Com. v. Reed, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ALPHONSO REED
Appellant No. 1483 MDA 2015
Appeal from the Judgment of Sentence January 23, 2013
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001482-2011
BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 04, 2016
Appellant, Alphonso Reed, purports to appeal nunc pro tunc from the
judgment of sentence entered in the Lebanon County Court of Common
Pleas, following his convictions for delivery of a controlled substance,
criminal use of communication facility, and two counts of criminal
conspiracy.1 For the following reasons, we conclude the PCRA court erred in
reinstating Appellant’s post-sentence motion and direct appeal rights nunc
pro tunc. Accordingly we reverse the order granting this relief and remand
the case to the PCRA court for further proceedings.
In its opinion, the PCRA/trial court set forth the relevant facts of this
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1
35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 7512(a) and 903(a)(1),
respectively.
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case as follows:
On or about June 2, 2011, Detectives Ryan Mong [“Det.
Mong”] and Adam Saul [“Det. Saul”] were conducting
surveillance of an alleged drug sale between an unknown
individual and an undercover officer, Sergeant Brent
Hopkins [“Sgt. Hopkins”]. A confidential informant
arranged for [Sgt. Hopkins] to meet an individual identified
as Charles Holloway [“Mr. Holloway”]. After meeting Sgt.
Hopkins, [Mr.] Holloway made a phone call and a short
time later an unidentified individual came onto the scene.
Det. Mong described him as an older man with a graying
beard. This individual handed an item to [Mr.] Holloway
who then turned and immediately handed a bag of crack
cocaine to [Sgt. Hopkins]. After the transaction was
complete, the [detectives] followed the individual on foot
until they lost sight of him. That individual remained
unknown and was identified in [the case report] as merely
“Juan Doe.”
On or about August 19, 2011, at approximately 7:30 p.m.,
[Appellant] was walking along the 800 block of Chestnut
Street, Lebanon, PA, when [Det.] Mong and [Det.] Saul
drove by in an unmarked vehicle. Det. Mong recognized
[Appellant] as the “Juan Doe” with the graying beard from
the June 2, 2011 incident. Det. Mong and [Det.] Saul
approached [Appellant] in order to determine his name.
The [d]etectives had their badges in plain view and Det.
Mong identified himself to [Appellant]. Det. Mong testified
that he did not intend on arresting [Appellant] at that
time. Det. Saul stood slightly behind Det. Mong during the
interaction with [Appellant], close enough to hear the
conversation and to assist Det. Mong if needed. Det. Mong
asked [Appellant] for some identification. [Appellant]
handed a Pennsylvania Identification Card to Det. Mong,
who radioed the information to dispatch to determine if
there were any outstanding warrants for [Appellant]. Det.
Mong told [Appellant] that they had stopped him because
they recognized his as a person who had sold drugs to an
undercover officer. Det. Mong returned [Appellant’s]
identification. Dispatch notified Det. Mong that there were
no outstanding warrants for [Appellant]. Det. Mong
testified that he could not recall if he had returned
[Appellant’s] identification before stating that [Appellant]
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was stopped because of the sale of drugs.
Det. Mong asked [Appellant] if he had any drugs or
weapons on his person, to which [Appellant] replied in the
negative. Det. Mong then asked [Appellant] if he would
consent to a search of his person, which [Appellant]
replied in the affirmative. This search produced thirteen
(13) bags of crack cocaine, two [cellphones], and money.
After the search, [Appellant] was arrested and read his
[Miranda] warnings.
(Trial Court Opinion, filed September 11, 2015, at 2-4).
Procedurally, on November 11, 2011, the Commonwealth charged
Appellant at docket # CP-38-CR-0001482-2011, with delivery of a controlled
substance, criminal use of communication facility, and two counts of criminal
conspiracy in connection with the June 2, 2011 drug transaction. The
Commonwealth also charged Appellant at docket # CP-38-CR-0001483-
2011, with possession with intent to deliver a controlled substance (“PWID”),
possession of a controlled substance, and possession of drug paraphernalia
in connection with the August 19, 2011 search of Appellant’s person. On
December 23, 2011, Appellant filed a pre-trial motion in which he sought the
suppression of all evidence seized during the August 19, 2011 interaction
with police. Specifically, Appellant challenged whether the police had
reasonable suspicion to subject Appellant to an investigative detention and
whether he gave valid consent to the search of his person. The court
conducted a hearing on January 25, 2012, and partially granted Appellant’s
suppression motion on May 23, 2012. The court determined the August 19,
2011 investigative detention of Appellant was lawful but Appellant’s consent
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to the search was invalid. As a result, the court dismissed all of the charges
against Appellant at docket # CP-38-CR-0001483-2011.
On November 15, 2012, Appellant proceeded to a bench trial for the
June 2, 2011 charges at docket # CP-38-CR-0001482-2011. At trial, the
Commonwealth presented various witnesses including Det. Mong, who
testified that on August 19, 2011, he immediately recognized Appellant as
the unidentified suspect involved in the June 2, 2011 drug transaction with
Sgt. Hopkins. Following trial, the court convicted Appellant of delivery of a
controlled substance, criminal use of communication facility, and two counts
of criminal conspiracy. The court deferred sentencing pending the
preparation of a pre-sentence investigation (“PSI”) report. On January 23,
2013, the court sentenced Appellant to concurrent terms of four (4) to ten
(10) years’ imprisonment for the delivery of a controlled substance
conviction, twenty-seven (27) months to ten (10) years for the conspiracy to
deliver a controlled substance conviction, and eighteen (18) months to seven
(7) years for the criminal use of communication facility conviction. The court
imposed a mandatory minimum sentence for Appellant’s conviction of
delivery of a controlled substance because the offense took place in a school
zone.
Appellant timely filed a notice of appeal on January 29, 2013. On
February 14, 2013, the court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
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timely complied on March 4, 2013. In his concise statement, Appellant
raised challenges to the sufficiency of the evidence and the weight of the
evidence. This Court affirmed Appellant’s judgment of sentence on
November 25, 2013. See Commonwealth v. Reed, No. 244 MDA 2013,
unpublished memorandum (Pa.Super. filed November 25, 2013) (concluding
sufficiency of evidence issue lacked merit and weight of evidence issue was
waived for failing to preserve it in timely post-sentence motion).
On March 17, 2014, Appellant timely filed a pro se petition pursuant to
the Post Conviction Relief Act (“PCRA”).2 The court appointed counsel, who
filed an amended petition on August 15, 2014, and a second amended
petition on October 3, 2014. In the second amended PCRA petition,
Appellant claimed prior counsel was ineffective for failing to: (1) preserve
Appellant’s challenge to the weight of the evidence; (2) preserve Appellant’s
challenge to the court’s partial denial of Appellant’s suppression motion; and
(3) challenge the court’s imposition of a mandatory minimum sentence for
Appellant’s delivery of a controlled substance conviction under Alleyne v.
United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013).
The PCRA court held an evidentiary hearing on April 27, 2015. On May 29,
2015, the PCRA court granted relief by reinstating Appellant’s post-sentence
motion and direct appeal rights nunc pro tunc, limited to Appellant’s
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2
42 Pa.C.S.A. §§ 9541-9546.
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challenges to the weight of the evidence and the partial denial of Appellant’s
suppression motion. Appellant immediately filed a notice of appeal nunc pro
tunc. On June 2, 2015, the court ordered Appellant to file a Rule 1925(b)
statement, and Appellant complied. On June 25, 2015, with the court’s
permission, Appellant withdrew his notice of appeal and filed a nunc pro tunc
post-sentence motion. In his nunc pro tunc post-sentence motion, Appellant
raised challenges to the weight of the evidence, the partial denial of his pre-
trial suppression motion, and the imposition of the mandatory minimum
sentence for his delivery of a controlled substance conviction. On August
11, 2015, the court denied Appellant’s post-sentence motion and did not
address Appellant’s sentencing issue. On August 31, 2015, Appellant filed
his “reinstated” notice of appeal nunc pro tunc. That same day, the court
ordered Appellant to file a Rule 1925(b) statement, and Appellant complied
on September 10, 2015.
Appellant raises the following issues for our review:
WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF
THE EVIDENCE PRESENTED AT THE TRIAL?
WHETHER THE TRIAL COURT ERRED WHEN IT DENIED []
APPELLANT’S PRE-TRIAL MOTION CHALLENGING THE
REASONABLE SUSPICION FOR THE STOP AND THE INITIAL
PROBABLE CAUSE FOR THE ARREST OF [] APPELLANT?
(Appellant’s Brief at 6).
Before we can address the merits of the issues presented on appeal,
we must determine whether this appeal is properly before us, where
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Appellant previously had a counseled direct appeal and this Court affirmed
the judgment of sentence on November 25, 2013. In other words, we must
determine if reinstatement of Appellant’s direct appeal rights was the proper
remedy under the circumstances of this particular case.
“[A]n accused who is deprived entirely of his right of direct appeal by
counsel’s failure to perfect an appeal is per se without the effective
assistance of counsel, and is entitled to reinstatement of his direct appellate
rights.” Commonwealth v. Grosella, 902 A.2d 1290, 1293 (Pa.Super.
2006) (quoting Commonwealth v. Johnson, 889 A.2d 620, 622 (Pa.Super.
2005)). Importantly, there are very few circumstances where counsel’s
conduct warrants a presumption of prejudice and the reinstatement of a
petitioner’s direct appeal rights nunc pro tunc. Commonwealth v. Adam
Reed, 601 Pa. 257, 272, 971 A.2d 1216, 1225 (2009). These circumstances
include: (1) where counsel failed to file a requested direct appeal; (2) where
counsel failed to file a concise statement of errors claimed of on appeal; or
(3) where counsel failed to file a requested petition for allowance of appeal.
Id. at 272-73, 971 A.2d at 1225. “In those extreme circumstances, where
counsel has effectively abandoned his…client and cannot possibly be acting
in the client’s best interests, our Supreme Court has held that the risk
should fall on counsel, and not on his client.” Commonwealth v. West,
883 A.2d 654, 658 (Pa.Super. 2005).
On the other hand, “the reinstatement of direct appeal rights is not the
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proper remedy when appellate counsel perfected a direct appeal but simply
failed to raise certain claims.” Grosella, supra at 1293. Significantly:
Where a petitioner was not entirely denied his right to a
direct appeal and only some of the issues the petitioner
wished to pursue were waived, the reinstatement of the
petitioner’s direct appeal rights is not a proper remedy. In
such circumstances, the [petitioner] must proceed under
the auspices of the PCRA, and the PCRA court should apply
the traditional three-prong test for determining whether
appellate counsel was ineffective.
Id. at 1293-94 (internal citations and parentheticals omitted).
Instantly, appellate counsel actually filed and perfected a direct appeal
on Appellant’s behalf in 2013, in which counsel raised challenges to the
sufficiency of the evidence and the weight of the evidence. This Court
addressed the sufficiency of the evidence issue on the merits, disposed of
the weight of the evidence issue on the basis of waiver, and affirmed the
judgment of sentence on November 25, 2013. Thus, counsel did not
completely foreclose appellate review but simply “narrowed its ambit.” See
id. (distinguishing between cases where counsel’s failure extinguished
defendant’s right to direct appeal and cases where counsel might have
waived or abandoned some but not all issues on direct appeal). Therefore,
we conclude the PCRA court erred in reinstating Appellant’s post-sentence
motion and direct appeal rights nunc pro tunc. Instead, the PCRA court
should have considered Appellant’s ineffective assistance of counsel claims
under the auspices of the PCRA and applied the traditional three-prong
ineffective assistance of counsel test. Id.
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For the foregoing reasons, we reverse the order reinstating Appellant’s
post-sentence motion and direct appeal rights nunc pro tunc and remand
this matter to the PCRA court to address Appellant’s claims under the
auspices of the PCRA and the traditional test for ineffective assistance of
counsel. In like manner, the PCRA court must address Appellant’s
sentencing claim. Accordingly, we remand this case to the PCRA court for
proceedings consistent with this decision.
Case remanded to PCRA court with instructions for further PCRA
proceedings. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2016
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