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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PERRY BURRIS
Appellant No. 3259 EDA 2014
Appeal from the PCRA Order entered October 31, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0000712-2008
BEFORE: BENDER, P.J.E., STABILE,and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 13, 2016
Appellant Perry Burris pro se appeals from the October 31, 2014 order
of the Court of Common Pleas of Philadelphia County (“PCRA court”),
dismissing his petition for collateral relief under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The facts and procedural history underlying this case are undisputed.
As summarized by the PCRA court:
In the early morning hours of September 24, 2007,
[Appellant], who was intoxicated at the time, rang the doorbell
of the victim, whom he had previously unsuccessfully
approached for date. When the victim answered the door,
[Appellant] forced the victim back into her home, punched her
repeatedly in the face, and forced her to take off her clothes.
[Appellant] proceeded to perform oral sex on the victim and then
anally raped her, which caused the victim to defecate on herself.
[Appellant] then forced the victim to shower, after which he
vaginally raped her. During all of these heinous and terrifying
acts, [Appellant] repeatedly told the victim that he would kill her
once he was finished with her. Appellant also stole rent money
from the victim’s home. Eventually the victim was able to
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escape when a friend came to her front door and she ran out of
her home and found police.
PCRA Court’s Rule 1925(a) Opinion, 6/30/15, at 3 (internal record citation
omitted). On September 17, 2008, Appellant was convicted by bench trial of
rape, involuntary deviate sexual intercourse, sexual assault, simple assault,
robbery, and burglary in connection with the September 24, 2007 incident. 1
On November 13, 2008, the trial court sentenced Appellant to three
consecutive terms of 10 to 20 years’ imprisonment for convictions for rape,
robbery, and burglary, resulting in an aggregate sentence of 30 to 60 years’
imprisonment. Appellant appealed his judgment of sentence, which this
Court affirmed. See Commonwealth v. Burris, 4 A.3d 678 (Pa. Super.
2010) (unpublished memorandum).
Thereafter, on July 23, 2010, Appellant timely filed a PCRA petition,
which is the subject of this appeal. The PCRA court appointed counsel who
amended the petition. On June 12, 2014, the PCRA court issued a
Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a
hearing. On October 31, 2014, the PCRA court dismissed Appellant’s PCRA
petition. Appellant appealed to this Court. After filing the appeal, a
Grazier2 hearing was held following which Appellant was permitted to
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1
18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3124.1, 2701, 3701(a)(1), and
3502(a), respectively.
2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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proceed pro se. Appellant then filed a pro se Rule 1925(b) statement,
raising the following five assertions of error:
1. Trial counsel was ineffective for stipulating to exculpatory
DNA evidence crucial to [Appellant’s] defense of consent by
the alleged victim.
2. Trial counsel was ineffective for providing incorrect legal
advice as to PA rules of evidence and statutory effect on
[Appellant’s] right to testify on his own behalf.
3. Direct appeal counsel was ineffective for failing to investigate
Appellant’s claim and abandoning Appellant through an
Anders[3] brief.
4. Collateral appeal counsel was ineffective for failing to motion
the [trial] court for performance of DNA testing that is related
to the investigation and prosecution that resulted in the
judgment of conviction in accordance with 42 Pa.C.S.A. §
9543.1 Post Conviction DNA testing.
5. The prosecutor committed gross misconduct by initiating an
agreement between himself and trial counsel to stipulate to
exculpatory DNA evidence.
Appellant’s Rule 1925(b) Statement, 3/2/15. In response, the PCRA court
issued a Pa.R.A.P 1925(a) opinion.
On appeal,4 Appellant repeats the same five issues for our review.5
Preliminarily, we observe that Appellant’s first, and third issues are waived
because he failed to preserve them for appeal. As the PCRA court aptly
found, Appellant failed to raise these issues in his PCRA petition and raised
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3
Anders v. California, 386 U.S. 738 (1967).
4
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
5
The Commonwealth failed to file an appellate brief in this case.
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them for the first time in his Rule 1925(b) statement. PCRA Court’s Rule
1925(a) Opinion, 6/30/15, at 4, 6-7; see Pa.R.A.P. 302(a); Pa.R.A.P.
1925(b)(4)(vii); Commonwealth v. Melendez–Rodriguez, 856 A.2d
1278, 1287 (Pa. Super. 2004) (en banc) (holding issues raised for first time
in 1925(b) statement waived); accord Commonwealth. v. Tejada, 107
A.3d 788, 790 (Pa. Super. 2015); see also Commonwealth v. Ousley, 21
A.3d 1238, 1242 (Pa. Super. 2011) (“It is well-settled that issues not raised
in a PCRA petition cannot be considered on appeal.”) (internal quotation
marks and citation omitted), appeal denied, 30 A.3d 487 (Pa. 2011).
Appellant’s fourth issue that his PCRA counsel was ineffective is also
waived as he raised it for the first time on appeal. We recently held that
allegations of PCRA counsel’s ineffectiveness cannot be brought for the first
time on a PCRA appeal. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.
Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).
Finally, Appellant’s fifth issue concerning prosecutorial misconduct is
waived because he could have raised it prior to conviction. Indeed, under
the PCRA, “an issue is waived if the petitioner could have raised it but failed
to do so before trial, at trial, during unitary review, on appeal[,] or in a prior
state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b); see
Commonwealth v. Ford, 809 A.2d 325, 329 (Pa. 2002) (holding that
petitioner’s claims of trial court error, constitutional error, and prosecutorial
misconduct, which could have been raised on direct appeal but were not,
were waived under the PCRA).
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We now turn to Appellant’s sole remaining issue on appeal, i.e.,
whether the trial counsel was ineffective in his provision of legal advice.
Appellant claims that trial counsel provided incorrect legal advice on rules of
evidence and on Appellant’s right to testify on his own behalf.
A PCRA petitioner is entitled to relief if he pleads and proves that prior
counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A.
§ 9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner
must plead and prove by a preponderance of the evidence that (1) the
underlying legal claim has arguable merit; (2) counsel had no reasonable
basis for acting or failing to act; and (3) the petitioner suffered resulting
prejudice.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa.
Super. 2015) (en banc). “A petitioner must prove all three factors of the
“Pierce[6] test,” or the claim fails.” Id.
Instantly, despite Appellant’s argument that his ineffectiveness claims
meet the arguable merit prong of the Pierce test, his brief is bereft of any
discussion or argument with respect to the reasonable basis and prejudice
prongs of the Pierce test. As we recently emphasized, “[a] petitioner must
prove all three factors of the Pierce test, or the [ineffectiveness] claim fails.
In addition, on appeal, a petitioner must adequately discuss all three
factors of the Pierce test, or the appellate court will reject the claim.”
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6
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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Reyes-Rodriguez, 111 A.3d at 780 (emphasis added) (citing Fears, 86
A.3d at 804)). Thus, given Appellant’s failure to adequately discuss the
reasonable basis and prejudice prongs on appeal, we reject his
ineffectiveness claims.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2016
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Com. v. Burris, P.
Combined Opinion