Com. v. Parker, A.

J-S56007-20


                                   

  COMMONWEALTH 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 

 (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. 

 “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.” 

 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




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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,



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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,

 (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.

2 This 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.

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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, 

, 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, 

, 866 (Pa. 2019) (cleaned up), cert.

denied, Olson v. Pennsylvania, 

 (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



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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



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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, 

 (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, 

 (Pa. 2005) (citing

Commonwealth v. Pierce, 

 (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, 

 (Pa. Super.

2006). “Failure to prove any prong of this test will defeat an ineffectiveness

claim.” Commonwealth v. Fears, 

 (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


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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, 

 (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, 

 (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., 

 (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, 

, 1219 n.8 (Pa. Super. 1976).                    Accord
       Commonwealth v. Daniels, 

 (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.

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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, 

 (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, 

 (Pa. 1988), and Commonwealth v. Finley, 

     (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

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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,
      … 

 ([Pa.] 2001), the ultimate goal being to

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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.” 

.

Commonwealth v. Rykard, 

 (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,

 (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.




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J-S56007-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/21




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