J-S21010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KARELL TURNER,

                            Appellant                 No. 1198 EDA 2015


               Appeal from the PCRA Order Entered April 2, 2015
              In the Court of Common Pleas of Philadelphia County
                           Criminal Division at No(s):
                            CP-51-CR-0003287-2010
                            CP-51-CR-0003289-2010
                            CP-51-CR-0003291-2010
                            CP-51-CR-0003296-2010


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 03, 2016

        Appellant, Karell Turner, appeals from the post-conviction court’s April

2, 2015 order denying his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we vacate the PCRA

court’s order and remand for further proceedings.

        The PCRA court briefly summarized the facts and procedural history of

Appellant’s case, as follows:

              [Appellant] and two co-defendants were arrested on
        October 29, 2009, and charged with aggravated assault and
        related offenses as a result of an altercation and shooting at the
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*
    Former Justice specially assigned to the Superior Court.
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       McDonald’s located at 31st and Allegheny [S]treets in
       Philadelphia.[1]    Two preliminary hearings were held to
       accommodate the complainants. A jury trial took place from
       February 7th to February 15, 2011, wherein [Appellant] was
       convicted of three counts of criminal conspiracy, one for each of
       the three shooting victims, and one count of intimidation of a
       witness. [Appellant] was sentenced to two to four years[’]
       incarceration on each count of conspiracy and one to four
       years[’] incarceration on the witness intimidation; all of the
       sentences [were imposed to run] consecutive to each other for
       a[] total of seven to fourteen years[’] incarceration.

             A motion for reconsideration was granted on October 21,
       2011, reducing [Appellant’s] sentence to two to four years[’
       incarceration] for one of the conspiracy charges, a consecutive
       one to two years[’] incarceration for intimidation of a witness,
       and a concurrent three to six years[’] incarceration for the
       remaining conspiracy charges, for a new aggregate sentence of
       three to six years[’] incarceration. No appeal was filed.

              On November 1, 2012, [Appellant] filed a [pro se PCRA] …
       petition….   [Counsel was appointed and filed an amended
       petition on Appellant’s behalf.] The matter was reassigned as
       the trial court judge had retired. An evidentiary hearing was
       held on November 4, 2014, addressing only [Appellant’s] claim
       that trial counsel [acted ineffectively by] fail[ing] to file an
       appeal. That issue was denied on December 1, 2014.[2] The
       remaining issues were briefed, argued and dismissed on April 2,
       [2015]. This timely appeal followed.

PCO at 1-2.

       On April 28, 2015, the PCRA court ordered Appellant to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal within 21 days.
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1
 For a more detailed discussion of the facts of Appellant’s case, see PCRA
Court Opinion (PCO), 8/31/15, at 3-4.
2
  Appellant did not file an appeal from the order denying his claim that
counsel acted ineffectively by not filing a direct appeal, and he raises no
argument pertaining to that issue herein.




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Appellant filed his statement 22 days later, on May 20, 2015. Despite the

apparent untimeliness of Appellant’s Rule 1925(b) statement, the PCRA

court filed an opinion addressing the issues presented therein. Accordingly,

we will review the merits of the three claims raised by Appellant on appeal,

all of which were preserved in his Rule 1925(b) statement.                  See

Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009)

(concluding remand under Rule 1925(c)(3) is not necessary where counsel

filed an untimely Rule 1925(b) statement and the court addressed the

issue(s) raised in its opinion). The three issues presented by Appellant are

as follows:

      I. Was Appellant deprived of his right of confrontation by the
      admission of the former testimony of a witness who did not
      appear to testify at trial, and did the PCRA [c]ourt err in denying
      post-conviction relief on that basis?

      II. Was Appellant deprived of his right of due process when a
      witness at trial was permitted to vouch for the credibility of an
      unavailable witness, and did the PCRA [c]ourt err in denying
      post-conviction relief on that basis?

      III. Was trial counsel ineffective for failing to challenge [the]
      number and grading of the Criminal Conspiracy counts, and did
      the PCRA court err in denying post-conviction relief on that
      basis?

Appellant’s Brief at 5.

      Our standard of review regarding an order denying post-conviction

relief under the PCRA is whether the determination of the court is supported

by the evidence of record and is free of legal error.     Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference



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to the findings of the PCRA court, and we will not disturb those findings

merely       because   the   record   could   support   a   contrary    holding.

Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001).

       Appellant’s first two issues are related and, thus, we will address them

together.      Appellant argues that the trial court erred by admitting the

preliminary hearing testimony of a witness who did not ultimately testify at

his trial.   Appellant claims that the admission of this evidence violated his

“right of confrontation” and “was compounded by the admission of other

witness testimony vouching for the credibility of the witness” whose

preliminary hearing testimony was admitted. Appellant’s Brief at 17. These

claims could have been raised on direct appeal; thus, they are waived and

cannot be the basis for affording Appellant post-conviction relief.      See 42

Pa.C.S. § 9543(a)(3) (“To be eligible for relief under this subchapter, the

petitioner must plead and prove by a preponderance of the evidence all of

the following: … (3) That the allegation of error has not been previously

litigated or waived.”); 42 Pa.C.S. § 9544(b) (“For purposes of this

subchapter, an issue is waived if the petitioner could have raised it but failed

to do so before trial, at trial, during unitary review, on appeal or in a prior

state post[-]conviction proceeding.”).

       In Appellant’s third issue, he presents two sub-claims that involve trial

counsel’s ineffectiveness.      First, Appellant argues that the evidence

presented at trial was sufficient to sustain only one count of criminal

conspiracy and, “[t]herefore, trial counsel was ineffective for failing to object

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to the jury[’s] being allowed to deliberate on three separate counts of

[c]riminal [c]onspiracy.”         Appellant’s Brief at 28.   Second, Appellant

contends that the single conspiracy charge for which he could have been

convicted “should have been graded the same as the underlying offense of

[s]imple [a]ssault[,]” which is a misdemeanor of the second degree carrying

a statutory maximum of two years’ incarceration. Id. at 29, 30 (citing 18

Pa.C.S. § 1104(2) (stating that a misdemeanor of the second degree carries

a maximum penalty of two years’ imprisonment)); see also 18 Pa.C.S. §

2701 (defining simple assault and grading it as a misdemeanor of the second

degree unless certain circumstances are present).            Because Appellant

received three to six years’ imprisonment on two of the criminal conspiracy

counts, and a sentence of two to four years’ imprisonment on the third, he

contends that his sentence is illegal “and trial counsel was ineffective for

failing to raise this issue at the time of sentencing.” Appellant’s Brief at 31.

       In Appellant’s amended PCRA petition, he asserted both of these

arguments, and framed them – albeit briefly – in the context of ineffective

assistance of counsel claims. See Amended Petition, 1/21/14, at 11 ¶¶ 56-

58; 12 ¶¶ 67-69.3          Nevertheless, the PCRA court did not address the
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3
   Specifically, in his petition, Appellant stated that “[t]rial counsel was
ineffective for failing to object to the jury being allowed to deliberate on
three separate counts of Criminal Conspiracy[,] … for failing to raise this
issue in a post-sentence motion[,]” and “for failing to preserve [Appellant’s]
right to appeal on this issue.” Id. at 11. Appellant then explained why his
“sentences on all three counts of Criminal Conspiracy are illegal[,]” and
(Footnote Continued Next Page)


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ineffectiveness    claims      but,    instead,   concluded   that   the   underlying

arguments, i.e., the sufficiency of the evidence and legality of sentence

challenges, were waived because they could have been raised on direct

appeal.   See PCO at 7 (stating that Appellant could have challenged, on

direct appeal, “the submission to the jury of three separate counts of

criminal conspiracy; [and] the alleged illegal sentence for three counts of

conspiracy to commit aggravated assault when the evidence was only

[sufficient] enough to support a conspiracy to commit simple assault”).

      We disagree with the PCRA court that Appellant waived these claims

by not raising them on direct appeal.             In Appellant’s PCRA petition, he

clearly framed the issues pertaining to the sufficiency of the evidence to

support three counts of conspiracy, and the legality of his sentence, as

implicating the effectiveness of his trial counsel’s representation. In

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court

reaffirmed its prior holding in Commonwealth v. Grant, 813 A.2d 726 (Pa.

2002), that, absent certain circumstances, claims of ineffective assistance of

counsel should be deferred until collateral review under the PCRA. Holmes,

79 A.3d at 576.         The specific circumstances under which ineffectiveness
                       _______________________
(Footnote Continued)

declared that, “[t]rial counsel was ineffective for failing to raise this issue at
the time of sentencing” or “in a post-sentence motion[,]” and “for failing to
preserve [Appellant’s] right to appeal on this issue.” Id. at 12. We also
point out that Appellant preserved these two claims of trial counsel’s
ineffectiveness in his Rule 1925(b) statement. See Rule 1925(b) Statement,
5/20/15, at 1-2 (unnumbered).



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claims may be addressed on direct appeal were not present in the instant

case. See id. at 577-78 (holding that the trial court may address claim(s) of

ineffectiveness where they are “both meritorious and apparent from the

record so that immediate consideration and relief is warranted,” or where

the appellant’s request for review of “prolix” ineffectiveness claims is

“accompanied by a knowing, voluntary, and express waiver of PCRA

review”).

      We also stress that, even if Appellant had not framed his legality of

sentencing challenge as an ineffectiveness claim, it would still not be waived

based on his failure to raise it on direct appeal.       Appellant’s claim is

essentially that his sentence for at least one of the conspiracy counts

exceeds the statutory maximum term permitted for that offense.          This is

clearly a legality of sentencing issue, and is precisely the type of sentencing

claim for which the PCRA provides relief. See 42 Pa.C.S. § 9543(a)(2)(vii)

(providing PCRA relief for petitioner’s who prove that they received “a

sentence greater than the lawful maximum”).

      One well-established exception [to the PCRA’s waiver rule] is
      that challenges to the legality of sentence are never waived.
      This means that a court may entertain a challenge to the legality
      of the sentence so long as the court has jurisdiction to hear the
      claim. In the PCRA context, jurisdiction is tied to the filing of a
      timely PCRA petition. See, Commonwealth v. Voss, 838 A.2d
      795, 800 (Pa. Super. 2003).




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Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005). Because

here, Appellant filed a timely PCRA petition, the court had jurisdiction to

consider his non-waivable challenge to the legality of his sentence.

      Accordingly, Appellant’s two claims of trial counsel’s ineffectiveness

were not waived based on his failure to raise them on direct appeal, and his

underlying legality of sentencing issue is reviewable even outside the context

of ineffective assistance of counsel. Because the PCRA court concluded that

these issues were waived, it did not rule on their merits. It is inappropriate

for this Court to assess Appellant’s arguments in the first instance. Thus, we

vacate the PCRA court’s order denying Appellant’s petition, and remand for

further consideration of these issues.

      Order vacated. Case remanded for further proceedings.        Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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