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Commonwealth v. Harris

Superior Court of Pennsylvania

April 7, 2015


Submitted January 12, 2015

Appeal from the Order of May 12, 2014 of the Court of Common Pleas, Lebanon County, Criminal Division, No(s): CP-38-CR-0000707-2009. Before CHARLES, J.

Sarah K. Hart, Assistant District Attorney, Lebanon, for Commonwealth, appellant.

Erin M. Zimmerer, Manheim, for appellee.




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.

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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 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 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 Jeffrey Zombro, Jr., who initially

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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 ...

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