Com. v. Finsterbush, M. ( 2018 )


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  • J-A01028-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
    OF
    PENNSYLVANIA
    Appellant
    v.
    MARTIN C. FINSTERBUSH,
    Appellee                  No. 689 EDA 2017
    Appeal from the Order Entered January 18, 2017
    in the Court of Common Pleas of Delaware County
    Criminal Division at No.: CP-23-CR-0007449-2015
    BEFORE: LAZARUS, J., OTT, J., and PLATT, J.*
    MEMORANDUM BY PLATT, J.:                                   FILED MAY 11, 2018
    The Commonwealth appeals from the order granting the oral motion for
    extraordinary relief of Appellee, Martin C. Finsterbush,1 and vacating his
    conviction of numerous sexual offenses committed against two of his
    granddaughters. We reverse and remand.
    On September 23, 2016, after a bench trial, the court convicted
    Appellant of all charges, five charges of indecent assault and one charge of
    corruption of minors, against two minor granddaughters.         On January 18,
    2017, the trial court judge (the same judge who presided over the waiver
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1   Appellee’s name is also spelled “Finsterbusch” in the record before us.
    J-A01028-18
    trial), granted new defense counsel’s oral motion for extraordinary relief
    pursuant to Pa.R.Crim.P. 704(B).2 The judge found that defense trial counsel’s
    performance was “wholly inadequate” and that “the normal appellate process”
    for post-conviction relief, would be “unduly burdensome” and “a waste of
    judicial resources.” (Order, 1/18/17). This timely appeal followed the trial
    court’s denial of the Commonwealth’s motion for reconsideration.
    The application of a rule of criminal procedure under our caselaw
    presents a pure question of law for which our standard of review is de novo,
    and our scope of review is plenary. See Commonwealth v. Cooper, 
    27 A.3d 994
    , 998 (Pa. 2011). Our Supreme Court has recently reaffirmed that since
    2002, the general rule under Commonwealth v. Grant, 
    813 A.2d 726
    , 738
    (Pa. 2002), is that ineffective assistance of counsel claims are deferred until
    collateral review pursuant to the Post Conviction Relief Act (PCRA), 42
    Pa.C.S.A. §§ 9541-9546.          See Commonwealth v. Delgros, No. 27 WAP
    2017, 
    2018 WL 1959478
    , at *1 (Pa. filed April 26, 2018), citing 
    Grant, supra
    .
    The defense and the trial court have failed to establish either of the
    narrow exceptions identified in Commonwealth v. Holmes, 
    79 A.3d 562
    ,
    563–64 (Pa. 2013), or the new exception adopted in 
    Delgros, supra
    . Our
    Supreme      Court     reaffirmed     in   Holmes   that,   absent   extraordinary
    ____________________________________________
    2 Although the order is dated as of January 19, 2017, we follow the official file
    date stamp and the consistent docket entry, which both confirm the date of
    the order as January 18, 2017.
    -2-
    J-A01028-18
    circumstances, such as issues of “primary constitutional magnitude,” claims
    of ineffective assistance of counsel should still be deferred until collateral
    review, as previously held in Grant.     “[W]e reaffirm Grant and hold that,
    absent the circumstances we address below, 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. Holmes, supra at 576.
    “[C]ounsel is presumed effective, and [appellant] bears the
    burden of proving otherwise.” To prevail on an ineffectiveness
    claim, appellant must establish:
    (1) the underlying claim has arguable merit; (2) no
    reasonable basis existed for counsel’s actions or failure to
    act; and (3) [appellant] 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.
    Failure to prove any       prong   of   this   test   will   defeat   an
    ineffectiveness claim.
    Commonwealth v. Fears, 
    86 A.3d 795
    , 804 (Pa. 2014). Furthermore,
    [Pa.R.Crim.P. 704(B)] is intended to allow the trial judge the
    opportunity to address only those errors so manifest that
    immediate relief is essential. This Court has repeatedly held that
    we will not allow such motions as a “substitute vehicle” for raising
    a matter that should be raised in a post-sentence motion. More
    particularly, this Court has determined that claims of
    ineffectiveness of counsel, as raised herein, should be raised via
    a post-sentence motion. See Commonwealth v. Celestin, 
    825 A.2d 670
    , 674 (Pa.Super.2003), appeal denied, 
    577 Pa. 686
    , 
    844 A.2d 551
    (2004) (claims of ineffectiveness of counsel improperly
    raised as motion for extraordinary relief).
    Commonwealth v. Grohowski, 
    980 A.2d 113
    , 115–16 (Pa. Super. 2009).
    -3-
    J-A01028-18
    Accordingly, we are constrained to reverse and remand so that the
    proper procedure may be followed. We direct the trial court to reinstate the
    verdict of conviction, and to proceed with sentencing.
    Order reversed. Case remanded for further proceedings consistent with
    this decision. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/11/18
    -4-
    

Document Info

Docket Number: 689 EDA 2017

Filed Date: 5/11/2018

Precedential Status: Precedential

Modified Date: 5/11/2018