Com. v. Perry, A. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
AISHA PERRY,
Appellant No. 2469 EDA 2014
Appeal from the Judgment of Sentence June 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005147-2013
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 12, 2016
Appellant Aisha Perry appeals the judgment of sentence entered on
June 12, 2014, in the Court of Common Pleas of Philadelphia County. We
affirm.
Appellant, a former Lieutenant in the Philadelphia Police Department,
was charged with multiple counts of risking catastrophe, theft of services
and conspiracy to commit those crimes.1 Her convictions arose after a
Philadelphia Gas Works (PGW) Employee discovered an illegal bypass
mechanism had been installed where the gas meter would normally be
located at a residence at 561 Devereaux Street when responding to a
complaint of a gas leak in the area of Devereaux and Bingham Streets in
Philadelphia. The home belonged to an elderly couple later identified as the
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1
18 Pa.C.S. §§ 3302(b), 3926(a)(1), 903(c), respectively.
*Former Justice specially assigned to the Superior Court.
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parents of co-defendant George Suarez, a patrol officer with the Philadelphia
Police Department and Appellant’s business partner, who had been paying
their bills.
Upon examining the records of the previous four years of service at
the location, Carlos Figueroa, a PGW manager of the Revenue Protection
Unit, discovered three properties were related to 561 Devereaux, all of which
had sporadic gas usage histories. Appellant jointly owned one of those
properties located at 1912 West Girard Avenue and operating as a
residential treatment center for alcoholism with Mr. Suarez. Another
property, 2833 Winchester Avenue, was owned by Appellant as her personal
residence.
Mr. Figueroa and two PGW crewmembers went to 1912 West Girard
Avenue on April 8, 2011, to further investigate and encountered Appellant
who identified herself as the office manager and granted the crew access to
the facility. When Mr. Figueroa indicated he needed access to the utility
hookups located in the basement, Appellant stated the basement door was
locked and suggested they return later. Instead, Mr. Figueroa called 911
and requested police assistance. Upon hearing this, Appellant allowed a
crew member and him to enter the basement. There, they discovered an
illegal bypass, which they promptly disconnected, and an electric meter,
which appeared to have been manipulated.
Upon learning that Appellant was a Philadelphia Police Officer, Mr.
Figueroa contacted a PGW employee to inspect the property at 2833
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Winchester Avenue immediately. Upon arriving, the PGW employee heard
noises from inside and saw Mr. Suarez come out of the home perspiring and
visibly shaken. Mr. Suarez refused to allow the PGW safety check until he
was informed the police and a locksmith would be called. After making a
phone call, Mr. Suarez permitted the PGW crew to enter, at which time a
strong odor of gas was detected. A crewmember took a reading of the
atmosphere and discovered a near-explosive level of gas in the home.
On the evening of April 9, 2011, and into the next morning, officers
executed four search warrants, one of which was at 1912 West Girard
Avenue and another at Appellant’s home at 2833 Winchester Avenue. At the
latter, it was discovered that the water meter had been manipulated, and a
later examination of billing records indicated the water service had been
stolen. The same was discerned with regard to the electric meter. On
September 1, 2012, a warrant was issued for the arrest of Appellant and Mr.
Suarez.
A jury trial commenced on April 23, 2014, and on May 1, 2014, the
jury convicted Appellant of two counts of risking catastrophe, four counts of
theft of services, and one count of conspiracy. On June 12, 2014, the trial
court sentenced Appellant to six months to twenty-three months in prison to
be followed by five years of probation.
On June 16, 2014, Appellant filed her Motion for Reconsideration of
Sentence. On August 7, 2014, the trial court denied the motion but entered
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an Order granting Appellant immediate parole. On August 18, 2014,
Appellant filed a notice of appeal.
The trial court did not require Appellant to prepare a concise statement
of errors complained of on appeal under Pennsylvania Rule of Appellate
Procedure 1925(b), and the trial court did not file a Rule 1925(a) opinion.2
In her brief, Appellant presents the following issue for our review:
I. Whether trial counsel was ineffective for failing to object to
the trial court’s failure to provide a working definition of the
“inference” of guilt permitted under the statute for theft of
services, and distinguishing the inference under the statute from
the presumption of innocence and the burden the
Commonwealth to prove [sic] each and every element beyond a
reasonable doubt?
Brief for Appellant at 9. We find this claim is premature and should properly
be raised, if necessary, in a petition pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541–9546.
Our Supreme Court recently reaffirmed its prior holding in
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), in the case of
Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). The Holmes court
held that “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
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2
A notation on the docket dated April 7, 2015, indicates “Opinion Not Filed-
Judge No Longer Sitting.”
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appeal.” Id. at 576. The Court noted two narrow exceptions for
“extraordinary circumstances” to the broader rule, “where the trial court, in
the exercise of its discretion, determines that a claim (or claims) of
ineffective assistance is both meritorious and apparent from the record so
that immediate consideration and relief is warranted,” and allowing review
for “good cause,” such as the shortness of a sentence, or “multiple, and
indeed comprehensive, ineffectiveness claims if such review is accomplished
by a waiver of PCRA rights.” Id. at 577–578. In addition, the Court
emphasized that “although criminal defendants have a right to direct appeal,
they are not obliged to pursue such a course, but may instead proceed
immediately under the PCRA. If the defendant (as appellee here) believes
that his only viable claims are collateral ones, he need not await the failure
of a direct appeal to pursue his claims under the PCRA.” Id. at 576 n.9.
Instantly, citing to Holmes, Appellant baldly posits that her “very
narrow, discrete claim of ineffectiveness presented in this case is so
compelling that it necessitates this Honorable Court’s review on direct
appeal.” Brief for Appellant at 12. Without further development of this
assertion or acknowledging that Holmes reinforced the premise that
ineffectiveness claims are presumptively reserved for collateral attack,
Appellant devotes the remainder of her argument to a discussion of trial
counsel’s alleged ineffectiveness for his failure to object to the trial court’s
jury instruction.
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The trial court did not find Appellant’s claim to be meritorious or
apparent from the record, nor does Appellant allege any “good cause” for
seeking unitary review. Moreover, Appellant has not stated her intention to
waive collateral review. Thus, as neither of the exceptions articulated in
Holmes is applicable herein, Appellant cannot raise this claim on direct
review, and we find Appellant's claim of ineffectiveness of trial counsel must
await collateral review.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2016
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