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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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