Com. v. Parker, A. ( 2021 )

J-S56007-20
2021 PA Super 61COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ALTON M. PARKER : No. 395 EDA 2019
Appeal from the PCRA Order Entered January 30, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008355-2011
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
OPINION BY BENDER, P.J.E.: Filed: April 8, 2021
The Commonwealth appeals from the order granting Appellee’s, Alton
M. Parker, petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. The Commonwealth contends that the PCRA court
erred by granting relief based on the retroactive application of Birchfield v.
North Dakota 136 S.Ct. 2160 (2016). After careful review, we vacate the
order granting Appellee’s petition and remand for further proceedings.
On May 7, 2011, Appellee drove his vehicle the wrong way down a street
that had been closed off for a block party. PCRA Court Opinion (“PCO”),
8/10/20, at 5. Partygoers screamed at Appellee as he crashed through tables
and chairs set out in the street. Id. “Appellee, driving at a rate of between
twenty (20) and forty-five (45) mph, ignored them and threw a can of beer
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S56007-20
out of his car window, as he held a hatchet in his left hand.” Id. He then
struck two inflatable playhouses with children inside. Id. at 6. An off-duty
police officer came upon the scene in his truck and, joined by the father of the
girl whose birthday was being celebrated, pursued Appellee in the officer’s
truck. Id. at 7. They caught up to Appellee’s vehicle and pulled up beside
him in an attempt to get him to stop. Id. Appellee attempted to escape,
clipping the vehicle in front of him, but then he immediately drove his vehicle
into a wall at a speed of approximately 30 m.p.h. Id. The father jumped out
of the off-duty officer’s truck and attempted to remove Appellee from his
vehicle. Id. Appellee swung his hatchet at the father, narrowly missing him.
Id. As this occurred, the off-duty officer used his truck to block Appellee’s
vehicle from behind, preventing his attempt to reverse away from the wall.
Id. The off-duty officer called 911, and then exited the truck, identified
himself as a police officer, and drew his firearm on Appellee as Appellee
continued to swing the hatchet wildly through the driver’s side window. Id.
The off-duty officer kept a safe distance until more police responded to the
scene. Responding officers were ultimately able to arrest Appellee after he
unsuccessfully tried to strike one of them with the hatchet. Id. at 7-8.
At the time of his arrest, “Appellee was unable to walk under his own
power and was completely incoherent. His eyes were bloodshot and his
appearance generally was disheveled; his boots were mismatched. He [also]
smelled strongly of PCP.” Id. at 8 (citations omitted). Several victims
-2-
J-S56007-20
escaped Appellee’s rampage with numerous injuries that were not life-
threatening. Id. at 9. However, one nine-year-old child
was admitted to the hospital with a right epidural hematoma, a
liver laceration, a right shoulder fracture, broken fingers, [a]
fractured pelvis, a spine injury, and multiple broken ribs. He was
referred for plastic surgery on his scalp, face, and knee. He could
not bear weight on his legs initially and spent ten days in a rehab
center. He was in St. Christopher’s Hospital for a month before
being moved to a rehabilitation center and wore a neck brace for
three months. He underwent an extensive rehabilitation period:
he could not walk for a month and remained in a wheelchair, then
required crutches, and finally a walking stick. After his release,
he limped for six months.
Id. (citations omitted).
Appellee was taken to the hospital for a blood draw following his arrest,
and the toxicology report ultimately identified the presence of PCP in his
system. Id. at 8-9. “The amount of PCP in Appellee’s blood was consistent
with recent, active use in a dosage consistent with and capable of producing
adverse psychoactive effects.” Id. at 9. At trial, Appellee testified that he
suffered from repeated heart attacks and strokes due to a structural arterial
disease. Id. at 10. He claimed that his condition caused him to have a mini-
stroke on the day of the incident, causing him to have little recollection of
what had occurred. Id. Appellee admitted to consuming PCP, but asserted
that he had only done so three days before the incident. Id.
A non-jury trial began on May 7, 2013, after which the trial court found
Appellee guilty of aggravated assault, simple assault, possessing instruments
of crime, recklessly endangering another person, criminal mischief,
-3-
J-S56007-20
aggravated assault by vehicle while driving under the influence, accidents
involving death or personal injury, and driving under the influence—controlled
substances.1 On August 20, 2013, the court sentenced Appellee to an
aggregate term of 18-36 years’ incarceration. After having his appeal
dismissed due to appellate counsel’s failure to file a brief, Appellee filed a
petition seeking reinstatement of his direct appeal rights nunc pro tunc. The
lower court granted that petition on July 9, 2014. This Court ultimately
affirmed Appellee’s judgment of sentence on September 9, 2015, and he did
not seek further review with our Supreme Court. Commonwealth v. Parker,
133 A.3d 65 (Pa. Super. 2015).
Appellee filed pro se PCRA petitions on August 10, 2015,2 and December
22, 2015, and the PCRA court appointed counsel to represent him. PCRA
counsel filed an amended petition on Appellee’s behalf on November 14, 2016,
and a supplement thereto on June 28, 2017. On January 30, 2019, the PCRA
court granted the petition.3
The Commonwealth filed a timely, court-ordered Pa.R.A.P. 1925(b)
statement, and the PCRA court issued its Rule 1925(a) opinion on August 10,
____________________________________________
1 18 Pa.C.S. §§ 2702, 2701, 907, 2705, 3304(a)(1), and 75 Pa.C.S. §§
3735.1, 3742, 3802(d)(1), respectively.
2This petition was premature, as our Court had yet to decide Appellee’s nunc
pro tunc direct appeal.
3 The order under review does not appear in the certified record. However,
the lower court’s docket contains an entry on January 30, 2019, stating,
“Order Granting PCRA Petition - Sentence Vacated, New Trial Ordered.”
Docket Entry 344, 1/30/19.
-4-
J-S56007-20
2020. The Commonwealth now presents the following questions for our
review:
I. Did the lower court err by granting post-conviction relief by
erroneously applying the Birchfield decision retroactively on
collateral review?
II. Did [Appellee] fail to demonstrate the ineffective assistance of
counsel?
III. Is it in the interest of judicial economy to deny PCRA relief
without remanding?
Commonwealth’s Brief at 4.
Our standard of review of a trial court order granting or denying
relief under the PCRA calls upon us to determine whether the
determination of the PCRA court is supported by the evidence of
record and is free of legal error. The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the
certified record.
Commonwealth v. Barndt, 74 A.3d 185, 191–92 (Pa. Super. 2013) (cleaned
up).
As to the Commonwealth’s first issue, both parties and the PCRA court
now agree that the court erred by granting relief pursuant to Birchfield.
“[T]he Birchfield Court held, inter alia, that a state may not impose criminal
penalties on the refusal to submit to a warrantless blood test.”
Commonwealth v. Olson, 218 A.3d 863, 866 (Pa. 2019) (cleaned up), cert.
denied, Olson v. Pennsylvania, 141 S.Ct. 87 (2020). In Olson, our
Supreme Court held that “Birchfield does not apply retroactively on post-
conviction collateral review.” Olson, 218 A.3d at 875. Birchfield was
decided on June 23, 2016, after Appellee had initiated PCRA proceedings
-5-
J-S56007-20
below. Our Supreme Court decided Olson on October 31, 2019, after the
PCRA court had granted Appellee’s petition.
In its Rule 1925(a) opinion, the court acknowledged that, as a result of
Olson, it erred by granting Appellee’s petition based on the retroactive
application of Birchfield on collateral review of Appellee’s judgment of
sentence. See PCO at 12. As a result, the PCRA court requested that we
remand for further proceedings. Id. at 13. Appellee concedes this point, and
also requests a remand for further proceedings. See Appellee’s Brief at 14,
17-18. As the parties and the PCRA court are in agreement, and because they
are correct that Olson precludes application of Birchfield retroactively on
collateral review, we conclude that the PCRA court erred by granting a new
trial based on Birchfield.
Next, the Commonwealth argues that Appellee’s Birchfield-related
ineffective assistance of counsel (“IAC”) claims are meritless. The
Commonwealth states:
[Appellee]’s claim that trial and direct appeal counsel were
ineffective for not raising a claim similar to that in Birchfield was
also not a basis for granting relief.8 First, [Appellee] did not
develop the claim, as required. Second, it is axiomatic that
counsel cannot be found ineffective for not raising a legal theory
that, at the time of trial and direct appeal, was not accepted by
the Pennsylvania courts. Third, [Appellee] could not demonstrate
prejudice because he could not demonstrate that suppression of
the blood evidence would have created a reasonable probability of
a different verdict.
8 It is not clear from the PCRA court’s opinion whether it
granted relief on this basis, as it has never articulated its
-6-
J-S56007-20
reasoning, other than to imply that it applied Birchfield
retroactively.
Commonwealth’s Brief at 19.
As noted by the Commonwealth, the PCRA court did not address this
matter in its Rule 1925(a) opinion. However, this Court may affirm a PCRA
court’s order on any legal basis. See Commonwealth v. Rouse, 191 A.3d
1, 7 (Pa. Super. 2018) (“To the extent our legal reasoning differs from the
[lower] court’s, we note that as an appellate court, we may affirm on any legal
basis supported by the certified record.”). Consequently, we will address this
potential alternative basis to affirm the PCRA court’s order out of an
abundance of caution.
[I]n order to obtain relief based on [an IAC] claim, a petitioner
must establish: (1) the underlying claim has arguable merit; (2)
no reasonable basis existed for counsel’s actions or failure to act;
and (3) petitioner 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.
Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). We presume
that counsel was effective and, therefore, the petitioner bears the burden of
pleading and proving each of the three factors by a preponderance of the
evidence. Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super.
2006). “Failure to prove any prong of this test will defeat an ineffectiveness
claim.” Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).
Here, the essence of Appellee’s argument was that trial and appellate
counsel were ineffective for failing to raise a challenge to the admission of his
-7-
J-S56007-20
blood test results on the theory ultimately established in Birchfield.4
However, “counsel cannot be deemed ineffective for failing to anticipate a
change in the law….” Commonwealth v. Hughes, 865 A.2d 761, 810 (Pa.
2004). “We have held repeatedly that counsel’s stewardship must be judged
in light of the available alternatives and that he cannot be expected to raise
motions unsupported by existing law.” Commonwealth v. Miller, 431 A.2d
233, 235 (Pa. 1981). Accordingly, Appellee’s IAC claims, premised on prior
counsels’ failures to raise Birchfield-related claims before Birchfield was
decided, lack merit. Thus, those claims do not provide an alternative basis to
affirm the order granting Appellee’s petition.
Finally, the Commonwealth argues that a remand is not necessary, and
that this Court should simply reverse the order under consideration. The
Commonwealth’s argument, in its entirety, is as follows:
The PCRA court, admitting its error in applying Birchfield
retroactively, requests that this Court remand the case. The PCRA
court does not give any reason for the remand, and none is
apparent.
There is precedent for this Court to reverse the grant of PCRA
relief and then reinstate the judgment of sentence. E.g.
Commonwealth v. G.Y., 63 A.3d 259, 270 (Pa. Super. 2013).
As this Court has explained, it may decide not to remand where
“[n]either the interests of justice nor judicial economy would be
served by such a futile remand.” Commonwealth v. Felder, 370
A.2d 1214, 1219 n.8 (Pa. Super. 1976). Accord
Commonwealth v. Daniels, 963 A.2d 409, 420 (Pa. 2009) (“A
remand is unnecessary, however, when the petitioner fails to
____________________________________________
4 Appellee ostensibly raised this claim below in his filing titled, “Petitioner’s
Memorandum in support of amended PCRA petition.” See Memorandum,
6/28/17, at 4 (unnumbered pages); Reproduced Record at 208a.
-8-
J-S56007-20
plead all three prongs of the Pierce test related to trial counsel’s
ineffectiveness or fails to prove any prong with respect to trial
counsel’s ineffectiveness”); Commonwealth v. Lohr, 468 A.2d
1375, 1379 (Pa. 1983) (declining to remand for merits review that
the Supreme Court conducted by issuing that instant opinion).
As explained above, all of [Appellee]’s claims raised in his PCRA
petition plainly failed as a matter of law. There is no ostensible
need for the PCRA court to render any factual findings, and the
PCRA court has not articulated one. Therefore, a remand under
the circumstances here is not necessary.
Commonwealth’s Brief at 26-27 (some citations omitted).
Appellee disagrees, arguing that:
The Commonwealth’s position of summarily dismissing the case
while on appeal might be expedient, but deprives Appellee his
rights as set forth under [Pa.R.Crim.P.] 907 and 908. This is the
Commonwealth’s appeal and not Appellee’s appeal[,] so Appellee
is limited to arguing only the issue(s) raised by the
Commonwealth. Since counsel is conceding this issue, Appellee
has no other issues he can raise during this appeal.
A remand is necessary since [R]ules … 907 and 908 control the
process of dismissing a PCRA petition. A remand would allow
counsel to withdraw the Amended [PCRA] petition and file a [no-
merit letter pursuant to Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988) (en banc)]. In doing so, Appellee would be able
to raise any additional issues contained in his pro se petition[,] as
well as being able to respond to the lower court’s dismissal of the
PCRA petition. At stated above, Appellee would have the right to
preserve all of the issues he raised in his pro se petition and raise
them in his direct appeal from the denial of his PCRA petition.
Whether Appellee would be successful on appeal is not the
question, but whether he still has the ability to litigate the issues
raised in his pro se [PCRA] petition and then be able to file an
appeal is the question. That is what … [R]ule[s] 907 and 908
allow. Since this was a Commonwealth appeal, Appellee is barred
from raising any other issues on appeal. To summarily dismiss
his appeal would be the end of his PCRA proceeding without any
meaningful review of the other issues that Appellee raised in his
pro se petition. On remand, counsel can address the other issues
that Appellee is raising in his [no-merit letter]. The [PCRA] court
-9-
J-S56007-20
can independently review the record on remand as required by
case law. Appellee would also be given the statutory [requirement
of] twenty (20) days[’] notice of [the court’s] intent to dismiss
[pursuant to Rule 907]. This notice gives [A]ppellee the right to
file a response and make his record for issues that he wants to
raise on any direct appeal from the dismissal of his pro se [PCRA]
petition.
The procedural history in this case shows that Appellee has filed
numerous pro se appeals and pro se [PCRA] petitions that raise
additional issues not raised in the amended [PCRA] petition filed
by counsel. In addition, Appellee has mailed counsel various
correspondence/documents concerning other issues that he wants
to raise in his pro se [PCRA] petition. These issues can also be
addressed in a [no-merit letter] and be properly preserved for any
appeal by Appellee. [The] Commonwealth’s position of no remand
would deprive Appellee of all of his appeal rights and the issues
he would like to raise on appeal[,] and [is] contrary to [R]ules 907
and 908. Appellee had no reason to be concerned about his other
issues in his pro se petition when the court first granted him a new
trial. Now that the court has reversed itself, Appellee needs a
remand since he cannot ask for a new trial on any other grounds.
The Commonwealth cannot prevent Appellee from enjoying his
right to his own appeal from the dismissal of his PCRA. The
Commonwealth is trying to replace and limit Appellee[’s] ability to
raise other issues on appeal by requesting dismissal by the
Superior Court. Since [the] Commonwealth has won … on [its]
direct appeal without a fight, the case needs to be remanded.
Appellee’s Brief at 17-20 (some citations omitted).
We agree with Appellee’s analysis. Reversing the order granting relief
without a remand in the procedural circumstances of this case would deprive
Appellee of several opportunities to preserve claims for our review, claims that
are not properly before this Court at this time, as this appeal is limited to the
issues raised by the Commonwealth. As this Court has previously recognized,
[t]he purpose behind a Rule 907 pre-dismissal notice is to allow a
petitioner an opportunity to seek leave to amend his petition and
correct any material defects, see Commonwealth v. Williams,
… 782 A.2d 517, 526 ([Pa.] 2001), the ultimate goal being to
- 10 -
J-S56007-20
permit merits review by the PCRA court of potentially arguable
claims. The response is an opportunity for a petitioner and/or his
counsel to object to the dismissal and alert the PCRA court of a
perceived error, permitting the court to “discern the potential for
amendment.” Id. at 527.
Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012).
Additionally, with regard to “PCRA counsel’s representation, a petitioner can
preserve the issue by including that claim in his Rule 907 response or raising
the issue while the PCRA court retains jurisdiction.” Commonwealth v. Rigg,
84 A.3d 1080, 1085 (Pa. Super. 2014).
Since the PCRA court granted Appellee’s petition below, Appellee was
deprived of the opportunity to preserve a variety of potential claims in
response to a Rule 907 notice, including, inter alia, claims concerning PCRA
counsel’s stewardship of Appellee’s petition(s). Moreover, although the
Commonwealth cites several cases where an appellate court reversed without
remand, after concluding that a PCRA court erred in granting PCRA relief, it
has cited no authorities compelling us to take such action here.
Accordingly, we agree with Appellee that a remand is appropriate in this
case. Thus, we decline the Commonwealth’s invitation to reverse. We instead
vacate the PCRA court’s order, and remand for further PCRA proceedings.
Order vacated. Case remanded. Jurisdiction relinquished.
- 11 -
J-S56007-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/21
- 12 -