Com. v. Perry, A.

J-S21041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

AISHA PERRY,

Appellant No. 2469 EDA 2014

Appeal from the Judgment of Sentence June 12, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005147-2013

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 12, 2016

Appellant Aisha Perry appeals the judgment of sentence entered on

June 12, 2014, in the Court of Common Pleas of Philadelphia County. We

affirm.

Appellant, a former Lieutenant in the Philadelphia Police Department,

was charged with multiple counts of risking catastrophe, theft of services

and conspiracy to commit those crimes.1 Her convictions arose after a

Philadelphia Gas Works (PGW) Employee discovered an illegal bypass

mechanism had been installed where the gas meter would normally be

located at a residence at 561 Devereaux Street when responding to a

complaint of a gas leak in the area of Devereaux and Bingham Streets in

Philadelphia. The home belonged to an elderly couple later identified as the ____________________________________________

1 18 Pa.C.S. §§ 3302(b), 3926(a)(1), 903(c), respectively.

*Former Justice specially assigned to the Superior Court. J-S21041-16

parents of co-defendant George Suarez, a patrol officer with the Philadelphia

Police Department and Appellant’s business partner, who had been paying

their bills.

Upon examining the records of the previous four years of service at

the location, Carlos Figueroa, a PGW manager of the Revenue Protection

Unit, discovered three properties were related to 561 Devereaux, all of which

had sporadic gas usage histories. Appellant jointly owned one of those

properties located at 1912 West Girard Avenue and operating as a

residential treatment center for alcoholism with Mr. Suarez. Another

property, 2833 Winchester Avenue, was owned by Appellant as her personal

residence.

Mr. Figueroa and two PGW crewmembers went to 1912 West Girard

Avenue on April 8, 2011, to further investigate and encountered Appellant

who identified herself as the office manager and granted the crew access to

the facility. When Mr. Figueroa indicated he needed access to the utility

hookups located in the basement, Appellant stated the basement door was

locked and suggested they return later. Instead, Mr. Figueroa called 911

and requested police assistance. Upon hearing this, Appellant allowed a

crew member and him to enter the basement. There, they discovered an

illegal bypass, which they promptly disconnected, and an electric meter,

which appeared to have been manipulated.

Upon learning that Appellant was a Philadelphia Police Officer, Mr.

Figueroa contacted a PGW employee to inspect the property at 2833

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Winchester Avenue immediately. Upon arriving, the PGW employee heard

noises from inside and saw Mr. Suarez come out of the home perspiring and

visibly shaken. Mr. Suarez refused to allow the PGW safety check until he

was informed the police and a locksmith would be called. After making a

phone call, Mr. Suarez permitted the PGW crew to enter, at which time a

strong odor of gas was detected. A crewmember took a reading of the

atmosphere and discovered a near-explosive level of gas in the home.

On the evening of April 9, 2011, and into the next morning, officers

executed four search warrants, one of which was at 1912 West Girard

Avenue and another at Appellant’s home at 2833 Winchester Avenue. At the

latter, it was discovered that the water meter had been manipulated, and a

later examination of billing records indicated the water service had been

stolen. The same was discerned with regard to the electric meter. On

September 1, 2012, a warrant was issued for the arrest of Appellant and Mr.

Suarez.

A jury trial commenced on April 23, 2014, and on May 1, 2014, the

jury convicted Appellant of two counts of risking catastrophe, four counts of

theft of services, and one count of conspiracy. On June 12, 2014, the trial

court sentenced Appellant to six months to twenty-three months in prison to

be followed by five years of probation.

On June 16, 2014, Appellant filed her Motion for Reconsideration of

Sentence. On August 7, 2014, the trial court denied the motion but entered

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an Order granting Appellant immediate parole. On August 18, 2014,

Appellant filed a notice of appeal.

The trial court did not require Appellant to prepare a concise statement

of errors complained of on appeal under Pennsylvania Rule of Appellate

Procedure 1925(b), and the trial court did not file a Rule 1925(a) opinion.2

In her brief, Appellant presents the following issue for our review:

I. Whether trial counsel was ineffective for failing to object to the trial court’s failure to provide a working definition of the “inference” of guilt permitted under the statute for theft of services, and distinguishing the inference under the statute from the presumption of innocence and the burden the Commonwealth to prove [sic] each and every element beyond a reasonable doubt?

Brief for Appellant at 9. We find this claim is premature and should properly

be raised, if necessary, in a petition pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541–9546.

Our Supreme Court recently reaffirmed its prior holding in

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), in the case of

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). The Holmes court

held that “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

____________________________________________

2 A notation on the docket dated April 7, 2015, indicates “Opinion Not FiledJudge No Longer Sitting.”

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appeal.” Id. at 576. The Court noted two narrow exceptions for

“extraordinary circumstances” to the broader rule, “where the trial court, in

the exercise of its discretion, determines that a claim (or claims) of

ineffective assistance is both meritorious and apparent from the record so

that immediate consideration and relief is warranted,” and allowing review

for “good cause,” such as the shortness of a sentence, or “multiple, and

indeed comprehensive, ineffectiveness claims if such review is accomplished

by a waiver of PCRA rights.” Id. at 577–578. In addition, the Court

emphasized that “although criminal defendants have a right to direct appeal,

they are not obliged to pursue such a course, but may instead proceed

immediately under the PCRA. If the defendant (as appellee here) believes

that his only viable claims are collateral ones, he need not await the failure

of a direct appeal to pursue his claims under the PCRA.” Id. at 576 n.9.

Instantly, citing to Holmes, Appellant baldly posits that her “very

narrow, discrete claim of ineffectiveness presented in this case is so

compelling that it necessitates this Honorable Court’s review on direct

appeal.” Brief for Appellant at 12. Without further development of this

assertion or acknowledging that Holmes reinforced the premise that

ineffectiveness claims are presumptively reserved for collateral attack,

Appellant devotes the remainder of her argument to a discussion of trial

counsel’s alleged ineffectiveness for his failure to object to the trial court’s

jury instruction.

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The trial court did not find Appellant’s claim to be meritorious or

apparent from the record, nor does Appellant allege any “good cause” for

seeking unitary review. Moreover, Appellant has not stated her intention to

waive collateral review. Thus, as neither of the exceptions articulated in

Holmes is applicable herein, Appellant cannot raise this claim on direct

review, and we find Appellant's claim of ineffectiveness of trial counsel must

await collateral review.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/12/2016

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