Commonwealth v. Perry, 128 A.3d 1285

Background

Bryan Perry was convicted by a jury on November 15, 2011 of attempted homicide, aggravated assault, firearms offenses, and recklessly endangering another; sentenced to 25–50 years.
Trial transcript shows an ex parte bench communication revealing the jury had unmarked, unadmitted material in the deliberation room; the court told jurors they were not supposed to have it and took it back without informing counsel.
Perry alerted appellate counsel after reviewing the transcript; counsel filed a direct appeal but raised only discretionary sentencing claims; this Court affirmed the conviction on December 20, 2012.
Perry filed a timely PCRA petition alleging, inter alia, appellate counsel was ineffective for failing to challenge the jury’s receipt of unmarked evidence; the PCRA court initially dismissed, this Court remanded for an evidentiary hearing on that specific IAC claim.
On remand, appellate counsel did not testify at the PCRA hearing (claimed a family emergency); trial counsel testified and conceded, on behalf of the public defender’s office, that appellate counsel was ineffective.
The PCRA court granted relief and reinstated Perry’s direct appeal rights nunc pro tunc; the Commonwealth appealed, arguing the record did not support a finding of appellate ineffectiveness because appellate counsel had no opportunity to explain her strategy.

Issues

Issue	Perry's Argument	Commonwealth's Argument	Held
Whether appellate counsel was ineffective for failing to raise jury receipt of unmarked evidence on direct appeal	Appellate counsel should have raised the unmarked-evidence issue; failure prejudiced Perry and warrants relief	PCRA record lacks evidence that counsel had no reasonable basis; counsel was not afforded an opportunity to explain; presumption of effectiveness stands	PCRA court erred: Perry failed to meet burden to prove appellate counsel ineffective; reversal of PCRA grant
Whether reinstatement of direct appeal rights was proper remedy if counsel raised some but not all claims on direct appeal	Perry sought nunc pro tunc reinstatement to pursue the unraised claim	Commonwealth: when counsel perfects an appeal but omits issues, the proper vehicle is PCRA relief applying Pierce factors, not reinstatement	Court notes that even if ineffectiveness proved, reinstatement would be improper; remedy would be PCRA relief, not nunc pro tunc reinstatement
Whether the PCRA court could rely on trial counsel’s concession about appellate counsel’s performance	Trial counsel’s concession supports finding of ineffectiveness	Concession by trial counsel is speculative and insufficient; counsel herself must be heard	Held: trial counsel’s opinion is irrelevant; counsel’s absence deprived record of required explanation
Whether remand for another evidentiary hearing was required	Perry sought to preserve the PCRA grant; argued record supported relief	Commonwealth argued record supported reversal; majority declined another remand	Court reversed PCRA order and dismissed the contemporaneous appeal as moot (majority); separate concurrence/dissent would remand for a hearing with appellate counsel present

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes the two-part federal ineffective-assistance test)
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (Pennsylvania’s three-factor IAC framework)
Commonwealth v. Reed, 971 A.2d 1216 (Pa. 2009) (articulating the Pierce test and prejudice requirement)
Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011) (deference to strategic decisions of counsel)
Commonwealth v. Koehler, 36 A.3d 121 (Pa. 2012) (counsel generally should be given an opportunity to address allegations of ineffectiveness)
Commonwealth v. Mikell, 968 A.2d 779 (Pa. Super. 2009) (nunc pro tunc reinstatement improper where an appeal was perfected but certain claims were omitted)
Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005) (nunc pro tunc relief appropriate where counsel totally failed to perfect an appeal)