J-S54041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
TORRENCE DEONTA LYDE :
: No. 387 WDA 2017
Appellant
Appeal from the PCRA Order January 24, 2017
In the Court of Common Pleas of Indiana County
Criminal Division at No(s): CP-32-CR-0001206-2013
BEFORE: OTT, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 08, 2017
Appellant, Torrence Deonta Lyde, appeals from the order granting in
part and denying in part his first timely petition filed under the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant contends the
evidence was insufficient to support his convictions, the verdicts were against
the weight of the evidence, and his prior counsel was ineffective. We affirm
the PCRA order in part, vacate in part, and remand to the PCRA court for
further proceedings consistent with this memorandum.
On August 21, 2013, Appellant was arrested in an apartment where a
confidential informant had just purchased heroin. Officers found Appellant in
the bathroom of the apartment after hearing a flushing toilet. Appellant had
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* Former Justice specially assigned to the Superior Court.
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to be tasered and subdued in the course of his arrest. After a jury trial,
Appellant was convicted of possession with intent to deliver (“PWID”), 1
conspiracy to commit PWID,2 possession of a controlled substance,3 recklessly
endangering another person,4 and resisting arrest.5 The trial court sentenced
Appellant to an aggregate sentence of four and one-half to fifteen years in
prison.
Appellant’s counsel did not file post-sentence motions but did file a
direct appeal challenging the sufficiency of the evidence, the weight of the
evidence, and the trial court’s decision to allow testimony regarding the
controlled drug buy without revealing the identity of the confidential
informant. This Court concluded that Appellant waived his weight of the
evidence claim for failure to file post-sentence motions and waived his
sufficiency claim for failure to properly develop the claim on appeal.
Commonwealth v. Lyde, 387 WDA 2017 (Pa. Super. filed June 11, 2015)
(unpublished memorandum). In addition, this Court determined that
Appellant did not raise an issue regarding the identity of the confidential
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1 35 P.S. § 780-113(a)(30).
2 18 Pa.C.S. § 903(a).
3 35 P.S. § 780-113(a)(16).
4 18 Pa.C.S. § 2705.
5 18 Pa.C.S. § 5104.
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informant during trial and, therefore, that issue was also waived. Id.
Appellant did not seek allowance of appeal in the Pennsylvania Supreme
Court.6
Appellant filed a timely pro se PCRA petition. The PCRA court appointed
counsel, who filed an amended petition. The PCRA court conducted a hearing
on September 6, 2016, at which prior counsel testified. At the conclusion of
the hearing, Appellant’s PCRA counsel presented arguments challenging the
sufficiency and the weight of the evidence. On January 24, 2017, the PCRA
court concluded that: (1) Appellant’s sentences for PWID were illegal pursuant
to Alleyne v. United States, 133 S. Ct. 2151 (2013); (2) Appellant’s prior
counsel had been ineffective for failing to properly preserve Appellant’s
sufficiency and weight of the evidence claims; and (3) Appellant’s remaining
ineffective assistance of counsel claims were meritless. PCRA Ct. Op. & Order,
1/24/17, at 11. The court restored Appellant’s direct appeal rights as to the
sufficiency and weight of the evidence. Id.
Appellant filed the instant notice of appeal on February 21, 2017.7 The
following day, February 22, 2017, still within the thirty day appeal period, the
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6 Appellant was represented by the same counsel from pretrial to the
conclusion of his direct appeal.
7 In his notice of appeal, Appellant indicated that he intended to appeal the
denial of PCRA relief. Pursuant to Commonwealth v. Watley, 153 A.3d 1034
(Pa. Super. 2016) the PCRA court’s January 24, 2017 order is considered final
because the order addressed all issues in Appellant’s PCRA petition. Id. at
1039 n.3 (“an order granting in part and denying in part all issues raised in
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PCRA court ordered resentencing to take place within sixty days. That same
day, the court issued a separate order directing Appellant to file and serve a
Pa.R.A.P. 1925(b) statement. Appellant timely filed a Rule 1925(b) statement
raising his direct appeal claims, as well as ineffective assistance of counsel
claims. In response, the PCRA court adopted its January 24, 2017 opinion as
its Rule 1925(a) opinion. Subsequently, on May 1, 2017, the trial court
resentenced Appellant to concurrent sentences of two to ten years’
imprisonment for each PWID count, a reduction from the prior PWID sentences
of three to twelve years’ imprisonment. All other aspects of Appellant’s
sentence remained the same.8
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[a] PCRA petition was a final order for purposes of appeal.”); see also
Commonwealth v. Grove, __ A.3d __, 2017 WL 3763408 at *7 (Pa. Super.
2017) (holding that “the PCRA court’s order granting relief with regard to
sentencing and denying all other claims therefore was a final appealable
order.”). But see Commonwealth v. Gaines, 127 A.3d 15, 22-25 (Pa.
Super. 2015) (en banc) (plurality) (Bender, P.J.E, dissenting). Even if we
were to consider the PCRA court’s January 24, 2017 order to be interlocutory,
the trial court, as discussed below, subsequently resentenced Appellant, which
would have made the order final. See Gaines, 127 A.3d at 22-25. Therefore,
we would still conclude that this appeal was proper. See Pa.R.A.P. 905(a)(5)
(“A notice of appeal filed after the announcement of a determination but
before entry of an appealable order shall be treated as filed after such entry
and on the day thereof.”); cf. Johnston the Florist, Inc. v. TEDCO Const.
Corp., 657 A.2d 511, 514–15 (Pa. Super. 1995) (en banc).
8There is no indication in the record that Appellant or the Commonwealth filed
post-sentence motions or an appeal from the May 1, 2017 judgment of
sentence. We note that Pa.R.A.P. 1701(a) generally prohibits a trial from
proceeding further in a matter after an appeal is taken. Pa.R.A.P. 1701(a).
Nevertheless, the trial court retained the authority to resentence Appellant
after he appealed the PCRA court’s January 24, 2017 order because there was
no dispute regarding the PCRA court’s finding that the sentence was illegal.
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Appellant raises the following issues for review:
1. Whether the evidence presented at trial was sufficient to
warrant a guilty verdict on all charges?
2. Whether the jury verdict of guilty on the possession with
intent to deliver a controlled substance and recklessly
endanger another person was against the weight of the
evidence?
3. Was previous counsel ineffective counsel for failing to
request a mistrial or at the least a curative instruction after
a police officer testified to an inadmissible hearsay
statement that prejudiced [Appellant] at trial.
4. Was [Appellant’s] counsel ineffective counsel because he
failed to argue at trial and on appeal that any evidence of
prior bad acts on behalf of [Appellant] should be excluded,
thus, denying [Appellant] of a fair trial?
Appellant’s Brief at 7.
At the outset, we comment that the present case presents an unusual
procedural posture. Appellant technically took this appeal from the order
granting in part and denying in part his request for PCRA relief and attempts
to raise direct appeal claims and ineffectiveness claims. The trial/PCRA court
stated that it substantially addressed Appellant’s claims in its opinion and
order suggesting no relief is due.
This Court has stated:
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See Pa.R.A.P. 1701(c) (“Where only a particular item, claim or assessment
adjudged in the matter is involved in an appeal . . . the appeal . . . shall
operate to prevent the trial court or other government unit from proceeding
further with only such item, claim or assessment, unless otherwise ordered by
the trial court or other government unit or by the appellate court or a judge
thereof as necessary to preserve the rights of the appellant.”).
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[O]nce 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. 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.
Commonwealth v. Harris, 114 A.3d 1, 3-4 (Pa. Super. 2015) (citations and
quotation marks omitted). Furthermore,
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.” [Commonwealth v. Holmes, 79 A.3d 562,
576 (Pa. 2013)9 (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.
Id. at 5-6.
Here, the PCRA court reinstated Appellant’s direct appeal rights.
Therefore, it technically lacked jurisdiction to rule upon the remaining “prolix”
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9This Court in Holmes reaffirmed the principle stated in Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002) that a claim of ineffective assistance of
counsel should be deferred to PCRA review. Holmes, 79 A.3d at 563 (citing
Grant, 813 A.2d at 738).
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claims related to prior counsel’s alleged ineffectiveness at trial. Although there
was a PCRA hearing, our consideration of the PCRA court’s denial of Appellant’s
remaining ineffectiveness claim would violate Holmes and Harris because
the court did not find good cause and Appellant did not expressly waive his
rights to further PCRA review. Holmes, 79 A.3d at 578. Thus, because the
PCRA court reinstated Appellant’s direct appeal rights, the PCRA court erred
by considering the merits of Appellant’s remaining ineffective assistance of
counsel claims.
Additionally, Appellant asserted that prior counsel was ineffective for
failing to preserve a weight of the evidence claim for appeal by filing post-
sentence motions, and the PCRA court expressly reinstated Appellant’s direct
appeal right to raise this issue. However, the PCRA court did not reinstate
Appellant’s right to file post-sentence motions nunc pro tunc. We conclude
further proceedings are necessary to resolve this discrepancy.
It is well settled that a weight of the evidence claim must be preserved
in a motion before the trial court, and that this Court will only review the trial
court’s exercise of discretion in considering whether a new trial is necessary.
See Pa.R.Crim.P. 607; Commonwealth v. Sherwood, 982 A.2d 483, 494
(Pa. 2009).
With respect to a claim of ineffective assistance of counsel regarding the
failure to preserve a weight of the evidence claim, our Supreme Court has
maintained a
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distinction between errors which completely foreclose
merits review and those which merely “narrow its ambit.”
Thus, [the Court] held an attorney’s failure to file a post-
sentence motion preserving a particular sentencing claim
“did not operate to entirely foreclose appellate review,” but
merely “waive[d] ... those claims subject to issue
preservation requirements which were not otherwise
properly preserved.”
Commonwealth v. Rosado, 150 A.3d 425, 432 (Pa. 2016) (citation
omitted). “[C]ounsel's failure to file post-sentence motions did not fall within
the narrow ambit of ineffectiveness claims requiring no finding of prejudice.”
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation and
quotation marks omitted); see also Commonwealth v. Reaves, 923 A.2d
1119, 1129-30 (Pa. 2007).
Similarly, our Supreme Court, in Commonwealth v. Liston, 977 A.2d
1089 (2009), has held that the reinstatement of a defendant’s direct appeal
rights does not automatically reinstate a defendant’s right to file post-
sentence motions nunc pro tunc. Liston, 977 A.2d at 1093. Nevertheless,
the Liston Court stated:
Our holding should not be construed as prohibiting a PCRA
court from reinstating a defendant’s right to file post-
sentence motions nunc pro tunc. If a defendant successfully
pleads and proves that he was deprived of the right to file
and litigate said motions as a result of the ineffective
assistance of counsel, a PCRA court is free to grant such
relief. Presumably, since post-sentence motions are
optional, see Pa.R.Crim.P. 720(B), rarely will counsel be
deemed to have been ineffective for failing to file them
except, for example, when the claim involves the
discretionary aspects of sentence or a challenge to a
verdict on weight of the evidence grounds, claims
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which must be raised in the trial court to be preserved
for purposes of appellate review.
Id. at 1094 n.9 (emphases added and some citations omitted).
Instantly, although the court expressly reinstated Appellant’s right to
appeal this issue, such relief would be illusory without further consideration of
whether Appellant was entitled to file post-sentence motions nunc pro tunc.
However, it is unclear whether the PCRA court considered Appellant’s separate
claim that trial counsel was ineffective for failing to file post-sentence motions
under the traditional three-prong test of ineffective assistance of counsel. See
Reaves, 923 A.2d at 1127 n.10 (noting petitioner must establish “that: (1)
his underlying claim is of arguable merit; (2) the particular course of conduct
pursued by counsel did not have some reasonable basis designed to effectuate
his interests; and (3) but for counsel’s ineffectiveness, there is a reasonable
probability that the outcome of the proceedings would have been different.”
(citation omitted)). Therefore, we are constrained to vacate that portion of
the PCRA court’s order that reinstated Appellant’s direct appeal rights to
challenge the weight of the evidence and remand for further consideration of
Appellant’s claim that prior counsel was ineffective for failing to file post-
sentence motions.
We note, however, that the PCRA court was well within its authority to
find the imposition of mandatory minimum sentences illegal and that Appellant
was entitled to PCRA relief because Alleyne was decided before his judgment
of sentence became final and his PCRA petition was timely filed. See
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Commonwealth v. Rivera, 154 A.3 370 (Pa. Super. 2017) (en banc), appeal
denied, 70 MAL 2017 (Pa. July 27, 2017); Commonwealth v. Ruiz, 131 A.3d
54, 60-61 (Pa. Super. 2015). But see Commonwealth v. Washington, 142
A.3d 810 (Pa. 2016), Commonwealth v. Ciccone, 152 A.3d 1004 (Pa.
Super. 2016) (en banc), appeal denied, 27 MAL 2017 (Pa. June 5, 2017).
Moreover, we discern no error in the PCRA court’s decision to reinstate
Appellant’s direct appeal based on trial counsel’s per se ineffectiveness for
failing to preserve any issues in the direct appeal. See Rosado, 150 A.3d at
432-33 (Pa. 2016). Thus, we affirm those aspects of the order that found
Appellant’s sentence illegal and reinstated his right to appeal.
Because we have vacated the portions of the order that purported to
consider Appellant’s “prolix” claims of ineffective assistance and vacated and
remanded that portion of the order reinstating Appellant’s weight of the
evidence claim for further consideration, the proceedings on remand require
further comment. If the PCRA court reinstates Appellant’s right to file post-
sentence motions, those motions should be filed from the judgment of
sentence imposed on May 1, 2017. Thereafter, Appellant would have thirty
days from the order denying the post-sentence motions to file an appeal. If
the PCRA court denies the right to file post-sentence motions, Appellant may
challenge the denial by appealing the PCRA court’s order. See Watley, 153
A.3d at 1039 n.3 (“an order granting in part and denying in part all issues
raised in a PCRA petition was a final order for purposes of appeal.”).
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Otherwise, his direct appeal nunc pro tunc should be taken from the May 1,
2017 sentence. To the extent the parties and the court believe that
Appellant’s remaining claims of ineffectiveness should be considered in a
unitary appeal, they must follow the procedures and standards set forth in
Holmes.
Order affirmed in part and vacated in part. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2017
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