J-S07023-15

                              2015 PA Super 68



COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

DANIEL T. HARRIS,

                         Appellee                    No. 952 MDA 2014


                  Appeal from the Order of May 12, 2014
             In the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0000707-2009


BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.

OPINION BY OLSON, J.:                                FILED APRIL 07, 2015

      Appellant, the Commonwealth of Pennsylvania (“the Commonwealth”),

appeals from the order entered on May 12, 2014, granting relief on a

petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546, filed by Appellee, Daniel T. Harris (“Appellee”). Upon review,

we affirm in part and vacate in part.

      We summarize the facts and procedural history of this case as follows.

On November 14, 2008, at Adam Auto Sale in Lebanon County, a vehicle

was stolen and twelve other vehicles were entered into and damaged,

resulting in $55,404.08 of total damages.    On December 11, 2009, a jury

convicted Appellee of theft, criminal conspiracy to commit theft, and criminal
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mischief.1 On February 17, 2010, the trial court imposed an aggregate term

of three to seven years of imprisonment.          Appellee filed a post-sentence

motion on February 25, 2010.           On May 4, 2010, the trial court issued an

order denying Appellee’s post-sentence motion for failure to file a brief.

Appellee appealed to this Court on June 2, 2010.           By per curiam order

entered on October 29, 2010, this Court quashed Appellee’s appeal for

failure to file an appellate brief.

        On March 15, 2013, Appellee filed a pro se PCRA petition raising claims

of trial counsel ineffectiveness.          On March 18, 2013, the PCRA court

appointed counsel to represent Appellee. On December 4, 2013, counsel for

Appellee filed an amended PCRA petition. On December 10, 2013, the PCRA

court held a hearing to determine the timeliness of the PCRA petition. 2 On



____________________________________________


1
    18 Pa.C.S.A. §§ 3921, 903, and 3304, respectively.
2
  Upon review of the record, the PCRA court heard testimony that trial
counsel abandoned Appellee and it was discovered that Appellee’s file, held
in the Public Defender’s Office, had unopened correspondence from Appellee
directing trial counsel to file an appeal. N.T., 12/10/2013, at 19. After the
Public Defender’s Office notified Appellee that his appeal had been
dismissed, Appellee immediately filed a pro se PCRA petition requesting
relief. Id. at 13, 31. Thus, the PCRA court properly deemed Appellee’s
petition timely. See Commonwealth v. Bennett, 930 A.2d 1264 (Pa.
2007) (identifying limited exception to the rule barring ineffective assistance
of counsel claim as newly discovered facts exception, where counsel
abandoned petitioner on appeal, abandonment was unknown to petitioner,
and petitioner filed for PCRA relief within sixty days of learning of counsel's
abandonment).



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January 20, 2014 and January 30, 2014, the PCRA court held an evidentiary

hearing.

      By order entered on May 12, 2014, the PCRA court granted Appellee’s

PCRA petition, vacated his sentence, and awarded him a new trial. In the

opinion accompanying the order, the PCRA court determined that trial

counsel failed to file an appellate brief with this Court on direct appeal.

PCRA Court Opinion, 5/12/2014, at 11-12. More specifically, the PCRA court

made credibility determinations and concluded, “trial counsel’s failure to file

an appellate brief was a result of her oversight and not of [Appellee’s]

wishes.” Id. at 12 (capitalization omitted).   However, instead of reinstating

Appellee’s direct appeal rights nunc pro tunc, the PCRA court went on to

examine Appellee’s remaining ineffective assistance of counsel claims

because “[t]rial [c]ounsel’s ineffectiveness was so egregious that to simply

reinstate [Appellee’s] appellate rights nunc pro tunc would never fully

remedy [Appellee’s] constitutional infringements.” Id. at 14.

      Thereafter, the PCRA court also concluded that trial counsel was

ineffective for failing to cross-examine the co-defendants properly and for

failing to introduce video surveillance recovered from the scene of the crime.

Id. at 13-18. More specifically, the PCRA court noted that the owner of the

car dealership testified at trial that there was a surveillance video recording

of the incident, but the video was not clear enough to identify the

perpetrators; however, it was clear that four individuals were present on the

night in question. Id. at 2. The PCRA court further noted that co-defendant

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Jeffrey Zombro, Jr., who initially admitted to police that four individuals were

involved in the crimes, did not name Appellee.             Id. at 2.     In a second

interview with police, Zombro named three of the same individuals, but

identified another individual who was not Appellee.           Id. at 3. In a third

police interview, Zombro claimed that he, Appellee, and co-defendant James

Jeter, perpetrated the crimes at Adams Auto Sale, but that Zombro, Jeter

and a third man drove the stolen vehicle to New York City.                Id. at 3-4.

When interviewed by police, Jeter claimed that he, Zombro, and Appellee

were the only three individuals at Adams Auto Sale on the night in question.

Id. at 3.     Both co-defendants testified at trial that three individuals

participated in the crimes – Appellee, Zombro, and Jeter.              Id. at 4.   The

PCRA court concluded that the testimony of the co-defendants was the key

evidence presented against Appellee.          Id. at 13.    Thus, the PCRA court

opined that the outcome of trial would have been different if trial counsel

had presented the video surveillance and cross-examined the co-defendants

on their inconsistencies to show that their accusations were not credible.

Id. Thus, the PCRA court vacated Appellee’s sentence and awarded him a

new trial on these additional claims.

      Finally, the PCRA court rejected Appellee’s claim that trial counsel was

ineffective for failing to call two witnesses at trial, i.e., Appellee’s mother

and girlfriend.   Id. at 8.   The PCRA court found their PCRA testimony

regarding proffered alibis for Appellee not credible. Id. at 9-10.




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       The    Commonwealth         filed   a   timely   appeal.   On   appeal,   the

Commonwealth presents one issue for our review:

                Did the PCRA court err in granting [Appellee’s] PCRA
                petition and subsequently vacating his sentence and
                granting him a new trial?

Commonwealth’s Brief at 4 (complete capitalization omitted).

       Initially, the Commonwealth contends:

             In this case, once the PCRA [c]ourt concluded that
         [Appellee] was denied his right of direct appeal the proper
         course would have been to reinstate [Appellee’s] appellate
         rights nunc pro tunc. It was not within the discretion of the
         PCRA [c]ourt, or [to accommodate Appellee’s request] to
         determine whether the rest of his claims [sh]ould be
         addressed by the PCRA [c]ourt. By proceeding forward and
         addressing       [Appellee’s]     remaining        substantive
         ineffectiveness claims on their merits, the PCRA [c]ourt
         essentially acted without subject matter jurisdiction.

            Subsequently, the Commonwealth requests that this
         Honorable Court reverse the PCRA [c]ourt’s [o]rder dated
         May 12, 2014, vacating [Appellee’s] sentence and awarding
         him a new trial. Additionally, the Commonwealth requests
         that this Court remand the case reinstating [Appellee’]s
         appellate rights nunc pro tunc.[3]

Id. at 17-18.

       We agree. “In addressing the grant or denial of post-conviction relief,

an appellate court will consider whether the PCRA court's conclusions are

supported by record evidence and are free of legal error.” Commonwealth

____________________________________________


3
    We note that the Commonwealth does not challenge the PCRA court’s
finding that Appellee was entitled to nunc pro tunc restoration of his direct
appeal rights.



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v. Keaton, 82       A.3d 419, 425       (Pa. 2013) (citation omitted).           In

Commonwealth v. Pate, 617 A.2d 754 (Pa. Super. 1992) we determined

that “once a PCRA court determines that a petitioner’s right to direct appeal

has been violated, the PCRA court is precluded from reaching the merits of

other issues raised in the petition.”        Pate, 617 A.2d at 757, citing

Commonwealth v. Hoyman, 561 A.2d 756 (Pa. Super. 1989).                     “Rather,

once the PCRA court finds that the petitioner’s appellate rights have been

abridged, it should grant leave to file a direct appeal and end its inquiry

there.” Id. (citation omitted).

        In Commonwealth v. Wright, 832 A.2d 1104 (Pa. Super. 2003),

however, this Court allowed for review of additional ineffective assistance of

counsel claims even after the PCRA court determined that counsel failed to

file an appellate brief.   In that case, Wright filed a PCRA petition alleging

that prior counsel was ineffective for failing to file a direct appeal and failing

to move for suppression.     The PCRA court granted him relief on his claim

that counsel failed to file a direct appeal and reinstated his rights nunc pro

tunc.    On direct appeal, Wright renewed his claim that counsel was

ineffective for failing to move for suppression.       Our Court reviewed the

claim, opining:

              [Wright] also claims that trial counsel was ineffective for
         failing to move to suppress appellant's statement to police
         prior to trial. Although this issue was fully litigated at the
         PCRA hearing, the PCRA court did not rule on the issue,
         instead granting [Wright] his request for an appeal nunc pro
         tunc. In declining to resolve the suppression issue, the trial


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J-S07023-15


       court relied on a body of case law directing that “once the
       PCRA court finds that the petitioner's appellate rights have
       been abridged, it should grant leave to file a direct appeal
       and end its inquiry there.” Commonwealth v. Pate, 617
       A.2d 754, 757-758 (Pa. Super. 1992). The logic underlying
       the rule in Pate is that “a defendant [who] establishes that
       counsel's ineffective assistance denied him entirely his right
       to a direct appeal ... is entitled to a direct appeal nunc pro
       tunc without regard to his ability to establish merit of the
       issues which he seeks to raise on direct appeal.”
       Commonwealth v. Franklin, 823 A.2d 906, 909 (Pa.
       Super. 2003) (citation omitted). The PCRA court's role
       under these circumstances does not include reviewing any
       of the defendant's claims for legal sufficiency; rather it is,
       “limited to fact-finding, which becomes particularly valuable
       to our eventual review of an appellant's claims.” Id. at 910-
       11. Unlike the Pate line of cases, however, here the
       evidence presented at the PCRA hearing was not limited to
       whether appellant was denied his right of appeal; it also
       included complete testimony on the suppression issue.

              Recently, in Commonwealth v. Grant, 813 A.2d 726
       (Pa. 2002), our Supreme Court directed that ineffectiveness
       claims should await collateral review rather th[a]n be
       addressed on direct appeal. One of the primary reasons
       underlying Grant is that on direct appeal the record from
       the trial court typically is insufficient for appellate resolution
       of an ineffectiveness claim. “Ineffectiveness claims [often]
       are based on omissions, which, by their very nature, do not
       appear of record and thus, require further fact-finding,
       extra-record investigation, and where necessary, an
       evidentiary hearing.” Id. at 736. In keeping with Grant, we
       regularly dismiss claims of ineffectiveness raised for the first
       time on direct appeal without prejudice to the appellant's
       right to raise the same claim in a subsequent PCRA petition.
       Commonwealth v. Rosendary, 818 A.2d 526 (Pa. Super.
       2003).

              Here, however, there is an adequate record upon
       which we can assess this ineffectiveness claim because
       there was a full evidentiary hearing on the issue at which
       trial counsel appeared and testified. Further, dismissal of
       this claim pursuant to Grant would be judicially inefficient
       as a subsequent claim on collateral review would merely

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       prompt a hearing identical to the one that already occurred
       below.

                          *         *           *

             Further, in Commonwealth v. Bomar, 826 A.2d 831
       (Pa. 2003), the Pennsylvania Supreme Court recognized
       certain exceptions to Grant's general rule and created an
       additional exception. The Bomar Court held that in those
       cases where an ineffectiveness claim has been fully
       developed in the trial court, the Grant rule of deferral is not
       applicable. Id. at 853. We recognize that this case differs
       from Bomar because in that case, the trial court not only
       held an evidentiary hearing on the issues of ineffectiveness,
       but also ruled upon those issues. However, the only
       question with which we are confronted here is whether
       counsel had a strategic basis for his actions and whether
       that strategy was reasonable. The certified record provides
       a clear answer to both questions, making dismissal of the
       ineffectiveness claim under Grant unnecessary.

             As in Bomar, the certified record in this case insures
       that “there is no danger of engaging in appellate fact finding
       in the form of speculation concerning the strategy actually
       pursued by trial counsel.” Id. at 854. Rather, the record
       provides us with an opportunity to “review trial counsel's
       strategy from the ‘horse's mouth.’” Id.

             We believe that the rationale in Bomar permits our
       assessment of [Wright’s] ineffectiveness claim. Thus, we
       proceed to consider and resolve the claim on the record
       before us.

Commonwealth v. Wright, 832 A.2d 1104, 1108-1110 (Pa. Super. 2003).

     Since Wright, however, our Supreme Court recognized limitations to

the exception created by Bomar, as discussed above. The Supreme Court

has stated, “[i]n practice, the Bomar exception has operated as an extra

round of collateral attack for certain defendants, unauthorized by the

General Assembly, and subject to no review rationale except beyond the


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discretion of the trial court.”   Commonwealth v. Holmes, 79 A.3d 562,

576 (Pa. 2013). In Holmes, our Supreme Court declared that “[t]his state

of affairs cannot continue because of its inherently uneven application, the

complication that it poses for later PCRA review, and the obvious tension

between that practice and the intended role of the PCRA in providing a

single, full collateral proceeding as of right to all defendants eligible to seek

collateral relief.” Id. Our Supreme Court determined that, absent certain

circumstances, “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.” Id.    (footnote omitted).

      The Holmes Court noted two exceptions to the general rule of

deferring ineffective assistance of counsel claims until PCRA review.      First,

“there may be an extraordinary case where the trial court, in the exercise of

its discretion, determines that a claim (or claims) of ineffectiveness is both

meritorious   and     apparent    from   the    record    so   that   immediate

consideration or relief is warranted.” Id. at 577 (emphasis added). Second,

our Supreme Court determined that in cases where “prolix” claims of

ineffectiveness are raised, “unitary review, if permitted at all, should only

proceed where accompanied by a knowing, voluntary, and express waiver of

PCRA review.” Id. at 578.

      Here, Appellee’s ineffective assistance of counsel claims pertaining to

the cross-examination of his co-defendants and failure to introduce

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surveillance footage were not claims that were apparent solely from the

record.   Moreover, Appellee did not expressly waive his rights to PCRA

review.   Thus, we conclude that by determining Appellee was entitled to

nunc pro tunc relief, the PCRA court overstepped its bounds by substantively

reaching the remaining ineffective assistance of counsel claims.

      Moreover, we may sua sponte consider whether we have jurisdiction to

consider the merits of the claims presented.               See Commonwealth v.

James, 69 A.2d 180, 184 (Pa. 2013) (citation omitted). 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.

Commonwealth v. Hernandez, 79 A.3d 649, 654 (Pa. Super. 2013)

(citation omitted).        A PCRA court lacks jurisdiction to consider a PCRA

petition when a petitioner’s judgment is not final. See Commonwealth v.

Taylor, 65 A.3d 462, 464 (Pa. Super. 2013) (citation omitted).                   Once the

PCRA court granted Appellee the right to seek further review nunc pro tunc,

Appellee’s sentence was no longer final and the PCRA court lacked

jurisdiction   to   rule    on   Appellee’s    other   requests      for   relief.       See

Commonwealth v. Donaghy, 33 A.3d 12, 14 n.5 (Pa. Super. 2011); see

also Holmes supra.           Accordingly, until Appellant’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

Appellee’s remaining ineffective assistance of counsel claims.




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       We    therefore    affirm    the   PCRA     court’s   order   with   respect   to

reinstatement of Appellee’s direct appeal rights nunc pro tunc. We vacate

the remainder of the PCRA court’s order.4

       Order affirmed in part and vacated in part. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




____________________________________________


4
    Our ruling is without prejudice to Appellee in PCRA proceedings that may
commence after Appellant’s judgment of sentence becomes final. Moreover,
we note that PCRA court already held hearings on Appellee’s remaining PCRA
claims. “The law in this area recognizes that although the PCRA court may
not properly review the merits of [the] substantive claims when [] direct
appeal rights have been violated, that court’s review will serve the
evidentiary purpose of completing the record for appellate review.” Pate,
617 A.2d at 759. Thus, after his direct appeal rights have been exhausted
or extinguished and his judgment of sentence becomes final, Appellee may
seek collateral relief on grounds previously raised; the PCRA court may use
the already developed evidentiary record and may supplement that record
as it sees fit.



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