Com. v. Tuck, H.

• Court: Superior Court of Pennsylvania
• Decided: September 12, 2022
• Docket: 1550 EDA 2021
• Status: Unpublished

Opinion

J-S24027-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HANEEF TUCK : : Appellant : No. 1550 EDA 2021

Appeal from the PCRA Order Entered July 8, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004493-2015

BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 12, 2022

Haneef Tuck appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful

review, we reverse and remand for the reinstatement of Tuck’s right to file

post-sentence motions nunc pro tunc.

On March 28, 2015, Tuck was arrested and charged with various

offenses in connection with the burglary of a Philadelphia tattoo parlor, owned

by one of the victims. Tuck and three other perpetrators forcibly entered the

premises, shot one of the victims in the hip, took his clothes and money, and

stole his black iPhone 6 and an iPad. Another victim was beaten, stripped of

his clothes, and also robbed of his money and wallet. The four perpetrators

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* Retired Senior Judge assigned to the Superior Court. J-S24027-22

fled the scene. Video surveillance at SugarHouse Casino, where the victims

had been gambling prior to returning to the tattoo parlor, revealed Tuck and

his co-defendant, Aaron Brunson, at the casino talking to the victims and

leaving in Brunson’s silver Jeep shortly after the victims left the casino in a

cab. One of the victims positively identified Tuck as one of the men from the

casino in a photo array.

Following Tuck’s arrest, Philadelphia police officers obtained a search

warrant for Brunson’s Jeep; officers recovered one of the victims’ wallets

during a search of the vehicle.

Following a three-day jury trial, Tuck1 was convicted of aggravated

assault,2 robbery—inflict serious bodily injury,3 burglary,4 theft by unlawful

taking—movable property,5 conspiracy to commit robbery,6 and robbery—

threat of immediate serious injury.7 After a hearing, and considering a pre-

sentence investigation report, the court sentenced Tuck to an aggregate

sentence of 25-50 years’ incarceration. Tuck filed a direct appeal challenging

1 Tuck was tried with co-defendant, Aaron Brunson.

2 18 Pa.C.S.A. § 2702.

3 Id. at § 3701(a)(1)(i).

4 Id. at § 3502(a)(3).

5 Id. at § 3921(a).

6 Id. at § 903.

7 Id. at § (a)(1)(ii).

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the discretionary aspects of his sentence and the effectiveness of trial counsel

for failing to object to the consecutive nature of his five sentences or to file a

motion to reconsider his sentence.8 Our Court affirmed Tuck’s judgment of

sentence on August 5, 2019, concluding that counsel “failed to preserve

[Tuck’s] sentencing claims by [either] objecting at the sentencing hearing or

[by] filing a post-sentence motion [and that the ineffectiveness] claims [were]

unreviewable on direct appeal.” Commonwealth v. Tuck, 2546 EDA 2016,

at *4-*5 (Pa. Super. filed Aug. 5, 2019) (unpublished memorandum decision).

Tuck filed a petition for allowance of appeal with the Pennsylvania Supreme

Court, which was denied on February 10, 2020.

On June 16, 2020, Tuck filed the instant PCRA petition pro se. Counsel

was appointed and filed an amended petition. On June 8, 2021, the court

dismissed Tuck’s petition without a hearing. Tuck filed a timely notice of

appeal and court-ordered Rule 1925(b) statement. Tuck presents the

following issues for our consideration:

(1) Whether the PCRA court was in error in not granting relief on the issue that counsel was ineffective for the following reasons:

A. Appellate counsel was ineffective for failing to appeal issues:

8 Notably, Tuck’s Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal included additional issues regarding sufficiency of the evidence to support his convictions and inconsistent and prejudicial jury instructions. Pa.R.A.P. 1925(b) Statement, 11/4/16, at 1-2. However, counsel abandoned those other issues in his appellate brief.

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a. Counsel did not present the Pennsylvania Superior Court [with] the issue of the verdict being against the weight of the evidence.

b. Counsel did not present the Pennsylvania Supreme Court with the issue of an incorrect jury instruction.

B. Trial counsel was ineffective for failing to file a post[-] sentence motion to reconsider sentence[.]

C. Trial counsel provided ineffective assistance [by] advising [Tuck] not to testify[.]

D. Trial counsel was ineffective for failing to investigate and interview witnesses[.]

(2) Whether the PCRA court was in error in not granting relief on the issue that [Tuck] is entitled to a new trial based on [] newly[-]discovered evidence[.]

(3) Whether the PCRA court was in error denying an evidentiary hearing on the above issues[.]

Appellant’s Brief at 8.9

In Commonwealth v. Lantzy, 736 A.3d 564 (Pa. 1999), our Supreme

Court held that “when there is an unjustified failure to file a requested direct

appeal, the conduct of counsel falls beneath the range of competence

demanded of attorneys in criminal cases.” Id. at 572. “[I]n such

circumstances, and where the remaining requirements of the PCRA are

satisfied, the petitioner is not required to establish his innocence or

9“Generally speaking, when this Court reviews an order dismissing or denying a PCRA petition, its standard of review is whether the findings of the PCRA court are supported by the record and are free from legal error.” Commonwealth v. Ligons, [] 971 A.2d 1125, 1136-37 (Pa. 2009). Moreover, an “[a]ppellant has the burden to persuade this Court that the PCRA court erred and that such error requires relief.” See Commonwealth v. Brown, [] 48 A.3d 1275, 1277 (Pa. Super. 2012).

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demonstrate the merits of the issue or issues which would have been raised

on appeal.” Id.

Instantly, counsel’s failure to preserve any issues raised on direct appeal

has “completely foreclose[d]” appellate review for Tuck and, thus, constitutes

a “constructive denial of counsel.” Commonwealth v. Rosado, 150 A.3d

425, 433 (Pa. 2016). Such deficient stewardship amounts to “ineffective

assistance of counsel per se.” Id. See Commonwealth v. Liston (Liston

II), 977 A.2d 1089, 1094 n.9 (Pa. 2009) (acknowledging counsel will “rarely

be deemed to have been ineffective for failing to file [optional post-sentence

motions] except . . . when the claim involves the discretionary aspects

of sentence or a challenge to a verdict on weight of the evidence

grounds, claims which must be raised in the trial court to be preserved

for purposes of appellate review”) (emphasis added). See also

Commonwealth v Halley, 870 A.2d 795, 799 (Pa. 2005) (“The claim that

denial of merits review on direct appeal on account of counsel’s deficient

stewardship constitutes prejudice is, for all intents and purposes, the

functional equivalent of the presumed prejudice concept considered in

Lantzy.”); Rosado, 150 A.3d at 434 (holding that “the filing of an appellate

brief which abandons all preserved issues in favor of unpreserved ones

constitutes ineffective assistance of counsel per se”).10

10 See supra n.8.

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Because Tuck’s counsel completely forfeited any merits review of his

claims on direct appeal, we deem counsel ineffective per se and, thus, reverse

the order denying PCRA relief, reinstate Tuck’s right to file post-sentence

motions nunc pro tunc and remand the matter to the trial court for further

proceedings. Lantzy, supra; Rosado, supra.

Order reversed. Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/12/2022

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