Com. v. Riley, L.

• Court: Superior Court of Pennsylvania
• Decided: July 10, 2017
• Docket: Com. v. Riley, L. No. 134 EDA 2016
• Status: Unpublished

Opinion

J-S36008-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LANIER E. RILEY

Appellant No. 134 EDA 2016

Appeal from the PCRA Order December 4, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0510931-2004

BEFORE: PANELLA, J., OLSON, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY PANELLA, J. FILED JULY 10, 2017

The trial court, sitting as fact-finder, convicted Appellant, Lanier Riley,

of possession with intent to deliver cocaine and several related charges. In

this appeal, Riley asserts that his second petition pursuant to the Post

Conviction Relief Act (“PCRA”) was improperly dismissed by the PCRA court.

After reviewing the record, we conclude that Riley was denied effective

assistance of counsel, and remand for the filing of a Pa.R.A.P. 1925(b)

statement of matters complained of on appeal nunc pro tunc.

On September 10, 2014, Michael Pileggi, Esquire, filed a petition

seeking PCRA relief based upon Riley’s discovery of allegations that, among

other things, Philadelphia police officers Thomas Liciardello and Brian

Reynolds had planted evidence on criminal defendants in other cases. Both

officers testified against Riley at his trial. J-S36008-17

In the certified docket entries, Attorney Pileggi is identified as Riley’s

attorney for the entry recording the order dismissing the PCRA petition.

Furthermore, attorney Pileggi represented Riley at the argument session

where the PCRA court announced its intent to dismiss the petition. See N.T.,

PCRA Argument, 12/4/15. There is no indication in the record that Attorney

Pileggi ever withdrew his appearance in this matter.

The next entry in the docket is a pro se notice of appeal filed by Riley

on December 29, 2015. Immediately following that is an entry title

“Statement of Matters Complained on Appeal,” filed pro se with the same

date. A review of this document reveals that Riley dated it December 28,

2015. However, the time stamp on the document, in contravention of the

docket, indicates a filing date of December 29, 2016.

On January 21, 2016, the PCRA court entered an order directing

Attorney Pileggi to file a statement of matters complained of on appeal

pursuant to P.R.A.P. 1925(b). There is no indication in the record that

Attorney Pileggi complied with this order.

On March 29, 2016, the PCRA court authored an opinion finding Riley’s

issues on appeal waived due to Attorney Pileggi’s failure to file the required

statement.

Riley’s pro se Pa.R.A.P. 1925 statement is a nullity. The certified

record supports the conclusion that Attorney Pileggi never withdrew his

appearance. Counsel therefore still represents Riley at this time. See

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Pa.R.Crim.P. 120; Commonwealth v. Keys, 580 A.2d 386, 387 (Pa. Super.

1990). Riley’s filing constituted an impermissible attempt at hybrid

representation. See, e.g., Commonwealth v. Ali, 10 A.3d 282, 293 (Pa.

2010) (where appellant was represented by counsel on appeal, his pro se

Rule 1925(b) statement was a “legal nullity”).

Thus, Attorney Pileggi’s failure to respond to the PCRA court’s order

directing him to file a Pa.R.A.P. 1925(b) statement would cause all of Riley’s

issues to be waived. See Pa.R.A.P. 1925(b)(4)(vii). However, under these

circumstances, we are convinced that Attorney Pileggi’s failure constitutes

ineffectiveness per se, and therefore remand for the filing of a Pa.R.A.P.

1925(b) statement nunc pro tunc. See Pa.R.A.P. 1925(c)(3). The PCRA court

must then promptly file an appropriate response.

Case remanded for further proceedings consistent with this

memorandum. Panel jurisdiction retained.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/10/2017

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