J-S43025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHAUN CASEY FAIRMAN

                            Appellant                 No. 1834 WDA 2016


             Appeal from the PCRA Order Dated November 15, 2016
                In the Court of Common Pleas of Indiana County
              Criminal Division at No(s): CP-32-CR-0001275-2012

BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                         FILED DECEMBER 22, 2017

        Appellant Shaun Casey Fairman appeals from the order of the PCRA

court reinstating his direct appeal rights and denying all other claims raised

under the Post Conviction Relief Act, 42 Pa. C.S. §§ 9541-9546. We vacate

and remand.

        The PCRA court summarized the factual and procedural history as

follows:

        At the time of [Appellant’s] arrest he was estranged from his
        wife, Jessica Fairman, who continued to stay at their marital
        home. Late in the evening of June 2, 2012, [Appellant] returned
        to the marital residence where Mrs. Fairman and her parents,
        Richard E. Shotts and Candice Shotts, were also present. Upon
        [Appellant’s] arrival, he was highly intoxicated and proceeded to
        approach the house, pound on the kitchen door, and demand to
        see his wife.     When this occurred, a confrontation ensued
        between [Appellant] and Richard Shotts, who denied [Appellant]
        entry to the home.        After Shotts denied [Appellant] entry,

____________________________________________
*   Former Justice specially assigned to the Superior Court.
J-S43025-17


       [Appellant] attempted to force his way into the home and fired a
       gun into the kitchen door. Following this unsuccessful attempt
       at entry, [Appellant] fired through the kitchen window, fatally
       striking Shotts, and then gained entry via the broken window.
       Once inside, [Appellant] went upstairs and was shot twice in the
       shoulder by his estranged wife, who then called the Pennsylvania
       State Police.

             Following a jury trial, [Appellant] was found guilty of the
       offenses of Murder of the second degree; Aggravated Assault –
       Causing Serious Bodily Injury, a felony of the first degree;
       Burglary of an Occupied Structure When a Person Was Present, a
       felony of the first degree; and Aggravated Assault – Bodily
       Injury Caused With a Deadly Weapon, a felony of the second
       degree.    For the offense of Murder of the Second Degree,
       [Appellant] was sentenced to incarceration for the rest of his
       natural life without parole. As to the offense of Aggravated
       Assault – Causing Serious Bodily Injury, [Appellant] was
       sentenced to incarceration for a period of not less than five (5)
       years nor more than twenty (20) years; for the offense of
       Burglary, [Appellant] was sentenced to incarceration of not less
       than three and a half (3½) years nor more than twenty (20)
       years; and for the offense of Aggravated Assault – Bodily Injury
       Caused with a Deadly Weapon, [Appellant] was sentenced to
       incarceration for not less than sixteen (16) months nor more
       than ten (10) years, with the sentences running concurrently.

PCRA Court Opinion, 11/15/16, at 1-2.            Appellant filed a direct appeal on

July 11, 2013, and this Court affirmed his judgment of sentence.

Commonwealth v. Fairman, 97 A.3d 797 (Pa. Super. 2014) (unpublished

memorandum).

       On February 27, 2015, Appellant filed a petition for post-conviction

relief. The PCRA court1 appointed counsel on March 27, 2015. Counsel filed

an amended petition on January 4, 2016. The PCRA court held a hearing on

____________________________________________
1The Honorable William J. Martin, sitting as the PCRA court, also presided at
Appellant’s jury trial.

                                           -2-
J-S43025-17


the petition on July 6, 2016. On November 15, 2016, the PCRA court issued

an opinion and order in which it denied relief with respect to two issues

raised by Appellant regarding alleged ineffective assistance by his trial

counsel — the failure to file a motion to suppress statements made to the

police, and the failure to argue case law when his plea agreement was

rejected.     However, the court granted Appellant relief on Appellant’s third

issue — that his “appellate counsel was ineffective for failing to argue that

the convictions for murder of the second degree and burglary were against

the weight of the evidence.” PCRA Court Opinion, 11/15/16, at 2, 4-5. The

PCRA court explained:

      At the [PCRA] hearing . . ., the parties stipulated to the fact that
      this [weight of the evidence issue] was not raised. The parties
      also stipulated to the fact that [Appellant] was not notified by
      appellate counsel of the Superior Court decision affirming his
      conviction until approximately eight (8) months after it was
      entered.    Finding that [Appellant] did not receive adequate
      notice of the status of his appeal, the Court finds it proper to
      reinstate his appellate rights.

Id. at 4-5.

      The      Commonwealth     did   not   appeal   from   the   PCRA   court’s

reinstatement of Appellant’s appellate rights so that he could raise the

weight of the evidence issue.

      Appellant filed a timely appeal on November 28, 2016. On January 9,

2017, the PCRA court adopted its November 15, 2016 opinion as its

Pa.R.A.P. 1925(a) opinion. On appeal, Appellant raises two issues, which we

repeat verbatim:

                                      -3-
J-S43025-17


       1. Was the weight of the evidence in favor of [Appellant] on the
       charges of Murder in the Second Degree and Burglary?

       2. Was Defense Counsel ineffective counsel when they failed to
       file a suppression motion to exclude any prejudicial/damaging
       statements [Appellant] made to the arresting officers, including
       his confession, while [Appellant] was intoxicated, [and] suffering
       the effects of blood loss and mental illness?

Appellant’s Brief at 4.

                              Weight of the Evidence

       In his first issue, Appellant challenges the weight of the evidence

supporting his second degree murder and burglary convictions. That issue is

not properly before us, and we therefore do not address it.

       Appellant’s    counsel     failed   to   raise   the   weight   issue   following

Appellant’s conviction.       The PCRA court agreed with Appellant that his

counsel was ineffective in failing to raise the weight issue,2 and it therefore

____________________________________________
2 Our review of the record reveals that following Appellant’s conviction, trial
counsel did not preserve the weight claim pursuant to Pa.R.Crim.P. 607(A)
by asserting it in a motion for a new trial. Appellate counsel then was
ineffective in failing to present the weight claim on appeal. Counsel did
include the issue in a Rule 1925(b) Statement, which caused the trial court
then to address the issue in a Rule 1925(a) opinion, but a failure to preserve
a weight claim in a Rule 607(A) motion is fatal to the claim, regardless of
any later discussion of the issue in Rule 1925 filings. Commonwealth v.
Sherwood, 982 A.2d 483, 494 (Pa. 2009). On appeal, Appellant’s counsel
failed to include the weight issue in the statement of questions in his
appellate brief, and, as a result, this Court did not address it in our
memorandum affirming Appellant’s judgment of sentence on direct appeal.
See Fairman (unpublished memorandum). In reinstating Appellant’s right
to present this issue in a new appeal, the PCRA court’s discussion focused on
the ineffectiveness of appellate counsel.           The PCRA court found
ineffectiveness in failing to pursue the weight issue, and, as noted in the
text, the Commonwealth does not contest that ruling or the PCRA court’s
reinstatement of Appellant’s right to raise the weight issue.

                                           -4-
J-S43025-17


reinstated Appellant’s right to assert the weight issue in a new appeal. But

an appeal raising a weight issue seeks review of the trial court’s exercise of

discretion in denying an appellant’s motion for a new trial; we do not

consider weight issues de novo and do not review the underlying question of

whether the verdict is against the weight of the evidence. Commonwealth

v. Brown, 648 A.2d 1177, 1189 (Pa. 1994). Here, the trial court has not

exercised its discretion regarding whether to grant Appellant a new trial in

light of his weight claim because Appellant has not made a post-trial motion

presenting that claim to the trial court.3 We therefore have no decision on

the weight issue to review. We cannot address the weight of the evidence

until the trial court has first had a proper opportunity to do so.

Commonwealth v. Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015);

see Commonwealth v. Romberger, 378 A.2d 283, 286 (Pa. 1977).

       Because Appellant improperly filed a direct appeal raising his weight

issue without first raising that issue with the trial court, 4 we must remand

this case to the trial court to determine whether Appellant may now raise the




____________________________________________
3  Although the trial court discussed the weight issue in its Rule 1925(a)
opinion preceding Appellant’s direct appeal following his conviction in 2013,
it did not rule on a motion properly presenting that issue because no such
motion was filed under Rule 607(A).
4 Because the PCRA court did not expressly state whether it was restoring
Appellant’s right to file a post-trial motion, we do not deem Appellant’s
failure to do so prior to filing his appeal a waiver of his rights regarding this
issue.

                                           -5-
J-S43025-17


weight issue there and, if so, for the trial court to then decide the weight

issue.

         Although the filing of a Rule 607(A) post-trial motion is an essential

prerequisite to presentation of a weight issue on appeal, see Pa.R.Crim.P.

607(A), the PCRA court did not explicitly state whether it was restoring

Appellant’s right to file such a motion.         We acknowledge that the PCRA

court’s restoration of Appellant’s right to present his weight issue on appeal

would make little sense unless the PCRA court also intended to restore

Appellant’s right to raise the weight issue in a new post-trial motion, and we

expect that this is what the PCRA court intended. However, in view of the

Supreme Court’s instruction in Commonwealth v. Liston, 977 A.2d 1089,

1093 (Pa. 2009), that restoration of a right to file a post-trial motion is not

automatic, we vacate the PCRA court’s order and remand for the PCRA court

to clarify whether it intended to restore Appellant’s right to file a post-trial

motion raising the weight claim.5

____________________________________________
5 In Liston, the Pennsylvania Supreme Court held that reinstatement of a
defendant’s direct appeal rights does not automatically reinstate a
defendant’s right to file post-trial motions nunc pro tunc. 977 A.2d at 1093.
In a footnote, the Court added:

         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
(Footnote Continued Next Page)
                                           -6-
J-S43025-17


      If, on remand, the PCRA court reinstates Appellant’s right to file a

post-trial motion raising the weight claim, Appellant may then file such

motion and, if that motion is denied, Appellant may file a direct appeal

raising the weight claim. Only then may this Court address whether the trial

court abused its discretion in ruling on the claim.

            Failure To Move To Suppress Statements to Police

      In his second issue, Appellant argues that trial counsel was ineffective

for failing to file a motion to suppress statements he made to police after the

shooting because the statements, which were made while he was legally

intoxicated, “in pain due to being shot,” and “extremely depressed,” were

prejudicial.   Appellant’s Brief at 32-35.      We conclude that the PCRA court

lacked jurisdiction to rule on the merits of this claim, and thus we also lack

jurisdiction to consider its merits.

      This Court has explained:

      [W]e may sua sponte consider whether we have jurisdiction to
      consider the merits of the claims presented. When a PCRA court
      lacks jurisdiction to consider the merits of a petition, we likewise
      lack jurisdiction to consider an appeal from disposition of the
      petition. A PCRA court lacks jurisdiction to consider a PCRA
      petition when a petitioner’s judgment is not final. Once the
(Footnote Continued) _______________________
      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 which must be
      raised in the trial court to be preserved for purposes of
      appellate review.

Id. at 1094 n.9 (emphasis added and some citations omitted). This case
appears to fall within the class of cases anticipated by the Court in its
footnote.

                                          -7-
J-S43025-17


      PCRA court granted [the petitioner] the right to seek further
      review nunc pro tunc, [the petitioner’s] sentence was no longer
      final and the PCRA court lacked jurisdiction to rule on [the
      petitioner’s] other requests for relief. Accordingly, until [the
      petitioner’s] judgment of sentence becomes final in accordance
      with the procedural mechanisms recognized in 42 Pa.C.S.A. §
      9545(b)(3), we lack jurisdiction to consider the merits of [the
      petitioner’s] remaining ineffective assistance of counsel claims.

Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super. 2015) (citations

omitted). The Court in Harris noted that its ruling was “without prejudice to

[the petitioner] in PCRA proceedings that may commence after [the

petitioner’s] judgment of sentence becomes final.” Id. at 6 n.4. Moreover,

the Court noted that if the petitioner commenced PCRA proceedings after his

judgment of sentence became final, the PCRA court could then use the

evidentiary record developed in the prior PCRA proceeding. Id.

      In light of Harris, we vacate that portion of the PCRA court’s order

denying Appellant’s claim that his counsel was ineffective for failing to move

to suppress his statements.     If, after Appellant’s judgment of sentence

becomes final, Appellant files a PCRA petition raising ineffectiveness claims,

the PCRA court may consider the evidentiary record already developed in

relation to these claims, and may supplement the record if necessary.

      Order vacated. Case remanded. Jurisdiction relinquished.




                                    -8-
J-S43025-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2017




                          -9-
