Com. v. Spann, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEFFONE SPANN :
:
Appellant : No. 2280 EDA 2019
Appeal from the PCRA Order Entered July 23, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011532-2013
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 8, 2021
Appellant, Steffone Spann, appeals from the post-conviction court’s July
23, 2019 order denying his timely-filed petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant claims his trial counsel
acted ineffectively by waiving all of his issues on direct appeal, and by not
presenting alibi testimony at trial. After careful review, we vacate the order
denying Appellant’s petition and remand for further proceedings.
The facts of Appellant’s underlying convictions are not pertinent to his
present appeal. The PCRA court summarized the procedural history of his
case, as follows:
On September 18, 2014, following a waiver trial, Appellant was
found guilty of attempted murder, 18 Pa.C.S. § 901, graded as a
felony of the first degree, aggravated assault, graded as a felony
of the first degree, 18 Pa.C.S. § 2702, firearms not to be carried
without a license, 18 Pa.C.S. § 6106, discharge of a firearm into
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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[an] occupied structure, 18 Pa.C.S. § 2702.1, carrying a firearm
on a public street, 18 Pa.C.S. § 6108, possessing an instrument
of crime generally, 18 Pa.C.S. § 907, simple assault, 18 Pa.C.S. §
2701, and recklessly endangering another person, 18 Pa.C.S. §
2705. On December 18, 2015, this [c]ourt imposed an aggregate
sentence of eight to twenty years’ incarceration.
Appellant filed a timely motion for reconsideration of sentence[,]
which was denied on April 13, 2015. Appellant thereafter filed a
notice of appeal to the Superior Court. On July 25, 2016, the
Superior Court affirmed the judgment of sentence.
Commonwealth v. Spann, 154 A.3d 868 (Pa. Super. 2016)
([unpublished memorandum]) (re-argument denied 9/30/16).
Appellant thereafter filed a petition for allowance of appeal to the
Supreme Court[,] which was denied on March 15, 2017.
Commonwealth v. Spann, 169 A.3d 12 (Pa. 2017) (Table).
On February 27, 2018, Appellant filed a petition under the …
[PCRA]. Counsel was appointed to represent him and[,] on July
10, 2018, counsel filed an amended petition alleging that prior
counsel was ineffective for not perfecting Appellant’s direct appeal
[and for failing to present alibi testimony]. On June 11, 2019, this
[c]ourt, having carefully reviewed the record, determined that
Appellant’s claim[s] lacked merit and sent Appellant a
Pa.R.Crim.P. 907 notice of [its] intent to dismiss. On July 23,
2019, this [c]ourt dismissed Appellant’s petition without a
hearing. Appellant thereafter filed a timely notice of appeal and a
court-ordered Pa.R.A.P. 1925(b) Statement.
PCRA Court Opinion (PCO), 12/23/19, at 1-2 (unnecessary capitalization
omitted). The PCRA court filed its Rule 1925(a) opinion on December 23,
2019.
Herein, Appellant states one issue for our review: “Did the [PCRA] court
err in dismissing [Appellant’s] [PCRA p]etition, without a hearing, where
[Appellant] raised material issues of fact alleging ineffective assistance of
counsel?” Appellant’s Brief at 4. In the Argument section of his brief,
however, Appellant divides this issue into two, distinct claims, which we
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reorder for ease of disposition: (1) “Trial counsel was ineffective for failing to
perfect Appellant’s direct appeal[,]” id. at 15; and (2) “Trial counsel was
ineffective for failing to call the alibi witness at trial[,]” id. at 11.
We begin by noting that, “[t]his Court’s standard of review from the
grant or denial of post-conviction relief is limited to examining whether the
lower court’s determination is supported by the evidence of record and
whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d 516,
520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4
(Pa. 1995)). Where, as here, a petitioner claims that he received ineffective
assistance of counsel, our Supreme Court has stated that:
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the “[i]neffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.” Generally, counsel’s
performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing
by the petitioner. To obtain relief, a petitioner must demonstrate
that counsel’s performance was deficient and that the deficiency
prejudiced the petitioner. A petitioner establishes prejudice when
he demonstrates “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” … [A] properly pled claim of
ineffectiveness posits that: (1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice befell the petitioner
from counsel’s act or omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).
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Appellant first claims that his trial counsel was ineffective for filing a
Rule 1925(b) statement that was too vague to facilitate review of the two
issues raised therein, and by also failing to include the transcripts in the
certified record. Based on counsel’s errors, this Court deemed both of
Appellant’s claims waived on appeal. See Commonwealth v. Spann, No.
1314 EDA 2015, unpublished memorandum at 3 (Pa. Super. filed July 25,
2016). Appellant insists that counsel could have had no reasonable basis for
his errors, and that because Appellant “was completely deprived of appellate
review due,” we must presume he was prejudiced under the reasoning of
Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005). Appellant’s Brief at
15. We agree.
In Halley, our Supreme Court held “that the failure to file a Rule
1925(b) statement on behalf of a criminal defendant seeking to appeal his
conviction and/or sentence, resulting in a waiver of all claims asserted on
direct appeal, represents the sort of actual or constructive denial of assistance
of counsel falling within the narrow category of circumstances in which
prejudice is legally presumed.” Id. at 801. Regarding situations in which a
Rule 1925(b) statement is filed, but the statement is later alleged to have
omitted meritorious issues, the Halley Court explained that,
it is well established that the decision whether to presume
prejudice or to require an appellant to demonstrate actual
prejudice turns on the magnitude of the deprivation of the right to
effective assistance of counsel. As we observed
in [Commonwealth v.] Lantzy, [736 A.2d 564 (Pa. 1999),] the
failure to perfect a requested direct appeal is the functional
equivalent of having no representation at all. Id. at … 571. The
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difference in degree between failures that completely foreclose
appellate review, and those which may result in narrowing its
ambit, justifies application of the presumption in the more
extreme instance. Furthermore, the limiting principle arising from
the recognition of such difference in degree addresses the
Superior Court’s concern that the presumption should not extend
to every circumstance in which a defendant may claim no effective
appeal.
Halley, 870 A.2d at 801 (some citations omitted).
In this case, the PCRA court concluded that, “[a]lthough [Appellant’s]
issues were deemed waived, the Superior Court reviewed his case, satisfying
his right to appellate review.” PCO at 9 (citing Commonwealth v. Grosella,
902 A.2d 1290, 1293-94 (Pa. Super. 2006) (concluding that the reinstatement
of direct appeal rights nunc pro tunc was not the proper remedy, where the
petitioner was not entirely denied his right to a direct appeal and only some
of the issues the petitioner wished to pursue were waived)). Thus, the court
determined that Appellant had to demonstrate actual prejudice from counsel’s
waiver of his issues on direct appeal, and that Appellant had failed to meet
this burden for the reasons set forth in its Rule 1925(a) opinion filed during
the pendency thereof. Id. at 9.
The PCRA court’s decision is erroneous for two reasons. First, Grosella
is distinguishable because here, all of Appellant’s direct appeal issues were
waived by counsel’s inadequate Rule 1925(b) statement. Second, shortly
after the PCRA court filed its opinion in this case, our Supreme Court decided
Commonwealth v. Parrish, 224 A.3d 682 (Pa. 2020), holding that an
attorney’s “filing of a vague Rule 1925(b) statement, which has completely
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forfeited [the a]ppellant’s right to appellate review of all of his … claims,
constitutes ineffective assistance of counsel per se.” Id. at 701-02.
Unquestionably, under Parrish, trial counsel’s vague Rule 1925(b) statement
in this case constitutes ineffectiveness per se. Counsel further compounded
that error by failing to ensure that the certified record contained the trial
transcripts. Therefore, we vacate the PCRA court’s order denying Appellant’s
petition, and remand for the court to grant the reinstatement of his direct
appeal rights nunc pro tunc. The court shall also dismiss Appellant’s claim
that his counsel acted ineffectively by not calling an alibi witness, without
prejudice to Appellant’s right to raise that claim on collateral review after his
judgment of sentence becomes final. See Commonwealth v. Miller, 868
A.2d 578, 580 (Pa. 2005) (explaining that when a PCRA court grants a request
for reinstatement of direct appeal rights nunc pro tunc, it should end its inquiry
there and not address other claims presented in the petition).
Order vacated. Case remanded for the reinstatement of Appellant’s
direct appeal rights nunc pro tunc. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/21
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