J-S34014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

RODERICK M. JETER

                            Appellant                         No. 1358 WDA 2013


              Appeal from the Judgment of Sentence July 19, 2013
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0002038-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY OTT, J.:                                   FILED OCTOBER 21, 2014

        Roderick M. Jeter appeals from the judgment of sentence imposed July

19, 2013, in the Allegheny County Court of Common Pleas. The trial court

imposed an aggregate sentence of four days in a DUI-Alternative to Jail

program and a concurrent 18 months’ probation following his non-jury

conviction of DUI1 and related charges. On appeal, Jeter contends the trial

court erred when it accepted his silence on the night of his arrest as an

admission of guilt. For the reasons set forth below, we affirm.

        The   facts   underlying     Jeter’s   arrest   and    conviction   are   briefly

summarized as follows.2          At approximately 3:45 a.m. on September 26,
____________________________________________


1
    75 Pa.C.S. § 3802(a)(1).
2
 The trial court’s opinion includes a more detailed recitation of the facts.
See Trial Court Opinion, 12/23/2013, at 3-6.
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2012, Jennifer Matassa awoke to a loud noise, and observed a black Ford

Mustang hit both her minivan and her husband’s truck that were parked in

their driveway on Brinley Road in Penn Hills Township, Allegheny County.

The vehicle then left the scene and proceeded to crash over a hill on Poketa

Road. Michael Ferkatch, who was awakened by the crash, saw Jeter “crawl

out of weeds where the vehicle was and stagger up the street[.]” Trial Court

Opinion, 12/23/2013, at 4.

       A   responding     police   officer     observed   Jeter,   who   matched   the

description of the individual who left the crash scene, walking in the middle

of Poketa Road. Jeter appeared to be intoxicated and was carrying a set of

car keys to a Ford vehicle. Officer Dennis Lynch, who was investigating the

accident scene, arrived to assist the responding officer.                Officer Lynch

testified that Jeter initially denied any knowledge of the accident. However,

after Officer Lynch placed Jeter in the back of his patrol car to transport him

to the accident scene, Jeter blurted out, “I’m fucked up. I was driving, and

yes, I’m fucked up.” Id. at 5 (record citation omitted). At trial, Jeter denied

driving the Mustang, but rather, claimed the car’s owner, Mario Ford, was

driving the vehicle on the night of the crash, and that he, Jeter, was only a

passenger.3      When Officer Lynch arrived at the crash scene with Jeter,
____________________________________________


3
 Ford testified that, sometime prior to that evening, he had turned over the
car and keys to Jeter because Jeter was trying to sell the Mustang for him.
See N.T., 7/19/2013, at 60-63.




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Ferkatch identified Jeter as the person he saw crawling up the hill from the

scene of the crash.

        Jeter was subsequently charged with three counts of DUI, one count of

driving while operating privilege is suspended or revoked, and two counts of

accidents involving damage to unattended vehicle or property.4 On April 18,

2013, he filed a pretrial motion seeking to suppress the statement he made

to Officer Lynch, as well as his identification by Ferkatch.         The case

proceeded to a suppression hearing on July 19, 2013. The trial court denied

the motion to suppress and proceeded immediately to a bench trial,

incorporating the testimony from the suppression hearing. Following some

additional testimony, the trial court found Jeter guilty of all charges. That

same day, the court sentenced him to four days in a DUI-Alternative to Jail

program, and six months concurrent probation for one count of DUI.         The

court also imposed consecutive probationary terms of six months for driving

while under suspension, and 90 days for each count of accidents involving

damage to property.

        On August 7, 2013, trial counsel filed a petition seeking permission to

withdraw because Jeter indicated that he wanted to proceed with a public

defender on appeal. The trial court granted the petition the same day, and,



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4
    75 Pa.C.S. §§ 3802(a)(1), 1543, and 3745, respectively.




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on August 19, 2013, the public defender’s office filed a notice of appeal on

Jeter’s behalf.5

       On appeal, Jeter argues the trial court violated his constitutional right

to remain silent when it considered as an admission of guilt testimony that,

on the night of the accident, he did not inform the police officers that

another person was driving the vehicle when the accident occurred.

Moreover, Jeter contends the error was not harmless because the trial court

acknowledged at trial that it considered Jeter’s silence as a factor in

determining his guilt. Accordingly, he claims he is entitled to a new trial.

       Preliminarily,    however,     we       must   address   the   Commonwealth’s

assertion that this issue is waived.           “We have long held that ‘[f]ailure to

raise a contemporaneous objection to the evidence at trial waives that claim

on appeal.’”       Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa.

Super. 2013) (citations omitted).

       The testimony at issue was offered by Officer Lynch, following Jeter’s

testimony that Ford was driving the Mustang at the time of the accident, and

that he was merely a passenger. See N.T., 7/19/2013, at 85, 90. During

Officer Lynch’s rebuttal testimony, the following exchange took place:



____________________________________________


5
  On November 15, 2013, the trial court ordered Jeter to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Jeter complied with the trial court’s directive and filed a concise statement
on December 6, 2013.



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       [Commonwealth:] Officer Lynch, did Mr. Jeter tell you anything
       about Mr. Ford driving the car that night?

       A. No.

       [Commonwealth:] Was there any mention of anyone other than
       Mr. Jeter?

       A. No.

Id. at 91. Jeter’s trial counsel did not object to Officer Lynch’s testimony.

Therefore, any challenge to that testimony on direct appeal is waived.

Thoeun Tha, supra.

       Recognizing this error, Jeter now argues that we should consider his

claim as a challenge to trial counsel’s ineffectiveness for failure to lodge an

objection at trial. Jeter’s Brief at 18-25. While he concedes that generally,

ineffectiveness claims must be deferred until collateral review, Jeter

contends an exception should be made in the present case because (1) his

short sentence will not allow for the filing of a PCRA petition, 6 (2) the trial

court addressed the issue in its opinion, and (3) “there can be no earthly

reason or tactic for trial counsel not to have objected to the unconstitutional

questioning and rationale by the trial court[.]” Id. at 19-20.

       Recently, the Pennsylvania Supreme Court in Commonwealth v.

Holmes, 79 A.3d 562 (Pa. 2013), reaffirmed the general rule first set forth

____________________________________________


6
   Pursuant to our calculations, Jeter’s probationary term will expire in
January of 2015, although Jeter asserts in his brief that “the sentence has
already been served[.]” Jeter’s Brief at 21.




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in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that “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.”

Holmes, supra, 79 A.3d at 576. The Holmes Court, however, recognized

two exceptions to the general rule: (1) where the trial court determines that

a claim of ineffectiveness is “both meritorious and apparent from the record

so that immediate consideration and relief is warranted[;]” or (2) where the

trial court finds “good cause” for unitary review, and the defendant makes a

“knowing and express waiver of his entitlement to seek PCRA review from

his conviction and sentence, including an express recognition that the waiver

subjects further collateral review to the time and serial petition restrictions

of the PCRA.” Holmes, supra, 79 A.3d at 564, 577 (footnote omitted).

      The first exception is clearly not applicable here since the trial court

has not determined that the underlying claim is meritorious. Turning to the

second exception, the Supreme Court has explained that it may be available

to those defendants whose shorter sentences would otherwise preclude

PCRA review.

      Importantly, we specifically identified defendants serving short
      sentences as those who may avail themselves of the good
      cause/waiver exception to Grant. [Holmes, supra, 79 A.3d at
      578] (“unitary review offers defendants who receive shorter
      prison sentences or probationary sentences the prospect of
      litigating their constitutional claims sounding in trial counsel
      ineffectiveness; for many of these defendants, post-appeal PCRA
      review may prove unavailable.”). Consequently, following
      Holmes, defendants serving short sentences who have obtained

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       new counsel may raise their ineffectiveness claims to the
       trial court in post-verdict motions, subject to the constraints
       and consequences described above.

Commonwealth v. Turner, 80 A.3d 754, 763 n.7 (Pa. 2013) (emphasis

supplied), cert. denied, 134 S. Ct. 1771 (U.S. 2014).

       The problem in the present case is that Jeter never filed a post-

sentence motion asking the trial court to consider his ineffectiveness claim

on direct appeal, nor did he include the claim in his court-ordered Rule

1925(b) statement.7        See Pa.R.A.P. 1925(b)(4)(vii) (issues not raised in

Rule 1925(b) concise statement are waived on appeal).         Accordingly, the

trial court never determined whether Jeter demonstrated “good cause” for

unitary review.       See Holmes, supra.8        Therefore, even if Jeter had

preserved this claim in his concise statement, we would conclude, pursuant
____________________________________________


7
  We note Jeter asserts in his brief that “appellate counsel did not have the
opportunity to request a hearing on trial counsel’s ineffectiveness pursuant
to Pa.R.Crim.P. 720.” Jeter’s Brief at 20. Indeed, we acknowledge that a
post sentence motion must be filed within 10 days of the imposition of
sentence, and, in the present case, trial counsel did not seek permission to
withdraw until after that 10-day period had expired. See Pa.R.Crim.P.
720(A)(1). Therefore, when direct appeal counsel entered his appearance,
the time for filing a post-sentence motion had passed. However, direct
appeal counsel could have requested permission to file a post-sentence
motion nunc pro tunc. Having neglected to do so, neither appellate counsel
nor Jeter can now complain that there was no opportunity to do so.
8
  Moreover, as the Supreme Court acknowledged in Holmes, “it should be
remembered that, in cases where the only viable issues are collateral, and
the sentence is of sufficient length that the defendant will likely satisfy the
PCRA custody requirement, the defendant always has the option of
proceeding immediately to PCRA review, without first pursuing a direct
appeal.” Id., 79 A.3d at 580.




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to the mandate of Grant and its progeny, that his ineffectiveness claim is

not cognizable on direct appeal.9

       Because trial counsel failed to object to the challenged testimony at

trial, and Jeter, thereafter, failed to seek review of counsel’s ineffectiveness

before the trial court on direct appeal, we find the sole issue presented on

appeal is waived for our review.10

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2014



____________________________________________


9
  Although the Holmes decision was filed after the notice of appeal in the
present case, prior to Holmes, the controlling case on this issue was
Commonwealth v. O'Berg, 880 A.2d 597 (Pa. 2005), in which our
Supreme Court declined to create “a ‘short sentence’ exception to the
general rule announced in Grant.” Id. at 602. The Court explained, “we
fear doing so would undermine the very reasons that led to our decision in
Grant in the first instance.” Id.
10
  We note that even if we were to conclude the claim was not waived, we
would affirm on the basis of the trial court’s conclusion that any error in
admitting the questions was harmless.           See Trial Court Opinion,
12/23/2013, at 8-9.



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