Opinion
516 WDA 2023 J-A29035-23
03-06-2024
COMMONWEALTH OF PENNSYLVANIA v. LYNNE THOMPSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered April 24, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at CP-02-CR-0007615-2021
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM
MURRAY, J.
Lynne Thompson (Appellant) appeals from the judgment of sentence imposed after she pled guilty to deceptive or fraudulent business practices (DFBP). After careful consideration, we vacate and remand for further proceedings.
A person is guilty of DFBP "if, in the course of business, the person. . . sells, offers or exposes for sale, or delivers less than the represented quantity of any commodity or service[.]" 18 Pa.C.S. § 4107(a)(2). Appellant contends that she did not offer any commodities or services. See Appellant's brief at 15. The trial court found that she "represented herself as a real estate company offering the service of purchasing" the home and real estate of one victim, and offered residential leasing services of that property to the other two individuals whom she was accused of defrauding. See Trial Court Opinion, 7/6/23, at 2.
Appellant pled guilty to DFBP at a hearing on April 24, 2023 (plea hearing). At the plea hearing, the parties stipulated that the factual basis for the plea was detailed in "the affidavit of probable cause…." N.T., 4/24/23, at 12. The affidavit of probable cause provided as follows:
The first complainant/victim is Charles Jordan…. This case involves a house located at 178 Mardi Gras Drive, Pittsburgh[,] PA [("the house" or "the property"). The house] … is owned by Mr. Jordan. The second complainant/victim[] is James Gamret[,] … who [previously] resid[ed] at [the house]. Both
complainants/victims filed police reports with the Plum Police Department. …
Mr. Jordan reported that he was in the process of selling [the] house…. He had advertised the sale on … [several] websites. In November of 2019, Mr. Jordan met with … [Appellant] and she informed him that she works for a company that buys houses. On [December 18, 2019,] a sales agreement was signed by Revive Pittsburgh LLC/Lynne Thompson for the purchase of the house in the amount of $145,000.00. The initial closing date for the sale was tentatively set for [January 14,] 2020. There were many delays that were requested by [Appellant,] and then a closing addendum was signed on [March 26, 20]20. Again, [Appellant] provided various excuses for the delays [of] the final closing date. The closing did not occur on any of the agreed dates.
In early April of 2020, [Appellant] asked Mr. Jordan to leave the front door open at the house so she could have an inspector examine the house. [Appellant] instructed Mr. Jordan to remain in his vehicle while the inspector was in the house. The [purported] inspector left after only a short period of time in the house. Then[,] a [few] days later[, Appellant] made another request for Mr. Jordan to open the house for an appraiser [to assess the property,] and Mr. Jordan was again instructed to wait in his car.
Later in April, 2020, Mr. Jordan had stopped by the house and a woman was standing in the doorway. The woman[,] who was identified as Tiffany Kraus, informed Mr. Jordan that she and her fiancé[,] James Gamret, were renting the house with the option to buy. Mr. Jordan recognized Ms. Kraus as the person [Appellant previously] referred to as the appraiser. Mr. Jordan discovered that Mr. Gamret and Ms. Kraus had signed a Residential Lease/Purchase Agreement with [Appellant]. Mr. Jordan contacted [Appellant] and she tried to convince Mr. Jordan that she [] owned the house. Mr. Jordan then contacted his attorney.
Mr. Gamret reported that [Appellant] approached him at his work and told him about a house she owned that was available for rent with the option to buy. … Mr. Gamret knows [Appellant,] as she is a frequent customer at his work. [Appellant] told him the
house would be available in March 2020. Mr. Gamret and his fiancé did not want to commit until they had a chance to see the house. [Appellant] told them she would set up a tour with the "maintenance guy[,]" whose name is "Chuck." … In early April [2020], Ms. Kraus met [Appellant] at the house[,] where [Ms. Kraus] was instructed to not talk to the maintenance guy "Chuck" due to Covid-19. …
Mr. Gamret and Ms. Kraus informed [Appellant] they wanted to lease the house with the option to buy. They signed a lease agreement on [April 11,] 2020 and gave [Appellant] $100.00 to hold the house. [Appellant] signed as the Lessor, Revive Pittsburgh Real Estate LLC…. [Appellant] told them that the paperwork on the lease had to be dated [April 30, 2020,] due to Covid-19. In the agreement, the rent was set at $945/month and the house purchase price was $165,000.00. [Appellant] told them she required the first month and last month rents along with a security deposit, totaling $2,835.00[,] before they could move in. Mr. Gamret and Ms. Kraus gave [Appellant] the required $2,835.00…. [Appellant] gave them the keys to the house and informed them they could move in. They moved into the house on [April 23,] 2020.
Approximately] one week later[, Appellant] complained that the house was still in her name and needed to have it changed. [Appellant] had Mr. Gamret and Ms. Kraus sign a purchase agreement on [May 9,] 2020. [Appellant] wanted a down payment on the house and they agreed on a $3,000.00 down payment in addition to the $945 May rent payment. On [May 19, 2020, Mr. Gamret and Ms. Kraus] gave [Appellant] $3,000.00 in money orders along with $945 in cash for the May rent. [Appellant] was also paid $945.00 for June 2020 rent. Mr. Gamret and Ms. Kraus had given [Appellant] a total of $7,725.00[.]
In late June[,] 2020, Mr. Gamret and Ms. Kraus had a meeting with [Mr.] Jordan and Mr. Jordan's attorney, Raymond Bitar[, Esquire]. Mr. Gamret and Ms. Kraus believed [Appellant] was the owner [of the house] and they had a signed Lease/Purchase agreement to purchase the house. It was at that time they all realized that [Appellant] had been lying to them. [Appellant] did not own the house. Ms. Kraus was not the house appraiser and Mr. Jordan was not the maintenance man. On July 2[, 2020, Mr. Gamret and Ms. Kraus] received a 30[-]day notice
from Mr. Jordan to vacate the house. They moved out on July 30th[.]Affidavit of Probable Cause, 4/21/21, at 2-3.
On November 8, 2021, the Commonwealth charged Appellant with DFBP and theft by deception. After numerous defense continuances, the plea hearing occurred on April 24, 2023. Pursuant to a negotiated agreement, Appellant pled guilty to DFBP in exchange for the Commonwealth withdrawing the theft by deception charge. After Appellant completed oral and written plea colloquies, the trial court accepted Appellant's guilty plea as intelligently, voluntarily, and knowingly entered. N.T., 4/24/23, at 16 (trial court stating, "I find you have made a knowing, voluntary and intelligent decision to plead guilty. I find that … there's a factual and legal basis to accept this plea.").
This decision is in line with countless others finding waiver when defendants failed to first challenge their guilty pleas in the trial court. See e.g., Commonwealth v. Watson, 835 A.2d 786, 791 (Pa.Super. 2003) (holding that Watson waived his appellate argument that the factual summary for his plea was insufficient because he never challenged his plea before raising the issue in his Rule 1925(b) statement); Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa.Super. 2006) (recognizing Tareila had waived his claims challenging the voluntariness of his plea because he did not file a motion seeking to withdraw his plea in the trial court); Commonwealth v. Bautista, 2023 WL 6843417, at *2 (Pa.Super. 2023) (non-precedential decision) (finding Appellant waived his challenge to the validity of his plea because he did not object during the colloquy or file a post-sentence motion to withdraw his plea); Commonwealth v. Williams, 249 A.3d 1138, 2021 WL 461952, at *1 (Pa.Super. 2021) (non-precedential decision) (finding waiver because Williams failed to preserve his challenge to his guilty plea in a timely post-sentence motion).
The matter proceeded immediately to sentencing. The trial court sentenced Appellant to three years of probation and ordered her to pay restitution of $7,725. Appellant never sought to withdraw her guilty plea.
Appellant timely filed a pro se notice of appeal, and the trial court appointed counsel. Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents a single issue:
Does the sale, offer, or exposure for sale, or delivery of "real estate" qualify as either a "commodity" or "service" for purposes of 18 Pa.C.S. § 4107?Appellant's Brief at 4.
Preliminarily, we address whether Appellant preserved her claim for our review. It is undisputed that Appellant never sought to withdraw her guilty plea before the trial court, which ordinarily results in waiver of any challenge to the validity of a plea. See, e.g., Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (holding defendant waived challenge to validity of guilty plea on appeal, where he never preserved the issue by raising it before the trial court, citing Pa.R.A.P. 302(a) (issues cannot be raised for the first time on appeal)); see also id. ("[A] party cannot rectify the failure to preserve an issue by proffering it in response to a Rule 1925(b) order." (citation omitted)). However, the parties agree that (1) waiver is inappropriate under the circumstances, where Appellant's guilty plea was facially invalid (for lacking a factual basis, as we discuss further below); and (2) this Court should vacate Appellant's judgment of sentence and remand for further proceedings. See Appellant's Brief at 18-19, 26 (arguing although Appellant never sought to withdraw the guilty plea before the trial court, her challenge cannot be waived because the plea was facially invalid and "void ab initio," where "the parties entered into a plea agreement as to an offense that did not exist on the facts of record."); Commonwealth Brief at 5, 6 (conceding, "guilty pleas must have a factual basis, and pleas without such a basis are invalid"; acknowledging, "[A]ppellant did not preserve her claim below" pursuant to Watson, supra; and stating the Commonwealth nevertheless "believes that the interests of justice and judicial economy would be best served by [Appellant's] retrial without first having to go through the PCRA process." (footnote added)).
Prior to the plea hearing, Appellant filed a pro se "emergency motion for the removal of case from criminal court to civil court" (motion for removal) on April 20, 2024. At the plea hearing, Appellant addressed the motion for removal before entering her plea, stating as follows:
I filed a motion pro se. I'm going to argue that motion because this case is about a contract case. It's … about property. And what I want to do is … to have this case removed from state [criminal] court to civil court because that's where it should be.N.T., 4/24/23, at 3 (capitalization modified). At the conclusion of the plea hearing, Appellant withdrew her motion for removal. Id. at 26.
That mandate was subsequently superseded by Pa.R.Crim.P. 646(B), which provides that "[t]he trial judge may permit the members of the jury to have for use during deliberations written copies of the portion of the judge's charge on the elements of the offenses, lesser included offenses, and any defense upon which the jury has been instructed."
Appellant raised her instant claim for the first time in her court-ordered Rule 1925(b) concise statement of errors complained of on appeal.
There are limited exceptions to this rule, providing that ineffectiveness claims may be pursued on direct appeal only "where (1) there are extraordinary circumstances in which trial counsel's ineffectiveness is apparent from the record and meritorious to the extent that immediate consideration best serves the interests of justice; or (2) there is good cause shown, and the defendant knowingly and expressly waives his entitlement to seek subsequent PCRA review of his conviction and sentence[;]" or (3) "the defendant is statutorily precluded from obtaining subsequent PCRA review[.]" Id. at 761 (cleaned up). Upon review, I do not find that any of the exceptions apply. Appellant (1) has not waived her entitlement to PCRA review, (2) is serving a three-year probationary term and not otherwise precluded from seeking PCRA review, and (3) did not demonstrate that counsel's failure to seek to withdraw her plea was so blatant and shocking that extraordinary, instant relief is warranted. Thus, she must proceed pursuant to the PCRA if she wishes to challenge counsel's effectiveness for failing to file a motion to withdraw her guilty plea. See Commonwealth v. James, 297 A.3d 755, 761 (Pa.Super. 2023)
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
We are guided by this Court's decision in Commonwealth v. Byrd, 598 A.2d 1011 (Pa. Super. 1991), where we declined to find waiver in the interest of justice. There, at the defendant's jury trial for kidnapping and other offenses, the trial court provided written instructions to the jury. Id. at 1013. At that time, Pennsylvania law prohibited juries from possessing written instructions during deliberations. Id. at 1014 (citing Commonwealth v. Oleynik, 568 A.2d 1238, 1241 (Pa. 1990) (superseded by Pa.R.Crim.P. 646) (holding, "the possible prejudice to a defendant[,] from written instructions to a jury[,] outweighs any benefit such instructions might provide.")). Although the defendant filed post-verdict motions, he did not challenge the Oleynik matter therein. Id. at 1014.
Rule 646 provides, in pertinent part, that a "trial judge may permit the members of the jury to have for use during deliberations written copies of the portion of the judge's charge on the elements of the offenses, lesser included offenses, and any defense upon which the jury has been instructed." Pa.R.Crim.P. 646(B).
The defendant in Byrd appealed to this Court claiming his convictions could not stand, where the jury possessed written instructions during deliberations in violation of Oleynik. Id. at 1012. The Commonwealth and trial court asserted the defendant had waived the claim for his failure to raise the Oleynik matter in post-verdict motions or otherwise before the trial court. Id. at 1012, 1014; see also Pa.R.A.P. 302(a). This Court disagreed, holding "the interest of justice compels the consideration of" the defendant's claim, id. at 1013, reasoning as follows:
Since we do not agree that this issue was waived, on the unique facts in this case, we are constrained to find merit in [the defendant's] contention. Moreover, were this specific issue on these precise facts to return to this [C]ourt within a framework of ineffective assistance of counsel, the fact that the claim has merit and that the defendant has been prejudiced has already been decided by our Supreme Court in Oleynik. In the interest of judicial economy, therefore, and finding the claim to have merit, we reverse [the] judgment of sentence and remand for a new trial.Id. at 1014 (citation omitted); see also Commonwealth v. Hackman, 623 A.2d 350, 351 (Pa. Super. 1993) (citing Byrd for the proposition, "we may consider a waived claim lest it return to the court in the form of an ineffective assistance of counsel claim.").
Based on the foregoing, considering "the unique facts in this case" (especially the Commonwealth's concession that waiver is inappropriate) and the "interest of judicial economy," we decline to find waiver and proceed to the merits of Appellant's claim. Byrd, 598 A.2d at 1014; see also Hackman, 623 A.2d at 351.
Appellant claims her conviction for DFBP cannot stand, where the facts to which she pled guilty "were insufficient to support the offense in question." Appellant's Brief at 15. Appellant's claim implicates the sufficiency of the evidence. A challenge to the sufficiency of the evidence "presents a question of law, for which our standard of review is de novo and our scope of review is plenary." Commonwealth v. Packer, 168 A.3d 161, 166 (Pa. 2017). In reviewing a sufficiency challenge, the standard of review we apply is
whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder.Commonwealth v. Widger, 237 A.3d 1151, 1156 (Pa. Super. 2020) (citation omitted).
Appellant claims the facts to which she stipulated are insufficient to establish all elements of DFBP. See Appellant's Brief at 15-18. Section 4107(a)(2) provides:
(a) Offense defined. - A person commits an offense if, in the course of business, the person:
(2) sells, offers or exposes for sale, or delivers less than the represented quantity of any commodity or service….Id. (emphasis added); see also Commonwealth v. Hill, 140 A.3d 713, 718 (Pa. Super. 2016) ("Proof of [DFBP] requires that a defendant (1) with a wrongful intent to deceive; (2) 'in the course of business;' (3) 'sells, offers or exposes for sale, or delivers less than the represented quantity of any commodity or service.'" (quoting 18 Pa.C.S.A. § 4107(a)(2)). Appellant argues she did not violate section 4107(a)(2), as
[s]he offered no commodities. She offered no services. The affidavit [of probable cause] makes out that [Appellant] attempted to sell real property that was not hers. That's not a crime under the at-issue statute.Appellant's Brief at 15. Appellant claims real property is not a "commodity" or "service." See id. at 15-18.
Neither section 4107 nor the Crimes Code generally define "commodity" or "service." We are mindful that the "construction of a statute raises a question of law. On questions of law, our standard of review is de novo, and our scope of review is plenary." Commonwealth v. Diego, 119 A.3d 370, 373 (Pa. Super. 2015) (citations omitted).
The Commonwealth "concedes [Appellant's] conviction likely cannot be sustained, as real estate likely is not a 'commodity' or 'service,' as contemplated by the [DFBP] statute." Commonwealth Brief at 5 (citing Commonwealth v. Yeomans, 24 A.3d 1044, 1048 (Pa. Super. 2011) ("It is clear that before accepting a plea of guilty, the trial court must satisfy itself that there is a factual basis for the plea.") (citation omitted)).
The trial court, in its Pa.R.A.P. 1925(a) opinion, determined the facts to which Appellant stipulated supported her conviction under section 4107(a)(2), where
[Appellant] was providing residential leasing services when she[,] acting on behalf of an alleged real estate company, offered to lease with the option to purchase, the property … to victims Kraus and Gamret[.] Further, [Appellant] represented herself as a real estate company offering the service of purchasing the … [property] from victim Jordan.Trial Court Opinion, 7/6/23, at 2 (emphasis added). Upon careful review, we disagree.
The stipulated facts established that Appellant attempted to sell real property that she did not own. Nothing in the affidavit of probable cause alleges that Appellant was "providing residential leasing services." Thus, the factual basis of Appellant's plea is not sufficient to establish she offered the victims "services" in violation of the DFBP statute.
Our review further discloses no factual basis for finding Appellant offered the victims a "commodity." In so holding, our review confirms Appellant's argument that "[n]o authority defines commodity as including real estate." Appellant's Brief at 15; see also id. at 15-17 (collecting various Pennsylvania statutes defining "commodity"). Black's Law Dictionary defines "commodity" as follows:
commodity. [] 1. An article of trade or commerce. • The term embraces only tangible goods, such as products or merchandise, as distinguished from services. 2. An economic good, esp. a raw material or an agricultural product.Commodity, Black's Law Dictionary (11th ed. 2019) (italics added); see also Commonwealth v. Derr, 293 A.3d 671, 680 (Pa. Super. 2023) (stating when "there is no statutory definition of" certain terms, we "turn to their plain, ordinary meaning."). As real property is distinct from "tangible goods," we agree it is not a "commodity" for purposes of section 4107(a)(2). Commodity, Black's Law Dictionary, supra.
Based on the foregoing, we agree with Appellant and the Commonwealth that the factual basis for Appellant's guilty plea was not sufficient to sustain her DFBP conviction. We thus vacate Appellant's judgment of sentence and remand for further proceedings consistent with this memorandum.
Judgment of sentence vacated. Case remanded. Jurisdiction relinquished.
Judge Kunselman concurs in the result.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
BOWES, J.
In this appeal, Appellant seeks to challenge the validity of her guilty plea to one count of deceptive or fraudulent business practices ("DFBP") due to insufficient evidence.1 Despite never seeking to withdraw her plea in the trial court, the Majority declines to find waiver and instead reaches the merits of Appellant's claim because Appellant and the Commonwealth agree that "waiver is inappropriate under the circumstances" and that "this Court should vacate Appellant's judgment of sentence and remand for further proceedings." Majority at 5-6 (original emphases omitted). Since I cannot countenance this circumvention of our judicial processes and binding precedent, I respectfully dissent.
As plainly set out by the Majority, Appellant entered a negotiated guilty plea to DFBP in exchange for the Commonwealth withdrawing the charge of theft by deception. There was no agreement as to sentence, and the trial court sentenced Appellant the same day. Appellant did not file a motion to withdraw her plea either before or after sentencing. Instead, she filed a direct appeal, whereby she contended for the first time that her plea was invalid because the facts to which she stipulated were insufficient to support the elements of DFBP. See Appellant's brief at 15.
It is well-settled that, by pleading guilty, Appellant waived all non-jurisdictional claims except the validity of her plea, the legality of her sentence, and, because she did not negotiate the terms of her sentence, the court's discretion in imposing that sentence. See Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007); Commonwealth v. Guth, 735 A.2d 709, 710 n.3 (Pa.Super. 1999). However, the ability to raise such claims does not guarantee review in this Court. Rather, in order to challenge the validity of a plea, as Appellant seeks to do, a defendant must first preserve the issue in the trial court. See Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468-69 (Pa.Super. 2017). It bears repeating that "Appellant never sought to withdraw her guilty plea." Majority at 4. Indeed, she never lodged any challenge to her plea prior to the instant appeal.
In a nearly identical scenario, this Court outlined the consequences of failing to file a motion to withdraw upon a subsequent appellate claim challenging the validity of a guilty plea:
In order to preserve an issue related to a guilty plea, an appellant must either "object at the sentence colloquy or otherwise raise the issue at the sentencing hearing or through a post-sentence motion." Commonwealth v. D'Collanfield, 805 A.2d 1244, 1246 (Pa.Super. 2002). See Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i); see also Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
In D'Collanfield, we held appellant's issue challenging his guilty plea was waived since it was not raised at the colloquy, at the sentencing hearing, or through post-sentence motions. See Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa.Super. 2013) ("A defendant wishing to challenge the voluntariness of a guilty plea on direct appeal must either object during the plea colloquy or file a motion to withdraw the plea within ten days of sentencing. Failure to employ either measure results in waiver.") (citations omitted). Moreover, "a party cannot rectify the failure to preserve an issue by proffering it in response to a Rule 1925(b) order." Commonwealth v. Kohan, 825 A.2d 702, 706 (Pa.Super. 2003) (emphasis added) (citations omitted).
The purpose of this waiver rule is to allow the trial court to correct its error at the first opportunity, and, in so doing, further judicial efficiency. "It is for the court which accepted the plea to consider and correct, in the first instance, any error which may have been committed." See Commonwealth v. Roberts, 352 A.2d 140, 141 (Pa.Super. 1975) (attacking guilty plea on direct appeal without first filing petition to withdraw plea with trial court is procedural error resulting in waiver; stating, "(t)he swift and orderly administration of criminal justice requires that lower courts be given the opportunity to rectify their errors before they are considered on appeal;"... "strict adherence to this procedure could, indeed, preclude an otherwise costly, time consuming, and unnecessary appeal to this court").
Here, Monjaras-Amaya failed to either raise this challenge during his plea colloquy or file a post-sentence motion seeking to withdraw his plea. Rather, for the first time after filing his notice of appeal, Monjaras-Amaya argues that his guilty plea was invalid. Although Monjaras-Amaya raised the claim in his Rule 1925(b) statement, the trial court, at that point, is without jurisdiction and cannot grant relief. See Pa.R.A.P. 1701 ("Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.").
The record reveals that Monjaras-Amaya never challenged his guilty plea in the trial court before raising it in his Rule 1925(b) statement. Accordingly, this issue is waived.Monjaras-Amaya, supra at 468-69 (some internal brackets, quotations, and citations omitted, other citations altered).2 Based on the foregoing, we affirmed Monjaras-Amaya's judgment of sentence. In doing so, we noted that Monjaras-Amaya's underlying argument that his counsel was ineffective for failing to explain the risk of deportation resulting from the guilty plea must be brought in a petition under the PCRA. Id. at 470 n.9.
While I find this case to be not only salient, but wholly dispositive, my colleagues do not address it at all. Instead, in deeming it prudent to grant relief, the Majority relies upon two earlier cases, Commonwealth v. Byrd, 598 A.2d 1011 (Pa.Super. 1991), and Commonwealth v. Hackman, 623 A.2d 350 (Pa.Super. 1993), to overcome Appellant's waiver. See Majority at 6-8. Respectfully, I determine both Byrd and Hackman to be inapposite.
In Byrd, the defendant was convicted after proceeding pro se at a jury trial, during which the trial court provided written instructions to the jurors. Such practice violated our High Court's mandate at the time.3 See Commonwealth v. Oleynik, 568 A.2d 1238, 1241 (Pa. 1990) (holding "that the possible prejudice to a defendant from written instructions to a jury outweighs any benefit such instructions might provide"). Although Byrd did not raise the specific issue to the court in his post-sentence motion, prompting the Commonwealth and the trial court to deem the issue waived on appeal, the public defender's office, acting as standby counsel, had advised the trial court of the relevant case law in support of Byrd's request for a new trial. Ultimately, we granted Byrd relief and remanded for a new trial:
There is no dispute that the trial court did, in fact, utilize written instructions not only in his basic charge to the jury but also in response to an inquiry from the jury concerning the meaning of the words "knowingly" and "consciously". The only response to
this by the Commonwealth and by the court, on this appeal, is that the issue is waived. Since we do not agree that this issue was waived, on the unique facts in this case, we are constrained to find merit in Byrd's contention. Moreover, were this specific issue on these precise facts to return to this court within a framework of ineffective assistance of counsel, the fact that the claim has merit and that the defendant has been prejudiced has already been decided by our Supreme Court in Oleynik. In the interest of judicial economy, therefore, and finding the claim to have merit, we . . . remand for a new trial.Byrd, supra at 1014 (cleaned up). No such unique circumstances exist here: Appellant was represented by counsel, counsel did not preserve the issue in the trial court, and basing a DFBP conviction on fraudulent real estate rental and purchase services is not in direct contravention to established law. Thus, I posit that Byrd cannot be the basis for overcoming Appellant's clear waiver.
Turning to Hackman, that case came to this Court following a parole revocation. Hackman sought to challenge the revocation court's failure to ascertain his indigency prior to imposing a payment schedule for fines and costs. Although the claim was waived for failing to raise it in a post-sentence motion, this Court observed that the revocation court agreed Hackman was entitled to an evidentiary hearing on the matter and had addressed the claim in its opinion to this Court. Citing Byrd, we noted that "[m]oreover, we may consider a waived claim lest it return to the court in the form of an ineffective assistance of counsel claim." Hackman, 623 A.2d at 351. Upon review, we agreed with the revocation court that Hackman was entitled to an evidentiary hearing, and therefore vacated the portion of his sentence that imposed a payment schedule for fines and costs. Id.
I find this case distinguishable for two reasons. First, unlike in Hackman, the trial court here did not agree that Appellant was entitled to relief. Second, and more fundamentally, the sentiment in Hackman that this Court abhors claims returning to us in the form of a challenge to the ineffective assistance of counsel is no longer true. Indeed, our jurisprudence has clarified that ineffectiveness claims are not only welcome to return to this Court but, in fact, must be delayed until a collateral attack through the Post Conviction Relief Act ("PCRA"), after the completion of any direct appeal proceedings.4 See e.g., Commonwealth v. James, 297 A.3d 755, 760 (Pa.Super. 2023) (holding that "[g]enerally, a criminal defendant may not assert claims of ineffective assistance of counsel on direct appeal" (cleaned up)). Accordingly, I do not believe we should decline to find waiver in this case based upon Hackman's outdated view of ineffectiveness claims.
Finally, I do not believe that the majority's decision to ignore our waiver doctrine can be supported by a reference to judicial economy. See Majority at 8 ("considering the unique facts in this case (especially the Commonwealth's concession that waiver is inappropriate) and the interest of judicial economy, we decline to find waiver" (cleaned up)). Such a results-oriented ruling, which permits Appellant to skip the procedures articulated by our legislature and our precedent, impermissibly treats Appellant differently than all other defendants appearing before this Court. See e.g., supra at n.2 (collecting cases where this Court has found waiver in nearly-identical situations). See also Commonwealth v. Howard, 543 A.2d 1169, 1180 (Pa.Super. 1988) (Wieand, J., dissenting) ("If the judiciary becomes so result oriented that it begins to shortcut established principles of law in order to achieve desired results, we will all be the poorer for it. In that event, the rule of law of which we are so proud will be brought into disrepute, and a government under law will be replaced by a government of men and women.").
In sum, I deem this Court's analysis in Monjara-Amaya to be directly on point and can discern no reason to deviate from our sound reasoning in ruling on the present issue. Appellant failed to preserve a challenge to the validity of her guilty plea and it is therefore not properly before us. Since Appellant waived the sole claim she raised on appeal, I would affirm her judgment of sentence and must respectfully lodge this dissent.