Lead Opinion
OPINION BY
- The Commonwealth appeals the February 4, 2015 order granting Bryan Perry’s petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S. §§ 9541-46, and reinstating Perry’s direct appellate rights nunc pro tunc. Also before this Court is Perry’s direct appeal, which he has filed nunc pro tunc pursuant to the PCRA court’s February 4, 2015 order. Because we conclude that the PCRA court erred in granting Perry’s petition in the first instance, we reverse that order and dismiss Perry’s contemporaneous direct appeal as moot.
On November 15, 2011, a jury convicted Perry of criminal attempt to commit homicide, aggravated assault, carrying a fire-, arm without a license, persons not to possess firearms, and recklessly endangering another person.
(The following occurred at 12:17 p.m, in the jury deliberation room, outside the presence of counsel and the defendant.)
*1288 The Court: Instead of dragging you all down, I figured I’d come up. I have your request to see both 9-1-1 transcripts. You have a copy?
A voice: No. This is the only thing we got.
The Court: You weren’t even supposed to get that. They weren’t marked as part of the evidence. So whatever’s marked as evidence comes up to you. Otherwise, you have to just use your recollection and recall,based on the trial. So that’s the answer. All right? Thank you, ladies and gentlemen.
(Deliberations resumed at 12:19 p.m.)
Notes of Testimony (“N.T.”), 11/15/2011, at 164. The trial court did not inform defense counsel or the Commonwealth that the jury had unmarked evidence with it in the deliberation room.
According to Perry, he pointed out the above-quoted exchange to his appellate counsel after reviewing the transcript, and asked her to pursue the issue on direct appeal. Nevertheless, counsel filed an appeal challenging only the discretionary aspects of Perry’s sentence. On December 20, 2012, in an unpublished memorandum decision, this Court affirmed Perry’s judgment of sentence. See Commonwealth v. Perry, 656 MDA 2012 (Pa.Super. Dec. 20, 2012).
On November 8, 2018, Perry filed a timely PCRA petition. Therein, Perry alleged various instances of ineffective assistance of trial and appellate counsel. Relevant to this appeal, Perry alleged that his appellate counsel was ineffective for failing to challenge on direct appeal the jury’s receipt of unmarked evidence. On April 16, 2014, the PCRA court held a hearing on Perry’s petition. Appellate counsel did not testify at that hearing.
On May 16, 2014, the PCRA court entered an order and opinion dismissing Perry’s petition. Notwithstanding the fact that Perry raised the issue of appellate counsel’s ineffectiveness in his petition for relief, the PCRA court did not address that claim in its opinion. On December 30, 2014, this Court vacated the PCRA court’s order dismissing Perry’s petition and remanded the matter for an evidentiary hearing on the issue of whether appellate counsel had rendered ineffective assistance by failing to challenge on direct appeal the jury’s receipt of unmarked evidence. See Commonwealth v. Perry, 917 MDA 2014,
On February 4, 2015, the PCRA court held an evidentiary hearing. Perry did not subpoena appellate counsel, and she did not attend the hearing. Frustrated by appellate counsel’s absence, the PCRA court took a brief recess “to make a phone call.” N.T., 2/4/2015, at 4. When the hearing resumed, the PCRA court called to the stand and questioned appellate counsel’s colleague (who also served as Perry’s trial counsel) from the Dauphin County Public Defender’s Office.
According to trial counsel, appellate counsel was never given notice of the PCRA hearing and was unavailable to testify because she was out of the state due to a family emergency. Id. at 7. Unsurprisingly, trial counsel could not provide any insight into appellate counsel’s failure to assert on appeal that the jury was given unmarked evidence. Trial counsel testified only that the trial transcript indicates that the jury was given unmarked evidence and that appellate counsel did not raise the issue on direct appeal. She then purported to concede on behalf of the public defender’s office that appellate counsel was
On February 11, 2015, the Commonwealth filed a notice of appeal. On February 19, 2015, the. PCRA court issued an order directing the Commonwealth to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The Commonwealth timely complied. On April 22, 2015, the PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a).
The Commonwealth presents one issue for our consideration: “Whether the PCRA court erred in finding [Perry’s] appellate attorney ineffective when [Perry’s] appellate attorney was not presented as a witness at his PCRA evidentiary hearing and no testimony was offered from [Perry’s] appellate attorney to be considered in the court’s determination of appellate counsel’s effectiveness^]” Brief for Commonwealth (420 MDA 2015) at 4 (capitalization modified).
This Court analyzes PCRA appeals “in the light most favorable to the prevailing party at the PCRA level.” Commonwealth v. Rykard,55 A.3d 1177 , 1183 (Pa.Super.2012). Our “review is limited to the findings of the PCRA court and the evidence of record” and we do not “disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error.” Id. Similarly, “[w]e grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support- in the record. However, we afford no such deférence to its legal conclusions.” Id. (citations omitted). “[W]here the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.” Finally, we “may affirm a PCRA court’s decision on any grounds if the record supports it.” Id.
Commonwealth v. Rigg,
Pennsylvania has recast the two-factor inquiry regarding the. effectiveness of counsel set forth by the United States Supreme Court in Strickland v. Washington,
[I]n order -to obtain relief based on [an ineffective assistance -of counsel (“IAC”) ] claim, a petitioner must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s actions or failure to act; and (3) petitioner suffered prejudice as a result of counsel’s error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.
Commonwealth v. Reed,
The PCRA court granted Perry’s petition and reinstated his direct appeal
When evaluating ineffectiveness claims, judicial scrutiny of counsel’s performance must be highly deferential. Counsel will not be deemed ineffective where the strategy employed had some reasonable basis designed to effectuate his or her client’s interests. See Commonwealth v. Lesko,
In its 1925(a) opinion, the PCRA court does not discuss or analyze any of the Pierce factors. See Trial Court Opinion, 4/22/2015, at 3. Instead, the court relies entirely upon trial counsel’s testimony at the PCRA hearing, wherein trial counsel purported to concede that appellate counsel was ineffective. Trial counsel’s opinion of her colleague’s effectiveness is irrelevant. Trial counsel had no idea why-appellate counsel neglected to raise the unmarked evidence issue. Trial counsel simply pronounced appellate counsel’s ineffectiveness based upon the- former’s review of the trial transcript,.
Our Supreme Court has cautioned that, “[a]s a general rule, a lawyer should not be held ineffective without first having an opportunity to address the accusation in some fashion.” Commonwealth v. Koehler,
Order reversed. Jurisdiction relinquished.
Judge PANELLA joins the opinion.
Judge STRASSBURGER files a concurring/dissenting opinion.
Notes
. 18 Pa.C.S. §§ 901(a), 2702(a)(1), 6106(a)(1), 6105(a)(5), and 2705, respectively.
. Even if the record supported a finding that appellate counsel was ineffective, the PCRA court should have vacated Perry’s judgment of sentence instead of granting Perry nunc pro tunc relief. Although an appellant is entitled to reinstatement of his direct appeal rights when counsel fails entirely to perfect an appeal, see Commonwealth v. Halley,
. Perry also failed to demonstrate that he suffered prejudice as a result of counsel's performance. Because the transcript does not disclose, and the trial court cannot remember, what unmarked evidence the jury had with it in the deliberation room, we fail to understand how the PCRA court concluded that appellate counsel’s failure to raise the unmarked evidence issue caused Perry prejudice. Confusingly, in response to Perry’s assertion that the trial- court erred by not informing the parties that the jury had
. As noted by the learned Dissent, we previously remanded this matter and ordered "the PCRA court to conduct an evidentiary hearing on the issue of whether, [appellate counsel] rendered ineffective assistance.” See Commonwealth v. Perry, 917 MDA 2014, slip op. at 7,
Concurrence Opinion
CONCURRING AND DISSENTING OPINION BY
For the reasons that follow, I respectfully dissent to the'result reached by the learned Majority at Docket Number 420 MDA 2015 and concur in the' result reached by the learned Majority at Docket Number 265 MDA 2015.
As to Docket Number 420 MDA 2015, the PCRA court originally denied Perry’s PCRA petition in an order entered on May 16, 2014, and Perry appealed that order. As a result of that appeal,. this Court vacated the PCRA court’s order and remanded for an evidentiary hearing. This Court offered the following discussion in support of our decision:.
□Perry's claim that [appellate counsel] was ineffective for failing to raise, on direct appeal, the jury’s receipt of unmarked evidence cannot be resolved on the certified record. As recognized by the PCRA court, this' issue was not pursued or addressed at the evidentiary hearing. Our review of the certified record discloses that [appellate counsel] did not testify at the ’ evidentiary hearing, and the record is devoid of her response to Perry’s claim that he had informed her of the jury’s receipt of unmarked evidence. Névertheléss, the PCRA [c]ourt acknowledged that' this claim was addressed in Perry’s briefs following the evidentiary hearing.
To enable appellate review, PCRA courts are required to provide a legally*1292 robust discussion, complete with clear findings of fact where required. A fact-finding court should support its holding with sufficient explanations of the facts and law to facilitate appellate review. Where a petitioner has presented a' claim to the PCRA court and that court has not addressed it, a remand is appropriate where the claim cannot be resolved on the record. [Particularly in close cases, a developed post-conviction record accompanied by specific factual findings and legal conclusions is an essential tool necessary to sharpen the issues. Thus, we vacate the [o]rder of the PCRA court and remand this matter to the PCRA court to conduct an eviden-tiary hearing on the issue of whether [appellate counsel] rendered ineffective assistance by failing to raise, on direct appeal, the jury’s receipt of unmarked evidence.
Commonwealth v. Perry, 917 MDA 2014,
Thus, this Court vacated the PCRA court’s order and remanded the matter, specifically directing the PCRA court to conduct an evidentiary hearing to determine whether appellate counsel was ineffective by failing to raise on direct appeal the issue regarding the jury’s receipt of unmarked evidence. In my view, this Court’s Memorandum clearly spelled out that appellate counsel’s testimony was required at the hearing.
At the evidentiary hearing on remand, the PCRA court was immediately made aware of the fact that appellate counsel was not present for the hearing because, inter alia, she had a family emergency. At that point, the PCRA court knew or should have known that it could not comply with this Court’s instructions. Rather than postponing or continuing the hearing, the court held a hearing without appellate counsel and granted Perry relief in the form of reinstatement of his appellate rights.
Because the PCRA court failed to follow this Court’s directions on remand, I would vacate the PCRA court’s most recent order and remand the matter with directions to hold an evidentiary hearing in compliance with this Court’s previous Memorandum.
. Perry already has had a direct appeal, which resulted in this Court affirming his judgment of sentence; therefore, this form of relief was unavailable to him. See Commonwealth v. Grosella,
. While the Majority opines that Appellant should not get a "third bite at the apple,” see Majority at 1291 n. 4, based on the foregoing, it is evident that Appellant has not even had a first bite at the apple.