRA court knew or should have known that it could not comply

with this Court’s instructions.     Rather than postponing or continuing the

hearing, the court held a hearing without appellate counsel and granted

Perry relief in the form of reinstatement of his appellate rights.1

      Because the PCRA court failed to follow this Court’s directions on

remand, I would vacate the PCRA court’s most recent order and remand the

matter with directions to hold an evidentiary hearing in compliance with this



1
   Perry already has had a direct appeal, which resulted in this Court
affirming his judgment of sentence; therefore, this form of relief was
unavailable to him. See Commonwealth v. Grosella, 902 A.2d 1290,
1293-94 (Pa. Super. 2006) (“[I]t is also well-settled that 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…. In such
circumstances, the appellant must proceed under the auspices of the PCRA,
and the PCRA court should apply the traditional three-prong test for
determining whether appellate counsel was ineffective.”) (footnote omitted).



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Court’s previous Memorandum.2 Such a result at Docket Number 430 MDA

2015 would render moot Perry’s appeal at Docket Number 265 MDA 2015;

consequently, I too would dismiss that appeal.




2
 While the Majority opines that Appellant should not get a “third bite at the
apple,” see Majority at 9 n. 4, based on the foregoing, it is evident that
Appellant has not even had a first bite at the apple.


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