J-S54041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TORRENCE DEONTA LYDE                       :
                                               :   No. 387 WDA 2017
                       Appellant

                 Appeal from the PCRA Order January 24, 2017
                In the Court of Common Pleas of Indiana County
              Criminal Division at No(s): CP-32-CR-0001206-2013


BEFORE:      OTT, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED DECEMBER 08, 2017

        Appellant, Torrence Deonta Lyde, appeals from the order granting in

part and denying in part his first timely petition filed under the Post-Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.             Appellant contends the

evidence was insufficient to support his convictions, the verdicts were against

the weight of the evidence, and his prior counsel was ineffective. We affirm

the PCRA order in part, vacate in part, and remand to the PCRA court for

further proceedings consistent with this memorandum.

        On August 21, 2013, Appellant was arrested in an apartment where a

confidential informant had just purchased heroin. Officers found Appellant in

the bathroom of the apartment after hearing a flushing toilet. Appellant had
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*   Former Justice specially assigned to the Superior Court.
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to be tasered and subdued in the course of his arrest.        After a jury trial,

Appellant was convicted of possession with intent to deliver (“PWID”), 1

conspiracy to commit PWID,2 possession of a controlled substance,3 recklessly

endangering another person,4 and resisting arrest.5 The trial court sentenced

Appellant to an aggregate sentence of four and one-half to fifteen years in

prison.

        Appellant’s counsel did not file post-sentence motions but did file a

direct appeal challenging the sufficiency of the evidence, the weight of the

evidence, and the trial court’s decision to allow testimony regarding the

controlled drug buy without revealing the identity of the confidential

informant.     This Court concluded that Appellant waived his weight of the

evidence claim for failure to file post-sentence motions and waived his

sufficiency claim for failure to properly develop the claim on appeal.

Commonwealth v. Lyde, 387 WDA 2017 (Pa. Super. filed June 11, 2015)

(unpublished memorandum).              In addition, this Court determined that

Appellant did not raise an issue regarding the identity of the confidential

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1   35 P.S. § 780-113(a)(30).

2   18 Pa.C.S. § 903(a).

3   35 P.S. § 780-113(a)(16).

4   18 Pa.C.S. § 2705.

5   18 Pa.C.S. § 5104.



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informant during trial and, therefore, that issue was also waived.          Id.

Appellant did not seek allowance of appeal in the Pennsylvania Supreme

Court.6

       Appellant filed a timely pro se PCRA petition. The PCRA court appointed

counsel, who filed an amended petition. The PCRA court conducted a hearing

on September 6, 2016, at which prior counsel testified. At the conclusion of

the hearing, Appellant’s PCRA counsel presented arguments challenging the

sufficiency and the weight of the evidence. On January 24, 2017, the PCRA

court concluded that: (1) Appellant’s sentences for PWID were illegal pursuant

to Alleyne v. United States, 133 S. Ct. 2151 (2013); (2) Appellant’s prior

counsel had been ineffective for failing to properly preserve Appellant’s

sufficiency and weight of the evidence claims; and (3) Appellant’s remaining

ineffective assistance of counsel claims were meritless. PCRA Ct. Op. & Order,

1/24/17, at 11. The court restored Appellant’s direct appeal rights as to the

sufficiency and weight of the evidence. Id.

       Appellant filed the instant notice of appeal on February 21, 2017.7 The

following day, February 22, 2017, still within the thirty day appeal period, the
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6 Appellant was represented by the same counsel from pretrial to the
conclusion of his direct appeal.

7 In his notice of appeal, Appellant indicated that he intended to appeal the
denial of PCRA relief. Pursuant to Commonwealth v. Watley, 153 A.3d 1034
(Pa. Super. 2016) the PCRA court’s January 24, 2017 order is considered final
because the order addressed all issues in Appellant’s PCRA petition. Id. at
1039 n.3 (“an order granting in part and denying in part all issues raised in



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PCRA court ordered resentencing to take place within sixty days. That same

day, the court issued a separate order directing Appellant to file and serve a

Pa.R.A.P. 1925(b) statement. Appellant timely filed a Rule 1925(b) statement

raising his direct appeal claims, as well as ineffective assistance of counsel

claims. In response, the PCRA court adopted its January 24, 2017 opinion as

its Rule 1925(a) opinion.        Subsequently, on May 1, 2017, the trial court

resentenced Appellant to concurrent sentences of two to ten years’

imprisonment for each PWID count, a reduction from the prior PWID sentences

of three to twelve years’ imprisonment.          All other aspects of Appellant’s

sentence remained the same.8
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[a] PCRA petition was a final order for purposes of appeal.”); see also
Commonwealth v. Grove, __ A.3d __, 2017 WL 3763408 at *7 (Pa. Super.
2017) (holding that “the PCRA court’s order granting relief with regard to
sentencing and denying all other claims therefore was a final appealable
order.”). But see Commonwealth v. Gaines, 127 A.3d 15, 22-25 (Pa.
Super. 2015) (en banc) (plurality) (Bender, P.J.E, dissenting). Even if we
were to consider the PCRA court’s January 24, 2017 order to be interlocutory,
the trial court, as discussed below, subsequently resentenced Appellant, which
would have made the order final. See Gaines, 127 A.3d at 22-25. Therefore,
we would still conclude that this appeal was proper. See Pa.R.A.P. 905(a)(5)
(“A notice of appeal filed after the announcement of a determination but
before entry of an appealable order shall be treated as filed after such entry
and on the day thereof.”); cf. Johnston the Florist, Inc. v. TEDCO Const.
Corp., 657 A.2d 511, 514–15 (Pa. Super. 1995) (en banc).

8There is no indication in the record that Appellant or the Commonwealth filed
post-sentence motions or an appeal from the May 1, 2017 judgment of
sentence. We note that Pa.R.A.P. 1701(a) generally prohibits a trial from
proceeding further in a matter after an appeal is taken. Pa.R.A.P. 1701(a).
Nevertheless, the trial court retained the authority to resentence Appellant
after he appealed the PCRA court’s January 24, 2017 order because there was
no dispute regarding the PCRA court’s finding that the sentence was illegal.



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       Appellant raises the following issues for review:

          1. Whether the evidence presented at trial was sufficient to
          warrant a guilty verdict on all charges?

          2. Whether the jury verdict of guilty on the possession with
          intent to deliver a controlled substance and recklessly
          endanger another person was against the weight of the
          evidence?

          3. Was previous counsel ineffective counsel for failing to
          request a mistrial or at the least a curative instruction after
          a police officer testified to an inadmissible hearsay
          statement that prejudiced [Appellant] at trial.

          4. Was [Appellant’s] counsel ineffective counsel because he
          failed to argue at trial and on appeal that any evidence of
          prior bad acts on behalf of [Appellant] should be excluded,
          thus, denying [Appellant] of a fair trial?

Appellant’s Brief at 7.

       At the outset, we comment that the present case presents an unusual

procedural posture.       Appellant technically took this appeal from the order

granting in part and denying in part his request for PCRA relief and attempts

to raise direct appeal claims and ineffectiveness claims. The trial/PCRA court

stated that it substantially addressed Appellant’s claims in its opinion and

order suggesting no relief is due.

       This Court has stated:


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See Pa.R.A.P. 1701(c) (“Where only a particular item, claim or assessment
adjudged in the matter is involved in an appeal . . . the appeal . . . shall
operate to prevent the trial court or other government unit from proceeding
further with only such item, claim or assessment, unless otherwise ordered by
the trial court or other government unit or by the appellate court or a judge
thereof as necessary to preserve the rights of the appellant.”).

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          [O]nce a PCRA court determines that a petitioner’s right to
          direct appeal has been violated, the PCRA court is precluded
          from reaching the merits of other issues raised in the
          petition.   Rather, once the PCRA court finds that the
          petitioner’s appellate rights have been abridged, it should
          grant leave to file a direct appeal and end its inquiry there.

Commonwealth v. Harris, 114 A.3d 1, 3-4 (Pa. Super. 2015) (citations and

quotation marks omitted).        Furthermore,

          Our Supreme Court determined that, absent certain
          circumstances, “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.” [Commonwealth v. Holmes, 79 A.3d 562,
          576 (Pa. 2013)9 (footnote omitted).]

             The Holmes Court noted two exceptions to the general
          rule of deferring ineffective assistance of counsel claims
          until PCRA review. First, “there may be an extraordinary
          case where the trial court, in the exercise of its discretion,
          determines that a claim (or claims) of ineffectiveness is both
          meritorious and apparent from the record so that
          immediate consideration or relief is warranted.” Id. at 577
          (emphasis added). Second, our Supreme Court determined
          that in cases where “prolix” claims of ineffectiveness are
          raised, “unitary review, if permitted at all, should only
          proceed where accompanied by a knowing, voluntary, and
          express waiver of PCRA review.” Id. at 578.

Id. at 5-6.

       Here, the PCRA court reinstated Appellant’s direct appeal rights.

Therefore, it technically lacked jurisdiction to rule upon the remaining “prolix”

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9This Court in Holmes reaffirmed the principle stated in Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002) that a claim of ineffective assistance of
counsel should be deferred to PCRA review. Holmes, 79 A.3d at 563 (citing
Grant, 813 A.2d at 738).

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claims related to prior counsel’s alleged ineffectiveness at trial. Although there

was a PCRA hearing, our consideration of the PCRA court’s denial of Appellant’s

remaining ineffectiveness claim would violate Holmes and Harris because

the court did not find good cause and Appellant did not expressly waive his

rights to further PCRA review. Holmes, 79 A.3d at 578. Thus, because the

PCRA court reinstated Appellant’s direct appeal rights, the PCRA court erred

by considering the merits of Appellant’s remaining ineffective assistance of

counsel claims.

      Additionally, Appellant asserted that prior counsel was ineffective for

failing to preserve a weight of the evidence claim for appeal by filing post-

sentence motions, and the PCRA court expressly reinstated Appellant’s direct

appeal right to raise this issue. However, the PCRA court did not reinstate

Appellant’s right to file post-sentence motions nunc pro tunc. We conclude

further proceedings are necessary to resolve this discrepancy.

      It is well settled that a weight of the evidence claim must be preserved

in a motion before the trial court, and that this Court will only review the trial

court’s exercise of discretion in considering whether a new trial is necessary.

See Pa.R.Crim.P. 607; Commonwealth v. Sherwood, 982 A.2d 483, 494

(Pa. 2009).

      With respect to a claim of ineffective assistance of counsel regarding the

failure to preserve a weight of the evidence claim, our Supreme Court has

maintained a




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         distinction between errors which completely foreclose
         merits review and those which merely “narrow its ambit.”
         Thus, [the Court] held an attorney’s failure to file a post-
         sentence motion preserving a particular sentencing claim
         “did not operate to entirely foreclose appellate review,” but
         merely “waive[d] ... those claims subject to issue
         preservation requirements which were not otherwise
         properly preserved.”

Commonwealth v. Rosado, 150 A.3d 425, 432 (Pa. 2016) (citation

omitted). “[C]ounsel's failure to file post-sentence motions did not fall within

the narrow ambit of ineffectiveness claims requiring no finding of prejudice.”

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation and

quotation marks omitted); see also Commonwealth v. Reaves, 923 A.2d

1119, 1129-30 (Pa. 2007).

      Similarly, our Supreme Court, in Commonwealth v. Liston, 977 A.2d

1089 (2009), has held that the reinstatement of a defendant’s direct appeal

rights does not automatically reinstate a defendant’s right to file post-

sentence motions nunc pro tunc. Liston, 977 A.2d at 1093. Nevertheless,

the Liston Court stated:

         Our holding should not be construed as prohibiting a PCRA
         court from reinstating a defendant’s right to file post-
         sentence motions nunc pro tunc. If a defendant successfully
         pleads and proves that he was deprived of the right to file
         and litigate said motions as a result of the ineffective
         assistance of counsel, a PCRA court is free to grant such
         relief.   Presumably, since post-sentence motions are
         optional, see Pa.R.Crim.P. 720(B), rarely will counsel be
         deemed to have been ineffective for failing to file them
         except, for example, when the claim involves the
         discretionary aspects of sentence or a challenge to a
         verdict on weight of the evidence grounds, claims



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         which must be raised in the trial court to be preserved
         for purposes of appellate review.

Id. at 1094 n.9 (emphases added and some citations omitted).

      Instantly, although the court expressly reinstated Appellant’s right to

appeal this issue, such relief would be illusory without further consideration of

whether Appellant was entitled to file post-sentence motions nunc pro tunc.

However, it is unclear whether the PCRA court considered Appellant’s separate

claim that trial counsel was ineffective for failing to file post-sentence motions

under the traditional three-prong test of ineffective assistance of counsel. See

Reaves, 923 A.2d at 1127 n.10 (noting petitioner must establish “that: (1)

his underlying claim is of arguable merit; (2) the particular course of conduct

pursued by counsel did not have some reasonable basis designed to effectuate

his interests; and (3) but for counsel’s ineffectiveness, there is a reasonable

probability that the outcome of the proceedings would have been different.”

(citation omitted)). Therefore, we are constrained to vacate that portion of

the PCRA court’s order that reinstated Appellant’s direct appeal rights to

challenge the weight of the evidence and remand for further consideration of

Appellant’s claim that prior counsel was ineffective for failing to file post-

sentence motions.

      We note, however, that the PCRA court was well within its authority to

find the imposition of mandatory minimum sentences illegal and that Appellant

was entitled to PCRA relief because Alleyne was decided before his judgment

of sentence became final and his PCRA petition was timely filed.             See


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Commonwealth v. Rivera, 154 A.3 370 (Pa. Super. 2017) (en banc), appeal

denied, 70 MAL 2017 (Pa. July 27, 2017); Commonwealth v. Ruiz, 131 A.3d

54, 60-61 (Pa. Super. 2015). But see Commonwealth v. Washington, 142

A.3d 810 (Pa. 2016), Commonwealth v. Ciccone, 152 A.3d 1004 (Pa.

Super. 2016) (en banc), appeal denied, 27 MAL 2017 (Pa. June 5, 2017).

Moreover, we discern no error in the PCRA court’s decision to reinstate

Appellant’s direct appeal based on trial counsel’s per se ineffectiveness for

failing to preserve any issues in the direct appeal. See Rosado, 150 A.3d at

432-33 (Pa. 2016). Thus, we affirm those aspects of the order that found

Appellant’s sentence illegal and reinstated his right to appeal.

      Because we have vacated the portions of the order that purported to

consider Appellant’s “prolix” claims of ineffective assistance and vacated and

remanded that portion of the order reinstating Appellant’s weight of the

evidence claim for further consideration, the proceedings on remand require

further comment. If the PCRA court reinstates Appellant’s right to file post-

sentence motions, those motions should be filed from the judgment of

sentence imposed on May 1, 2017. Thereafter, Appellant would have thirty

days from the order denying the post-sentence motions to file an appeal. If

the PCRA court denies the right to file post-sentence motions, Appellant may

challenge the denial by appealing the PCRA court’s order. See Watley, 153

A.3d at 1039 n.3 (“an order granting in part and denying in part all issues

raised in a PCRA petition was a final order for purposes of appeal.”).


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Otherwise, his direct appeal nunc pro tunc should be taken from the May 1,

2017 sentence.      To the extent the parties and the court believe that

Appellant’s remaining claims of ineffectiveness should be considered in a

unitary appeal, they must follow the procedures and standards set forth in

Holmes.

     Order affirmed in part and vacated in part. Case remanded for further

proceedings consistent with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




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