J-A14002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    LEWIS SYKES                                :
                                               :
                       Appellant               :      No. 3402 EDA 2017

               Appeal from the PCRA Order September 26, 2017
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0005667-2015


BEFORE:      GANTMAN, P.J., SHOGAN, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                              FILED JULY 13, 2018

        Appellant, Lewis Sykes, appeals from the order entered in the

Montgomery County Court of Common Pleas, which granted in part his first

petition filed pursuant to the Post Conviction Relief Act (“PCRA”)1, reinstating

his direct appeal rights nunc pro tunc, but declining to address Appellant’s

remaining PCRA claims. We quash this appeal without prejudice to Appellant

to pursue his ineffective assistance of trial counsel claims in a timely filed

PCRA petition following disposition of his direct appeal.

        The relevant facts and procedural history of this case are as follows.

Following a bench trial, the court convicted Appellant on June 7, 2016, of three

counts of criminal trespass and one count each of attempted burglary and


____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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criminal mischief. The court sentenced Appellant on September 16, 2016, to

an aggregate sentence of twenty-three (23) to fifty-six (56) years’

incarceration. Appellant filed no post-sentence motions and sought no direct

review. On March 3, 2017, Appellant timely filed his first pro se PCRA petition.

The PCRA court appointed counsel on March 17, 2017, who filed an amended

PCRA petition on May 23, 2017, asserting several claims of ineffective

assistance of trial counsel and seeking reinstatement of his direct appeal rights

nunc pro tunc.

      The PCRA court conducted an evidentiary hearing on August 11, 2017.

On September 26, 2017, the PCRA court granted relief in part by reinstating

Appellant’s direct appeal rights nunc pro tunc. The court declined to address

Appellant’s claims of ineffectiveness of trial counsel. On October 20, 2017,

Appellant filed a notice of appeal from the PCRA order. The court did not order

Appellant to file a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(b), and Appellant filed none.

      Appellant raises one issue for our review:

         [WHETHER] APPELLANT’S PCRA APPEAL SHOULD BE
         REMANDED TO THE [PCRA] COURT AND STAYED PENDING
         RESOLUTION OF APPELLANT’S DIRECT APPEAL [AT
         SUPERIOR COURT DOCKET NUMBER] 3423 EDA 2017[?]

(Appellant’s Brief at 4).

      Appellant argues the PCRA court “implicitly denied” the ineffective

assistance of counsel claims Appellant raised in his PCRA petition when the

court failed to address those claims in its order reinstating Appellant’s direct

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appeal rights nunc pro tunc.      Appellant maintains when the PCRA court

reinstated Appellant’s direct appeal rights nunc pro tunc, it deprived itself of

jurisdiction to review the merits of Appellant’s remaining PCRA claims.

Appellant states this Court also lacks jurisdiction to review the merits of

Appellant’s unresolved PCRA claims while Appellant’s nunc pro tunc direct

appeal is pending. Appellant concludes this Court should remand the matter

to the PCRA court and stay his appeal from the PCRA order, pending the

resolution of Appellant’s nunc pro tunc direct appeal from the judgment of

sentence. We cannot agree.

      Initially, we observe: “When a PCRA court grants a request for

reinstatement of direct appeal rights nunc pro tunc, it may address, but not

‘reach’ the merits of any remaining claims.” Commonwealth v. Miller, 868

A.2d 578, 580 (Pa.Super. 2005), appeal denied, 584 Pa. 685, 881 A.2d 819

(2005).

          This delicate distinction has caused some confusion. The
          PCRA court may inquire, but its inquiry cannot result in an
          appealable disposition. The procedure a PCRA court in this
          situation should follow was set forth in Commonwealth v.
          Miranda, …442 A.2d 1133 (1982).

          The Miranda Court conducted a thorough review of the
          Supreme Court decisions concerning the power of a court to
          grant nunc pro tunc relief and the proper procedure for
          addressing additional claims raised in the same post-
          conviction petition requesting the nunc pro tunc relief. In
          conclusion, the Court found the following procedure should
          be followed:

            [T]he [PCRA] court must address the other claims
            raised in the [PCRA] petition when it is necessary to

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           complete the record for appellate review; but under
           these circumstances, the [PCRA] court is merely
           functioning as an evidentiary tribunal. Implicit in
           [this] rationale is the directive that proceedings in the
           [PCRA] court relating to issues other than the one
           involving lack of appellate rights, are not to be decided
           on the merits, but rather the [PCRA] court is to see to
           it that the record is made complete on these issues
           for the purpose of review in the appellate court on the
           nunc pro tunc appeal. Thus, all supplemental issues
           raised, reviewed, and ruled upon in the [PCRA]
           proceedings would be adequate for review in the nunc
           pro tunc appeal before us; in other words, only one
           appeal, the nunc pro tunc appeal from the judgment
           of sentence, would be presented to us.

                                 *    *    *

           [O]nce the [PCRA] court decides the accuracy of the
           deprivation of appellate rights claim and grants the
           nunc pro tunc appeal, its review of any remaining
           claims would not be considered final review of the
           issues, but would only be seen as serving the
           evidentiary purpose of completing the record for
           appellate review. As such, the evidentiary review
           would not result in a separate appealable order. The
           outcome of this situation would instead result in the
           filing of the nunc pro tunc appeal, where petitioner
           could raise all issues which have been adequately
           preserved, and where he would have the benefit of
           final review by the traditional appellate tribunal.

        Thus, a PCRA court may act as a fact-finder and issue
        “advisory” opinions that will aid in the ultimate disposition
        of the claims.

Id. at 580-81 (quoting Miranda, supra at 1138-39) (internal footnotes and

most citations omitted) (emphasis in original). See also Commonwealth v.

Davis, 894 A.2d 151 (Pa.Super. 2006), appeal denied, 591 Pa. 680, 917 A.2d

312 (2007) (declining to address ineffectiveness claims on nunc pro tunc


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direct appeal; PCRA court did not fully develop ineffectiveness claims at

evidentiary hearing, and Superior Court could not remand case to PCRA court

to conduct evidentiary hearing, because court had reinstated direct appeal

rights nunc pro tunc).

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

nunc pro tunc.     The PCRA court did not, however, address Appellant’s

ineffectiveness of counsel claims. To the extent Appellant purports to appeal

from the “implicit denial” of his ineffectiveness of counsel claims, the PCRA

court’s order did not result in a separate, appealable order.     See Miller,

supra.    Thus, Appellant’s instant appeal is not properly before us.

Accordingly, we quash the appeal without prejudice to Appellant to pursue his

ineffective assistance of trial counsel claims in a timely filed PCRA petition,

following the disposition of his direct appeal nunc pro tunc, along with any

other proper collateral claims he might want to raise.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2018




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