J-S96003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                     v.

ANTHONY PHILLIP PELUSO,

                            Appellant                   No. 1283 WDA 2015


        Appeal from the Judgment of Sentence Entered July 9, 2015
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0014213-2014


BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

DISSENTING MEMORANDUM BY BENDER, P.J.E.:               FILED MARCH 23, 2017

      Because I disagree with the Majority that we cannot assess Appellant’s

ineffectiveness claim as the record currently stands, I respectfully dissent.

      The   trial   court    conducted   a   hearing   on   Appellant’s   claim   of

ineffectiveness.    At that proceeding, the Commonwealth never challenged

the trial court’s decision to hold the hearing, nor at any point argued that

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), or Commonwealth

v. Grant, 813 A.2d 726 (Pa. 2002), precluded post-sentence review of

Appellant’s ineffectiveness claim.       Rather, the Commonwealth argues this

position for the first time on appeal. Additionally, the Majority does not cite

any legal authority to support its conclusion “that the procedural rule

established in Grant and modified in Holmes must be observed in order for

this Court to exercise jurisdiction over a claim of ineffective assistance of
J-S96003-16



counsel on direct appeal.” Majority Decision at 4 (emphasis added). In my

view, Holmes did not hold, explicitly or implicitly, that the ‘procedural rules’

it announced were jurisdictional prerequisites to reviewing an ineffectiveness

claim on direct appeal.

      In sum, the issue of Appellant’s waiving his right to collateral review

was not raised below, and a record was made regarding his ineffectiveness

claim, so as to permit this Court’s meaningful review of the issue he raises

on appeal. In light of these circumstances, I believe remanding this case for

Appellant to complete a waiver of his right to further collateral review is

unnecessary. Therefore, I dissent.




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