J-S07023-15

2015 PA Super 68

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DANIEL T. HARRIS,

Appellee No. 952 MDA 2014

Appeal from the Order of May 12, 2014

In the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0000707-2009

BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.

OPINION BY OLSON, J.: FILED APRIL 07, 2015

Appellant, the Commonwealth of Pennsylvania (“the Commonwealth”), 

appeals from the order entered on May 12, 2014, granting relief on a 

petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

§§ 9541-9546, filed by Appellee, Daniel T. Harris (“Appellee”). Upon review, 

we affirm in part and vacate in part.

We summarize the facts and procedural history of this case as follows. 

On November 14, 2008, at Adam Auto Sale in Lebanon County, a vehicle 

was stolen and twelve other vehicles were entered into and damaged, 

resulting in $55,404.08 of total damages. On December 11, 2009, a jury 

convicted Appellee of theft, criminal conspiracy to commit theft, and criminal 
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mischief.1 On February 17, 2010, the trial court imposed an aggregate term 

of three to seven years of imprisonment. Appellee filed a post-sentence 

motion on February 25, 2010. On May 4, 2010, the trial court issued an 

order denying Appellee’s post-sentence motion for failure to file a brief. 

Appellee appealed to this Court on June 2, 2010. By per curiam order 

entered on October 29, 2010, this Court quashed Appellee’s appeal for 

failure to file an appellate brief. 

On March 15, 2013, Appellee filed a pro se PCRA petition raising claims 

of trial counsel ineffectiveness. On March 18, 2013, the PCRA court 

appointed counsel to represent Appellee. On December 4, 2013, counsel for 

Appellee filed an amended PCRA petition. On December 10, 2013, the PCRA 

court held a hearing to determine the timeliness of the PCRA petition.2 On 

____________________________________________

1 18 Pa.C.S.A. §§ 3921, 903, and 3304, respectively.

2 Upon review of the record, the PCRA court heard testimony that trial 

counsel abandoned Appellee and it was discovered that Appellee’s file, held 

in the Public Defender’s Office, had unopened correspondence from Appellee 

directing trial counsel to file an appeal. N.T., 12/10/2013, at 19. After the 

Public Defender’s Office notified Appellee that his appeal had been 

dismissed, Appellee immediately filed a pro se PCRA petition requesting 

relief. Id. at 13, 31. Thus, the PCRA court properly deemed Appellee’s 

petition timely. See Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 

2007) (identifying limited exception to the rule barring ineffective assistance 

of counsel claim as newly discovered facts exception, where counsel 

abandoned petitioner on appeal, abandonment was unknown to petitioner, 

and petitioner filed for PCRA relief within sixty days of learning of counsel's 

abandonment). 
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January 20, 2014 and January 30, 2014, the PCRA court held an evidentiary 

hearing. 

By order entered on May 12, 2014, the PCRA court granted Appellee’s 

PCRA petition, vacated his sentence, and awarded him a new trial. In the 

opinion accompanying the order, the PCRA court determined that trial 

counsel failed to file an appellate brief with this Court on direct appeal. 

PCRA Court Opinion, 5/12/2014, at 11-12. More specifically, the PCRA court 

made credibility determinations and concluded, “trial counsel’s failure to file 

an appellate brief was a result of her oversight and not of [Appellee’s] 

wishes.” Id. at 12 (capitalization omitted). However, instead of reinstating 

Appellee’s direct appeal rights nunc pro tunc, the PCRA court went on to 

examine Appellee’s remaining ineffective assistance of counsel claims 

because “[t]rial [c]ounsel’s ineffectiveness was so egregious that to simply 

reinstate [Appellee’s] appellate rights nunc pro tunc would never fully 

remedy [Appellee’s] constitutional infringements.” Id. at 14. 

Thereafter, the PCRA court also concluded that trial counsel was 

ineffective for failing to cross-examine the co-defendants properly and for 

failing to introduce video surveillance recovered from the scene of the crime. 

Id. at 13-18. More specifically, the PCRA court noted that the owner of the 

car dealership testified at trial that there was a surveillance video recording 

of the incident, but the video was not clear enough to identify the 

perpetrators; however, it was clear that four individuals were present on the 

night in question. Id. at 2. The PCRA court further noted that co-defendant 
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Jeffrey Zombro, Jr., who initially admitted to police that four individuals were 

involved in the crimes, did not name Appellee. Id. at 2. In a second 

interview with police, Zombro named three of the same individuals, but 

identified another individual who was not Appellee. Id. at 3. In a third 

police interview, Zombro claimed that he, Appellee, and co-defendant James 

Jeter, perpetrated the crimes at Adams Auto Sale, but that Zombro, Jeter 

and a third man drove the stolen vehicle to New York City. Id. at 3-4. 

When interviewed by police, Jeter claimed that he, Zombro, and Appellee 

were the only three individuals at Adams Auto Sale on the night in question. 

Id. at 3. Both co-defendants testified at trial that three individuals 

participated in the crimes – Appellee, Zombro, and Jeter. Id. at 4. The 

PCRA court concluded that the testimony of the co-defendants was the key 

evidence presented against Appellee. Id. at 13. Thus, the PCRA court 

opined that the outcome of trial would have been different if trial counsel 

had presented the video surveillance and cross-examined the co-defendants 

on their inconsistencies to show that their accusations were not credible. 

Id. Thus, the PCRA court vacated Appellee’s sentence and awarded him a 

new trial on these additional claims.

Finally, the PCRA court rejected Appellee’s claim that trial counsel was 

ineffective for failing to call two witnesses at trial, i.e., Appellee’s mother 

and girlfriend. Id. at 8. The PCRA court found their PCRA testimony 

regarding proffered alibis for Appellee not credible. Id. at 9-10. 
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The Commonwealth filed a timely appeal. On appeal, the 

Commonwealth presents one issue for our review:

Did the PCRA court err in granting [Appellee’s] PCRA 

petition and subsequently vacating his sentence and 

granting him a new trial?

Commonwealth’s Brief at 4 (complete capitalization omitted). 

Initially, the Commonwealth contends:

In this case, once the PCRA [c]ourt concluded that 

[Appellee] was denied his right of direct appeal the proper 

course would have been to reinstate [Appellee’s] appellate 

rights nunc pro tunc. It was not within the discretion of the 

PCRA [c]ourt, or [to accommodate Appellee’s request] to 

determine whether the rest of his claims [sh]ould be 

addressed by the PCRA [c]ourt. By proceeding forward and 

addressing [Appellee’s] remaining substantive 

ineffectiveness claims on their merits, the PCRA [c]ourt 

essentially acted without subject matter jurisdiction.

Subsequently, the Commonwealth requests that this 

Honorable Court reverse the PCRA [c]ourt’s [o]rder dated 

May 12, 2014, vacating [Appellee’s] sentence and awarding 

him a new trial. Additionally, the Commonwealth requests 

that this Court remand the case reinstating [Appellee’]s 

appellate rights nunc pro tunc.

[3]

Id. at 17-18. 

We agree. “In addressing the grant or denial of post-conviction relief, 

an appellate court will consider whether the PCRA court's conclusions are 

supported by record evidence and are free of legal error.” Commonwealth 

____________________________________________

3

 We note that the Commonwealth does not challenge the PCRA court’s 

finding that Appellee was entitled to nunc pro tunc restoration of his direct 

appeal rights. 
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v. Keaton, 82 A.3d 419, 425 (Pa. 2013) (citation omitted). In 

Commonwealth v. Pate, 617 A.2d 754 (Pa. Super. 1992) we determined 

that “once a PCRA court determines that a petitioner’s right to direct appeal 

has been violated, the PCRA court is precluded from reaching the merits of 

other issues raised in the petition.” Pate, 617 A.2d at 757, citing

Commonwealth v. Hoyman, 561 A.2d 756 (Pa. Super. 1989). “Rather, 

once the PCRA court finds that the petitioner’s appellate rights have been 

abridged, it should grant leave to file a direct appeal and end its inquiry 

there.” Id. (citation omitted).

In Commonwealth v. Wright, 832 A.2d 1104 (Pa. Super. 2003), 

however, this Court allowed for review of additional ineffective assistance of 

counsel claims even after the PCRA court determined that counsel failed to 

file an appellate brief. In that case, Wright filed a PCRA petition alleging 

that prior counsel was ineffective for failing to file a direct appeal and failing 

to move for suppression. The PCRA court granted him relief on his claim 

that counsel failed to file a direct appeal and reinstated his rights nunc pro 

tunc. On direct appeal, Wright renewed his claim that counsel was 

ineffective for failing to move for suppression. Our Court reviewed the 

claim, opining:

[Wright] also claims that trial counsel was ineffective for 

failing to move to suppress appellant's statement to police 

prior to trial. Although this issue was fully litigated at the 

PCRA hearing, the PCRA court did not rule on the issue, 

instead granting [Wright] his request for an appeal nunc pro 

tunc. In declining to resolve the suppression issue, the trial 
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court relied on a body of case law directing that “once the 

PCRA court finds that the petitioner's appellate rights have 

been abridged, it should grant leave to file a direct appeal 

and end its inquiry there.” Commonwealth v. Pate, 617 

A.2d 754, 757-758 (Pa. Super. 1992). The logic underlying 

the rule in Pate is that “a defendant [who] establishes that 

counsel's ineffective assistance denied him entirely his right 

to a direct appeal ... is entitled to a direct appeal nunc pro 

tunc without regard to his ability to establish merit of the 

issues which he seeks to raise on direct appeal.” 

Commonwealth v. Franklin, 823 A.2d 906, 909 (Pa. 

Super. 2003) (citation omitted). The PCRA court's role 

under these circumstances does not include reviewing any 

of the defendant's claims for legal sufficiency; rather it is, 

“limited to fact-finding, which becomes particularly valuable 

to our eventual review of an appellant's claims.” Id. at 910-

11. Unlike the Pate line of cases, however, here the 

evidence presented at the PCRA hearing was not limited to 

whether appellant was denied his right of appeal; it also 

included complete testimony on the suppression issue.

Recently, in Commonwealth v. Grant, 813 A.2d 726 

(Pa. 2002), our Supreme Court directed that ineffectiveness 

claims should await collateral review rather th[a]n be 

addressed on direct appeal. One of the primary reasons 

underlying Grant is that on direct appeal the record from 

the trial court typically is insufficient for appellate resolution 

of an ineffectiveness claim. “Ineffectiveness claims [often] 

are based on omissions, which, by their very nature, do not 

appear of record and thus, require further fact-finding, 

extra-record investigation, and where necessary, an 

evidentiary hearing.” Id. at 736. In keeping with Grant, we 

regularly dismiss claims of ineffectiveness raised for the first 

time on direct appeal without prejudice to the appellant's 

right to raise the same claim in a subsequent PCRA petition. 

Commonwealth v. Rosendary, 818 A.2d 526 (Pa. Super. 

2003).

Here, however, there is an adequate record upon 

which we can assess this ineffectiveness claim because 

there was a full evidentiary hearing on the issue at which 

trial counsel appeared and testified. Further, dismissal of 

this claim pursuant to Grant would be judicially inefficient 

as a subsequent claim on collateral review would merely 
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prompt a hearing identical to the one that already occurred 

below.

* * *

Further, in Commonwealth v. Bomar, 826 A.2d 831 

(Pa. 2003), the Pennsylvania Supreme Court recognized 

certain exceptions to Grant's general rule and created an 

additional exception. The Bomar Court held that in those 

cases where an ineffectiveness claim has been fully 

developed in the trial court, the Grant rule of deferral is not 

applicable. Id. at 853. We recognize that this case differs 

from Bomar because in that case, the trial court not only 

held an evidentiary hearing on the issues of ineffectiveness, 

but also ruled upon those issues. However, the only 

question with which we are confronted here is whether 

counsel had a strategic basis for his actions and whether 

that strategy was reasonable. The certified record provides 

a clear answer to both questions, making dismissal of the 

ineffectiveness claim under Grant unnecessary.

As in Bomar, the certified record in this case insures 

that “there is no danger of engaging in appellate fact finding 

in the form of speculation concerning the strategy actually 

pursued by trial counsel.” Id. at 854. Rather, the record 

provides us with an opportunity to “review trial counsel's 

strategy from the ‘horse's mouth.’” Id.

We believe that the rationale in Bomar permits our 

assessment of [Wright’s] ineffectiveness claim. Thus, we 

proceed to consider and resolve the claim on the record 

before us.

Commonwealth v. Wright, 832 A.2d 1104, 1108-1110 (Pa. Super. 2003).

Since Wright, however, our Supreme Court recognized limitations to 

the exception created by Bomar, as discussed above. The Supreme Court 

has stated, “[i]n practice, the Bomar exception has operated as an extra 

round of collateral attack for certain defendants, unauthorized by the 

General Assembly, and subject to no review rationale except beyond the 
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discretion of the trial court.” Commonwealth v. Holmes, 79 A.3d 562, 

576 (Pa. 2013). In Holmes, our Supreme Court declared that “[t]his state 

of affairs cannot continue because of its inherently uneven application, the 

complication that it poses for later PCRA review, and the obvious tension 

between that practice and the intended role of the PCRA in providing a 

single, full collateral proceeding as of right to all defendants eligible to seek 

collateral relief.” Id. Our Supreme Court determined that, absent certain 

circumstances, “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 appeal.” Id. (footnote omitted). 

The Holmes Court noted two exceptions to the general rule of 

deferring ineffective assistance of counsel claims until PCRA review. First, 

“there may be an extraordinary case where the trial court, in the exercise of 

its discretion, determines that a claim (or claims) of ineffectiveness is both 

meritorious and apparent from the record so that immediate 

consideration or relief is warranted.” Id. at 577 (emphasis added). Second, 

our Supreme Court determined that in cases where “prolix” claims of 

ineffectiveness are raised, “unitary review, if permitted at all, should only 

proceed where accompanied by a knowing, voluntary, and express waiver of 

PCRA review.” Id. at 578. 

Here, Appellee’s ineffective assistance of counsel claims pertaining to 

the cross-examination of his co-defendants and failure to introduce 
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surveillance footage were not claims that were apparent solely from the 

record. Moreover, Appellee did not expressly waive his rights to PCRA 

review. Thus, we conclude that by determining Appellee was entitled to 

nunc pro tunc relief, the PCRA court overstepped its bounds by substantively 

reaching the remaining ineffective assistance of counsel claims. 

Moreover, we may sua sponte consider whether we have jurisdiction to 

consider the merits of the claims presented. See Commonwealth v. 

James, 69 A.2d 180, 184 (Pa. 2013) (citation omitted). When a PCRA court 

lacks jurisdiction to consider the merits of a petition, we likewise lack 

jurisdiction to consider an appeal from disposition of the petition. 

Commonwealth v. Hernandez, 79 A.3d 649, 654 (Pa. Super. 2013) 

(citation omitted). A PCRA court lacks jurisdiction to consider a PCRA 

petition when a petitioner’s judgment is not final. See Commonwealth v. 

Taylor, 65 A.3d 462, 464 (Pa. Super. 2013) (citation omitted). Once the 

PCRA court granted Appellee the right to seek further review nunc pro tunc, 

Appellee’s sentence was no longer final and the PCRA court lacked 

jurisdiction to rule on Appellee’s other requests for relief. See 

Commonwealth v. Donaghy, 33 A.3d 12, 14 n.5 (Pa. Super. 2011); see 

also Holmes supra. Accordingly, until Appellant’s judgment of sentence 

becomes final in accordance with the procedural mechanisms recognized in 

42 Pa.C.S.A. § 9545(b)(3), we lack jurisdiction to consider the merits of 

Appellee’s remaining ineffective assistance of counsel claims. 
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We therefore affirm the PCRA court’s order with respect to 

reinstatement of Appellee’s direct appeal rights nunc pro tunc. We vacate 

the remainder of the PCRA court’s order.4

Order affirmed in part and vacated in part. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2015

____________________________________________

4

 Our ruling is without prejudice to Appellee in PCRA proceedings that may 

commence after Appellant’s judgment of sentence becomes final. Moreover, 

we note that PCRA court already held hearings on Appellee’s remaining PCRA 

claims. “The law in this area recognizes that although the PCRA court may 

not properly review the merits of [the] substantive claims when [] direct 

appeal rights have been violated, that court’s review will serve the 

evidentiary purpose of completing the record for appellate review.” Pate, 

617 A.2d at 759. Thus, after his direct appeal rights have been exhausted 

or extinguished and his judgment of sentence becomes final, Appellee may 

seek collateral relief on grounds previously raised; the PCRA court may use 

the already developed evidentiary record and may supplement that record 

as it sees fit.